Donald Trump's Suspension of the TikTok Mandatory Divesture is a Dramatic Breach of His Presidential Oath

The executive order Trump issued to suspend enforcement of the law, requiring ByteDance to divest is a flagrant violation of law.

Yesterday was a day of dramatic displays of faithlessness and disregard for the US Constitution. It started with Biden’s outrageously inappropriate pardons on the eve of Trump’s inauguration. And it proceeded with Trump’s outrageous unconstitutional executive orders and pardons of the January 6th rioters and planners. But I want to talk about the “TikTok Ban”, as it’s called. Or more specifically—this is a mouth-full—the Protecting Americans from Foreign Adversary Controlled Applications Act. It was signed into law by former President Joe Biden on April 24, 2024. It is codified in the United States Code as 15 U.S.C. § 9901.

The law required ByteDance to have done one of two things by January 19th, 2025 (Section 2(a)(2))—the last full day of the presidency of Joe Biden. Either, it shall have performed a “qualified divesture” in the language of law—meaning it should have been sold to a entity who is not a designated foreign adversary, or it shall have ceased operations in the United States. ByteDance found itself having to submit to the latter on the evening of January 18th, 2025, after the Supreme Court refused to strike down the law or grant injunctive relief to ByteDance on their First Amendment-based claims.

When Congress wrote this law, they actually created two very different paths for dealing with apps that might threaten national security. The first path—let's call it the ByteDance Rule—is strict and specific. Congress directly named ByteDance, TikTok, and any companies they control in the law itself. For these companies, Congress set firm deadlines and gave the President very little wiggle room. It's like Congress saying “We've already done the investigation, we've made our decision, and this needs to happen by this date.”

The second path—which we could call the Future Threats Rule—is more flexible. This path exists because Congress recognized that new security threats might emerge in the future. Under this rule, if the President identifies a different company that poses similar risks, they can designate it as a “foreign adversary controlled application.” But because these are future cases that need investigation and due process, Congress built in more flexibility. The President can grant a 90-day extension if the company is making real progress toward selling to a trusted buyer. They also have to follow specific steps like public notice and reporting to Congress before taking action.

This is where some of the confusion comes from. People point to these presidential powers in the law—the ability to grant extensions, make determinations, and exercise discretion. But these powers only apply to that second path, for future cases. They don't apply to ByteDance and TikTok. Congress deliberately put ByteDance in a separate category with stricter rules and fewer exceptions.

Think of it like this: When Congress restricts certain imports from a specific country, they might give the President power to add other countries to the restricted list if they meet certain criteria. But that doesn't mean the President can ignore the restrictions on the country Congress already named in the law. The same principle applies here—the President's power to make future determinations doesn't include the power to override the specific determination Congress already made about ByteDance.

The fundamental problem with Trump's suspension order becomes even clearer when we examine his stated rationale. He's not claiming, as administrations often do, that limited government resources require prioritizing some enforcement actions over others. Instead, he's openly pursuing a completely different policy outcome than what Congress legislated—specifically, a deal where the United States would acquire a substantial ownership stake in ByteDance.

This is categorically different from recognized examples of legitimate prosecutorial discretion. Consider how courts have viewed the Border Patrol's “catch-and-release” practices. In those cases, the executive branch must make difficult choices about allocating limited detention facilities and personnel. The discretion exists because Congress hasn't provided sufficient resources to fully execute every possible enforcement action. But with the ByteDance divestiture requirement, there's no resource constraint at issue. The law simply requires ByteDance to either sell to a non-foreign adversary or cease U.S. operations.

Trump's actions represent something far more constitutionally problematic: a unilateral attempt to rewrite the substance of the law itself. Article II, Section 3 of the Constitution requires that the President “shall take Care that the Laws be faithfully executed.” The Take Care clause is fundamental to our constitutional structure—it means the President must implement laws as Congress wrote them, not as he wishes they were written. When Trump suspends enforcement not because of practical constraints but to pursue an entirely different policy outcome—joint U.S.-Chinese ownership rather than complete divestiture—he's not exercising discretion in enforcement. He's attempting to substitute his own law for the one Congress passed.

