Ian Millhiser
Appearances
Apple News Today
Fact-checking the response to California wildfires
there is a First Amendment principle that is in conflict with the broader national security principle.
Apple News Today
Fact-checking the response to California wildfires
foreign nationals, companies with significant foreign ownership cannot operate a radio station in the U.S. So it is very, very well established that for certain critical communications infrastructure, the government can say U.S. only. You have to be a U.S. citizen or a U.S. company in order to own and operate this.
Apple News Today
Fact-checking the response to California wildfires
And all that's happening here is the government is saying we want to apply the same rule that has been applied all along to other forms of communications infrastructure to a social media company, to TikTok.
Today, Explained
Trump’s emergency powers grab
Yeah. So there is this court called the U.S. Court of International Trade, which it is a federal court that hears disputes arising out of America's trade laws.
Today, Explained
Trump’s emergency powers grab
And the biggest trade story, I mean, maybe of the last 30 or 40 years is Donald Trump's tariffs and whether the president has the power to essentially impose enormous new taxes on imports that are expected to drive up the price of goods for every American. I listened to the oral argument yesterday in the trade court.
Today, Explained
Trump’s emergency powers grab
And while I'm not certain what's going to happen, what I heard is three judges that sounded really skeptical of the tariffs. And so I think it is more likely than not that we're going to get a court order pretty soon, which could make the tariffs go away.
Today, Explained
Trump’s emergency powers grab
So the case is called VOS Selections versus Trump. VOS Selections is just a liquor and wine importer. They import Italian wines and various bottles from other countries. And so obviously, whenever they bring a bottle into the country, they have to pay the tariff, and that's not good for their business. And then there are four or five other businesses who've signed on with plaintiffs.
Today, Explained
Trump’s emergency powers grab
And it's a similar story with all of them. One's like a bicycling company. One makes like electronic products. And they have to import some of their components. And so they're paying tariffs on these components that they're getting overseas. And they don't want to pay that tax. So they're just in court saying, look, these taxes are illegal. We shouldn't have to pay.
Today, Explained
Trump’s emergency powers grab
So the statute, the federal law that Trump relied on when he put the tariffs in place, it's called the International Emergency Economic Powers Act. And the key word there is emergency. Emergency.
Today, Explained
Trump’s emergency powers grab
The statute says that Trump is allowed, does have sweeping power to regulate the importing of foreign goods, but only when there is, and this is the language that the statute uses, an unusual or extraordinary threat to which a national emergency has been declared. Much of the argument yesterday focused on what those words unusual and extraordinary threat is.
Today, Explained
Trump’s emergency powers grab
Trump claims that the reason we need these tariffs is because the United States has trade deficits. It buys more stuff from many countries than it sells. And we've had trade deficits for decades. Like trade deficits aren't really an unusual thing. I have a trade deficit with the grocery store. I buy more stuff from them than, you know, than I sell. So the argument is pretty straightforward here.
Today, Explained
Trump’s emergency powers grab
It's just like trade deficits are ordinary, right? Like, even if you think that trade deficits are bad, they're not unusual or extraordinary. And so the argument is that this statute, which only lets Trump respond to unusual and extraordinary threats, doesn't apply in this case.
Today, Explained
Trump’s emergency powers grab
So the government's primary response to this argument is essentially to tell the courts, you can't touch us, ha ha ha. They put that in a legalistic way. They claim that the question of whether such a threat exists is what's called a political question. And political question is legalese for the courts don't get to decide it. You know, it has to be decided by the other two branches of government.
Today, Explained
Trump’s emergency powers grab
It is possibly the biggest self-inflicted economic blow that the United States has done to itself in my lifetime. And the courts could just make that all go away. So, you know, that's exciting.
Today, Explained
Trump’s emergency powers grab
And so they're primarily just saying, look, courts, it doesn't matter if this is an unusual threat or not. You don't get to make that decision. Donald Trump gets to make that decision. The president gets to make that decision. You know, often, especially in constitutional cases, the core question is who gets the final word on this?
Today, Explained
Trump’s emergency powers grab
And the plaintiffs say that the court should have the final word on this. And Trump says that he should have the final word on it.
Today, Explained
Trump’s emergency powers grab
But since no one has yet cited a dictionary definition for unusual or extraordinary, I thought I would offer one. Unusual just means not usual. That's the Merriam-Webster dictionary definition, and extraordinary is going beyond what is unusual, regular, or customary. That fits with the state of affairs that this executive order describes. It explains, again,
Today, Explained
Trump’s emergency powers grab
So broadly speaking, there's three ways this could turn out. One, they could just uphold the tariffs and then the tariffs stick around, assuming that a higher court doesn't step in. The second is that they just think this wall that Trump relied on doesn't allow these particular tariffs to exist. That would be a very narrow opinion.
