In unpredictable fashion, we record a shockingly timely episode to reflect on the Court's hasty per curiam in the TikTok case. Along the way, we catch up on the shadow docket happenings, manage not to get derailed by an ethics discussion, discover a surprising opinion revision in real time, and break down the Court's opinion in Royal Canin U. S. A. v. Wullschleger. Most importantly, Dan—with help from loyal listeners—collects on a bet Will unwisely made years ago.
Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps. I'm Will Bode.
So who would have predicted that we would record a same-day episode about a breaking piece of Supreme Court news? This probably won't come out the same day, but hopefully this will come out Saturday or Sunday. We had a breaking development.
The court released a shadow docket-ish opinion in the TikTok case, and we are reacting as quickly as we can, which is not that quick, but quicker than we normally are.
Yeah, we don't usually do timely takes, so this is going to be a new experiment for us. Yeah, I don't know if it makes up for the, what was it, like a two-month delay?
Two-and-a-half-month delay? It was a long delay. It was September to December. Yeah, yeah, okay. You had people lamenting the death of the podcast to you just on the assumption that it was clearly over. But it is not. And in fact, we have a couple of live shows coming up, believe it or not. We are going to Stanford in less than two weeks. I'm excited.
We were speaking to a class there, but we also were squeezing in a live show. And I think we're headed to Northwestern, your neck of the woods, a little bit later this spring. So we are still active. Active and traveling. Yeah, so some things to catch up on. Quick one, actually got a couple emails as well as a voicemail about this. So maybe, Will, you could listen to the voicemail.
I'm not sure you listen to these until I queue them up for you, but it's in our shared folder called voicemails.
Hey, just a listener calling in. It's been two years since Will said that we would know within two years. It's now January 2025, and we're supposed to know who leaked the DevOps decision by now, and otherwise, I believe Dan may owe him or maybe owe it a dinner. So I wanted to flag that for you all. Take care. Bye.
And so just as an example of how close attention our listeners are paying, we actually got Two emails from listeners Ryan McLaughlin and Isaac Legrand with the same reminder, which I surely had forgotten. I remember that we had that conversation in general and that you had predicted that the name of the leaker would be known, but I didn't remember the specifics.
So I guess I'm going to cash that in shortly, maybe when I'm up in Chicago.
Yeah, when you come for the live show, I'll figure out where I should take you. In my defense, Justice Alito knows who the leaker is. Justice Alito thinks he knows who the leaker is. If in the next week or two he wanted to come on the show and tell us, I feel like that might turn around.
I might still be able to prevail. Yeah, I'm just wondering whether you have enough strings in the conservative legal firm I'm at to make the disclosure public in the next two weeks so that you can save face. I do think it's plausible that we'll get one of these tell-all books that we get every few years about the court that will contain some more details. I imagine...
that a journalist is not going to be willing to actually use somebody's name for fear of liability.
But we may get, I can imagine getting a book that has a kind of detailed TikTok play-by-play, not TikTok in the other sense of the word, how it all went down and say the justices became convinced it was a law clerk for justice whoever, or they became convinced it was this person or that person without naming names.
I find these days, one of the things that's popular to say when you say something that's wrong, is to then argue that you were, quote, directionally correct. I like that. Somebody, a listener who tried to rehabilitate Judge Jones's comments that we talked about in the last episode.
Well, I agree with you that she wasn't right, but she was directionally correct, meaning she was against you and Steve. So that was good. I'd like to say I might be directionally correct on this. We might find out someday. I was not correct on my actual prediction that we would find out within two years.
It's kind of a binary. It's not really a direction kind of bet.
Well, are we going to learn more about this over time or are we going to learn less over time?
Well, I do think it's one plausible path in addition to the book expose path is in some number of years someone comes forward and writes the New York Times op-ed. I was the leaker. Yes, I agree. And I don't know who – I actually am not clued in enough on the behind-the-scenes gossip to know who this person is that the justice is. Or Justice Alito thinks it is.
I imagine that there's some folks in D.C. who know enough of the gossip to be like, oh, yeah, they thought it was this person. I don't know who that is. I wish I did. I wouldn't name names on the show. I don't want to get sued, but I would be very curious. But I can imagine the court does something, allows Trump to run for third term.
It is something that people on one side think is really even further beyond the pale. And that person writes the op-ed. I think it was important to stand up to the court.
Or they could write the tell-all book. It could be Confessions of a Supreme Court Leaker, and then it could talk about all the things they saw that were terrible.
A kind of second iteration of the famous book Closed Chambers by Edward Lazarus, kind of leaking various things that happened while he was clerking on the court. So we'll see. Okay. So that was a little bit lighthearted. One piece of kind of sad Supreme Court-related news slash gossip, but really news at this point, is that famed Supreme Court litigator and founder of SCOTUSblog –
And really, a person who fundamentally changed Supreme Court practice, Tom Goldstein, has been criminally indicted for federal income tax evasion in an indictment that indictments are not proof, but indictment contains a bunch of very salacious allegations. Very unfortunate.
I can't say I know Tom well, but he was actually my professor when I was a 3L as he taught the Harvard Supreme Court litigation clinic. And so I worked with him a little bit on a case called Virginia v. Moore. And really someone who – it's hard to overstate his role in shaping the way Supreme Court litigation is practiced today.
I mean, he's someone who came into it without the traditional prestige credentials. He didn't clerk on the court. He had a D.C. circuit clerkship, but he didn't go to Harvard or Yale. He went to American University. But he sort of said, I can identify myself. Circuit splits. I can identify cases they're going to be interested in, and I can go find them.
I can go talk to these lawyers who represented the cases before, just volunteer to take the cases. He did that to great success before anybody else was trying it. I think that his tactics were kind of seen as ambulance chasing by the kind of more genteel lawyers. members of the Supreme Court bar. I think John Roberts actually famously kind of criticized it.
I don't remember the context, but he said, would you go to a lawyer that called you up on the phone or would you go get a lawyer that you found? And then SCOTUSblog, a tremendously valuable resource in aiding public knowledge of the court, but also in aiding people like you and me. And when I'm trying to figure out what's going on, I go to SCOTUSblog just as often as I go to supremecourt.gov.
So very, very unfortunate. Yeah. For years also before the Supreme court finally had electronic filing. If you wanted to see the briefs in a case, you would go to SCOTUS blog, which would have gotten them from various sources and linked to them. Yeah.
