1. Trump's declared "delay" is executive overreach and arguably unconstitutional, especially considering how the law[0] is explicit and even contains its own provision for a time-extension that TikTok has refused to exercise.
2. If you break a black-letter law because Trump suggested he'd somehow prevent the government from ever prosecuting you... Well, you're handing a crook a weapon he can use to extort you for favors later. Bad idea.
3. The PR cost of removing the app has already happened, it makes no sense to bring it back and then get dinged a second time removing it 75-or-whatever days later.
[0] Whether that particular law itself should have been ruled unconstitutional is a separate debate.
Unlike TikTok, Apple has no monetary incentive to break the law. There is no upside for them.
Apple makes an insignificant amount of revenue from TikTok. It isn’t much of an in-app purchase machine, and they had no qualms about banning a huge one like Fortnite over a much less legally binding issue.
The question is: Can Tiktok sue for damages. But given your calculations, Tiktok damages will be far lower than getting fined by the state. Maybe the lawyers did their math.
Apple is complying with the intent and letter of the law of the land, passed by Congress, signed by the President, upheld in legality by the Supreme Court. I don't see how Apple has any liability to Tiktok here.
Also, doesn't this only prevent new users from downloading the app? And maybe existing ones from updating it. Everyone who would be up in arms can continue using it, those excluded already don't (yet) know what the fuss is about.
I wish PWAs were more prolific. It feels like there should be sufficient incentive from both app publishers and users away from traditional app stores.
From the user's perspective, why download an app from the ad-riddled App or Play store, at least 10s of MB in size, rather than visit a website, and only if you like what you see, "install" the PWA (save it to the home screen)?
From the app development side, there are several disadvantages of publishing native apps:
- Requirement to share a large chunk of app-generated revenue with app stores
- Cost of development for an app that only works on 1 platform
- Regulatory requirements for listing in app stores, as well as keeping up to date with policy changes
- Lack of control / risk of having your app pulled at any time for non-compliance, whether intentional or not
So why aren't PWAs more popular?
- A lack of awareness? Many devs I've worked with had never heard of PWAs, whilst users are trained to use app stores from the moment they setup the phone
- A lack of a de facto "PWA app store", without which PWAs are scattered across the internet?
- Improved UX in native apps over PWAs, but surely this problem is solvable?
Developers are going to go where the users are, and the users are going to go to the App Store. It's a self-reinforcing cycle.
That and PWAs do not match the quality of the experience of a native app on iPhones. It doesn't even matter why, whether it's technical or political: they just don't and users don't have to care about the why.
They also don't care about apps taking up tens of MBs. Your average social media app and you average banking app is hundreds of MBs for no good reason. It's also irrelevant to users. They don't care.
> from the ad-riddled App or Play store
This part is also funny. It is true that in 2025 they are both ad-riddled, but compared to what? The even more ad-riddled web? Who even spends their time browsing the App Store anymore? You might go there if you're looking for a specific type of app, but most of the time people hear about new apps through word of mouth. It's not the halcyon days of 2009/2010 where new apps were constantly coming out and hitting the charts enticing people to try them.
The year of PWAs will come the same year as Desktop Linux. You can use them now, today, but really it's only nerds that want to. All the theoretical advantages of PWAs are not better enough over the flow of Get > verify with Face ID > wait for it to download for approximately three seconds > Open. It's on your phone, sandboxed, and always available as long as there's not a live service element attached that you're forced to use.
> - Improved UX in native apps over PWAs, but surely this problem is solvable?
How? You can hardly solve that even on platforms without all the restrictions iOS Safari has. Of course unless your “app” is using Electron/etc.
It’s near impossible to get even basic things like animations to look consistent and same as in native apps.
I think this is a short sighted and unfair view of native apps.
It is significantly difficult to provide fluent and fast “native” like experience with WebApps because of browser related overheads.
Another advantage of native apps, at least on iOS, is that they magically “receive” updates in the form of updates to the OS, I.e. when Apple updates the underlying iOS APIs, the apps can directly take advantage of the updates without any developer updates.
Apps also automatically adopt the new OS UI updates if they use native APIs. For example, many apps were dark-mode ready with little to no developer updates when Apple rolled out dark mode.
