[slg]

>Disregarding a law that was passed by a bipartisan majority, signed into law by the president and ruled on by the supreme courts feels like the start of a very dangerous path

I don't understand why this is not the primary takeaway. Regardless of the specifics of this issue, it is objectively a huge power grab for a president to vow to not enforce a law that had bipartisan approval of both the legislative and judiciary branches.

[nordsieck]

> Regardless of the specifics of this issue, it is objectively a huge power grab for a president to vow to not enforce a law that had bipartisan approval of both the legislative and judiciary branches.

Isn't that the road we've been walking down for a while now with the proliferation of executive orders?

I'm not a fan of this outcome either, but it doesn't strike me as a revolutionary departure from current norms.

[tw04]

Executive orders have historically been a way to get things done when the law is ambiguous. It has not, as far as I know, been used to try to directly contradict existing law that has been upheld by the judiciary branch. I don't even know how that would be legal - if it were then it upends literally the entire basis of our government.

We're essentially saying the president is a dictator - which I know is what the current president wants, but I sure hope the rest of the country doesn't.

[kelnos]

> Executive orders have historically been a way to get things done when the law is ambiguous. It has not, as far as I know, been used to try to directly contradict existing law that

Isn't this the case with the federal government not enforcing its own marijuana sale, possession, and use laws for at least a decade now (in states that have legalized or decriminalized it), across several presidents from both parties? I don't think it's ambiguous what's supposed to happen legally when it comes to Schedule I controlled substances.

[tw04]

The federal government deciding to bring charges or not are a completely different matter from an executive order. If you can point to an executive order that "legalizes" marijuana when there are laws explicitly making it illegal, cite away. It would be news to me.

[bearcobra]

I think this is different. I generally feel like executive orders are 1) used to take some kind of affirmative step that the dysfunction in congress is blocking 2) have some level of defensible legal theory. This feels like the opposite. My understanding of the 90 day extension is that it's supposed to be there to allow a deal to close, but there is no evidence I've seen of a deal being worked on so the legal theory seems to be really flimsy. Disregarding a law, while not unprecedented, is not a great sign given some of the incoming administration statements on a ton of other topics.

[slg]

>My understanding of the 90 day extension is that it's supposed to be there to allow a deal to close

It is also important to recognize that Trump isn't just talking about invoking the 90 day extension. He is promising companies they won't be held responsible for the fines they should be accruing for violating the law before he even takes office.

[rayiner]

Biden is still the president and he’s not enforcing the law. It’s not clear to me that the president can’t grant an extension later once all the statutory requirements are met. What’s the difference between one day and say 10 days?

Putting that aside, the legal theory here—where an exception is there for this purpose and we’re quibbling about its application—is nowhere close to “flimsy” when it comes to constraints on executive prosecutorial discretion.

[bearcobra]

Biden's ability to enforce the law seems to be pretty constrained given the amount of time left in his term. Like asking Garland to start a prosecution isn't exactly practical. I think it's also worth noting that TikTok was complying with the ban until they were given a signal by the incoming administration that they weren't planning on enforcing it.

The text of the law isn't totally unambiguous, but I still think it's quite clear that the conditions where a 90 day extension could be granted aren't being met, so we'll have to agree to disagree on how flimsy it is.

[AlchemistCamp]

The number of executive orders has decreased every president since Bill Clinton.

https://www.statista.com/statistics/1125024/us-presidents-ex...

[yellowapple]

If you look at the "per year" it increased again under Trump.

[TheNightman]

Why would you look at it “per year” when speaking in terms of “per president” other than to say “except trump”

[yellowapple]

Because not all presidents have served for two full terms. Examining things while ignoring the time period over which they happened does not a meaningful analysis make.

[kelnos]

In that case, neither metric is appropriate, and we should be looking for the trend per presidential term.

[LastTrain]

Why would you not?

[sanderjd]

It depends on what happens after the litigation over it. It will be a revolutionary departure if the law continues to not be enforced, after the courts demand it be, if they do.

[BobbyJo]

Couldn't agree more. Each incoming administration since Bush has only expanded executive power, despite decrying its usage in the admin they replaced. This is a very predictable outcome even when looking ahead from 20 years ago, and its easy to see where things will stand in another 20 years.

[mrkeen]

The current norm that comes to mind is Biden trying to cancel student debt, to which the SC said no.

It's nothing new in that it's something that should have been decided by Congress, not the executive. But I think it's new for the executive to ignore the SC like that. Any counter examples?

[jmyeet]

This should be a lesson: most prosecution and enforcement is discretionary.

This isn't a power grab. That already happened when the Supreme Court invented out of thin air the idea of presidential immunity. There was no basis for that.

Supreme Court justices are political operatives and the conservative supermajority has gone on a spree of overturning precedent and inventing law on a scale not seen since Marbury v Madison.