Yeah. Yeah. So, and I think it's, it's unfortunate because it's the Tom, because of his kind of outsider experience, status. I mean, I think it's the kind of thing where the elite people are going to be kind of snickering a little bit behind closed doors. But that's not the right thing to do right now about someone who is just tremendously successful at what he did.
And I think he had a persona that I think some people found a little kind of too much. I remember I can't remember what case it was, but there was the case that he argued that was the same day as another huge case. And he says in his opening to the court is, today's undercard presents the issue of, and everyone was kind of rolling their eyes. But maybe this is a selfish thing to worry about.
I do actually a little bit worry about the future of Skoda's blog because I believe he owns it. I don't know if it's about to get shut down. I don't know if it's about to get I mean, literally, I'm not joking, I think, could he get seized by the IRS if he owes all this money?
That would be in addition to all the bad things for Tom Goldstein, for his family, but that would obviously be very bad for the public if Skoda's blog were to disappear. So again, that's a selfish thing to worry about right now, but it does seem newsy and I felt like needed to be remarked upon.
SCOTUSblog had also had some changes at SCOTUSblog lately, hadn't they? Just this term announced they were no longer going to do coverage of every case, which they used to do.
website with easy access to the briefs, which are easier to get now for the reasons you mentioned. And what's pending and just the basics. And let us not forget Relist Watch by the great John Elwood. Really one of the most tremendously useful things, the court coming out of the commentariat of savvy Serbian court observers, far more useful than what we do here.
I think I've mentioned Relist Watch before, but basically some number of years ago, John Elwood realized that which is when the court on its docket notes that a case is going to multiple conferences. This is one of the best ways to get information out of the court in terms of what's going on. And he started noticing, hey, this case is being relisted. It's been relisted 12 times.
What does that mean? Oh, turns out next week there's a summary reversal. It turns out next week there's a long dissent from a denial. And he started noticing, gosh, they seem to be relisting a lot of cases once before they grant. There seems to be some new internal checking process happening. So hopefully that Relist Watch, among other valuable SCOTUSblog contributions, can continue.
Okay, any other newsy things? I don't think so. Okay, so Shadow Docket?
There have been quite a few things, but in the interests of getting onto our main event, let's just flag one order in a pending case that the court issued. It feels like ages ago, but I guess it was just eight days ago. Docket number 24A666, Trump versus New York. This is a fortunate docket number. They just play them as they come up, I think.
This was a last minute shadow docket filing by President-elect Donald Trump to try to stop the sentencing in his New York criminal conviction with various arguments about, he has various arguments on appeal about the way in which the case implicates the immunity recognized in Trump v. United States, as well as how it's going to intersect with the related doctrine that an actual sitting president can't be indicted.
Of course, he's, even as we record this, not yet a sitting president and wasn't.
Is that a doctrine or is that just kind of an assumption, right? That hasn't ever been tested. It's a policy of the DOJ, right?
There's an OLC opinion saying it. And then there is a now Supreme Court opinion, Trump versus the United States, that states that as well.
It says a president cannot be indicted during office. I think it describes the sitting president's immunity. I think I've forgotten that part of the opinion. Jumping off point. No, no, no. You have a far better memory than I. You've caught me before.
In any event, and there are some interesting arguments that the president-elect actually is an official government position. There are laws about the presidential transition, the resources and classified materials.
Which are currently being, which at least for a while, at least were being ignored by the same person.
He has a status. He has a federal office in a way. I mean, it's not an office you take an oath to take. Anyway.
So he asked the court to stay his sentencing, and the court issued a one-paragraph order, the one on the orders page rather than the opinions related to orders page, that said, "...the application for stay presented just as a Sotomayor, and by her referred to the court, is denied for inter alia the following reasons."
First, the alleged evidentiary violations at President-elect Trump's state court trial can be addressed in the ordinary course on appeal. Second, the burden that sentencing will impose on the President-elect's responsibilities is relatively insubstantial in light of the trial court's stated intent to impose a sentence of, quote, unconditional discharge after a brief virtual hearing.
Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.
Okay, so this is 5-4. Yeah. Do you think it's weird that nobody even bothered to write kind of a three-sentence, let alone a two-page dissent?
No, I think the willingness to dissent, well, I think the willingness to dissent already sends the message you might want to send as one of the dissenters. And, well, maybe that's just my, I'm not sure what the dissent would say. Well, I mean, they could explain why they would grant the application, right?
Yeah, I'm just not sure they have good responses to both points. Well, I mean, presumably they think they do. So I would be curious. This is kind of like the bad version of the shadow docket, right? That kind of totally unexplained. They're not doing the thing. They're refusing to do the thing, but still would be.
Well, the good version is that I think the majority issued exactly the kind of explanation I would like to see more of in the shadow docket, where it's short, specific enough to give you a sense. But they say, look, there could be more. I think that's about what they could responsibly say in this time frame.
Those are two points that are helpful, and they may not agree with themselves exactly how much weight they bear. But you can certainly imagine, and people talked about this, if the judge had said, I'm going to sentence Trump to 10 days in jail, he's going to go straight released from jail at 1159 on Inauguration Day.
You can imagine thinking that's going to burden his role in the transition or something that we care about.
Okay, well, we'll circle back to something Trumpy in a few minutes. So actually, here's something unpredictable. We're making good time. We're maybe 15 minutes in. We've covered all the preliminaries we hope to cover. Were there any other preliminary matters?
Would you like to find some excuse to derail us in an unproductive 45-minute conversation about legal ethics?
Oh, are we talking about the Trump phone call with Justice Alito? Or are you thinking about something else? That was what I had in mind. Yeah, that was interesting. So Justice Alito apparently had a phone call with President-elect Trump purportedly about a reference check Yeah, Will Levy, a friend of mine from D.C. I haven't spoken to about this at all, but somebody I know.
A job, I'm not totally clear what the job is. And just Salido said they didn't talk about this filing or anything else that was pending before the court and perfectly willing to believe that. It raised my eyebrows just because it made me wonder, is President Trump going through other – Job seeker resumes to call random references?
Is he calling a hiring chair at various law firms about various people being considered for various jobs? Or was this kind of a pretext that he used as an excuse to reach out to Justice Alito? It doesn't necessarily... I'm not sure it's unethical in any way by Justice Alito to serve as a reference for a former law clerk. I think that justices do that all the time.
But I guess I wonder, on the other side of it, is that the motivation? Is that what's going on?
There was a follow-up story in the New York Times, I don't know if it's that read it a little bit of color, which is that apparently a group of other people in Trump world were trying to block Will Levy as not being especially conservative because he was tainted by his service for Bill Barr, who is, as listeners of the podcast may not realize, Bill Barr is regarded as a squish by the new Trump administration.
