TikTok’s Survival in the United States: Executive Overreach and Implications for Digital Platforms
By Sophie Mathewson/ Edited by Sofia Castilla
On January 19th, 2025, millions of TikTok users opened the app to a pop-up message stating, “A law banning TikTok has been enacted in the United States. Unfortunately, that means you can’t use TikTok for now.” This ban stemmed from an ongoing dispute between the U.S. government and the Chinese technology company that owned the app, with the U.S. government requiring them to either sell to a U.S. buyer or cease all operations in the country. Within approximately 12 hours, however, the app’s functionality reappeared. While TikTok’s revival was a relief for many of its 170 million American users, there was no legal backing to the repeated divestment deadline extensions issued by President Donald Trump. By issuing executive orders to extend TikTok’s deadline to secure a U.S. buyer despite legislation upheld by the Supreme Court, Donald Trump exceeded the constitutional limits of executive authority, raising concerns about maintaining the separation of powers and enforcement of regulation over social media platforms.
The “Protecting Americans from Foreign Adversary Controlled Applications Act” (PAFACAA) passed by Congress in 2024 did not give Trump the authority to extend TikTok’s deadline to sell, making his executive orders a direct overstep of constitutional bounds. Intended to address national security concerns, the PAFACAA made it unlawful to distribute, maintain, or update an application controlled by a foreign adversary unless the owners execute a “qualified divestiture” within 270 days. The Act explicitly referenced TikTok and its Chinese owner, ByteDance, in a response to fears that the app would be required to share data from American users to assist the Chinese government in intelligence gathering under China’s 2017 National Intelligence Law. TikTok responded with a petition that the PAFACAA violated constitutional protections; notably, they argued that the law violated their First Amendment rights by infringing on not only users’ free speech but also the platform itself, in the form of the content algorithm the app curates for users. With a unanimous vote in TikTok v. Garland, the Supreme Court ruled that the Act was constitutional as it targeted TikTok based on a foreign adversary’s control, rather than the content itself. Trump, who previously tried to ban TikTok through an executive order during his first term, issued a new executive order on the first day of his second term. Just a day after the original TikTok deadline, the new order reversed course, instructing the Attorney General not to enforce the TikTok ban for 75 days. TikTok’s deadline was extended four times before its sale in January 2026, almost a year after the ban was originally set to take place. Although the PAFACAA allowed the president to grant a maximum 90-day extension under sufficient evidence that a deal was in negotiation, no deal was in progress that constituted grounds for any of Trump's extensions. These ultimately unconstitutional executive orders reveal blatant disregard for congressional power. Following these various extensions, there was no attempt by any courts to challenge the unconstitutionality of his behavior.
While there were legitimate concerns about the free-speech implications surrounding the TikTok ban, objections to the ban should have been taken into consideration through the legislative process rather than swift executive action. Many First Amendment advocates and scholars were skeptical of PAFACAA, as TikTok is one of the most popular social media platforms, with over 170 million American users. Despite bipartisan support for the bill, many claim that legislators utilized national security concerns to mask underlying censorial motivations. Furthermore, certain critics assert that the Supreme Court accepted Congress’s assessment of the ban as necessary to protect user data without conducting a proper investigation. Regardless of these critiques, our system of checks and balances was intentionally designed to prevent executive power from overruling the other two branches of government in a single order. In fact, Trump’s orders directly violate his sworn duties outlined in Article II, Section 3, stating that the President must “take Care that Laws be faithfully executed.” Future campaign promises of similarly illegal executive orders may influence future elections and contribute to more lenient regulation on social media, as these platforms are extremely popular among users, who prefer less regulation.
Although Trump’s extensions are not the first instance in which a president has attempted to sidestep congressional mandates and judicial decisions, historical examples illustrate that it is unusual for executive defiance to persist without immediate legal resolution. In his initial extension, Trump argued that the deadline interfered with his ability to “assess the national security and foreign policy implications of the Act’s prohibitions before they take effect.” However, when asked if it was typical for a president to ignore a deadline enacted by Congress and extend the deadline until a condition is met, Harvard Law Lecturer Timothy Edgar replied, “[t]here was nothing typical about the way that the law was implemented.” President Harry Truman similarly used the guise of national security to justify his executive orders in 1952. Despite Congress’s refusal to authorize governmental seizures of property as a method of preventing work stoppages and labor disputes, he issued an Executive Order directing the Secretary of Commerce to seize and operate U.S. steel mills to avert an expected nationwide strike during the Korean War. Unlike Trump’s executive order, a district court responded to Truman’s order by issuing a preliminary injunction, and within two months, the case was heard before the Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer. The Court ruled that the authority of President Truman to issue such an order could not be implied from his enumerated powers under Article II of the Constitution and that the President sought lawmaking power, which rests in Congress alone. In the majority opinion, Justice Robert Jackson explained that when a president acts “incompatible with the expressed or implied will of Congress,” executive authority is “at its lowest ebb.” Without statutory or constitutional authority, Trump’s repeated extensions clearly display an abuse of presidential power and a violation of prior precedent.
Unlike similar cases of executive action, the lack of legal challenges to Trump’s extensions of the TikTok divestment deadline creates worrying implications for the future of social media regulation. Trump’s ability to disregard congressional legislation sets a dangerous precedent that de facto power over legislation could be based on presidential discretion rather than Congress. This is extremely concerning given the gravity of new digital platform legislation, as social media platforms have become both increasingly popular and under scrutiny for concerns like data collection, privacy, bias, and misinformation. This show of unchallenged executive power creates apprehension regarding laws passed by Congress and upheld by the Supreme Court, even though these laws are meant to be followed rather than considered a suggestion to the President. In the case of TikTok, tech companies acknowledged uncertainty about reinstating TikTok in app stores after Trump’s executive order until they received written assurance from the Justice Department. Even before entering office, Trump promised on Truth Social to issue this executive order, empowering some companies, such as Oracle, an American technology company, to continue providing services to access TikTok despite the ban. Based on Trump’s informal promises, Oracle decided to support the app without the extension legally in place, believing that they would not face any consequences once Trump was inaugurated. Oracle’s decision was an act that could have cost them billions of dollars had the ban been properly enforced, and the lack of punishment may prompt discussion among tech companies regarding who has the final say on legislation.
The TikTok controversy ultimately illustrates a deeper tension between legislation and its practical enforcement. If U.S. presidents can effectively suspend statutory mandates regulating major communications platforms without legal consequence, the true power to shape legislation may shift from Congress to the executive branch, undermining the system of checks and balances upon which our constitution rests. Regardless of whether the issue concerns national security or freedom of speech, decisions about regulating these platforms should be determined through the constitutional process, rather than through unilateral executive action, lest we begin to compromise the fundamental structure of the U.S. legal system.
