TikTok and the Law: A Primer (In Case You Need to Explain Things to Your Teenager)

Robert Chesney:

Has ByteDance had such an opportunity over the past 8 months, as the currently-pending CFIUS review has progressed? I’m not in a position to know, but I strongly suspect that they have. The review has gone on for quite some time, and that may well reflect an ongoing process of evidentiary disclosures and submissions. In short: ByteDance may well be in the midst of receiving all the process that is due to it. Of course, ByteDance could still sue, objecting that it deserved more process than it got and that the ultimate CFIUS determination was arbitrary despite the process that was given. I’m doubtful, however, that they will prevail on either dimension. Sooner or later, in other words, the litigation would run its course and the divestiture order would probably still stand.

IEEPA is another example of Congress delegating to the executive branch an aspect of its constitutional control over foreign commerce. Think of it as a general pre-delegation of authority to impose embargoes as well as more-targeted sanctions against foreign entities—backed by criminal law sanctions—for a broadly-defined array of circumstances in which the president determines that U.S. national interests are at stake. (For a deep-ish dive into IEEPA, check out Episode 133 of the National Security Law Podcast). When the president wants to use this authority, he first must issue a public proclamation of a “national emergency” on a particular situation or subject, under the National Emergencies Act. This opens the door to using IEEPA itself. Under IEEPA, the president (or the executive branch entity acting on the president’s behalf through a further delegation) can investigate, regulate or simply prohibit—that is, ban—an array of activities involving a sanctioned entity (including payments, notably) and can freeze the assets of that entity (thereby prohibiting all dealings with the foreign entity’s interests in those assets). Sometimes this authority is exercised by the president only to the extent of creating a specific sanctions regime, with the actual sanctioning of particular entities to be done at a later date (if it is done at all). At other times, the creation of the sanctions regime is accompanied by at least an initial set of designations of specific entities.