Because of his unwillingness to- Because he believed in some basic rule of law? I think that he believed that Trump lost the 2020 election and that he did not help prosecute non-existent voter fraud and so on. Are you willing to say it was non-existent? Yeah. I mean, I'm sure somebody's somewhere committed voter fraud, but not material.
And so apparently the New York Times claimed that Will Levy sort of orchestrated the call or asked Alito if he wanted to take a call from Trump and then asked Trump to call Alito. And then according to the New York Times story, the beginning of the call was funny because both of them sort of thought the other one had called. Yeah.
Alito was standing by for a call from Trump and then Trump thought that Alito had asked to talk to him. And so they're both like, what are we doing here?
That's like kind of, is it the kind of the Supreme Court version of the like old prank call thing where you conference call in the two pizza places and like Domino's like, what do you, do you want a pizza and pizza? It's like, do you want a pizza? I've never done that. Did you do that when you were a kid?
trump that he was like really conservative i guess i would just assume not have supreme court justices serving as like ideological references but i don't know enough to really weigh in and that one does seem to have kind of disappeared right that was a very flash in the pan kind of scandal i think so yeah i assume you're okay with we're just serving as like academic references like if a law school wants to call somebody's justice and see if they'd be a good law president that's fine i yeah i mean are you about to like hoist me on my own petard in some way i was just checking
Yeah. I mean, yeah, I think in general that seems okay to be a reference. I mean, it may be like if someone is a law clerk is trying to get a job with a party that is currently like a company that currently has a petition before the court, like not as a lawyer, but like, I don't know.
And maybe there might be times when, when those kinds of what we might consider ex parte contexts are inappropriate, but as a general matter, no, I'm not going to say that. Yeah. I'm just riffing. I don't, I don't know. I don't want to commit myself. That seems fine. I think if it weren't a lead-on Trump, everybody would think it was fine. You think everything's fine, though?
You think everything is ethical, right? I think you'd come down and maybe say straight bribes, or maybe you'd be willing to say— Of course bribes are ethical. Okay, okay. But you trust them. You trust them. You think they're all— No, not at all. Okay, okay. All right, we'll just schedule. Maybe we should just schedule like a kind of monthly like ethics episode.
And we'll get all that stuff out of our system.
We're going to do some of this at Stanford in the class we're going to. Are we? Well, yeah, but not in the podcast.
No, I hope not. And I don't think we're going to record the class. No, no, it will be private. Okay, so your attempt, I think mostly failed. I think you got me to go in for like five minutes, but we're still going. On to cases. We actually want to talk about... Two cases. I think we might be able to pull it off. I've got 40 minutes or so. I said might. Might just keeps my options open.
But two cases, one perhaps slower profile than the other, but one being a case that represents a victory by a friend of the show, Ashley Culler, whose praises we have sung in the past for, I'd say, snatching victory from the jaws of defeat in the Mallory case, that interesting personal jurisdiction case we talked about. Not last term? Prior term? Is it last term? It's all kind of blending.
Prior term. Prior term.
I thought so. I know because Steve Sachs wrote the piece on it in the Supreme Court review, and that edition has already been published. And we're still publishing the one for last term.
Okay. And I thought he gave an incredibly good oral argument. I think I actually played the intro. But this is another... Can we talk about this one for a minute before we do TikTok? Can we get away with that? Are you worried about it? Okay. Another one where I think – and there – so back to Mallory, in that case, very narrow win.
Carved together an unusual coalition of conservative liberal justices, really as close as it could possibly be, and got Alito seemingly to very grudgingly come along. And here's another kind of impressive win in that it's a unanimous win. But as respondent, respondents are less likely to win than petitioners and getting the court to side with the short side of a split.
I think getting the court to affirm where the court below was the only court on that side of the split.
Am I right about that?
Yes.
And these are both cases that are plaintiff friendly jurisdiction procedure type questions on sort of formalist grounds. Yeah. Is it a formalist arguments that help the little guy? Yeah. on kind of technical questions of jurisdiction and procedure. So the underlying case is actually kind of fun. It involves dog food fraud.
It involves these companies that sell so-called prescription dog food for pets with various ailments.
So by the way, I had cats for some time and I was kind of conned into buying the prescription cat food for some number of years. And I remember I was at the vet one time and I kind of just started asking questions. I was like, well, why is it prescription? And they like, They did not have great answers for me. And then I just decided, I was like, this is stupid.
I'm going to get the regular Costco cat food. So I got smart on that.
To clarify, the scheme is basically, there's no actual law. This is a prescription to buy the dog food. The companies just decide to tell you that they want you to get a prescription before you buy the dog food so that you'll feel like it's fancier and then pay a lot of money for it. You can buy the same dog from other people without a prescription.
And I think that's clearly correct, right? And it was never when I tried to ask questions about this. So I don't know if there's a cat food suit going on or if there's a – maybe, actually, if he's working on one of those, I can be part of the class. I don't know if I get some payout on that. Yeah, it's possible that cat food's in this class. I'm not sure. Well, it should be.
If there's a plaintiff's lawyer out there, can you do one of these? It's probably outside the statute of limitations for me because it was quite some time ago. But I felt pretty annoyed about that.
Right. Yeah. And what's interesting about that is when you try to bring a lawsuit about it, your suit has a mix of some state law stuff and some federal law stuff. It's fundamentally a state law fraud claim. But one of the pieces of evidence, one of the pieces of the claim are various violations of federal law, the federal FDCA and various regulations.
So the complaint in this case originally alleges state law fraud. Yeah. in state court, but that has a bunch of federal law-y stuff in it.
Yeah, and it's a little confusing because I guess it's not clear whether those are independent claims or those are just kind of tied up.
The court seems to gloss... Well, they're clearly not independent federal law claims because there's no federal cause of action. But there's some federal law stuff there.
And so under a case called Grable, which we can talk about in a second, but sort of fades away from the case, sometimes when you have a state law claim that has some federal law stuff in it, some federal law ingredients, sometimes that makes it into a federal law claim.
The Grable case itself involves a property dispute, but that implicates questions about IRS service or process and is deemed to be sufficiently federal. Okay. And sometimes not. And so the dog food companies, when this case gets filed in state court, they say, oh, there's enough federal law stuff in here that it should be in federal court and they remove it to federal court.
It's not clear whether that's right. That's the thing that the parties can dispute and the court doesn't take a position on whether it's right or wrong.