Today, Explained
Trump’s emergency powers grab
And I don't know that in a decision that says that would necessarily get rid of the tariffs for very long because there's other statutes, the Trade Act of 1974, which which also potentially allow Trump to impose tariffs. It would just take longer for him to do it under the Trade Act. So if they strike this down on statutory grounds, we could be back having this argument a few months from now.
Today, Explained
Trump’s emergency powers grab
And then the third possibility is – During the Obama and Biden administrations, a bunch of Republican judges and justices came up with very aggressive theories to limit the power of the president because they didn't want Obama and Biden doing things like canceling student loans.
Today, Explained
Trump’s emergency powers grab
And these judges could potentially take these doctrines that were created to go after Joe Biden and just apply them to Donald Trump. And if that happens, it could mean that the tariffs are gone for good. So I don't say this with any degree of certainty, but I'm like 60 to 70% sure that they're going to strike the tariffs down. They did have... You know, lots of questions for both sides.
Today, Explained
Trump’s emergency powers grab
In response to Trump's lawyer, I mean, they did not buy this argument that that's a political question. The court shouldn't be involved at all. You know, there was a lot of mockery of that question.
Today, Explained
Trump’s emergency powers grab
They brought up constitutional and quasi-constitutional arguments like this thing called the major questions doctrine, which essentially says that when the president tries to do something that's too big, that the court should be very skeptical of that. Trump argued that the major questions doctrine doesn't apply to him, and the judges didn't seem to buy that at all.
Today, Explained
Trump’s emergency powers grab
So, you know, it's not like they all stood up and said, verily, we three judges intend to strike down the tariffs, and you can, you know, reporters can listen to us say this and know with certainty what's going to happen. But it sounded more like the sort of hearing that the government loses in than it sounded like the kind of hearing where the government wins.
Today, Explained
Trump’s emergency powers grab
That said, I would be stunned if this doesn't go to the Supreme Court. The U.S. Court of International Trade, like, you know, these are experts on trade. I was impressed by the professionalism of the judges that I heard hearing the case yesterday. Right. But these are obscure officials.
Today, Explained
Trump’s emergency powers grab
We generally don't want rando trade policy walks to be deciding the most important political questions for the United States. Generally, that's a matter that we want the big hitters to be brought in. And in this case, the big hitters are, unfortunately, the Supreme Court justices. So I'm fairly confident that this is going to go up to the Supreme Court eventually.
Today, Explained
Trump’s emergency powers grab
Yeah. So this statute is a little different than a lot of the other emergency statutes. This one – and I'm just going to – again, I'm going to read it again. It says that the powers that Trump is invoking here can only be used to, quote, deal with an unusual and extraordinary threat with respect to which a national emergency has been declared.
Today, Explained
Trump’s emergency powers grab
Now, I read that and I hear there are two things that needs to happen. One is that the president needs to declare an emergency. He's done that. I don't think the courts can review that, and that's fine. But the second thing is that the statute also says that whatever he's reacting to actually has to be an unusual and extraordinary threat.
Today, Explained
Trump’s emergency powers grab
So, I mean, I don't know what the courts are going to do here. Maybe they're going to start second-guessing every emergency declaration that a president makes, and I don't really think that would be a good idea. Because a lot of the time these statutes, again, they aren't really about like, is this something that you and I would call an emergency?
Today, Explained
Trump’s emergency powers grab
They're about, is this so important that it warrants the president's personal attention? And I don't know that we want courts getting involved in making those calls. But in this case, this statute says two things have to happen. It's not just that the president has to declare an emergency. It's that there has to actually be an extraordinary and unusual threat.
Today, Explained
Trump’s emergency powers grab
And so I'm hoping the courts are going to say, look, we can just set aside the question of whether Trump was right to declare an emergency and focus on whether that unusual and extraordinary threat exists.
Today, Explained
TikTok on the dock(et)
So what this law does is it says TikTok has to be owned by someone else. It can't be owned by ByteDance, which is a Beijing company, if TikTok wants to continue to operate in the United States. And there's a First Amendment challenge to this. There's actually two separate First Amendment challenges.
Today, Explained
TikTok on the dock(et)
One is brought by TikTok, and TikTok is saying essentially that they have a First Amendment right to continue to operate regardless of who their owner is. And then there's another challenge brought by TikTok users, influencers, you know, people who just want to be able to use TikTok and to publish on it. And they claim that they have a First Amendment right to continue using this platform.