1. TikTok is far less profitable without the kind of data collection that installed apps allow.
2. The average user doesn’t like interacting with websites as much apps for this purpose and might prefer to use alternative social media networks instead.
What kind of data would a native app collect that the web wouldn’t?
Seems like all the important advertiser-relevant demographic data is in the user account itself, not the platform. Whether you’re interested in snowmobiles or baby diapers would show up in both web and native apps via your user account?
Also what technical limitations remain in web apps that limit use? WebGPU seems like it can handle most video pixel processing functions that native apps need and websites can be installed easily.
- GPS location (browser can access location too if given permission ofc)
- list of devices accessible on local network (if tiktok really is a malware vector this would be a great way to scan users' homes for vulnerable IoT devices)
- list of other apps installed on device
Advertisers aren't just interested in bucketing you based off headline demographics like what videos you watch, they bucket you with people who have similar behaviors and extrapolate that you will like what they like, so they'll take as many dimensions as they can get to find similarities in behavior.
The user fingerprinting is also used to identify you on devices you're not logging in on.
Don't think it's possible on iOS, and I'm doubtful TikTok does this even if it were possible on Android.
> - GPS location (browser can access location too if given permission ofc)
Actually this AND all of the other fingerprinting methods you listed also require user permission managed by the mobile OS (iOS/Android).
In effect there is nothing a 'native' app can get without user knowledge/consent that a web app could not.
If there is, it should be considered a bug for mobile OS providers to fix.
What about a background data refresh task running and the server geolocating the IP making the request? The accuracy would vary but you could still get reasonably close to assuming someone's nearest city.
Background data refresh is reasonably safe to assume everyone has turned on...
I thought so but apparently it was patched long ago [0]. Still there on android, tho you’re meant to fall under a set of valid use cases or risk rejection. [1]
The article does not support the headline. In any case, I will take the opposite side of this bet. When the Attorney General nominee (Pan Bondi) is sworn in, she will send the non-enforcement letters to Apple and Google.
I don't blame them. There's a deeply important question as to whether any US president ever has the authority to direct federal agencies to not enforce a law at all. They do have some latitude in directing how enforcement by federal agencies occurs. And they have a lot of latitude when it comes the enforcement of presidential directives or agency policies. But a law duly debated and passed by a large majority of congress, signed by the president and already evaluated and allowed to stand by a unanimous Supreme Court? Well, that's uncharted territory.
It's a question I find fascinating for several reasons. First, recent presidents of both parties have all danced near, around and over this line to some extent (so we need to address it). Second, there's little constitutional guidance on the question and existing policy and precedent are sparse and inconsistent. Third, I'm not sure what the proper mechanism might be for resolving the question - or if there even is one. Fourth, I'm not entirely sure what I think the answer should be. And all that makes this super interesting.
To be clear, I'm ONLY interested in this question from a long-term, system-design perspective. It doesn't matter who the current president is or what the specific law regards. Any useful answer needs to work just as well if it's Biden ordering non-enforcement of certain immigration laws or Trump ordering non-enforcement of a TikTok ban. So please set aside the current context and any partisan preferences and consider it purely as a constitutional issue about rule of law.
In terms of what the rule should be when some president 20 years from now orders an agency to not enforce some law, I can see it both ways. I think presidents should have some discretion in how the agencies they manage enforce laws. It just seems pragmatic to have some latitude in how enforcement is implemented because situations can vary. But should that latitude extend to just ignoring the law? How about delaying enforcement for three days because there's a hurricane or something? Okay, sure. What about delaying it months? And then renewing the delay? It's pretty easy to imagine that going wrong someday. So, how do we codify a rule that balances these conflicting things?
Finally, who's responsible for coming up with a clear set of rules? I think most people would assume it's the Supreme Court's job to figure it out. The problem is that SCOTUS has rules about what they can consider and when. Someone needs to have standing to sue POTUS and grounds to sue on. I'm not sure that POTUS NOT enforcing a law violates any existing law. But I'm not a constitutional scholar. I just don't know and that's why I think Apple or Google would be pretty crazy to put TikTok back in their app stores relying on this non-enforcement order as safe harbor.
> There's a deeply important question as to whether any US president ever has the authority to direct federal agencies to not enforce a law at all.
