Comment: Trump ignores Congress’ TikTok ban; Congress shrugs

By Stephen L. Carter / Bloomberg Opinion

The release of Attorney General Pam Bondi’s letters absolving Google, Apple and other tech companies from liability in the TikTok mess has caused a certain amount of consternation over the limits of the president’s authority to decide which federal statutes will and will not be enforced. But while it’s the habit of the day to single out Donald Trump for opprobrium, in this case, he has only presented a more direct and unsubtle version of what plenty of other presidents have done. And, like the others, he hasn’t bothered to hide his hand.

Congress, for what I consider uncommonly silly reasons, mandated huge penalties for U.S. tech companies that “distribute, maintain, or update” TikTok; language broad enough to include, for instance, offering its app or storing its data. Back on the second day of Trump’s second term, when he granted companies affected by the law a temporary reprieve from the congressionally mandated penalties, I pointed out that he was hardly the first chief executive to use his prosecutorial discretion to essentially rewrite an inconvenient statute. Now that we know his administration soon extended to tech companies what appears to be absolute immunity from punishment for future violations of the statute, many thoughtful constitutional experts are crying foul.

They’re right, of course, but they’re also way too late.

Presidential refusal to enforce the law traces back at least to the days of Thomas Jefferson, who ordered U.S. district attorneys (as they were then known) to cease prosecutions under the Sedition Act, a statute that Jefferson sensibly regarded as unconstitutional. Putting aside the abundant examples between then and now, let’s select one of the most recent: Barack Obama’s presidency, during which one command of prosecutorial discretion created the Dreamers, and another suspended enforcement of federal drug laws against those found with marijuana in states where possession was legal. The literature is full of other episodes, which might be summed up this way: Presidents do it all the time.

Harvard Law School professor Jack Goldsmith, one of our finest experts on the power of the presidency, has argued that the refusal to enforce the anti-TikTok statute is different because the only apparent ground seems to be that Trump dislikes the law. Maybe so. I’m not sure that Bondi’s letters go so far beyond what we’ve seen in the past, but even if they do, the reason Trump can, so to speak, get away with it is that his predecessors have already gotten away with so much.

Even in the rare case when Congress tries to force the president to enforce the law, it doesn’t always work. After Jimmy Carter’s pardon of Vietnam-era draft resisters, Congress adopted legislation forbidding federal funds from being used for carrying out the pardon. The administration essentially ignored the law and spent whatever money it needed.

Commentators used to write fearfully of the subtle, hidden, or unspoken concentration of power in the executive. Subtle? Not any longer. I am reminded of one of Langston Hughes’ stories about Jesse B. Semple, known as Simple. Late one night, Simple is awakened by the noise of his young cousin, FD, returning to the apartment far too late. Simple at least gives FD credit for not trying to be quiet. Had he slipped off his shoes and tried to sneak in, we’re told, Simple would have been furious.

The presidents have not been quiet. They have not bothered to sneak.

Nowadays, when the chief executive decides not to enforce a law, he signs an order and holds a press conference. Why? Because he knows that no judge is likely to order him to bring a case. The Supreme Court has repeatedly stated that discretion not to prosecute has some limits, but it hasn’t told us what those limits are. (In the rare case where a “selective prosecution” defense succeeds in a criminal case — say, when the prosecutor indicts only Black and not white individuals who commit a particular crime — the relief is to release the Black defendants, not to force the trial of white defendants.)

But except in rare cases, the authors of the Constitution would hardly have expected courts to involve themselves in a dispute over whether the president must enforce the law. That, they’d have thought, would be Congress’ job. In the constitutional imagination of the Founding Generation, legislative and executive branches would struggle for supremacy, and the struggle itself would have kept the president in line.

In that vision, however, Congress sees itself first and foremost not as an arm of partisan politics but as an independent branch of government, one that must always act first and foremost to protect its own prerogatives. As the great constitutional scholar Charles Black pointed out half a century ago, an early Congress could have “established for itself a convention of automatically voting to override all vetoes”; not because the members always agreed on the issues, but because they wanted to balance a potentially overweening executive branch.

More concretely, a Senate concerned about a president’s refusal to enforce the law might inform the White House, no matter which party is in office, that it will confirm no more judicial nominees until it is satisfied, or the House might threaten to cut the salaries of employees the executive branch might prefer to keep, and so on. Of course, any senator or representative who dared suggest such a course would nowadays be accused of playing politics, and that the accusation would be made tells us how weak the legislative branch has become.

The complaisant Congress to which we’ve grown accustomed would have astounded the Framers. It’s not a phenomenon unique to the Trump years, or even to the 21st century. But it’s getting worse. That’s why, no matter how many scholars point out, correctly, the risks of allowing the president to ignore the congressional directive to remove TikTok from U.S. tech sites, there will be no repercussions.

Stephen L. Carter is a Bloomberg Opinion columnist, a professor of law at Yale University and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”