Today, Explained
TikTok on the dock(et)
So there's two conflicting principles here. I mean, normally the government cannot tell media companies who their owner has to be, and for obvious reasons. If the government could do that, they could just make all the newspapers sell themselves to Trump supporters, and then we wouldn't have a free press anymore. We'd just have propaganda. But...
Today, Explained
TikTok on the dock(et)
There is a long, long, long standing rule going back at least to the Radio Act of 1912, and it prevented foreign nationals, foreign companies from getting licensed to operate a radio station in the United States. And there's still a similar prohibition in effect right now. So right now, if you are a foreign national, a foreign company,
Today, Explained
TikTok on the dock(et)
Even a company with a certain amount of foreign ownership, you are not allowed to get a license to broadcast on the radio in the United States. So this is very, very well established when it comes to that sort of key communications infrastructure. The federal government has long had the power to say Americans only.
Today, Explained
TikTok on the dock(et)
TikTok does try to argue that the rule governing foreign ownership of media should not apply to TikTok because they say that rule is just about allocating limited bandwidth. There can only be but so many TV stations. And so given that you were dealing with a limited resource, it made sense for the government to make choices about who could and could not own it.
Today, Explained
TikTok on the dock(et)
So that's one of TikTok's arguments. I don't think that's a particularly persuasive argument. And the reason why is that the reason we don't let foreign nationals control radio stations is national security. You don't want a foreign government, potentially a foreign adversary, to be able to broadcast propaganda.
Today, Explained
TikTok on the dock(et)
So who's going to be making that argument for TikTok in front of the Supreme Court on Friday? TikTok has hired Noel Francisco, who is a former solicitor general, used to be Trump's solicitor general. Huh.
Today, Explained
TikTok on the dock(et)
Yeah. So as a first-term president, Donald Trump tried to essentially ban TikTok, do the same thing that this law does, just do it using executive authority.
Today, Explained
TikTok on the dock(et)
And the court said, no, you can't do that. You need an act of Congress if you're going to ban it. And so Congress actually did pass that law under the Biden administration. So it used to be that Trump and Biden agreed on this. The law that passed Congress had overwhelming bipartisan support. And Trump rather recently seems to have flipped his position.
Today, Explained
TikTok on the dock(et)
You know, there was a lower court panel that already heard this case and it was a bipartisan panel. The three judges were Shri Srinivasan and Shri is, you know, he's been talked about as a potential Democratic appointee to the Supreme Court. Very, very highly regarded Democratic judge. The two other judges were Republicans. It was Douglas Ginsburg who's been on the Court of Appeals forever.
Today, Explained
TikTok on the dock(et)
Ronald Reagan actually tried to put him on the Supreme Court in the 1980s. That didn't go anywhere because of a marijuana scandal. But like someone who's been a prominent Republican judge for a very long time. And then the newcomer on that panel is this woman named Naomi Rao who's kind of a MAGA hack. And so you have three judges with three fairly different worldviews.
Today, Explained
TikTok on the dock(et)
All three of them agreed that the TikTok ban is legal, although Sri disagreed with the two Republicans as to why it is legal. But they all three agree that it is legal. OK. And so if all three of those judges agree that the ban is legal, I'm fairly confident that this Supreme Court is probably going to uphold the ban.
Today, Explained
TikTok on the dock(et)
There have been some news reports about some wealthy individuals who've discussed buying TikTok or getting together with other wealthy individuals to buy TikTok.
Today, Explained
TikTok on the dock(et)
We're working very, very hard to be in a position to buy the U.S. portion of TikTok so it's not shut down.
Today, Explained
TikTok on the dock(et)
So the answer is that it matters a lot, not just like – who wins the case, but what the Supreme Court opinion actually says.
Today, Explained
TikTok on the dock(et)
And I'm hoping, you know, while I think that the TikTok ban is constitutional, I'm hoping that the Supreme Court writes a very narrow, very carefully crafted opinion that doesn't do any violence to the First Amendment at all, that simply creates a carve out and says, you can say that key communications infrastructure must be owned by Americans and not by nationals of another country.
Today, Explained
TikTok on the dock(et)
Obviously, there are ways the court could write the opinion that I think would have very alarming consequences.
Today, Explained
TikTok on the dock(et)
You don't want the court to write such a broad rule or create such a broad exception to the First Amendment that the government could abuse its power if it has the power to for frivolous reasons say, we think you have too much contacts to a foreign country, so sell yourself media company to someone that we like better. Like that must not be allowed.
Today, Explained
TikTok on the dock(et)
But so long as the Supreme Court carefully polices the boundaries and says the rule is just – look, for key media infrastructure, things like who can broadcast on the radio, who can broadcast on the TV, who controls a social media platform that hundreds of millions of people use, the government can say if you want to use that in the United States, the company has to be owned or controlled by an American.