“Historical tradition” as a legal doctrine is completely invented. “Major Questions Doctrine” is a massive power grab over the other two branches. Presidential immunity is simply the “unitary executive” doctrine, also completely invented.

We already have a dictator.

[incognition]

Let me introduce you to Andrew Jackson

[kelipso]

The executive branch has the power to decide whether or not to enforce a law. For example, see weed laws not being enforced.

[ternnoburn]

The law has a provision permitting the President to grant 90 day exceptions. Trump has indicated he'll sign one tomorrow. This isn't going around the law, it's just the law as written. We can debate whether the law was good or bad, but this is an outcome the law directly supports.

[JumpCrisscross]

> law has a provision permitting the President to grant 90 day exceptions

“A 1-time extension of not more than 90 days,” § 2(A)(3) [1].

[1] https://www.govinfo.gov/content/pkg/COMPS-17758/pdf/COMPS-17...

[foobarbecue]

Except it doesn't sound like he's satisfied any of the criteria, unless he's promising to buy it himself:

(A) a path to executing a qualified divestiture has been identified with respect to such application; (B) evidence of significant progress toward executing such qualified divestiture has been produced with respect to such application; and (C) there are in place the relevant binding legal agree- ments to enable execution of such qualified divestiture during the period of such extension

[redcobra762]

Those are criteria the President has to certify are the case, not criteria that have to be the case.

Zero clue how that would play out in the courts, but it wouldn't resolve in anything resembling a timely manner.

[PaulDavisThe1st]

His administration will lie, because TikTok has made it clear they will not divest in order to stay in the USA.

But so what? His administration, and he himself, lied about a bunch of stuff during his previous term, and what happened? Nothing. Never tried, never convicted (he was impeached, but so what?)

We do not have a mechanism for dealing with a president or administration that is willing to just lie. Even if the SCOTUS were to determine that the administration did in fact lie about certifying those things, so what? Nothing will happen.

[JumpCrisscross]

> We do not have a mechanism for dealing with a president or administration that is willing to just lie

Of course we do. We’ll just fine Apple, Google and Oracle tens of billions of dollars if they don’t cut ties with Bytedance. The law can be patient.

I advocated for this bill. My personal guess is the tech companies bend at the knee and then pay for a new train system in New York or whatever.

[JumpCrisscross]

(A) is intentionally vague and deferential. The possibility of a Trump Presidency was in everyone’s mind in drafting; he’s not a guy you tell what to do, he’s a guy you give discretion to with an opportunity to blame unsatisfactorily deferential third parties.

[ternnoburn]

Yep! Thanks for finding the source. I was on my phone, couldn't get the actual text.

[blackeyeblitzar]

It says the conditions of the extension must be certified to Congress. That means the deal is identified, has been significantly executed, and legally binding. I doubt Trump has any of that, which is probably why he’s resorting to an executive order.

More worryingly he stated in his Truth social post that he’s seeking 50% ownership. That doesn’t meet the definition of divestiture in this bill, since China would still effectively steer operations, including content recommendations.

[PaulDavisThe1st]

He's not resorting to an executive order to ignore the law. He's using the loophole in the law that allows him to grant a 1-time 90 day lift of the ban, given that he certifies that certain conditions have been met.

The conditions have not been met, but he will lie and state that to his satisfaction, they have. Nothing will happen to challenge that except some noise from a couple of Democratic senators.

What happens 90 days later is anyone's guess.

[JumpCrisscross]

> using the loophole in the law that allows him to grant a 1-time 90 day lift of the ban

It's not a loophole, it's a clear power granted--with strict limits--within the scope of a short bill.

[PaulDavisThe1st]

Sure, the loophole is a part of the law, as I (and others) stated. Congress passed the law, which included a simple and easy way for a president to suspend it once of 90 day, with weak and unenforceable requirements to invoke it. Given that this is an unusual clause to have in a law, I feel comfortable calling it a loophole.

[blackeyeblitzar]

Then why does it need an executive order? And doesn’t “certify” mean more than just “claim”?

[rayiner]

That requires a legal agreement to divest to be in place, which I suspect isn’t the case yet.

That being said, the law is enforceable today and Biden said he won’t enforce it.

[PaulDavisThe1st]

> That requires a legal agreement to divest to be in place, which I suspect isn’t the case yet.

Nope, it merely requires that the president certifies that it is in place, and that's something entirely different given who the president will be.

[kelnos]

The president can grant one 90-day exception, if certain conditions are met. Those conditions have not been met.

[BeFlatXIII]

It's a potentially successful power grab because the law isn't widely supported by the populace. Trivial to say "those eggheads can pass what they like, I will protect you from them"

[sethammons]

My read says the law itself is a presidential power, doesn't have to be pushed unless the President wants it

[llamaimperative]

There is no way the President can commit that these services will not accrue massive fines throughout his non-enforcement period.