This makes the ByteDance suspension order particularly serious as a constitutional matter. While presidents certainly have latitude in how they enforce laws, they cannot simply ignore clear statutory mandates because they prefer different policies. The fact that Trump openly acknowledges he's suspending enforcement to pursue an alternative arrangement that Congress explicitly rejected makes this a textbook case of failing to “take Care that the Laws be faithfully executed.” Such a direct and acknowledged refusal to enforce the law as written could indeed form the basis for impeachment proceedings.

Throughout American history, presidents have sometimes pushed the boundaries of their enforcement discretion, but almost always in ways that could be justified by practical constraints or emergency circumstances. For instance, when President Lincoln suspended habeas corpus during the Civil War, he at least grounded his action in the immediate existential threat to the nation. When President Obama implemented DACA, he justified it as a necessary prioritization of limited immigration enforcement resources.

But Trump's TikTok suspension represents something fundamentally different and more radical. Here we have a president openly declaring that he will not enforce a law specifically because he wants to negotiate a different deal than what Congress authorized. This isn't about resource constraints or emergency circumstances—it's a straightforward rejection of Congress's policy choice in favor of his own preferred outcome.

To understand how extraordinary this is, consider that even during the heights of presidential power assertions, presidents have typically tried to argue they were faithfully executing the law, just interpreting it differently than Congress intended. When President Nixon refused to spend appropriated funds—a practice called impoundment—he at least claimed he was acting within his constitutional authority to manage the executive branch. Congress responded by passing the Impoundment Control Act of 1974, specifically limiting such presidential power. But even Nixon didn't openly declare he was suspending the law to negotiate an alternative arrangement Congress had explicitly rejected.

The closest historical parallel might be Andrew Jackson's response to Supreme Court decisions about Native American rights, when he allegedly said “John Marshall has made his decision; now let him enforce it.” But even that was about the practical limits of federal power in a young republic. Trump's action represents something new: a president openly subordinating a clear statutory command to his personal policy preferences.

This makes the ByteDance suspension order not just legally questionable but historically extraordinary. It represents a novel and dangerous theory of executive power—that the president can simply suspend laws he disagrees with to pursue alternative arrangements. If accepted, this would fundamentally alter the constitutional balance between Congress and the president, effectively giving the executive branch a second veto power after a law has been enacted.

Trump's suspension of the ByteDance divestiture requirement takes on even more alarming dimensions when viewed alongside J.D. Vance's explicit endorsement of Jacksonian executive defiance. In a revealing 2022 interview with Vanity Fair, Vance didn't just casually reference Jackson's famous challenge to Chief Justice Marshall—he specifically advocated for Trump to repeat this act of constitutional defiance, suggesting Trump should respond to judicial checks by declaring “the chief justice has made his ruling. Now let him enforce it.”

What makes Trump's ByteDance action particularly troubling is how closely it follows this blueprint. Just as Vance advocated for openly defying court orders, Trump is now openly defying clear congressional mandates. This isn't a case of disputed authority or resource constraints—it's exactly the kind of deliberate constitutional crisis that Vance and others in what's been called the “New Right” have theorized as necessary for transforming the American system. Vance explicitly framed such actions as part of a broader strategy requiring conservatives to “get pretty wild, and pretty far out there, and go in directions that a lot of conservatives right now are uncomfortable with.”

The ByteDance suspension thus represents more than just a policy disagreement—it's the practical implementation of a radical theory of executive power that some conservative intellectuals have been developing. When Vance spoke about America being in a “late republican period” awaiting its Caesar, he was articulating a view that sees constitutional crisis not as a danger to be avoided, but as an opportunity to be seized. Trump's current action, openly defying Congress to pursue his own preferred arrangement with ByteDance, puts this theory into practice.

This context helps explain why the ByteDance suspension is historically unprecedented. Previous presidents who pushed constitutional boundaries at least tried to justify their actions within the existing constitutional framework. Trump's action, following the intellectual groundwork laid by figures like Vance, dispensed with such pretense entirely. It represents what Vance's circle has termed “extra-constitutional” action—a euphemism for deliberately provoking constitutional crisis as a means of transforming the American system.

Trump's ByteDance suspension represents a particularly dangerous convergence of two anti-democratic trends that constitutional scholars have been warning about. The first, articulated explicitly by J.D. Vance in his endorsement of Jacksonian defiance, is the idea that presidents should simply ignore legal constraints when they interfere with their preferred policies. When Vance suggested Trump should respond to judicial checks by declaring “the chief justice has made his ruling. Now let him enforce it,” he was advocating for exactly the kind of extra-constitutional executive action we're now seeing with the ByteDance suspension.

