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TikTok filed its complaint challenging President Trump's August 6 Executive Order, which would prohibit transactions with its parent company ByteDance beginning in mid-Sep: https://assets.documentcloud.org/documents/7043165/TikTok-Trump-Complaint.pdf… 1/6
Key claims: EO violates the 5th Amendment due process requirements of notice and hearing; IEEPA invocation is unlawful because the purported national emergency with respect to TikTok is bogus and pretextual, and the national security argument lacks a factual basis; 2/6
IEEPA exception for personal communications applies; IEEPA violates the non-delegation doctrine; EO violates the 1st Amendment. I previewed many of these arguments for
@lawfareblog: https://lawfareblog.com/could-tiktok-and-wechat-executive-orders-undermine-ieepa… 3/6
@lawfareblog: https://lawfareblog.com/could-tiktok-and-wechat-executive-orders-undermine-ieepa… 3/6
As I anticipated, TikTok highlights that it is a U.S.-based company with extensive U.S. presence and full constitutional protection. It points out that the EO "marks a dramatic break from past" IEEPA application, which largely targeted foreigners without U.S. presence. 4/6
I speculated that this might invite greater judicial scrutiny of the executive's national security rationale and procedures than normal. Even if the company eventually loses, going after TikTok could backfire against the administration: it could undermine the executive's 5/6
credibility when it relies on IEEPA in many other contexts, and invite new restrictions on the application of a key national security tool that multiple administrations have widely deployed with near-absolute judicial deference. This should get interesting. 6/6