The Unprecedented Dynamics of Trump’s TikTok Brief
On Friday, Present Elect Trump filed an amicus brief supporting neither party in TikTok v. Garland. The brief was submitted by John Sauer, who will be the nominee for Solicitor General. In short, Trump wants the Court to leave the law in effect, at least till he takes office, so he can negotiate a better deal.
On January 20, 2025, President Trump will assume responsibility for the United States’ national security, foreign policy, and other vital executive functions. This case presents an unprecedented, novel, and difficult tension between free-speech rights on one side, and foreign policy and national-security concerns on the other. As the incoming Chief Executive, President Trump has a particularly powerful interest in and responsibility for those national-security and foreign-policy questions, and he is the right constitutional actor to resolve the dispute through political means.
The dynamics of this brief are unprecedented, and may actually scramble the Court’s calculus here.
To recap, the law goes into effect on January 19, unless President Biden grants an extension, or if the Supreme Court grants some sort of temporary injunction beforehand. I wrote about the timeline here.
First, why did Trump even file a brief here? Maybe he was reading this blog. Last week, Will Baude and Richard Re suggested that Trump should file an amicus brief in the case, and perhaps the Court could even call for his views:
The statute effectively banning TikTok goes into effect on January 19, the day before President-Elect Donald Trump is slated to begin his second presidential term. Recognizing that deadline, the justices have crafted an expedited briefing schedule with oral argument on January 10.
The Biden administration will of course litigate the case. But Trump has made public statements indicating that he may be more supportive of TikTok. In this situation, it might make sense for Trump to appear as an amicus. As the imminent president, he would hardly be a run-of-the mill friend of the court.
I for one am grateful that Will describes Trump as “president-elect,” notwithstanding my colleague’s views that Trump has been disqualified from the presidency since January 6, 2021.
Second, Trump is asserting his inchoate interest in setting national policy:
In light of these interests—including, most importantly, his overarching responsibility for the United States’ national security and foreign policy—President Trump opposes banning TikTok in the United States at this juncture, and seeks the ability to resolve the issues at hand through political means once he takes office. . . . The 270-day deadline imposed by the Act expires on January 19, 2025—one day before President Trump will assume Office as the 47th President of the United States. This unfortunate timing interferes with President Trump’s ability to manage the United States’ foreign policy and to pursue a resolution to both protect national security and save a social-media platform that provides a popular vehicle for 170 million Americans to exercise their core First Amendment rights. The Act imposes the timing constraint, moreover, without specifying any compelling government interest in that particular deadline.
Trump’s filing of a brief creates a conflict between the
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