In addition to your example regarding immigration, arguably the entire legal/medical marijuana industry in various states depends entirely on exactly this.
1) Federally, marijuana is still a Schedule I drug. Congress by way of delegation to the DEA has declared marijuana has no accepted medical uses and a high risk of addiction.
2) Sale and distribution of controlled substances is a federal crime. These businesses operate openly and with the tactic approval of the state in which they operate.
3) Wickard v Filburn established th reach of federal authority into exclusively intrastate commerce.
So the only way these business can continue to operate is if the president directs federal law enforcement to not enforce the drug laws.
This is (IMO) a good reason why the degree to which our political process has come to rely on EOs is a bad thing. We've just accepted that congress can apparently do nothing (except apparently ban TikTok) and so we just accept that every 4 years, the entire political landscape will change as some laws become unenforced and others are suddenly enforced with enthusiasm.
In fairness, this situation emerges because Congress has proven broadly incapable of passing or updating laws, even when polling shows a strong majority consensus for a new direction.
Ultimately, the govt is run by people, and those people's opinions about what's a priority will influence which laws get enforced. Law enforcement being responsive to an uncodified social contract is a healthy thing.
> In fairness, this situation emerges because Congress has proven broadly incapable of passing or updating laws, even when polling shows a strong majority consensus for a new direction.
I disagree. I think the TikTok ban itself has proven congress can absolutely pass laws when it wants to. Congress can do its job when it’s in their interests to do so. But the voting public generally doesn’t hold them to their responsibilities. We’re more comfortable with the speed of executive orders rather than the security of the legislative process. Sure, congress had ridiculously and historically low approval ratings… and yet the incumbents keep getting re-elected. I would argue the recent successes of the various “tea party” candidates (both electorally and legislatively) is the result of some part of the voting public deciding to hold their candidates responsible for their jobs. That their successes are not necessarily in the interests of the majority is a consequence of the majority not holding their own candidates responsible for their jobs
> govt is run by people, and those people's opinions about what's a priority will influence which laws get enforced.
Yes, I agree that will always be true - to some extent. And, sometimes, it's generally a good thing - up to a point. However at other times and places, like the Southern states in the Jim Crow era, having law enforcement's personal opinions influencing which laws get enforced has gone very badly.
While I certainly hope the pervasive excesses of the Jim Crow south will never be repeated, there have continued to be a variety of lapses and regressions in limited areas about once a decade. So, I don't think it's safe to assume they won't continue in the future. That means we'll keep needing a codified system enabling latitude in some aspects of enforcement while also punishing transgressions. No doubt, this is hard stuff.
> Congress has proven broadly incapable of passing or updating laws
Here's a tangential point that I'll mention anyway. As you said, when it really wants to, congress is perfectly capable of passing laws quite quickly. It's just that in our present very evenly divided political climate, there's no strong consensus mandating action for a lot of issues. In the absence of a significant percentage of the population, like at least two-thirds, wanting congress to act, congress is correct in not acting. There are now a substantial number of voters who vote with an intentional strategy of maintaining congressional gridlock. For them, the current situation of congress being unable to pass many significant or sweeping new laws isn't a bug, it's "the will of the people" (or at least those 'people').
> even when polling shows a strong majority consensus for a new direction.
I'm skeptical that the things which have a strong majority consensus are also the things which congress can realistically act on and things which voters want congress to act on. And all three need to be true. There are quite a few things I personally think would make the world a better place if the majority of people would do them voluntarily BUT I would never want congress to force these good ideas on other consenting adults by law. So, I would answer a poll strongly in the affirmative about what people should do - but also not want congress to force anyone to do it - and polls never make that distinction.
Agreed. The drug enforcement example is a good one and there are a bunch of others too.
> the entire political landscape will change as some laws become unenforced and others are suddenly enforced with enthusiasm.
Yes, the expansion of powers which recent presidents have engineered is deeply worrying. Each president (from both parties) has used everything they inherited from the previous president and then each has expanded their powers a little more with no clear authority to do so. James Madison would be appalled at the scope of today's presidential powers, as would all the founders (except maybe Alexander Hamilton who wanted to make the presidency a lifetime office and sort-of king-like - although maybe even Hamilton would be wondering if his Imperial presidency has gone a little too far :-))
On the other hand some of the founding father would probably be proud how dysfunctional and corrupt the Federal government is becoming though. Especially they’d welcome the politicization of the civil service and the return of the spoils system.