We treat here that finding a federal jurisdiction as given, and then for the rest of the opinion, they just describe the federal issues as if they are federal claims. I guess they don't need to resolve it because they are concluding, as we'll see, that there's no jurisdiction either way.
So what the plaintiffs then say is, okay, look, we're not sure we agree that this federal stuff makes these into federal law claims, but we'll just amend the complaint and drop it all. It's not important. We think we can make this claim just as a matter of state law without relying on the federal law stuff, so we'll just amend it and drop all the federal law stuff.
Now we have a complaint that's purely state law claims. They say, look, now that we've amended the complaint, we don't belong in federal court because there's no federal law issue here, so we want to go back to state court. Sorry, I got us derailed. You explained before I got distracted, you explained that it was removed, right? Yes. Okay, great. Yeah.
And so then that's the dispute the court has to face is, if you remove a case from state court to federal court, and then the plaintiff amends the complaint to drop the stuff that was the basis of removal, the federal law claims, what do you do? Yeah.
And until now, until the Eighth Circuit got this case, everybody had said, you assess removal jurisdiction at the time of the cases removed, and we won't allow subsequent stuff to deprive us of jurisdiction. And that includes subsequent amendments to the complaint.
But the Eighth Circuit said... And have we explained the concept of supplemental jurisdiction?
No.
Okay. Is that important? Well, I mean, it doesn't mean we need to explain why the... There would have been jurisdiction over the state law claims to begin with.
All right. Yes. Under supplemental jurisdiction, if there are some federal law claims that bring you into federal court, then that also brings any other state law claims that are integrated within the state court.
I wanted to ask to flag that because is there like a dyed-in-the-wool originalist argument that that's unconstitutional? Yeah.
Yeah, that's floating around. It sort of depends on the definition of case. Does case relate to claim and stuff like that? But yeah, there are definitely some questions about the limits of that logic that I think are discussed in the new edition of the Hart and Wexler casebook that we got out this month. It's not my chapter, so I forget how deeply they're discussed, but I think so.
So on the one hand, you have the maxim that we should figure out whether a case, whether there's jurisdiction at the time the case is removed. So most circuit states had said. What the circuit said instead is there's another maxim, which is that the amended complaint is the complaint. And for all purposes, you should just treat the amended complaint as the complaint.
That's what it is to amend your complaint. And so if we just look at this complaint, this amended complaint, as if it were the complaint, there's no business federal jurisdiction.
We would not be able to get that into federal court. Yeah. But you can see the kind of policy appeal of saying, no, you don't get to, you plaintiff don't get to send it back just by amending. Because it does have this flavor of gamesmanship. Yeah.
Yeah, it's gamesmanship adjacent. I mean, I think the... Just gamesmanship, right? Well, it's hard to figure out exactly what the game is. Because it's not like you get to go back to state court and then get your federal claims back or something. You got to go back to state court only by getting rid of all the federal claims. So it's quite... You pay a price to go back to state court.
I think the gamesmanship would have to be in a case like this where it's ambiguous whether something is a federal claim or not. The idea would be, I guess, that you kind of profligately plead your quasi-federal claims. And then if you get caught, you take them out. And so you can afford to kind of fly a little closer to Grable. But it just doesn't seem very realistic.
It's not a huge gain from doing that. If you get caught, you have to get delayed in this like back and forth removal thing, which plaintiffs don't really like to do.
Don't you think just courts, though, have a natural kind of aversion towards parties doing stuff to kind of like get a case away from a judge, right? Just kind of to escape jurisdiction. I mean, I just I can see that why judges would kind of.
Yeah, I think I think they just have an instinct that if you're doing stuff like that, it's probably gamesmanship. But that's what I'm saying. Like sometimes take the obvious example. You settle a case. takes the case away from the judge, and the judge is usually like, okay, fine, it's settled.
And we don't call that gamesmanship, that you settled. But I mean, clearly there must have been a strategic consideration that it is worth it to get away from, we want to get away out of this federal forum, right? Yes. That must have been part of the thought process.
Right, but I think part of the thought process is also, we don't really belong in the federal forum in the first place. We could waste our time, because this Grable test is very complicated, We could waste our time in, like, a series of appeals, a decision about, like, are these elements enough to satisfy the Grable test that everybody knows is kind of muddy?
Or we could just say, screw it, it's not worth fighting about it. Yeah. Okay. One other interesting thing. When the speaker granted the case, the respondent added another question to the case, which was whether we should just overturn this entire Grable idea that state law claims that contain federal law stuff... can be in federal court at all, which also does have an originalist.
There's a originalist family of scholars behind it. I bet you like that, right? You like that. I don't think so. I think it's Justice Thomas' view. In the early 20th century, Justice Holmes said the test should just be what is the law that creates the cause of action. Ashley and I will get drinks at some point, and he'll try to convince me about why he's right.
I'm not sure it's right, because in 1875, when the federal jurisdiction statute was created, its stated purpose was to expand federal question jurisdiction to the maximum permitted by the Constitution. And I'm not convinced that the test turns on who created the cause of action because in 1875, it was like the pre-Erie world where we didn't think about causes of action the same way we do now.
So it's like a rule, a formalist rule, but I'm not sure it's one that actually has original spaces. But in any case, the court says... You're unpredictable, just like the podcast. I try to pigeonhole you, but... And the argument did not get a lot of uptake. Would you be the swing justice on the court? In what? I don't know the question. Versus Anderson, I would have been the legislator.
All questions, yeah. Yeah. So it didn't really get a lot of uptake, but also the court doesn't mention it, doesn't discuss it. And you could even imagine sometimes having that kind of like aggressive argument when you're the respondent might help get the court to unanimity on the smaller question.
Like there might've been people who were like, well, if we have to get into it, yeah, I kind of want to overturn Grable, but let's just say that Ashley wins so we don't have to.
Talk about it. Okay, so we should probably preserve time for the main course. It's a little bit more of an appetizer. Dog food. I'm just going to, if the listeners will forgive the audio issues this will create. I went analog today and actually read on printed paper and not on my e-reader. Do you have an e-reader? I have this thing called a Remarkable.
I don't have a Remarkable, although I use an iPad Pro for all my...
read it yeah i used to but then i like i can't not look at my email every 30 seconds if i'm doing that so i have to the remarkable has no ability to do that so it's the only way to you have a better attention span than me no i just read my email all the time you what i just check my email but you managed to also read long complicated things i just so somehow somehow you you you're able to thread that it happens when i'm someplace without wi-fi well i'm like sitting in the waiting room waiting for my kids someplace that's how i go but i always have wi-fi and how to tether my phone
Okay. Yeah, I was just – one thing that I noted, and maybe you'd know more about this, it seemed like right around pages 12 and 13 of the opinion, it looked like – is the court kind of just resolving some other questions that have not actually ever been resolved by serving court cases? Yeah. They say, adding federal claims can create federal jurisdiction where it once was wanting.