And actually your read is wrong: the President does have an obligation to enforce laws, it's just in practice there are all sorts of ways one can effectively bury this obligation under claims of different prioritization. They are not really allowed to come out and just say: "I am choosing not to enforce this law because I disagree with it."

[reubenmorais]

> the President does have an obligation to enforce laws

This is only true as far as other people are ready to keep the president in check. I only have the surface knowledge of US politics, but from the outside, it seems like the American institutions that were supposed to balance the executive power are all being quite successfully sabotaged.

[llamaimperative]

That's a different argument than the one GP made.

One of the things that makes it more difficult to enforce those obligations is people's mistaken belief that those obligations do not exist.

So when people say those obligations don't exist, they should be told they are wrong.

[reubenmorais]

Fair enough.

[sanderjd]

Not yet, but maybe in the near future. We'll see! The ultimate check is too many people getting too pissed.

[Dalewyn]

Disclaimer: IANAL.

The Executive Branch (President, White House) has a responsibility to execute the law as legislated by the Legislative Branch (Congress) and judged by the Judicial Branch (Supreme Court) if applicable.

Trump is citing House Resolution 8038[1], Division D, Section 2, subsection A, paragraph 3[2] which states (emphasis mine):

>(3) EXTENSION.—With respect to a foreign adversary controlled application, the President may grant a 1-time extension of not more than 90 days with respect to the date on which this subsection would otherwise apply to such application pursuant to paragraph (2), if the President certifies to Congress that—

>(A) a path to executing a qualified divestiture has been identified with respect to such application;

>(B) evidence of significant progress toward executing such qualified divestiture has been produced with respect to such application; and

>(C) there are in place the relevant binding legal agreements to enable execution of such qualified divestiture during the period of such extension.

In plain English, this means Trump once he is President will have authority to order a one-time up-to 90-day extension to enforcing the ban if TikTok can present evidence that they are in the process of selling to an American entity.

If TikTok cannot present the evidence or they still do not complete a sale within the 90-day extension, the ban will apply and must be enforced by the President.

As the law in question was passed by Congress and signed into law by the President (Biden), the President (Biden and Trump) cannot overrule or otherwise refuse the law with an Executive Order. The President must enforce and act within the powers vested in him by the law.

It is questionable if Trump's claim of not penalizing violators of the law prior to an approved 90-day extension is legal; the law allows no such powers to the President.

Disclaimer: IANAL.

[1]: https://www.congress.gov/bill/118th-congress/house-bill/8038...

[2]: https://www.congress.gov/bill/118th-congress/house-bill/8038...

[_yb2s]

> It is questionable if Trump's claim of not penalizing violators of the law prior to an approved 90-day extension is legal; the law allows no such powers to the President.

The president has the power to pardon, which could be interpreted in that way.

I'm no legal scholar, but I think offering the pardon up front with the intention of circumventing the law would itself have been a crime up until the recent July supreme court ruling that now appears to make it perfectly legal: absolute immunity for all official acts including pardons.

[Dalewyn]

Yes, the legal question was decided last year by the Supreme Court (and it will work in all Presidents' favors going forward, Trump included). The question of duty however lies with Congress. The Executive Branch is tasked with executing the laws passed by Congress, and Congress always has the option of impeaching a President who refuses his duty to execute and enforce the law.

[IAmGraydon]

>In plain English, this means Trump once he is President will have authority to order a one-time up-to 90-day extension to enforcing the ban if TikTok can present evidence that they are in the process of selling to an American entity.

There is zero chance he can satisfy A, B, and C tomorrow. Zero.

[Dalewyn]

I agree, the realistic chance of TikTok providing evidence of an active and ongoing sale process when they hadn't entertained even the mere thought of a sale is astronomically low.

Then again, reality can be weird sometimes. Never say never until the fat lady sings.

[AngryData]

Why are they not able to not enforce the law? The right for law enforcing entities and persons to not enforce the law due to personal discretion has been upheld many times in the past. Cops don't have to do it, prosecutors don't have to do it, not even judges have to do it although they almost always do because otherwise it creates friction between prosecution and the judge and the judge is likely to get booted for it eventually because successful prosecutions is how law enforcement and courts earn most of their money and unsuccessful arrests and prosecutions is how they lose money. I don't see how or why the executive branch is under any obligations to enforce any laws, feds don't often enforce marijuana laws in legal states despite being federally illegal still is an easy example.

The only real check against the president/executive branch is the legislative branch having the power to impeach the president and get them replaced, or by legislatively dismantling or changing the internal rules of a department. They lose their jobs, but aren't liable for anything or breaking any laws I know of. Just the same as states can boot out judges or prosecutors if they don't like how they operate, and police departments can fire officers if they don't like how they operate. At no point did cops or prosecutors or judges break the law by not enforcing the law, they merely piss off the state that is funding them and now losing additional money due to lack of enforcement and prosecution, and I don't know how the president or executive branch is any different.