It's one thing to say "I'm not going to enforce this law" - many presidents of both parties have done this to varying degrees.
But an EO can't just cancel a law, and anyone who breaks it would still be legally liable. Since the penalties would be on the app store owners for hosting TikTok, there is little incentive for them to expose themselves to this liability.
One thing I am curious about, though, is my understanding is that Oracle hosts many of TikTok's servers in the US. They would have the same liability as the app store owners, so I'm curious why they are still willing to host TikTok.
> many presidents of both parties have done this to varying degrees.
Agreed. The interesting question is by what authority presidents are permitted to do that - and to what extent?
> But an EO can't just cancel a law, and anyone who breaks it would still be legally liable.
Agreed on both points. The part that troubles me is how an unenforced law is practically any different than a canceled law. In the case of the Tiktok, if the Justice Department refuses to investigate, gather evidence or file charges against Tiktok or app store owners how can any penalties be assessed against Tiktok or app stores? Collecting penalties or fines requires a court ruling and judge's order. It never gets in front of a judge without charges being filed.
> Since the penalties would be on the app store owners for hosting TikTok, there is little incentive for them to expose themselves to this liability.
Yes, the particulars of this law's context have meant there are third-parties who are voluntarily enforcing the provisions of the law which the Justice Department has been ordered not to enforce. But that's just a random aspect of the present situation. It's easy to imagine other similar laws in the future which could only be enforced directly by the government - and the government refusing to do so, has the same effect as the law being cancelled. So, we still have a systemic issue.
> One thing I am curious about, though, is my understanding is that Oracle hosts many of TikTok's servers in the US. They would have the same liability as the app store owners, so I'm curious why they are still willing to host TikTok.
I didn't know that. Not being a Tiktok user, I'm not aware if it's currently still working for those in the US who already had the app installed.
> The part that troubles me is how an unenforced law is practically any different than a canceled law. In the case of the Tiktok, if the Justice Department refuses to investigate, gather evidence or file charges against Tiktok or app store owners how can any penalties be assessed against Tiktok or app stores? Collecting penalties or fines requires a court ruling and judge's order. It never gets in front of a judge without charges being filed.
If the Justice Department changes its mind (due to a change of administration or popular sentiment, for example) before the statute of limitations runs out, they can pursue a case for actions that happened during this non-enforcement period. Something being made criminal may[1] also open up new avenues of civil liability, which can be brought to court by anyone actually harmed.
[1] I don't really know how much civil and criminal law interact like this; that's a question for someone with a law degree.
I don't think he cares anymore. I suspect he wanted it to exist just so people can see his inauguration event in the app. Infact he said as much in his statement.
That seems reasonable, because:
1. Trump's declared "delay" is executive overreach and arguably unconstitutional, especially considering how the law[0] is explicit and even contains its own provision for a time-extension that TikTok has refused to exercise.
2. If you break a black-letter law because Trump suggested he'd somehow prevent the government from ever prosecuting you... Well, you're handing a crook a weapon he can use to extort you for favors later. Bad idea.
3. The PR cost of removing the app has already happened, it makes no sense to bring it back and then get dinged a second time removing it 75-or-whatever days later.
[0] Whether that particular law itself should have been ruled unconstitutional is a separate debate.
Unlike TikTok, Apple has no monetary incentive to break the law. There is no upside for them.
Apple makes an insignificant amount of revenue from TikTok. It isn’t much of an in-app purchase machine, and they had no qualms about banning a huge one like Fortnite over a much less legally binding issue.
Not only that, the fact is, the tiktok ban has a penalty attached that is about $5000/user, so the risk is approx $85 billion dollars worth of fines.
This video outlines why these app stores will not reinstate it: https://www.youtube.com/watch?v=UGXU46rMtRE , regardless of what trump promises verbally.
The question is: Can Tiktok sue for damages. But given your calculations, Tiktok damages will be far lower than getting fined by the state. Maybe the lawyers did their math.