And then their site for that is a First Circuit opinion, right? Is there not a Supreme Court opinion saying that? Or are they just sort of saying, well, let's just decide that too? Is that just totally uncontroversial?
That's a good question. I think some of these are points that have not come up as often in the Supreme Court.
The general, the doctrine that And there's another one they put in the footnotes. They say, to our knowledge, no appellate decision addresses whether, in the final situation discussed, when an amendment eliminates a non-diverse party, the rule in removed cases similarly follows the rule in original cases. So that would be a case where someone...
removes a case to federal court on the basis of diversity jurisdiction but there is a there's not complete diversity and then yeah the plaintiff like creates complete diversity by removing the non yes party yes okay i think you're right that these are things that are i mean that are not well stated in some court opinions and in general this this whole opinion which is by justice kagan is written as a
self-consciously written as a slightly elegant primer of diversity and removal jurisdiction and maybe designed to settle some things.
Page 14, there's a site to a Seventh Circuit case with the Posner J parenthetical. Those are always interesting to me. Which judges get the judge parentheticals?
I was wondering if either the First Circuit cases were thereby. Are these Boudin or Selya opinions who might sometimes get the J? Well, there is a way to find out. I'm going to
I'm going to do that. I'm going to do that using the app we have mentioned on the show before that you refuse to use because you are a Windows person. It doesn't work on my computer. What? I said it doesn't work on my computer.
It's not my fault.
The lovely special app. What is this? I don't remember what the app is called. Case Viewer that gives you instant fingertip access to cases from the Supreme Court and other courts. And you called it Judge Celia. who is the judge who goes out of his way to use the kind of pretentious words.
Yeah, and there's another First Circuit case cited in the same paragraph that's also a Celia.
Yeah. Sorry, Judge Celia, you have not entered the firmament of the parenthetical. Okay, well, congrats to a friend of the show, Ashley Keller. Opposing her clerk, incidentally. Oh, yeah, yeah. It all goes full circle. Okay, nothing else to say about that one, but kind of an interesting one. So now, let's deliver. We... We promised and delivered. We neither under nor over promised.
And we are now neither under nor over delivering. We are delivering on our promise to talk in some way about TikTok incorporated versus Garland, which is consolidated with Fireball versus Garland. Fireball is a TikTok user, right? Yes. And there are other that consolidated case. There's not just one user, but a number of users. of creators.
I don't know if TikTok creators have, I don't know if there's a special name for them, talkers who are suing about a statute. The Protecting Americans from Foreign Adversary Controlled Applications Act. Nobody seems to call this
Actually, we did a lunch talk on the TikTok arguments earlier this week with my colleagues, and Aziz insisted on calling it Pafaka. And the more he talked about Pafaka, the more people laughed.
Yeah, I was wondering when I was reading first read the name of the statute, I was like, is this one of those ones where Congress wrote it to come up with a clever acronym? But but no. OK, so how does this what is this law about? This law is about TikTok and other stuff. Right. I mean, it does. It is explicitly about TikTok and TikTok's beneficial owner, ByteDance. Right. But not not exclusively.
There are some other provisions there.
Well, right. So it has a two-pronged test that applies to TikTok and that has a definition of basically large apps and says that they cannot be controlled by a foreign adversary, which is a small set of countries, including China.
And requires any TAC or any such company to divest, to be divested from its foreign control ownership if it wants to keep operating in the United States after January 19th, 2025.
Yeah, or 270 days for the other companies, 270 days from when they are designated as such by the president.
Correct. The president has the ability to issue a temporary extension if he makes certain findings, which the president said not to do. But at its core, what it says is that TikTok cannot be owned by a Chinese company. It can't operate in the United States.
Yeah. And the deadline, as you said, January 19th, 2025. We're recording this on the 17th. This episode will presumably be out the 18th or the 19th. I did think there was one piece of – this is so petty, but I think there was one piece of kind of clunky writing on page five.
It says, because the act itself designates applications operated by ByteDance and TikTok prohibitions as to those applications take effect 270 days after the enactment, M-January 19th, 2025. I found that sentence ambiguously written as to whether... I knew the answer, but just as written, it was like, is that the date of the enactment or is that the 270 days after?
I just thought that... Although it's precisely written. If it said 270 days after the date of the act's enactment, then the dash would be wrong. But by eliminating the date...
Okay, okay, okay. Still, on first read, I was just like, oh, it could have been better. This is a per curiam, by the way, that I think most of us think was written by the Chief Justice. What do you think?
I think it was written by the Chief Justice. Okay. In part because I assume that it would have made sense for somebody to start drafting this opinion before the argument. Yeah. And the person who would be in the best position to start drafting the opinion before the argument would be the Chief Justice. Yeah.
And this is interesting, though. This was a shadow docket, except it was orally argued last week.
Don't we call these rocket docket now?
Lightning docket, emergency docket. Lightning docket, that's right. Call it whatever you want. It's not really in the shadows. So I think this is not a shadow docket opinion. It is under your capacious original definition, but there's nothing shadowy about this, right?
Well, it's ambiguous. Right. So on the one hand, they did not grant cert. I guess they did treat it as a cert petition. It starts as a request for an emergency injunction to stop the action going into effect.
And so then what they do is ask for... The opinion comes out on applications for injunction pending review. The jurisdiction line is not on petition for certiorari, at least on this PDF.
But the first page of the PDF says certiorari to the United States Court of Appeals for the District Legal Circuit.
I'm looking at the first page. I just see... Slip opinion. Are you looking at the first page of the slip opinion?
Yeah. Right after Garland, Attorney General. It's Court of Appeals.
Oh, there is a revision noted. Revision. They changed it. Holy shit. They changed it to what you have. I have the old one. I printed it this morning. So even they didn't know that it was on the shadow.com or not. Okay. Wow. That is fascinating. Has anybody else noted this? I don't think so. Okay. Okay. Love it. I love the real-time discovery. That was weird, right?
I was sure I was misreading it, right? 99 times out of 100, if that's your scenario, you would have had the right thing, and I would have been reading some other thing I printed a month ago. Oh, I see. There are other revisions, but they're just the same revision on the subsequent title pages for the subsequent opinions. Mm-hmm.
