How Will the Judicial Branch Impact the Future of TikTok and China-US Relations?

The debate over TikTok is far from over. Republican presidential candidate Donald Trump’s official support for the Chinese-owned app has brought it back into the public eye.

Earlier this year, Congress passed the Protecting Americans from Foreign Adversary Controlled Applications Act, commonly known as the TikTok ban, which was then signed by U.S. President Joe Biden. Afterward, TikTok and its parent company, Beijing-based ByteDance Ltd., filed a petition in the U.S. Court of Appeals for the D.C. Circuit against Attorney General Merrick Garland, arguing that the bill is unconstitutional. Oral arguments are scheduled for September to address the legal challenges to the newly enacted law, which requires ByteDance to divest from its U.S.-based TikTok operations.

The TikTok ban makes it “unlawful for an entity to distribute, maintain, or update… a foreign adversary controlled application.” TikTok and ByteDance Ltd. are designated as “foreign adversary controlled applications” due to their ties to China, which is defined as a foreign adversary in Title 15 of the Code of Federal Regulations. According to its sponsors, the bill aims to protect U.S. national security from threats posed by applications like TikTok.

The TikTok court battle is expected to string along for some time, and the federal appeals case may not come down to a definitive conclusion. Multiple scholars predict the case could go to the Supreme Court, which, given its current composition, is likely to uphold the legislation.

Although the judicial branch may not wield the same direct influence over U.S. China policy as the executive and legislative branches, its constitutional interpretations quietly recalibrate the balance of power, thereby indirectly impacting the U.S. approach to China. For instance, the court’s decision could potentially bolster presidential authority in defining national security threats, possibly paving the way for what some scholars term the “imperial presidency.” This amplification of presidential power, particularly in the context of China-U.S. relations, carries profound implications for both nations, given China’s status as a principal U.S. competitor and a frequent focal point for political maneuvering.

The TikTok ban exemplifies legislation that could significantly augment presidential authority on national security grounds. As its name suggests, the bill seeks to prohibit “foreign adversary controlled applications” that are operated “directly or indirectly” by not only TikTok or ByteDance Ltd., but also any covered company “that is determined by the President to present a significant threat to the national security of the United States.”

In other words, the bill empowers the president to designate any platform or website as “controlled by foreign adversary,” thereby granting the executive authority to regulate or censor content published by the company it deems threatening. Critics of the TikTok ban argue that such legislation effectively bestows the president with enduring power to prohibit widely-used speech platforms, even those with tenuous connections to foreign entities – a potentially perilous authority over websites and apps crucial for Americans to exercise their First Amendment rights.

The ramifications of the TikTok case for presidential authority resonate with a significant judicial landmark in China-U.S. relations from over four decades ago: Goldwater v. Carter. On December 15, 1978, President Jimmy Carter made headlines by announcing the normalization of diplomatic relations between the United States and the People’s Republic of China (PRC). The agreement included the unilateral decision by Carter to terminate diplomatic ties with Taipei, withdrawing U.S. recognition of Taiwan, also known as the Republic of China (ROC). In addition, Carter revoked the 1955 Mutual Defense Treaty (MDT) between the United States and the ROC. These were all actions taken without congressional consent.

In unilaterally deciding to sever ties with Taiwan, Carter undertook what some viewed as an unconstitutional act, attempting to extend presidential authority beyond its legal limits. This led Senator Barry Goldwater and other conservative Republicans in Congress to file a lawsuit against Carter, arguing that Senate approval was necessary for such a significant action. Goldwater contended that if Carter could withdraw from the treaty with Taiwan, then a future president could potentially withdraw from NATO, thereby jeopardizing the global political order. Some of the conservative lawmakers described Carter’s termination of the treaty as “one of the worst power grabs in history.”

Although Carter’s opponents initially won the case in Federal District Court, the U.S. Court of Appeals for the District of Columbia upheld Carter’s decision. Ultimately, the Supreme Court, with divided justices, ruled that the case was not justiciable. While Justices William Rehnquist and Lewis Powell had differing interpretations, both concluded that the issue was a political question rather than a constitutional one, effectively granting the constitutional victory to the president by default. This case marked a resurgence of the “imperial presidency,” a trend that has continued to expand.

Compared to Goldwater v. Carter, the TikTok ban exhibits less partisan conflict and political contention, as the bill was first approved by Congress. Moreover, unlike Goldwater v. Carter, where both the plaintiff and the defendant were American government officials, the TikTok case involves both domestic and international governmental and non-governmental actors, potentially leading to broader jurisdictional repercussions for the transnational public sphere. If the Supreme Court ultimately upholds the TikTok ban, it would not only enhance the court’s role as a shadow foreign ministry but also consolidate inherent presidential powers in the conduct of foreign affairs.

In addition, while Goldwater v. Carter underscored the expansion of presidential power in a defensive context, the TikTok case shifts focus to its offensive implications. Goldwater v. Carter centers on the authority to terminate treaties and whether this power should be equally shared between the legislative and executive branches. Although the court declined to address the issue directly, some scholars contend that it is fundamentally a matter of constitutional law, not public international law, as it pertains to the balance of power in treaty termination. Therefore, even though the verdict favored Carter, the president’s consolidated treaty termination power remains primarily a defensive tool in foreign affairs, with minimal impact on public policy.

Conversely, the argument for the TikTok ban is grounded in national security concerns, a compelling justification in legislation where courts have often deferred to Congress and the president. With rising fears about the cyber threats posed by China, judicial approval would facilitate the U.S. president’s ability to designate Chinese-affiliated technology companies, like TikTok, as national security threats with minimal legal obstacles. If the court upheld the TikTok bill, it would enhance the executive’s role in shaping American public policy, significantly boosting the president’s offensive power in foreign policy. Ironically, if Congress ever decides to curb such presidential power in the future, it will face legislative obstacles of its own creation.

While the aggressive judicial posture exhibited by the Roberts Court reflects the success of conservative activists in limiting the scope of executive power in many transnational issues such as climate change and migration, the TikTok case could potentially provide the president with an unexpected avenue to increase power by linking national security interests to China. More consequentially, the enhancement of executive power through judicial action at the national level could extend to the state level, particularly in conservative states, providing greater legality and legitimacy to legislation framed within anti-China narratives.