Apple is complying with the intent and letter of the law of the land, passed by Congress, signed by the President, upheld in legality by the Supreme Court. I don't see how Apple has any liability to Tiktok here.
170M active users means 850 billion dollars or almost a trillion.That’s an enormous sum.
Also, doesn't this only prevent new users from downloading the app? And maybe existing ones from updating it. Everyone who would be up in arms can continue using it, those excluded already don't (yet) know what the fuss is about.
You can always sideload it.
Only on Android in general, or jailbroken iDevice which hardly anyone does anymore.
You can sideload without jailbreaking on iOS.
Even if you can, an insignificant number of users will know how or be willing to.
Pray tell
> It isn’t much of an in-app purchase machine
Did you see TikTok live?
to add color, here's the text on the popup on android the day it was back:
Welcome back!
Thanks for your patience and support. As a result of President Trump's efforts, TikTok is back in the U.S.!
You can continue to create, share, and discover all the things you love on TikTok.
Surely, Trump can just preemptive pardon any App Store that breaks or will-break the law?
Only people can be pardoned. Only people can be charged with crimes. Companies can only be fined.
See "corporate criminal liability".
"Corporate personhood" is a real thing people believe
You can't pardon future actions.
Sure you can, maybe?
https://www.thehindu.com/news/international/joe-biden-has-is...
Those are for past actions of the person being pardoned, not future actions.
Apple still allows Web Apps to be downloaded and installed on the Home Screen. Probably a good time for ByteDance to implement that.
I wish PWAs were more prolific. It feels like there should be sufficient incentive from both app publishers and users away from traditional app stores.
From the user's perspective, why download an app from the ad-riddled App or Play store, at least 10s of MB in size, rather than visit a website, and only if you like what you see, "install" the PWA (save it to the home screen)?
From the app development side, there are several disadvantages of publishing native apps:
- Requirement to share a large chunk of app-generated revenue with app stores
- Cost of development for an app that only works on 1 platform
- Regulatory requirements for listing in app stores, as well as keeping up to date with policy changes
- Lack of control / risk of having your app pulled at any time for non-compliance, whether intentional or not
So why aren't PWAs more popular?
- A lack of awareness? Many devs I've worked with had never heard of PWAs, whilst users are trained to use app stores from the moment they setup the phone
- A lack of a de facto "PWA app store", without which PWAs are scattered across the internet?
- Improved UX in native apps over PWAs, but surely this problem is solvable?
- Other?
Developers are going to go where the users are, and the users are going to go to the App Store. It's a self-reinforcing cycle.
That and PWAs do not match the quality of the experience of a native app on iPhones. It doesn't even matter why, whether it's technical or political: they just don't and users don't have to care about the why.
They also don't care about apps taking up tens of MBs. Your average social media app and you average banking app is hundreds of MBs for no good reason. It's also irrelevant to users. They don't care.
> from the ad-riddled App or Play store
This part is also funny. It is true that in 2025 they are both ad-riddled, but compared to what? The even more ad-riddled web? Who even spends their time browsing the App Store anymore? You might go there if you're looking for a specific type of app, but most of the time people hear about new apps through word of mouth. It's not the halcyon days of 2009/2010 where new apps were constantly coming out and hitting the charts enticing people to try them.
The year of PWAs will come the same year as Desktop Linux. You can use them now, today, but really it's only nerds that want to. All the theoretical advantages of PWAs are not better enough over the flow of Get > verify with Face ID > wait for it to download for approximately three seconds > Open. It's on your phone, sandboxed, and always available as long as there's not a live service element attached that you're forced to use.
> - Improved UX in native apps over PWAs, but surely this problem is solvable?
How? You can hardly solve that even on platforms without all the restrictions iOS Safari has. Of course unless your “app” is using Electron/etc. It’s near impossible to get even basic things like animations to look consistent and same as in native apps.
I think this is a short sighted and unfair view of native apps.
It is significantly difficult to provide fluent and fast “native” like experience with WebApps because of browser related overheads.
Another advantage of native apps, at least on iOS, is that they magically “receive” updates in the form of updates to the OS, I.e. when Apple updates the underlying iOS APIs, the apps can directly take advantage of the updates without any developer updates.
