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TikTok filed its complaint challenging President Trump& #39;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…">https://assets.documentcloud.org/documents... 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…">https://lawfareblog.com/could-tik... 3/6
@lawfareblog: https://lawfareblog.com/could-tiktok-and-wechat-executive-orders-undermine-ieepa…">https://lawfareblog.com/could-tik... 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& #39;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& #39;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