But there's an even more troubling dimension here. Trump isn't just defying Congress's clear command—he's doing so specifically to pursue a deal that would give both private and state actors (himself and the Chinese government) direct control over a major technology platform. This mirrors the concerns raised about Elon Musk's unprecedented concentration of power across multiple crucial sectors. In both cases, we see the deliberate erosion of the boundaries between public authority and private power that the Founders considered essential to preventing tyranny.

This isn't just about presidential overreach—it's about the fundamental corruption of constitutional governance. When Trump suspends the ByteDance divestiture requirement to negotiate his own preferred ownership arrangement, he's not simply ignoring a law—he's actively working to create exactly the kind of dangerous merger of public and private power that federal ethics laws were designed to prevent. Just as Musk's simultaneous control over government contracts, public discourse platforms, and emerging technologies represents a new form of unaccountable power, Trump's ByteDance action suggests a vision of executive authority that serves private interests rather than public law.

The historical parallels are striking but the modern danger is greater. While Andrew Jackson's defiance of the Supreme Court at least occurred in a context of uncertain federal authority, and the Gilded Age robber barons primarily controlled discrete economic sectors, what we're seeing now is an attempt to fundamentally transform the relationship between public and private power. Trump's ByteDance suspension, viewed alongside Vance's explicit endorsement of extra-constitutional action and the broader concerns about private power concentration, suggests we're entering uncharted constitutional territory—where presidential authority is wielded not just in defiance of law, but specifically to enable dangerous concentrations of private and state power outside democratic control.

The presidential inauguration isn't just another White House event—it's a constitutionally mandated ceremony marking the peaceful transfer of power and the new president's oath to “preserve, protect and defend the Constitution of the United States.” By inviting the CEO of ByteDance as an honored guest to this specific ceremony, Trump is sending an unmistakable message about his relationship to his constitutional obligations from the very moment he takes that oath.

Think about the timing: By January 20th, 2025, ByteDance will be legally required to have either completed its divestiture or ceased U.S. operations. The law that Congress passed doesn't give the president discretion about this—especially for ByteDance, which falls under the law's Track 1 designation of specifically named entities. So Trump is essentially inviting, as an honored guest to his inauguration, the CEO of a company that will be operating illegally in the United States at the time of the ceremony.

This creates an extraordinary constitutional moment: Trump will be taking an oath to faithfully execute the laws of the United States while simultaneously demonstrating, through his guest list, his intent to defy those very laws. The inauguration invitation to Shou Zi Chew isn't just a social gesture—it's a public declaration that Trump plans to substitute his own policy preferences for Congress's clear command from his very first moments in office.

This is precisely what makes Trump's action different from traditional examples of presidential discretion in enforcement. He's not claiming resource constraints or setting enforcement priorities. Instead, he's using one of the presidency's most solemn constitutional ceremonies—the taking of the oath of office—as a platform to signal his intent to defy the Constitution he's swearing to uphold. When J.D. Vance talked about the need for conservatives to “get pretty wild” with executive power, even he probably didn't envision a president using the inauguration itself as a tool of constitutional defiance.

Americans need to abandon the comforting fiction that a constitutional crisis is something that happens suddenly and dramatically, with tanks in the streets or soldiers at government buildings. What we're witnessing with Trump's ByteDance action is a constitutional crisis in real time—one happening in plain sight through official presidential actions. When a president-elect invites a CEO to his inauguration specifically to signal his intent to defy the law, when he openly declares he'll ignore clear congressional mandates to pursue his own deals, and when sitting senators like J.D. Vance explicitly advocate for such constitutional defiance, we're not approaching a crisis—we're already in one. The true danger isn't that our constitutional system might break down in the future; it's that many Americans haven't yet recognized that it's actively breaking down right now, through official actions and ceremonial gestures that normalize what the Founders would have immediately recognized as corruption of constitutional governance. Every day we spend debating whether we're in a constitutional crisis is another day we lose in defending against it. The crisis isn't coming. It's here. And Trump's ByteDance suspension is simply making visible what should have been obvious all along: the transformation of presidential power from constitutional executive to elected autocrat is already underway.