Apps also automatically adopt the new OS UI updates if they use native APIs. For example, many apps were dark-mode ready with little to no developer updates when Apple rolled out dark mode.
These are just the few advantages of native apps.
Perhaps. I’d hazard a guess that:
1. TikTok is far less profitable without the kind of data collection that installed apps allow.
2. The average user doesn’t like interacting with websites as much apps for this purpose and might prefer to use alternative social media networks instead.
What kind of data would a native app collect that the web wouldn’t? Seems like all the important advertiser-relevant demographic data is in the user account itself, not the platform. Whether you’re interested in snowmobiles or baby diapers would show up in both web and native apps via your user account?
Also what technical limitations remain in web apps that limit use? WebGPU seems like it can handle most video pixel processing functions that native apps need and websites can be installed easily.
- start on device boot
- list of contacts / address book
- GPS location (browser can access location too if given permission ofc)
- list of devices accessible on local network (if tiktok really is a malware vector this would be a great way to scan users' homes for vulnerable IoT devices)
- list of other apps installed on device
Advertisers aren't just interested in bucketing you based off headline demographics like what videos you watch, they bucket you with people who have similar behaviors and extrapolate that you will like what they like, so they'll take as many dimensions as they can get to find similarities in behavior.
The user fingerprinting is also used to identify you on devices you're not logging in on.
> - start on device boot
Don't think it's possible on iOS, and I'm doubtful TikTok does this even if it were possible on Android.
> - GPS location (browser can access location too if given permission ofc)
Actually this AND all of the other fingerprinting methods you listed also require user permission managed by the mobile OS (iOS/Android).
In effect there is nothing a 'native' app can get without user knowledge/consent that a web app could not. If there is, it should be considered a bug for mobile OS providers to fix.
What about a background data refresh task running and the server geolocating the IP making the request? The accuracy would vary but you could still get reasonably close to assuming someone's nearest city.
Background data refresh is reasonably safe to assume everyone has turned on...
> - list of other apps installed on device
Is there are an API for that on iOS?
I thought so but apparently it was patched long ago [0]. Still there on android, tho you’re meant to fall under a set of valid use cases or risk rejection. [1]
[0] https://github.com/danielamitay/iHasApp
[1] https://support.google.com/googleplay/android-developer/answ...
It’s not collecting data for advertising reasons; it’s a CCP operated malware vector.
Where's the evidence?
Porque no los dos
It's much harder to make videos using a web interface than native app.
I've heard maybe one or two people asking for a bluesky app. Everyone else just gets on with using the web app and doesn't complain at all.
The article does not support the headline. In any case, I will take the opposite side of this bet. When the Attorney General nominee (Pan Bondi) is sworn in, she will send the non-enforcement letters to Apple and Google.
completely deserved. tiktok is the WORST and should be removed from the playstore too. reject mid apps
I don't blame them. There's a deeply important question as to whether any US president ever has the authority to direct federal agencies to not enforce a law at all. They do have some latitude in directing how enforcement by federal agencies occurs. And they have a lot of latitude when it comes the enforcement of presidential directives or agency policies. But a law duly debated and passed by a large majority of congress, signed by the president and already evaluated and allowed to stand by a unanimous Supreme Court? Well, that's uncharted territory.
It's a question I find fascinating for several reasons. First, recent presidents of both parties have all danced near, around and over this line to some extent (so we need to address it). Second, there's little constitutional guidance on the question and existing policy and precedent are sparse and inconsistent. Third, I'm not sure what the proper mechanism might be for resolving the question - or if there even is one. Fourth, I'm not entirely sure what I think the answer should be. And all that makes this super interesting.
To be clear, I'm ONLY interested in this question from a long-term, system-design perspective. It doesn't matter who the current president is or what the specific law regards. Any useful answer needs to work just as well if it's Biden ordering non-enforcement of certain immigration laws or Trump ordering non-enforcement of a TikTok ban. So please set aside the current context and any partisan preferences and consider it purely as a constitutional issue about rule of law.
In terms of what the rule should be when some president 20 years from now orders an agency to not enforce some law, I can see it both ways. I think presidents should have some discretion in how the agencies they manage enforce laws. It just seems pragmatic to have some latitude in how enforcement is implemented because situations can vary. But should that latitude extend to just ignoring the law? How about delaying enforcement for three days because there's a hurricane or something? Okay, sure. What about delaying it months? And then renewing the delay? It's pretty easy to imagine that going wrong someday. So, how do we codify a rule that balances these conflicting things?
