The battle between the U.S. government and TikTok escalated following the recent court decision that the law Congress passed earlier this year that requires a divestiture or would ban the app is constitutional. The three-judge panel from the U.S. Court of Appeals for the District of Columbia ruled unanimously in the federal government’s favor, an outcome that could spell trouble for the app, particularly as the panel featured judges with different ideological backgrounds.
Since the decision, TikTok filed a petition with the appeals court seeking an injunction to block the law from taking effect on January 19, one day before President-elect Donald Trump’s inauguration. The company argued in its filing that an injunction is critical to allow for time to appeal to the Supreme Court and requested a decision by December 16. The app contends that this deadline is necessary to allow time to seek an injunction from the Supreme Court if the lower court does not grant it.
While TikTok has not confirmed that it will file an appeal to the Supreme Court, its statement after the lower court’s decision is seen as a sign that it intends to, and the company is widely expected to file before the January 19 deadline for a divestiture. An appeal to the high court will likely come with a request for an injunction if it is not already granted. The timing for when the Supreme Court may hear the case is uncertain, but a decision would be expected near the end of the court’s term in late June or early July. A win in the Supreme Court would allow the app to continue operating without any changes, but if the justices uphold the law again, TikTok will have to reform its business to stay in the U.S.
One of the most significant consequences of the case being accepted by the Supreme Court – and an injunction being granted – is that it will mean the fate of the app is up to the incoming Trump administration. While this would have seemed problematic when Trump was last in office, the incoming president has changed his tune and argued against banning the app during the campaign. Trump’s comments since winning the election have been minimal, and he was noncommittal in a recent NBC interview, notably avoiding the hawkish remarks that were a hallmark of his first term but still not striking as friendly of a tone as during the campaign.
If the Supreme Court takes the case, before the justices reach a decision, the app will likely be looking to negotiate with the Trump administration to find a solution that avoids a ban in case the law is upheld. What this agreement may look like is uncertain, but a starting place is likely TikTok’s Project Texas, though additional concessions may be required, especially regarding the app’s algorithms. This outcome likely stops short of a total divestiture and, under the law, is only required to meet the standard of a “qualified divestiture,” in which the president has significant sway. This discretion makes Trump’s flip-flop on TikTok so important, as it signals an openness to a potential deal that seemed unreachable under the Biden administration.
Trump’s efforts to negotiate with the app may face pushback from some Republican lawmakers who have ardently supported a ban. However, some critics are showing an openness to potentially backing a Trump-engineered solution, with Rep. John Moolenaar (R-Mich.), chair of the House Select Committee on the Chinese Communist Party and a co-author of the law, said in a statement that he was “optimistic that President Trump will facilitate an American takeover of TikTok to allow its continued use in the United States.” Still, these members of Congress may not be willing to support repealing the legislation, making that solution likely a longshot way for TikTok to avoid a ban if the Supreme Court upholds the law and the app cannot make a deal with Trump.
Another way in which Trump could try to protect the app if the law is upheld if his administration cannot find an acceptable agreement with TikTok is to pledge not to enforce the law. The danger with this approach is that the companies that would be potentially liable for not following the law, including Apple and Google, may choose to still abide by the law’s regulations. As such, this could result in the app not being supported and effectively banned, even if the Trump administration wants to protect it. This solution is also likely not to be prioritized but is one of the levers that Trump could try to pull in an emergency.
While significant, TikTok’s loss in court is far from the end of the story, nor should it be seen as a sign that the app’s ban is imminent or guaranteed. There are likely still several months before the legal process is concluded, and the incoming Trump administration presents a wildcard that could work in the app’s favor and allow for continued operations even if the law is upheld.