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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.
Democratic candidate for governor Abigail Spanberger gives remarks during a rally on Saturday in Norfolk, Virginia.
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Democrat Abigail Spanberger will be Virginia’s next governor, according to a race call by the Associated Press.
Spanberger, who previously served three terms in the U.S. House, defeated her Republican opponent, Lt. Gov. Winsome Earle-Sears. She’ll be Virginia’s first woman governor.
The contest received national attention as one of the first major tests of voter sentiment in response to the Trump administration’s policies.
Virginia is home to around 320,000 federal workers and hundreds of thousands of federal contractors. On the campaign trail, Spanberger argued that federal layoffs, cutbacks by President Trump’s Department of Government Efficiency (DOGE), tariffs, and the federal shutdown were an attack on the Virginia economy — and pitched herself as a way for voters to push back.
“We need a governor who will recognize the hardship of this moment, advocate for Virginians, and make clear that not only are we watching people be challenged in their livelihoods and in their businesses and in communities, but Virginia’s economy is under attack,” Spanberger said at a stop on a campaign bus tour late last month.
That message resonated with Haley Morgan Wright, a voter whose husband is a federal employee currently working without pay during the federal shutdown. She wants Spanberger to use her platform as governor to uplift the stories of civil servants like him.
“He cares about his country, he wants to serve his country and has opted to do it in this way,” she said after casting a ballot in the Northern Virginia exurbs. “He’s not superfluous.”
Spanberger was backed by national Democrats
National Democrats had looked to Spanberger and Virginia Democrats for a boost heading into the 2026 midterms. Former President Barack Obama had campaigned for her and the party backed her in what was one of just two governor’s races this year.
Voters cast their ballots at Huguenot High School on Tuesday in Richmond, Virginia.
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“The DNC has been spending a lot of money and a lot of time in Virginia,” said DNC Vice Chair Rep. Malcolm Kenyatta at a meeting for party volunteers in Northern Virginia. “Because we know that what you all do and the momentum that is going to come out of your victories is going lead to us flipping the House of Representatives in 2026.”
In 2021, Republican Glenn Youngkin defeated Democrat Terry McAuliffe with 50.6% of the vote to 48.7%. Virginia governors are limited to one four-year term.
Spanberger, who served in the CIA before running for Congress in 2018, has cultivated a reputation as a pragmatic centrist. The theme of her run for governor was “affordability” — speaking to Virginians’ concerns about rising costs of housing, utility bills, pharmaceutical drugs, and the economic uncertainty she blamed on Trump’s tariffs and federal layoffs.
Earle-Sears, meanwhile, portrayed herself as an example of the American dream — a Jamaican immigrant who became a U.S. Marine and small business owner.
She accused Spanberger of backing policies on transgender rights that she said are a threat to girls’ safety in school bathrooms and locker rooms.
“Love is not having my daughter having to be forced to undress in a locker room with a man. That’s not love,” Earle-Sears said at a rally in late October. “Love is making sure that our girl children have opportunities in sports and are not forced to play against biological males.”
Earle-Sears’ stance on transgender students in girls’ bathrooms sounded good to Elizabeth Drake, a voter who said she works with youth at a church in Loudoun County.
“I feel like we’re actually going back and setting ourselves back a lot by endangering women,” she said. “I’m not saying that that doesn’t mean we can have alternative spaces for people, but the women’s locker rooms, women’s bathrooms, women’s safe homes are not it.”
Winsome Earle-Sears, currently Virginia’s lieutenant governor, in the Virginia General Assembly last month.
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The race was jolted by late-breaking events
She also attacked Spanberger for supporting Biden administration policies. She vowed to continue business-friendly polices of outgoing Republican Gov. Glenn Youngkin. While she backed Trump’s policies, Trump did not endorse her.
Several developments impacted the final weeks of the race. The federal shutdown shadowed the final month of early voting, with both campaigns blaming the other party for the stalemate.
Virginia lawmakers began considering a plan to redistrict the state’s congressional districts to favor Democratic candidates in the 2026 midterm elections, as President Trump pushes Republicans in other states to move to favor their candidates. That could be an issue facing the next Virginia governor.
Former President Barack Obama campaigned for Spanberger over the weekend.
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And Republicans seized on revelations of text messages by Democratic candidate for attorney general, Jay Jones, in which he described the hypothetical shooting of a Republican lawmaker. Spanberger denounced the messages though Earle-Sears faulted her for not calling on Jones to drop out of the race.
Jones was in a tight race Tuesday against Republican incumbent Jason Miyares for the attorney general’s office.
Margaret Barthel covers Virginia politics for WAMU.
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