Congressional Republicans who voted to force TikTok to divest or risk a US ban are in a serious bind thanks to President Donald Trump’s attempt to delay implementation of the law.
Except that only a few of them are acknowledging that in public.
“The law is very clear, right? If you don’t have a deal, and if TikTok wasn’t sold to an American company by January 19, or at least have a contract,” then the ban takes effect, California GOP Rep. Young Kim told Semafor. “There is no gray area on this issue.”
In a Monday executive order, Trump pushed back a Jan. 19 deadline for the popular app’s US ban, which was set in motion by a law that sailed through Congress last year on a bipartisan basis. His vow to “make a deal” by compelling China-based ByteDance to sell TikTok is challenging Republicans who muscled through the ban to backtrack as delicately as possible to give him the benefit of the doubt on the order.
Many of them are eager to see Trump try to extract leverage from Beijing: “I am hopeful that this is part of a bigger strategy to negotiate with China, to make them come to the table on other things,” said Iowa Rep. Ashley Hinson, a member of the House’s select committee on China who voted for the ban.
But as TikTok remains reopened to US users without a clear path forward on a sale, Republicans are left with few options but to cross their fingers that their business-savvy president can pull off a deal in time. If Trump’s interest in shared US ownership of the app doesn’t materialize, or if his order fails to hold up in court, lawmakers will be forced to revisit the same national security threats they’ve already agreed that TikTok presents.
One source familiar with TikTok sales conversations, which have included GOP meetings with “Shark Tank” investor Kevin O’Leary beyond the publicly reported ones, put it bluntly: “Investors can purchase ByteDance. They’re not interested in selling.”
This source pointed out that neither Trump nor former President Joe Biden took advantage of a 90-day extension that allows for a delayed ban in the event of a viable deal to sell TikTok — suggesting that no such deal is imminent.
“My understanding is that the individuals that were making an offer to TikTok or to buy TikTok had approached the administration and asked, ‘If ByteDance would agree to the deal, would the administration put forth a 90-day extension?’ That would have been Sunday night at midnight, right? None of that happened,” the source added. “So, as such, the law is very clear.”
Some experts — and even some Republicans — have questioned the legality of Trump’s order, which tells the US attorney general not to enforce the law for 75 days in order for him to determine an “appropriate course forward” that “protects national security while avoiding an abrupt shutdown of a communications platform used by millions of Americans.”
The group of prospective TikTok buyers that’s led by O’Leary and billionaire Frank McCourt’s Project Liberty says it has the necessary financing for a deal, with “expressions of interest” from private equity firms and wealthy individuals. But with TikTok’s US operations potentially valued at $50 billion, according to some estimates, a buyer would need the kind of deep pockets that are more in line with big, cash-rich tech firms.
Complicating matters further was a recent suggestion by Trump’s new national security advisor, former GOP Rep. Mike Waltz, that ByteDance be allowed to keep owning the application, so long as it provided assurances that TikTok’s data and algorithm were fully protected from Chinese government interference. The idea drew immediate pushback from Republicans.
“Go back to the details of the law,” Kim said. “It’s very clear the whole purpose was divesture outside of the ByteDance ownership. So we cannot give even 10%, 20%, 50% to ByteDance.”
Without directly raising Waltz’s comments, Sen. John Kennedy, R-La., sounded skeptical that TikTok could meet the “burden of proof” that would be required for it to pan out.
“The law says that TikTok has to show us categorically, unequivocally, that they do not have the ability to share Americans’ data with the Communist Party of China,” Kennedy told Semafor.
Whether Republicans would consider revisiting the law they passed just months ago, however, is another matter. As shaky as Trump’s 75-day order may be, legal experts were also unsure that a credible challenge could materialize to threaten it.
“Opponents of Trump would be on firm legal ground” to challenge the order, said Sarah Kreps, a law professor at Cornell University and director of the school’s Tech Policy Institute. “But do those would-be opponents have political motivation to initiate these challenges?”
Anupam Chander, a Georgetown Law School professor and specialist in global tech regulation, pointed out that former President Barack Obama extended the deadline to implement the Affordable Care Act’s employer health insurance mandate “without any statutory authorization to do so.”
Senate Majority Leader John Thune, R-S.D., summed up the quandary for Republicans.
“I’m hopeful that the law is the law. And ultimately it’s going to have to be followed,” he told reporters on Wednesday. If it can bring around a buyer, which it was designed to do, then we’ll see. But I think we’re living on borrowed time with TikTok.”