Okay, tweet it. Okay. So I think what happened is this started as a set of emergency applications. And then on December 18th, the court said, the party suggested we could treat these emergency applications as a writ of certiorari. Doing so, the petition is hereby granted. So they re-characterized it as a cert petition. And they must have kind of lost track of the fact they'd done that.
Forget that they did that. And this stuff happens on this tight timeline. Even the mighty clerk's office and the reporter's office, maybe. Yeah.
So I think it is not of the shadow docket. The interesting thing about this is there have been some cases, and I think the... OSHA cases about the mask and vaccine mandate under Biden, I think were just stays that were then orally argued and like got an opinion like stays, but they always stayed stay applications. This technically had certain grants. And so it technically became a merits case.
I think. So why, why? I think probably that was a mistake. I think they probably made it per curiam because they thought it was like the OSHA case where they were deciding it on stays. And so they only remembered now. I only remember a few hours later today that it was a cert case, so it probably shouldn't be per curiam.
I guess you could still say, and maybe you still have a per curiam sometimes for things that are super fast. I guess in Trump versus Anderson, was that cert? It might have been cert. I don't remember. You should know. Come on. I mean, that's your case. Don't rub it in. It's not my case. You've tried to block it.
My Harvard Law Review article with Mike Paulson about the case just came out yesterday, finally. Yes, that was cert. So I guess it can still be a precarium like Trump versus Anderson. Hopefully it's a better opinion than Trump versus Anderson. Anyway, they seem to have lost track of exactly what they're doing, but it went from shadow docket to merits opinion in a very short time.
And I think, I'll just say before we get to the substance, I think procedurally, this is another good one for the court. But they got this pressing issue, they had this deadline, and they tried to get it as good of briefing and argument and full consideration as they could in the timeline they had. And I think that was a good, that was the right way to handle it.
Yeah. So I was pulling up Whole Women's Health, right? Which is the Texas SB8 case, right? Yeah. And that was similarly, it was a little bit on a longer timeline, but wasn't it similarly kind of like shadow docket converted to cert? It was cert before judgment. Maybe that's a little different.
Right, because there they had two rulings. They had the shadow docket ruling the night or the day after the statute went into effect. Right. With the kind of Trump versus New York style, one paragraph opinion. And then they had the subsequent cert before judgment cert combined with the other case. There's a whole typology of these.
And they've had some executions that are more like the OSHA case, I think, where they put the state of execution on the question on the argument calendar.
Yeah, okay, well, would have been nice. I just, I don't even understand, why can't we just know who wrote it? Like, who cares? Like, why does it have to be per curiam? Like, if it's not on a cert docket, either way. Yeah. Just, why doesn't somebody want credit for it? I don't, I don't, I don't get it. But I guess we should talk about the substance.
Well, I went into that question, which is that I think when When they have an opinion where they know what they want to say, but they don't exactly know why, so the reasoning is going to be a little dodgy, they usually assign that one to Justice Curiam because he doesn't have a great... Nobody wants to take the hit.
I mean, is it your impression that the chief kind of keeps all these super big high-stakes cases for himself? I mean, not like every big case, but the ones that kind of directly implicate the kind of Trump and political process and... I mean, I don't know about all... Like, a lot.
I mean, he didn't write Bruin or Dobbs.
Well, he couldn't have written Dobbs because he didn't agree with the majority, right? You know, right? He could have tried to steal it. Yeah. Well, for all we know, he did, right? Like, who knows? Yeah, I don't mean he writes every... I don't mean he writes every big case, but a case like this, you and I both would have, neither of us would have taken the bet that he wasn't going to write it.
This had chief all over it, whereas a case like Bruin, not necessarily to me. Maybe cases that heavily implicate relations between the branches or something.
Yeah, I don't know what the variable is.
I don't quite know the category. I feel like there is a category. Right.
Okay. Okay. So on the merits, the court says the law is fine.
Yeah. The law is okay. And to be clear, the arguments are First Amendment arguments. Yes. And different First Amendment arguments, right? There's multiple different First Amendment arguments in place. So there are First Amendment arguments actually being offered by the users, the content creators, influencers, perhaps. There is TikTok's right to speak. And also...
an associational First Amendment right that's sort of in there that they, at least at oral argument, noted. And then there's, I guess, potentially a question about does ByteDance, which is a non-U.S. company, does that have any First Amendment interest that's not really the center of gravity?
In fact, the court says in a footnote that ByteDance clearly does not. Because it's a wholly foreign entity. Or to the extent that ByteDance's asserted expressive activity occurs abroad, that activity is not protected by the First Amendment. I guess that's different.
Yeah, so to the extent that, like, ByteDance was sending over representatives to the U.S. to, like, make some decisions that would be protected? Well, it's more complicated, at least, then. They're not... Yeah. There's a lot of stuff like that in this opinion, where there's, like... here's a complicated, hard question. We're not totally going to answer that for you.
We're going to make an assumption.
So the problem, I mean, this is the problem with this law is it presents several hard questions. One is, does this case implicate the first amendment? And that's, she says, no. And so it's easy way to resolve the case, but like, it seems like a big deal to say this, this doesn't implicate the first amendment because it's a national security ban on foreign average ownership rather than speech. Yeah.
Or what level of scrutiny applies. That's potentially very important. And then, as some justices in the lower court said, like, does the law pass strict scrutiny?
Which is also a big deal because so few laws pass strict scrutiny, especially in the First Amendment context, that any precedent saying this law passes strict scrutiny sort of establishes an important precedent that could be used in other strict scrutiny cases.
And so one challenge for the court was how to decide this in a quick way that they could all agree with without saying anything about any of those questions. Yeah.
Yeah. So first step of that is the court says, we assume without deciding that the challenge provisions fall within the category of things that are subject to First Amendment scrutiny. So maybe it's not predicted at all, which would make the case easier, but they're just going to assume for purposes of argument that it is and then go through that analysis. Yeah.
And there was this discussion and argument about sort of, is this just a law regulating corporate structure? And the chief asked Noel Francisco, a representative of TikTok, can you think of any precedent where we've treated a law about corporate structure as violating the First Amendment? Noel Francisco said, I couldn't really think of one. Which I thought was odd.
That he didn't have one at his fingertips. Yeah, I thought it was odd. Shouldn't he have said Citizens United? Like, isn't that a case where the court says, look, you want to fund this movie, if you do it with a PAC, it's fine. If you do it with a for-profit corporation, it's not fine. It's the law.
