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PaperclipPerfector  4mo ago (text post)   32277 thread views

Culture War Roundup for the week of July 7, 2025

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Constitutional law professor/commentator Steve Vladeck updated us on the "dispensation" of the "TikTok Ban," in light of new FOIA releases, this morning:

I wrote back in January about how the TikTok executive order President Trump signed on his first day of office committed whoever the Attorney General would be to take that first position about the meaning of the statute (which should’ve been reason enough for any principled lawyer to refuse nomination to the office, and for the Senate to refuse to confirm any nominee). But it’s the second claim—that the President, through the Attorney General, has a dispensing power—that is even more extreme; that is not even required by the executive order; and that, if it becomes a precedent, would turn the separation of powers (if not the rule of law itself) entirely on its head.

...

Late last week, in response to FOIA requests, 21 of those letters were made public. The letters are worth reading in their entirety (in some cases, multiple letters to the same company sent at different times were included). But to summarize the highlights, across those letters, the Attorney General of the United States memorialized some variation of the following three conclusions:

  • Companies that continue to support the TikTok app are not, in fact, violating the TikTok statute;
  • The TikTok statute is “properly read” to not “infringe upon . . . core Presidential national security and foreign affairs powers”; and
  • The Department of Justice is “irrevocably relinquishing any claims the United States might have had” against the recipients of the letters for both previous and ongoing violations of the act.

Each of these three arguments is ludicrous. The first argument is inconsistent with the literal text of the statute—which is not exactly ambiguous about what it prohibits. Unless TikTok’s Chinese owners divested by January 19 (and they didn’t), U.S. companies are barred from:

Providing services to distribute, maintain, or update such foreign adversary controlled application (including any source code of such application) by means of a marketplace (including an online mobile application store) through which users within the land or maritime borders of the United States may access, maintain, or update such application.

Of course, “providing services” to distribute, maintain, or update the TikTok app is … literally what these companies are doing. Thus, there is no plausible argument that these companies are not violating the TikTok statute; they are continuing to do exactly what it bars.

See, also, Alan Rozenshtein in Lawfare.

Should the Senate have refused to confirm any nominee who committed to using "dispensation?" What is the appropriate response to this kind of corruption?

This is pretty much the same thing as DACA, no? In which case the appropriate response is: Elect a new president who campaigns on enforcing the law and tries to do so, only to be tied up in court for their entire term.

Yeah, from the legal realist perspective this whole debate is pretty settled. It'd be nice if "X shall Y" meant something. It doesn't. Even if you want to cordon off immigration law as enforcement discretion -- pretty hard to do honestly, given the only enforcement in this law is the fed AG going after companies -- we have other examples. King v. Burwell is best-known for its denouement, but earlier parts of the case dismissed challenges to the continuous delays in the employer mandate as unredressable, and it wasn't even a surprise then. That, likewise, included a disclaimer that the government would surrender any possibility of future lawsuit on the matters in the covered time period.

Without explicit mechanism for private modes of action available to actual people (and that's not a guarantee!), or a one-off 'special solicitude' from SCOTUS, "shall" means less than a Zoomer saying "literally". Yes, businesses acting in violation of the law could theoretically get punished under a different administration, despite this 'dispensation' -- it wouldn't even trigger the various rules against ex post facto laws for a bunch of reasons, though there would possibly be some due process concerns -- but anyone paying the slightest bit of attention knows that it's either not going to happen, or will only happen if a Dem President wants to (threaten to) completely crush some disfavored business.

Which would be fine if Vladeck were some naive rando who still thought the text of the law mattered, or predicating his analysis as clearly on the "ought" side of the is-ought dividing line. But no. The House of Representatives couldn't challenge these rules even if it specifically involved the government's taxation power; claiming that a random competitor might succeed in a challenge of an enforcement discretion letter raises serious questions about anyone with nontrivial knowledge of relevant caselaw's competence or honesty. And Vladeck works as a professor of law, at a school that charges thousands of dollars a credit-hour to listen to him!

Remember the poster who always posts on here saying we need an immigration law that says "you have to deport illegals this time for real pretty please" and then the Democrat president will do it.

This is just another example of the president's ability to pretty much poof away any law.

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