STEVE INSKEEP, BYLINE: TikTok is still operating for now, thanks to an order by President Trump, which leads to a question - what is Trump's authority to do that under the law? The TikTok ban is not only law, it's a law that was passed and upheld with rare speed and unanimity by all three branches of government. Congress overwhelmingly passed a bipartisan measure, saying TikTok's Chinese owner must sell the company or shut down January 19 - last Sunday. President Biden signed that, and just last week, the Supreme Court unanimously upheld the law. President Trump himself once tried to ban TikTok, but changed his mind now that many of his supporters use it, and he says he will not enforce it while trying to find a buyer. So we have called Olivier Sylvain for a legal opinion. He's professor of law at Fordham University. Welcome to the program.
OLIVIER SYLVAIN: Thanks for having me, Steve. It's a pleasure to be here.
INSKEEP: So having read this statute, which is written in a way that it applies to TikTok as a Chinese-owned company, Chinese-controlled company, what does it say about keeping it going after January 19? What provisions, if any, are in there?
SYLVAIN: Right. So there is an exemption in the statute for a qualified divestiture, and that's one where the president determines - will result that the application's no longer being controlled by a foreign adversary. This can only happen, though, when the president grants a one-time extension for no more than 90 days after certifying to Congress that a binding legal agreement is in place.
INSKEEP: Meaning that ByteDance should be selling TikTok to some non-Chinese entity. That should already be well underway before the president...
SYLVAIN: It should be - that's right. It should be underway. It makes provision for the possibility that it takes a while to make an arrangement like this set up, but the agreement has to have been set out and the terms binding.
INSKEEP: Is that the situation now? The president has given this extension? There's a provision in law for an extension under certain conditions. Have we met those conditions?
SYLVAIN: It appears not, and you don't have to take my word for it. Senator Tom Cotton and Senator Pete Ricketts, senior members of the Senate on the Republican side, chair of Intelligence Committee and the Foreign Relations Committee, in a joint statement said that the legal basis for an extension doesn't exist.
INSKEEP: Is it fair to say then, particularly since this law has already been judged unanimously by the Supreme Court, that what is happening now is completely unlawful?
SYLVAIN: I'm inclined to believe what you just said. No certification has been made to Congress. No agreement is set out. To the contrary, the executive order really, really leans into this very muscular consumption of executive power. Uses the I, the first person, more than I'm used to seeing in an executive order. I have the unique constitutional responsibility for the national security of the United States, and Congress' timeline has gotten in the way. This definitely seems like he's trying to bypass what Congress has done.
INSKEEP: I want to look up that phrase. Is that a quote that you just gave - I have a unique responsibility?
SYLVAIN: That's in the executive order.
INSKEEP: I'm going to try - I just want to look it up before I go on because I have a question about that. Executive order, TikTok text. I just want to bring it up. Two days ago. Wow. OK, this is very interesting.
SYLVAIN: (Laughter) Yeah. No kidding.
INSKEEP: So you just quoted from the executive order. I have the unique constitutional responsibility for the national security of the United States. If I understand correctly, this has been litigated before before the Supreme Court. President Harry Truman did something nationalizing steel mills for national security...
SYLVAIN: That's right.
INSKEEP: ...And he said the president has the power to keep the country from going to hell. And the Supreme Court said, actually, you do not have that power. You have the power to do what's lawful.
SYLVAIN: Right. And guess what? In that case, an executive order was at issue. Here we have something even more peculiar. Congress has written a statute specifically addressed to a threat. Now, many of us may have disagreements about whether this statute was lawful. The Supreme Court's already decided it's constitutional. Congress decided that there was a threat from a foreign adversary. Here, the president is invoking what he believes is a unique constitutional responsibility. This seems to bump against the three branches of government that implemented this law before he took presidency, as you put it.
INSKEEP: Is the president in some sense violating the oath of office he just took the other day?
SYLVAIN: I get the impression he might be depending on how you read these authorities, but at a minimum, the president has a duty to faithfully execute the laws. Congress has written a law that says ByteDance or any provider that supports ByteDance is a threat. The president has an obligation and steps that he has to follow. He doesn't follow those steps. Doesn't look like he's faithfully executing the laws.
INSKEEP: Olivier Sylvain is professor of law at Fordham University. Thanks so much.
SYLVAIN: My pleasure. Transcript provided by NPR, Copyright NPR.
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