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Tiktok’s Final Appeal to the Supreme Court Didn’t Go Too Well
Photo: Intelligencer; Photo: Getty Images
The looming TikTok ban is barely a week away and the company is running out of time to do anything about it. On Friday, the Supreme Court heard last-minute arguments about the ban, with TikTok angling for an intervention or, at least, a temporary ruling to buy it a bit more time. They didn’t go especially well for TikTok — even justices who sounded sympathetic to the company’s arguments about free speech seemed satisfied by the government’s core national security argument.
As a matter of law, in other words, it’s looking like the ban is going to happen, and probably right before Donald Trump once again takes office. This is a completely unprecedented event — a massively popular app with a major cultural and economic footprint in the United States might just get switched off — but also something that the incoming president, who effectively originated the ban in the form of an executive order in 2020 but has since become aware that some people on the app actually like him and has also raised a bunch of money from one of its biggest American investors, now says he doesn’t want to happen.
The court was concerned, mostly, with the substance of the law, which requires that TikTok either be sold to an American company or banned entirely, but the justices did briefly touch on the urgent question of what might practically happen next, in the real world. Congress passed a law. Trump can say he doesn’t support it, but it’s still on the books, and it passed with substantial bipartisan support. If he really wants to stop it he’ll have to do something about it, and the available options are all pretty messy.
According to the law he could, as President, temporarily pause the ban if the company demonstrates its intent to imminently sell, but TikTok parent company ByteDance has strongly suggested that this isn’t possible, not least because of tightening Chinese export controls around algorithms and AI. Should ByteDance agree to offload an algorithmically stripped-out version of TikTok — something at least one credible buyer has nonetheless expressed interest in — Trump, who would also be able to unpause the ban, would have a great deal of influence over the terms of the deal. But the app would almost certainly experience an interruption in service and return, eventually, as something fundamentally different.
Near the end of the hearing, though, Justice Kavanaugh floated the possibility that’s most aligned with how Trump is talking about this at the moment: “Could the president say we are not going to enforce this law?” Indeed, this is an approach he’s been implying, it certainly matches his mental model of how government should work — TikTok is unbanned if I say so — and it seems like something that he might at least attempt.
Kavanaugh helped answer his own question: Trump could do this, he noted, but it would create serious practical problems. One way the ban is intended to work is by making it illegal to provide “services to distribute, maintain, or update such foreign adversary controlled application,” meaning that Apple and Google, which between them maintain the app stores on virtually all of America’s smartphones, would be legally required to delist the app. A promise by Trump not to enforce a TikTok ban, or to unilaterally and/or counterfactually declare TikTok in compliance with the law, would leave Apple and Google in a risky position. They could relist an app that’s still technically illegal but which the President says is actually fine in support of a company to which they have no particular reason to help and which is in fact, in Google’s case, a direct competitor.
Or they could just say: Hey, hosting a service that has been declared a “FOREIGN ADVERSARY CONTROLLED APPLICATION” by lawmakers isn’t worth the trouble even if the President says he’s personally totally cool with it. This would be prudent unless, of course, such an action would be interpreted as a slight against the President, and wielded against them publicly or privately, in which case two of American’s largest companies, each facing ongoing antitrust cases, might just have to hire a few dozen more lobbyists and OFAC attorneys and figure out how to make things work. Welcome to the new tech industry.
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Supreme Court blocks redrawing of New York congressional map, dealing a win for GOP
The Supreme Court
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The Supreme Court on Monday intervened in New York’s redistricting process, blocking a lower court decision that would likely have flipped a Republican congressional district into a Democratic district.
At issue is the midterm redrawing of New York’s 11th congressional district, including Staten Island and a small part of Brooklyn. The district is currently held by a Republican, but on Jan. 21, a state Supreme Court judge ruled that the current district dilutes the power of Black and Latino voters in violation of the state constitution.
GOP Rep. Nicole Malliotakis, who represents the district, and the Republican co-chair of the state Board of Elections promptly appealed to the U.S. Supreme Court, asking the justices to block the redrawing as an unconstitutional “racial gerrymander.” New York’s congressional election cycle was set to officially begin Feb. 24, the opening day for candidates to seek placement on the ballot.
As in this year’s prior mid-decade redistricting fights — in Texas and California — the Trump administration backed the Republicans.