[llamaimperative]

Go look it up instead of having me explain it to you. You're just verbosely asserting your opinion, and at least in the US, your opinion does not map to how the law actually works.

US Constitution Section 2 Article 3: "[The President]... shall take Care that the Laws be faithfully executed..."

[sethammons]

So when past presidents have said they wont prosecute marijuana laws, what was that?

Your argument reminds me of the clip where the guy who had his license revoked for DUI is surprised when the car starts anyway. Just because a law says a thing, a person still has to action something. If the boss says don't do it, you don't do it. Don't rightly matter if the law says you should.

[llamaimperative]

> So when past presidents have said they wont prosecute marijuana laws, what was that?

Can you cite an example? If you're talking about the Biden admin, here is what the AG said:

"I do not think it the best use of the Department’s limited resources to pursue prosecutions of those who are complying with the laws in states that have legalized and are effectively regulating marijuana..."

I.e. exactly what I said is defensible in certain scenarios – and indeed must be defended, potentially in court. It is not POTUS simply saying "I won't do it."

[bdangubic]

you missed few US government and US history classes growing up, eh? :)

[sanderjd]

You're the one who has this wrong, and now you're being rude about it.

The enforcement of the law is not at the president's discretion. That would make Congress powerless. Congress is not powerless.

[sanderjd]

So under this logic, the president can decide not to enforce the laws that require they and their family, friends, associates, and allies to pay taxes?

Don't think so!

[bokoharambe]

Still not quite right, not in a modern state. Law has always been sovereign power, and in the modern period the entire state is the sovereign (think Leviathan.) It is strange that Americans seem to think these are personal powers.

[hot_gril]

Well, the law as agreed upon by Congress designates it as a personal power.

[JumpCrisscross]

> the law as agreed upon by Congress designates it as a personal power

No, it does not.

The extension is discretionary, the liability is not. (And the liability specifically accrues to the operators of the app stores and hosting companies.)

[bokoharambe]

This is kind of the point, the text of the law is totally ephemeral because the power to violate it is entrusted in the state itself.

[sanderjd]

That's not what the law says. What gave you that impression?

[gsibble]

The law gives the President discretion to decide what apps to ban essentially. It didn't specifically target TikTok.

So Biden decided to ban it and Trump decided to unban it. It's all perfectly within the law.

[JumpCrisscross]

> law gives the President discretion to decide what apps to ban essentially. It didn't specifically target TikTok

Wrong.

§ 2(G)(3)(A)(i) and (ii) name Bytedance and TikTok [1].

[1] https://www.govinfo.gov/content/pkg/COMPS-17758/pdf/COMPS-17...

[bmelton]

In context, you're both wrong. You're correct that § 2(G)(3)(A)(i) and (ii) explicitly name Bytedance and TikTok [1], so it is not up to presidential discretion to add more apps, but § 2(G)(3)(B)(ii) indicates that it is within the president's discretion to not enforce.

There are some paperwork qualifiers that for certain have not been met (the not-yet president almost certainly could not have briefed Congress as president 30 days prior) -- but they seem trivial to satisfy, and it would be pointless to initiate enforcement actions for an event nobody intends to follow through on

[JumpCrisscross]

> but § 2(G)(3)(B)(ii) indicates that it is within the president's discretion to not enforce

Wrong.

That § lets the President designate other entities. That’s why we wrote “any of” at the top—Bytedance, TikTok or any of the things the President may designate.

[speff]

§ 2(G)(3) A/B seem more like OR conditions to me, not AND. I don't think Bytedance can get out of it by the president saying they're not a threat.

[1]: https://www.congress.gov/bill/118th-congress/house-bill/7521... Ctrl+F "(3) FOREIGN ADVERSARY CONTROLLED APPLICATION"

[hot_gril]

Maybe I'm in over my head, but that's how I interpreted it too. It's annoying how every news source and even Wikipedia doesn't make it clear what this law does.

[Spivak]

Yep, that being said I'm not mad at ignoring this part.

Of all the shittyness of this bill, least of which giving the president pretty much unchecked power to ban foreign social media, the fact that it named a specific entity is to me just bad form. Law shouldn't ever include "fuck you in particular" even if the effect of the law when applied will be that.

[afiori]

I am actually surprised that it was not deemed unconstitutional on this basis alone

[sanderjd]

What is the constitutional provision that covers this?

[remarkEon]

>I don't understand why this is not the primary takeaway.

Because this takeaway is wrong.

[cluckindan]

Yeah, Trump himself signed the executive order to ban TikTok.

[bboygravity]

Trump is not in power now.

[rvense]

Power is when people do what you say.

[cluckindan]

He did it in 2020?