As the Supreme Court gears up for an eleventh-hour challenge to the bipartisan TikTok law, lawmakers are divided on their preferred outcome.
For some Republicans, Donald Trump and his desires — for the court to pause the divestiture deadline — are the law of the land.
“I support President Trump’s idea of ‘let him step in and negotiate,’” Sen. Bernie Moreno told NOTUS.
For other Republicans, “the law is the law,” as Sen. Pete Ricketts said.
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Of course, Trump was once firmly against the app, concerned about its ties to the Chinese Communist Party through its parent company, ByteDance. In 2020, Trump even sanctioned the platform — an action that later went through the legal wringer, was ultimately unenforced and then reversed by President Joe Biden.
But Trump now calls the platform a “unique medium for freedom of expression.” Last September, he posted on Truth Social, “For all of those that want to save TikTok in America, vote for Trump.”
In March, when Congress was considering the TikTok ban legislation, he said, “There are a lot of people on TikTok that love it.” He and his allies have even bragged about how well his content performed on the app.
Nonetheless, Congress went on to pass bipartisan legislation that required ByteDance to divest from TikTok, and Biden signed it last April. The ensuing legal battle has made its way to the Supreme Court on an expedited timeline — the court is set to hear arguments on Friday and hand a decision down before the end of the month — and the divestiture deadline is Jan. 19, the day before Trump’s inauguration.
Still, the law has a carveout that would allow Trump to extend the divestment deadline for three more months, a provision giving the president authority to gauge whether ByteDance has taken enough steps to detangle itself from the Chinese government.
If Trump thinks the company has, he can give them those 90 days.
But Trump has instead made an unprecedented ask of the Supreme Court. He wants the court to pause the law and suspend the deadline until after he takes office.
“President Trump opposes banning TikTok in the United States at this juncture, and seeks the ability to resolve the issues at hand through political means once he takes office,” the filing reads.
“President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government,” the amicus brief continues.
Longtime opponents of the law — who are certainly not all allies of Trump — see this case and potentially Trump’s positioning as a last-ditch opportunity to stop the forced sale.
“I’m for the First Amendment and we shouldn’t ban TikTok,” said Democratic Rep. Ro Khanna, who submitted another joint amicus brief with Sens. Rand Paul and Ed Markey, asking the justices to strike down the law.
“At the very least, they should extend the deadline instead of outright banning it,” Khanna said.
While Republicans told NOTUS in early December that Trump would ultimately leave the law alone, that appears to no longer be the case. Perhaps influenced by Trump’s about-face, even some House Republicans who support the forced sale of TikTok are open to the possibility of extending the divestment deadline.
“If they extend the deadline, I think that’s fine,” Rep. Jim Jordan told NOTUS. “I think there’s a real debate around this, and we’ll see what the court says.”
Rep. Tim Burchett told NOTUS that extending the divestment deadline was “up to the Supreme Court.”
That’s in spite of his personal position, which is that ByteDance ought to divest.
“The concern of TikTok has always been ‘Is it controlled by our enemies? Is it filling our kids full of a bunch of garbage?’ And there’s a reason TikTok’s not allowed as its current form in China,” Burchett said. “I hope they take everything into consideration.”
Sen. Ted Cruz, a staunch Trump ally who told NOTUS last month that the TikTok ban should be enforced, told reporters Thursday that he hadn’t reviewed Trump’s request to extend the deadline, nor had he discussed it with Trump.
Still, Cruz said, “There’s a reason Congress overwhelmingly passed that legislation.”
“The objective of the law is not to shut down TikTok; it’s to force China to divest, and that’s the outcome we need,” he said.
Ricketts said he supported the original legislation and hopes the Supreme Court “upholds the legislation we passed.”
And Sen. Thom Tillis said, “The plain text of the bill is pretty straightforward.”
“And I think when the president gets briefed up, he’ll understand it’s in our long-term national interest to ultimately have that separation, the same sort of thing we expect from businesses when we’re doing outbound divestment,” Tillis said.
Other Republicans were likewise supportive of the TikTok ban.
“To me, it’s clearer that Congress has the ability to regulate conduct, although we don’t have the ability to regulate content,” Rep. Dusty Johnson, who thinks the court should uphold the law, told NOTUS.
While Johnson was open to extending the Jan. 19 deadline, he thought the three-month deadline was enough.
“If TikTok wants a little more time to be able to finalize a sale, I think that’s fine, that’s permissive under the legislation,” Johnson said. “But any deal label beyond that I think would be problematic.”
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Nuha Dolby and Samuel Larreal are NOTUS reporters and Allbritton Journalism Institute fellows.
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