National Security

“Unconstitutional Vagueness”

JM Ashby
Written by JM Ashby

Various outlets first reported yesterday that TikTok parent company ByteDance would challenge Trump's executive order to shut down the company's American operations, but now we know how they plan to do that.

According to Reuters, ByteDance is challenging the constitutionality of Trump's actions and arguing that current federal law does not give him the authority to threaten the company.

But their legal challenge could have implications and consequences for more than just TikTok because Trump has invoked the same law to impose sanctions on Chinese-owned telecommunications giant Huawei.

TikTok named Commerce Secretary Wilbur Ross in their lawsuit because he's the official who is actually responsible for enforcing these actions through the Commerce Department's blacklist.

From Reuters:

TikTok and ByteDance are seeking a permanent injunction to block Trump from enforcing his Aug. 6 order. They allege the Trump administration violated their constitutional right to due process by banning the company without opportunity to respond to accusations.

They also allege Trump lacked proper legal authority to issue the order, saying he misused the International Emergency Economic Powers Act, which lets the president regulate international commerce during a national emergency.

Trump had in May 2019 invoked that law to stop alleged efforts by foreign telecommunications companies to conduct economic and industrial espionage against the United States.

If the legality of the Trump's regimes actions -- from imposing sanctions on Huawei to ordering TikTok out of the country -- ultimately rests on having to demonstrate or prove that these companies represent a "national emergency," it's hard to see Trump prevailing.

Moreover, it's hard to see this lawsuit continuing if Trump is voted out of office. I feel confident that the Biden Administration will not bend the text of administrative law to the whims of Biden himself. And actually, I don't see Biden as a person who even has whims or at least not the kind that Trump has. Biden's whims could be narrowed to what kind of ice cream cone he'd like to have today, not which foreign company he'd like to sanction just because he has a bug up his ass about a headline he saw on Fox News.

Huawei has not directly challenged Trump's actions in court, but TikTok is apparently up to the challenge. Both companies have been targeted for poorly explained and legally dubious reasons. That doesn't prove or disprove that either company is a threat, but executive authority and federal law have clearly been stretched to the limit.

Republicans would cry bloody murder if a Democratic president singled out and threatened individual companies. Trump called for a boycott of Goodyear tires last week and Republican didn't even flinch.

Patrick Ryan, a technical program manager at TikTok, sued the Trump administration over concerns that he and his 1,500 colleagues, including many on employment visas, will lose their jobs next month if Trump’s order is enforced.

“These are not decisions that belong to the government,” Ryan said in an interview. “It’s not okay to even consider.”

Alex Urbelis, a lawyer representing Ryan in the lawsuit in San Francisco federal court, said the order suffered from “unconstitutional vagueness” and deprived TikTok employees of due process.

  • Draxiar

    If Tik Tok hadn’t been part of the machine that helped goof the Tulsa rally would trump give a even a hint of a shit?

    I think the answer is obvious.

  • muselet

    I don’t blame ByteDance for filing this lawsuit. Clearly, Donald Trump unreasonably singled out TikTok and misused the Emergency Economic Powers Act in doing so.

    And yes, the lawsuit will get dropped as soon as someone other than Trump is president, but if the issues raised by this matter aren’t resolved, the next unhinged lunatic to occupy the Oval Office will invoke the Emergency Economic Powers Act to ban … who the hell knows? Shoes made in Vietnam? Australian beer? Scottish kippers?

    The country—the world—needs a definitive ruling on the limits of a president’s authority under a (ridiculously-broad) Cold-War–era law.

    –alopecia