Like, this law required a certain level of separation between the PAC and the underlying bad guy, the corporation. Yeah. Yeah, I was wondering that myself.
It's not clear it's a good answer for North Francisco because in the foreign... It's a little different because that's a case about who gets to speak. It's not telling the speaker how it has to organize. I don't know.
Maybe it's the same. Well, Malcolm Stewart at least kept saying in the first argument was, it's fine to do this as long as you structure it in a certain way. You've got to structure it by doing it in a pack that raised the money for that purpose.
Yeah.
I was going to say, it's not a great answer because foreign campaign contributions are usually thought to be unprotected. So if Congress had a Citizens United-style law that said, well, corporations that are worried are funneling foreign money in have to divest or something, I assume that would be upheld. Anyway, I thought it was weird not to see campaign finance laws talked about.
And Justice Sotomayor would have rights of concurrence, in part concurrence in the judgment where she says she joins everything except for the part we just talked about. She would have just said yes for some of my clearly implicated here.
Okay. So go ahead. Then the next question is, well, okay, if the first one was implicated, how do we say it's okay? And I think some people, some of my colleagues assumed what the court would do is say strict scrutiny applies, but the law satisfies strict scrutiny. Or maybe we assume strict scrutiny applies and the law satisfies strict scrutiny, but the court did not do that.
It instead decided that at most intermediate scrutiny applies because the law does not regulate the content overview point of TikTok's speech. That I thought was surprising. Why? Why do you think that was surprising?
Well, I'm not saying it's wrong exactly, but when I first read the law, I thought, of course it regulates the content of TikTok's speech in the sense that if TikTok stopped operating TikTok, and just said, from now on, we're only selling widgets on Amazon or operating a recipe site or something. I had assumed they would be not covered anymore.
And thus, the law really did turn on the content of their speech. What the court says is, because TikTok is singled out by name in the law, that's not true. Like maybe other companies that are being included because they satisfy the definition of people who run companies, et cetera, et cetera, maybe they could make a content-based argument.
But because TikTok is named and it's covered no matter what it does, the TikTok-specific designation doesn't turn on its speech. If TikTok stopped operating TikTok... it would still be covered by the law. Okay.
And did you find that? I mean, that was, that was kind of, it's kind of a clever dodge.
I'm not saying it's wrong. My reaction, I don't, I don't remember that. Maybe that was discussed at argument and I just didn't pay as much attention to that part of the argument.
It was a very, very long argument.
So I feel like I don't know enough to know whether that's obviously wrong in some way, but it's a clever dodge and it's the kind of work I expect from Justice Curia.
Yeah. Okay. So that goes away. So this is treated as facially content neutral and justified by content neutral justification, which is preventing China from collecting vast amounts of sensitive data from 170 million U.S. TikTok users. That's a lot of people. That's like... More than half the country. Yeah. Way more than half the people who aren't young children. Do you think that number's true?
There's got to be a lot of bots in there. That doesn't seem true. Yeah, or like double accounts. I mean, I don't know. I don't. Do you use TikTok? I don't. I have an account that I created just so I could like occasionally look at stuff, but I don't actually use it really at all. Well, I don't let it use my, yeah, minimal data.
I don't let it access my contacts and I've only opened the app like five or six times. But when you watch stuff, they know what TikTok you like. Yeah, presumably. But I just can't imagine that I'm in the top 10 million people of the priority of China. And we start getting threatening emails requiring that we give more pro-China coverage on the podcast. We'll know why.
We haven't really had much China-facing content in any way. That's because TikTok is...
Threatening us. Okay. Okay. So then that this data justification, while you could find out whether it's out of strict scrutiny, because maybe there are other things you could do. Court says, look, for intermediate scrutiny, this is good enough. The government spent several years bargaining with TikTok trying to find a workable solution before they concluded it wasn't going to work.
So it's good enough for us. Yeah. Okay, and this is a detour, but another kind of interesting thing about this, and this is, I mean, this is, I think it's happened before, but it's kind of unusual. The government, like, Gave the court a bunch of evidence. Classified evidence. But that it said, like, the parties can't have. Other parties can't have. Only the court needs to look at it.
And so there were, like, parts of the government's filings that made an argument. Manuel Francisco, a lawyer for TikTok, was like, that's in a redacted part. I don't know what it says. I think they were filed below.
I'm not sure that... I think in front of the Supreme Court, they didn't... Yeah, yeah, yeah. The justices had access to it, I believe, right? I don't... I mean, yes, they had access to it.
I don't think we know if they looked at it or not. Well, yeah, we know that they don't rely on it in the sense that there's a footnote that says, our holding and analysis are based on the public record without reference to the classified evidence the government filed below.
And I think, yeah, and I think we just don't know, like, did the justices, like, also wall themselves off from it? Like, not... Look at it, or they look at it, and then decide not to consider it, or I don't think we know that. They must have looked at it to say about the reasoning. I don't know. It's not bad reasoning, is it?
No, I thought it was, as far as these lightning docket type opinions go, I thought it was better than some, for sure. And not wholly unpersuasive. There's some other kind of issues in the case. What about, does Congress have mixed motives here, in part because maybe Congress's motivation was not just to prevent data collection, but was to kind of prevent China from using the algorithm to kind of
Put out propaganda, and I guess that would be considered a bad motivation on Congress's part because that's not content neutral. Maybe the government doesn't have a legitimate interest in preventing foreign misinformation, foreign propaganda, which is the position that Francisco represents.
explicitly said or arguments that there's no legitimate interest in preventing foreign propaganda, which is interesting.
And the court doesn't rely on that. And I think there's a, I think it's O'Brien, I think doctrinally the official story is the fact that some legislators supported this law for totally impermissible reasons is something we ignore in a speech case.
Yeah. But the court doesn't say that. It just says here, the record before us adequately supports the conclusion that Congress would have passed the challenge provisions based on the data collection justification alone. Yeah. So maybe if it's in a different case where it's... Yeah, that's a different way to think about it. Each one is necessary.
Maybe, I mean, it comes out the same way, but we don't have this. You can't cite this for that. Okay. We mentioned a few other things to mention. We mentioned Justice Sotomayor. Mm-hmm. Short opinion. And then longer, I mean, not super long, five pages, but longer opinion by Justice Gorsuch, who doesn't go along. He's the only one who doesn't go along with the majority at all.
I mean, he goes along with the result. Yeah, yeah. I mean, he doesn't join any single word of it. He just concurs in the judgment and writes his own thing. Interestingly, kind of at the outset expresses some reservations about the kind of timing of a decision like this.