Voters and the State of New York contended it’s too soon for the Supreme Court to wade into this dispute. New York’s highest state court has not issued a final judgment, so the voters asserted that if the Supreme Court grants relief now “future stay applicants will see little purpose in waiting for state court rulings before coming to this Court” and “be rewarded for such gamesmanship.” The state argues this is an issue for “New York courts, not federal courts” to resolve, and there is sufficient time for the dispute to be resolved on the merits.
The court majority explained the decision to intervene in 101 words, which the three dissenting liberal justices summarized as “Rules for thee, but not for me.”
The unsigned majority order does not explain the Court’s rationale. It says only how long the stay will last, until the case moves through the New York State appeals courts. If, however, the losing party petitions and the court agrees to hear the challenge, the stay extends until the final opinion is announced.
Dissenting from the decision were Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Writing for the three, Sotomayor said that if nonfinal decisions of a state trial court can be brought to highest court, “then every decision from any court is now fair game.” More immediately, she noted, “By granting these applications, the Court thrusts itself into the middle of every election-law dispute around the country, even as many States redraw their congressional maps ahead of the 2026 election.”
Monday’s Supreme Court action deviates from the court’s hands-off pattern in these mid-term redistricting fights this year. In two previous cases — from Texas and California — the court refused to intervene, allowing newly drawn maps to stay in effect.
Requests for Supreme Court intervention on redistricting issues has been a recurring theme this term, a trend that is likely to grow. Earlier last month the high court allowed California to use a voter-approved, Democratic-friendly map. California’s redistricting came in response to a GOP-friendly redistricting plan in Texas that the Supreme Court also permitted to move forward. These redistricting efforts are expected to offset one another.
But the high court itself has yet to rule on a challenge to Louisiana’s voting map, which was drawn by the state legislature after the decennial census in order to create a second majority-Black district. Since the drawing of that second majority-black district, the state has backed away from that map, hoping to return to a plan that provides for only one majority-minority district.
The Supreme Court’s consideration of the Louisiana case has stretched across two terms. The justices failed to resolve the case last term and chose to order a second round of arguments this term adding a new question: Does the state’s intentional creation of a second majority-minority district violate the constitution’s Fourteenth and Fifteenth Amendments’ guarantee of the right to vote and the authority of Congress to enforce that mandate?
Following the addition of the new question, the state of Louisiana flipped positions to oppose the map it had just drawn and defended in court. Whether the Supreme Court follows suit remains to be seen. But the tone of the October argument suggested that the court’s conservative supermajority is likely to continue undercutting the 1965 Voting Rights Act.
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Map: Earthquake Shakes Central California
Note: Map shows the area with a shake intensity of 3 or greater, which U.S.G.S. defines as “weak,” though the earthquake may be felt outside the areas shown. The New York Times
A minor earthquake with a preliminary magnitude of 3.5 struck in Central California on Monday, according to the United States Geological Survey.
The temblor happened at 7:17 a.m. Pacific time about 6 miles northwest of Pinnacles, Calif., data from the agency shows.
As seismologists review available data, they may revise the earthquake’s reported magnitude. Additional information collected about the earthquake may also prompt U.S.G.S. scientists to update the shake-severity map.
Source: United States Geological Survey | Notes: Shaking categories are based on the Modified Mercalli Intensity scale. When aftershock data is available, the corresponding maps and charts include earthquakes within 100 miles and seven days of the initial quake. All times above are Pacific time. Shake data is as of Monday, March 2 at 10:20 a.m. Eastern. Aftershocks data is as of Monday, March 2 at 11:18 a.m. Eastern.
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US says Kuwait accidentally shot down 3 American jets
The U.S. and Israel have been conducting strikes against targets in Iran since Saturday morning, with the aim of toppling Tehran’s clerical regime. Iran has fired back, with retaliatory assaults featuring missiles and drones targeting several Gulf countries and American bases in the Middle East.
“All six aircrew ejected safely, have been safely recovered, and are in stable condition. Kuwait has acknowledged this incident, and we are grateful for the efforts of the Kuwaiti defense forces and their support in this ongoing operation,” Central Command said.
“The cause of the incident is under investigation. Additional information will be released as it becomes available,” it added.
In a separate statement later Monday, Central Command said that American forces had been killed during combat since the strikes began.
“As of 7:30 am ET, March 2, four U.S. service members have been killed in action. The fourth service member, who was seriously wounded during Iran’s initial attacks, eventually succumbed to their injuries,” it said.
Major combat operations continue and our response effort is ongoing. The identities of the fallen are being withheld until 24 hours after next of kin notification,” Central Command added.
This story has been updated.
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