Donald Trump wanted to ban Tiktok. He began promoting the idea of a national ban in 2020. In 2024, Congress passed that ban. It was set to take effect on January 19, 2025; one day before Donald Trump’s second inauguration. However, as the days neared the seeming end of Tiktok in the United States, Trump apparently changed his mind about the app. Two days ago, the newly inaugurated president signed an executive order to postpone enforcement of the law to give him time to find a buyer for ByteDance, Tiktok’s parent company. According to the order, Trump is granted the power to do this by the Constitution. Is he correct? Let’s break it down.

To start, we need to understand the law that Congress passed banning Tiktok in the U.S. The law is called the Protecting Americans from Foreign Adversary Controlled Applications Act. The Act States, “It shall be unlawful for an entity to distribute, maintain, or update (or enable [any of that]) a foreign adversary controlled application by carrying out within the land or maritime borders of the United States any of the following…” The act then lists “providing services” that do or enable the above and “providing internet hosting services” that enable any of the above.

The law itself does not actually shut down TikTok. The United States does not have the power over ByteDance to force it to stop providing TikTok’s services. Nor does it make it unlawful for American citizens to use the app. Americans abroad in other countries can still access the site.The law makes it illegal for phone and internet carriers to give access to users while those users are in the United States. Entities that give this access face a fine of $5,000 per user of TikTok in the U.S.

The law provides an exemption, however, for a “qualified divestiture, ” which is defined as a sale or other transaction that the president decides nullifies the danger of an adversarial country still owning the application or of the adversarial country having control over any operations of the app in the United States. It is this language that Trump is relying on as authority for his executive order halting the TikTok ban for another sixty days.

According to Trump, the issue with who owns ByteDance is one concerning national security, and national security is a power reserved for the president. Therefore, it is within his power to decide if the TikTok ban should be enforced. The Constitution is not detailed when it comes to national security, however. It does not expressly give the president authority over all matters of “national security.” The text grants him authority as Commander in Chief over the Army and Navy. It also gives him authority to make treaties if two-thirds of the Senate agrees. Other than that, it is silent regarding presidential powers to handle national security matters.

The powers the president has historically utilized for national security matters have largely been seen to be granted in order to enable the president to uphold other authority. For example, the president is in charge of the military and so must be the one to oversee matters related to the use of the military. Likewise, the president is in charge of seeing that the laws passed by Congress are “faithfully executed.” Therefore he must have some authority related to policing. 

The question that must be answered is, “If the president’s job is to enforce the laws written by Congress, how can Trump choose to not enforce this law?”

The answer is written in the law itself. The Act expressly states that the president decides if a divestiture is good enough to fall into the exemption and gives him the power to broker the sale. Putting the ambiguous “national security” authority together with the language of the Act, Trump has found what he considers to be authority to pause enforcement of the ban.

Thus, the executive order does not  outright overturn the Act. Indeed, the president does not have the power to overturn legislation that has been passed by Congress and signed into law. Only Congress or the Supreme Court can do that. Instead, the executive order tells the Justice Department, the Attorney General specifically, to not enforce the law until a later date. During this time, Trump intends to broker a sale of ByteDance to a buyer; a sale that by law he has the power to determine is good enough to keep American internet companies out of trouble for enabling access to TikTok. If he can’t entice ByteDance to sell, the law will be enforced starting in April.