Finally, who's responsible for coming up with a clear set of rules? I think most people would assume it's the Supreme Court's job to figure it out. The problem is that SCOTUS has rules about what they can consider and when. Someone needs to have standing to sue POTUS and grounds to sue on. I'm not sure that POTUS NOT enforcing a law violates any existing law. But I'm not a constitutional scholar. I just don't know and that's why I think Apple or Google would be pretty crazy to put TikTok back in their app stores relying on this non-enforcement order as safe harbor.
> There's a deeply important question as to whether any US president ever has the authority to direct federal agencies to not enforce a law at all.
In addition to your example regarding immigration, arguably the entire legal/medical marijuana industry in various states depends entirely on exactly this.
1) Federally, marijuana is still a Schedule I drug. Congress by way of delegation to the DEA has declared marijuana has no accepted medical uses and a high risk of addiction.
2) Sale and distribution of controlled substances is a federal crime. These businesses operate openly and with the tactic approval of the state in which they operate.
3) Wickard v Filburn established th reach of federal authority into exclusively intrastate commerce.
So the only way these business can continue to operate is if the president directs federal law enforcement to not enforce the drug laws.
This is (IMO) a good reason why the degree to which our political process has come to rely on EOs is a bad thing. We've just accepted that congress can apparently do nothing (except apparently ban TikTok) and so we just accept that every 4 years, the entire political landscape will change as some laws become unenforced and others are suddenly enforced with enthusiasm.
In fairness, this situation emerges because Congress has proven broadly incapable of passing or updating laws, even when polling shows a strong majority consensus for a new direction.
Ultimately, the govt is run by people, and those people's opinions about what's a priority will influence which laws get enforced. Law enforcement being responsive to an uncodified social contract is a healthy thing.
> In fairness, this situation emerges because Congress has proven broadly incapable of passing or updating laws, even when polling shows a strong majority consensus for a new direction.
I disagree. I think the TikTok ban itself has proven congress can absolutely pass laws when it wants to. Congress can do its job when it’s in their interests to do so. But the voting public generally doesn’t hold them to their responsibilities. We’re more comfortable with the speed of executive orders rather than the security of the legislative process. Sure, congress had ridiculously and historically low approval ratings… and yet the incumbents keep getting re-elected. I would argue the recent successes of the various “tea party” candidates (both electorally and legislatively) is the result of some part of the voting public deciding to hold their candidates responsible for their jobs. That their successes are not necessarily in the interests of the majority is a consequence of the majority not holding their own candidates responsible for their jobs
> govt is run by people, and those people's opinions about what's a priority will influence which laws get enforced.
Yes, I agree that will always be true - to some extent. And, sometimes, it's generally a good thing - up to a point. However at other times and places, like the Southern states in the Jim Crow era, having law enforcement's personal opinions influencing which laws get enforced has gone very badly.
While I certainly hope the pervasive excesses of the Jim Crow south will never be repeated, there have continued to be a variety of lapses and regressions in limited areas about once a decade. So, I don't think it's safe to assume they won't continue in the future. That means we'll keep needing a codified system enabling latitude in some aspects of enforcement while also punishing transgressions. No doubt, this is hard stuff.
> Congress has proven broadly incapable of passing or updating laws
Here's a tangential point that I'll mention anyway. As you said, when it really wants to, congress is perfectly capable of passing laws quite quickly. It's just that in our present very evenly divided political climate, there's no strong consensus mandating action for a lot of issues. In the absence of a significant percentage of the population, like at least two-thirds, wanting congress to act, congress is correct in not acting. There are now a substantial number of voters who vote with an intentional strategy of maintaining congressional gridlock. For them, the current situation of congress being unable to pass many significant or sweeping new laws isn't a bug, it's "the will of the people" (or at least those 'people').
> even when polling shows a strong majority consensus for a new direction.
