Can Donald Trump Save TikTok From a Ban in the US?

Chinese short-video app TikTok will be in for a last minute review of its potential ban in the United States, after the country’s Supreme Court agreed to hear its petition for a reprieve.

The court did not act on an emergency request by TikTok and its Chinese parent ByteDance, as well as by some of its users who post content on the social media platform, for an injunction to halt the looming ban.

It did, however, agree to hear arguments on the matter on January 10 – just over a week before the app’s deadline to divest from ByteDance or be banned in the US.

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“We’re pleased with today’s Supreme Court order. We believe the Court will find the TikTok ban unconstitutional so the over 170 million Americans on our platform can continue to exercise their free speech rights,” the app’s policy arm posted on X.

The appeal to the US Supreme Court is the last option TikTok has to avert a ban that would make it far less valuable to ByteDance and its investors.

If the top court does not rule in its favour on the matter, it would make TikTok’s exit from the US all but certain.

TikTok has, on multiple occasions, indicated it is not about to cut ties with ByteDance.

In its filing to the Supreme Court, the app indicated several times that if the law weren’t paused, it would mean its American users will lose access to it.

“A modest delay in enforcing the Act will create breathing room for this Court to conduct an orderly review and the new Administration to evaluate this matter — before this vital channel for Americans to communicate with their fellow citizens and the world is closed,” it said.

In the same filing it also asked for a ruling on its injunction request by January 6, saying it would need to “coordinate with their service providers to perform the complex task of shutting down the TikTok platform only in the United States” if the court does not rule in its favour.

Back in June, meanwhile, in a brief to the US Court of Appeals, TikTok also argued that the Chinese government would not allow its divestiture from ByteDance.

“Just as the United States restricts the export of US-origin technologies (eg, certain computer chips), the Chinese government regulates the transfer of technologies developed in China,” TikTok argued.

The Court of Appeals rejected TikTok’s arguments and upheld the law forcing its sale early this month.

Can Trump save TikTok?

Legal experts speaking to American news outlet CBS News and public broadcaster National Public Radio (NPR) say it is highly unlikely that the US Supreme Court’s opinion on the matter will differ from the Appeals court.

In that case, if the divest-or-ban law is upheld, TikTok’s only possible saviour could be Donald Trump.

The US president-elect, in his first term in office in 2019, actually spearheaded the effort to get the app banned. But on his campaign trail this year he vowed to put a stop to the ban on TikTok.

This week he even said he had “a warm spot” for TikTok in his heart, considering it won him the youth vote that played a crucial role in getting him re-elected.

While that does not mean that Trump can overturn a Supreme Court ruling, it has led to some speculation about the possible options before the incoming president to stop the divest-or-ban law from taking effect.

Experts that spoke to both CBS and NPR said that Trump could either refuse to enforce the law altogether or make it so that app stores like Apple and Google do not feel compelled to cut the app’s availability to US users.

“If he wants to help TikTok.. he has to convince the general counsel of Apple that when Apple CEO Tim Cook asks, well, should we continue to distribute the app, the general counsel says, yeah, I think that’s OK,” Alan Rozenshtein, an associate professor of law at the University of Minnesota Law School, told NPR.

That’s because it’s the app stores that will be liable to pay large fines if they continue to provide TikTok.

Meanwhile, Sarah Kreps, the director of the Tech Policy Institute at Cornell University, told CBS news that Trump could simply refuse to provide the resources necessary to enforce the ban.

But the biggest tool available to Trump is in the fine print of the divest-or-ban law itself — it gives a US President the power to delay the ban by 90 days if he determines that TikTok is no longer owned or controlled by ByteDance.

“There’s a scenario in which ByteDance could move some papers around, shift some assets from one corporation to another corporation, do some fancy legal work. And that would give Trump enough, basically, cover to declare that TikTok is no longer controlled by ByteDance,” Rozenshtein explained.

Vishakha Saxena

Vishakha Saxena

Vishakha Saxena is the Multimedia and Social Media Editor at Asia Financial. She has worked as a digital journalist since 2013, and is an experienced writer and multimedia producer. As a trader and investor, she is keenly interested in new economy, emerging markets and the intersections of finance and society. You can write to her at [email protected]