I'm skeptical that the things which have a strong majority consensus are also the things which congress can realistically act on and things which voters want congress to act on. And all three need to be true. There are quite a few things I personally think would make the world a better place if the majority of people would do them voluntarily BUT I would never want congress to force these good ideas on other consenting adults by law. So, I would answer a poll strongly in the affirmative about what people should do - but also not want congress to force anyone to do it - and polls never make that distinction.
There are plenty of issues where there exists a strong majority consensus for a certain course of action that Congress hasn't acted on.
The sad fact is that the opinions of what 90% of Americans think have been found to have essentially no impact at all on what Congress does.
Summary: https://act.represent.us/sign/the-problem-tmp
Paper: https://www.cambridge.org/core/journals/perspectives-on-poli...
Agreed. The drug enforcement example is a good one and there are a bunch of others too.
> the entire political landscape will change as some laws become unenforced and others are suddenly enforced with enthusiasm.
Yes, the expansion of powers which recent presidents have engineered is deeply worrying. Each president (from both parties) has used everything they inherited from the previous president and then each has expanded their powers a little more with no clear authority to do so. James Madison would be appalled at the scope of today's presidential powers, as would all the founders (except maybe Alexander Hamilton who wanted to make the presidency a lifetime office and sort-of king-like - although maybe even Hamilton would be wondering if his Imperial presidency has gone a little too far :-))
On the other hand some of the founding father would probably be proud how dysfunctional and corrupt the Federal government is becoming though. Especially they’d welcome the politicization of the civil service and the return of the spoils system.
It's one thing to say "I'm not going to enforce this law" - many presidents of both parties have done this to varying degrees.
But an EO can't just cancel a law, and anyone who breaks it would still be legally liable. Since the penalties would be on the app store owners for hosting TikTok, there is little incentive for them to expose themselves to this liability.
One thing I am curious about, though, is my understanding is that Oracle hosts many of TikTok's servers in the US. They would have the same liability as the app store owners, so I'm curious why they are still willing to host TikTok.
> many presidents of both parties have done this to varying degrees.
Agreed. The interesting question is by what authority presidents are permitted to do that - and to what extent?
> But an EO can't just cancel a law, and anyone who breaks it would still be legally liable.
Agreed on both points. The part that troubles me is how an unenforced law is practically any different than a canceled law. In the case of the Tiktok, if the Justice Department refuses to investigate, gather evidence or file charges against Tiktok or app store owners how can any penalties be assessed against Tiktok or app stores? Collecting penalties or fines requires a court ruling and judge's order. It never gets in front of a judge without charges being filed.
> Since the penalties would be on the app store owners for hosting TikTok, there is little incentive for them to expose themselves to this liability.
Yes, the particulars of this law's context have meant there are third-parties who are voluntarily enforcing the provisions of the law which the Justice Department has been ordered not to enforce. But that's just a random aspect of the present situation. It's easy to imagine other similar laws in the future which could only be enforced directly by the government - and the government refusing to do so, has the same effect as the law being cancelled. So, we still have a systemic issue.
> One thing I am curious about, though, is my understanding is that Oracle hosts many of TikTok's servers in the US. They would have the same liability as the app store owners, so I'm curious why they are still willing to host TikTok.
I didn't know that. Not being a Tiktok user, I'm not aware if it's currently still working for those in the US who already had the app installed.
> The part that troubles me is how an unenforced law is practically any different than a canceled law. In the case of the Tiktok, if the Justice Department refuses to investigate, gather evidence or file charges against Tiktok or app store owners how can any penalties be assessed against Tiktok or app stores? Collecting penalties or fines requires a court ruling and judge's order. It never gets in front of a judge without charges being filed.
If the Justice Department changes its mind (due to a change of administration or popular sentiment, for example) before the statute of limitations runs out, they can pursue a case for actions that happened during this non-enforcement period. Something being made criminal may[1] also open up new avenues of civil liability, which can be brought to court by anyone actually harmed.
[1] I don't really know how much civil and criminal law interact like this; that's a question for someone with a law degree.
Let's see how long it takes before Trump publicly demands Tim Apple to make TikTok downloadable again...
I don't think he cares anymore. I suspect he wanted it to exist just so people can see his inauguration event in the app. Infact he said as much in his statement.
I expect he's only looking for plaudits and fans here, in the long term it's actually a partial competitor to his own pet-platform.
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