We have had a fortnight to resolve finally on the merits of major First Amendment dispute affecting more than 170 million Americans. Given those conditions, I can sketch out only a few and admittedly tentative observations. And he's not wildly critical of the majority, by any means, but expresses some of his own views.
So point one, the court rightly refrains from endorsing the content manipulation justification. Okay, good.
And so second, I am pleased that the court declines to consider the classified evidence the government has submitted to us. And so it does, as I said, the government had given... In some way, I guess the record had been transmitted in some way, maybe the classified stuff given to us, but shielded from petitioners in their council and note some concerns about that. And that does seem legitimate.
Third, this is the interesting where it gets interesting. I harbor serious reservations about whether the law before us is content neutral and thus escapes strict scrutiny.
But then he says, while I do not doubt that the various tiers of scrutiny discussed in our case law can help focus our analysis, I worry that litigation over them can sometimes take on a life of its own and do more to obscure than to clarify the ultimate constitutional question. Interesting. So there's this thing people have been saying, post-Bruin or the conservative ideology.
hardcore originalist moving away from tears of scrutiny entirely just as kavanaugh says explicitly in rahimi he's against it yeah yeah and he's not walking away from it totally no but he's saying maybe we should put less emphasis on it since they can be help focus our analysis useful maybe they're useful tools so but also let's not let's not focus on too much yeah a kennedy-esque view on them i think
This is Kennedy often. Yeah. He didn't cast against his scrutiny, but he seemed to abandon them sometimes in a case where
Yeah, I think he just generally didn't like kind of complicated kind of doctrinal frameworks. He kind of wanted to be a little bit more common sense about things.
Fourth, whatever the tier of scrutiny, I'm persuaded the law before us seeks to serve a compelling interest, preventing a foreign country designated by Congress and the president as an adversary of our nation from harvesting vast troves of personal information about tens of millions of Americans. And finally, the law is also adequately tailored.
So he comes closer to saying, maybe we should uphold this under strict scrutiny. Although, again, he doesn't really want to get into labels. Yeah. I also like the last paragraph of his opinion. What's going to happen is unclear.
But then he just says, given just a handful of days after oral argument to issue an opinion, I cannot profess the kind of certainty I would like to have about the arguments on the record before us. All I can say is that at this time, under these constraints, the problem appears real and the response to it not unconstitutional. Which is just like a little dose of humility, which I like.
I like seeing that. I mean, I think it's appropriate in this. The question is to decide the case. They have to do their best. But I think just explicitly acknowledging or maybe giving a little bit of a thumb on the scale to upholding the law because... We don't have a lot of time, and we just gotta do the best we can, I think is a nice thing to.
And if this were the majority opinion, I mean, I think that would sort of weaken its force a little bit as precedent, which is maybe healthy. I mean, the majority opinion does also contain one of those.
Embarrass the future. Yeah. Which I think is something the chief has used before. And then it says, the caution is heightened in these cases, given the expedited time allowed for our consideration. Our analysis must be understood to be narrowly focused in light of these circumstances. A little bit like the Bush versus Gore line.
Yeah, but it's not saying it's not worth something as precedent. It's just saying, treat this as kind of more specific. Right. That's a way of saying like the scope of our holding. It's the same thing as it being tentative though, right? Gorsuch is like it's tentative. Yes, that's true. This is not tentative, but it's focused. What else to say about this?
President Trump filed a brief, which you had sort of encouraged, right? You and Richard Ray had a thing saying there should be... There should be able to call for the views of the president-elect. Yeah.
So we talked about Trump might file a brief and then it might even make sense for the court to call for it because you might want to know either in thinking about some of the stay factors or in thinking about how seriously to take these justifications.
You might want to know in trying to either evaluate the stay factors or in trying to think about how seriously it takes with these justifications, whether President Trump agreed, whether or not he thought the security concerns were less serious and why, and things like that.
Trump filed a brief, I guess, in his personal capacity, authored by John Sauer, the person who represents Trump in his personal capacity, but his but announced to be the future nominee for Solicitor General of the United States on behalf of President Trump in support of neither party, which took no position on the merits, and whose one ask was that the court delay things until Trump took office.
And that brief was criticized by, among others, Jack Goldsmith as being kind of Trumpy in its rhetoric about the president and sort of reading as if it was designed to kind of suck up to President Trump.
Yeah, like in the statement of the interest of the amicus curiae, the interest of the amicus curiae is that he's the most successful person on social media ever. That's not obviously wrong. Yeah. Right. It was criticized for its tone. It was criticized as well by folks like Steve Vladek for the fact that its request did not seem to be super well grounded in conventional legal sources.
Like it's not quite clear on what basis the court would just kind of delay things. Although the court does issue these administrative stays sometimes to buy time while deciding a case whose exact basis is a little unclear. Controversy about that. And at oral argument, I think just one of the justices, maybe Justice Alito, asked the SG, Braylugger, Like, would you be okay with us doing that?
Or would there be any reason that that would be illegal? And she said, I think you could do it if you wanted to. The court didn't want to.
Anything else to say about this one? So, I mean, by the time you listen to this, listeners, it is possible I think TikTok is going to go dark. I think they're going to go dark on the 19th.
Well, so one of the things we're saying is that shortly before the decision was issued, President Biden announced that he was not going to enforce this law. Yeah, what does that mean, though? I think the law imposes fines on people who cooperate in distributing and hosting TikTok. Yeah. So he's not going to do it.
We know that... But Trump... But I mean, the fines wouldn't be imposed until he had left office anyways. Well, right. So there's an interesting question in general about to what extent you can be punished for...
violating the law when you got an authoritative statement by the head of the executive branch that the law is not going to be enforced in the interim there's a sort of debate about like does that operate as a does that mean that president trump could collect fines for the conduct during the time you relied upon the biden memo or not so it's a little vague
Because the president cannot nullify a law just of his own initiative. I mean, there are provisions in this that allow certain kinds of relief, but you can't just say this law doesn't exist. Now, maybe there are due process kind of entrapment by estoppel type arguments for why a statement like that by the relevant authority can give you an entitlement to act. Right.
It could both be unlawful and effective. It's possible that the Biden is not supposed to do that. It's a violation of the take care clause, but his doing it might. Now, I don't, I assume if you're TikTok, you probably have called president Trump by now to find out what he's going to do.
And if he's going to take office and his first executive order is going to be to pause the enforcement of the act for 270 days or something like that. Then you might not go dark.
Yeah. Still, I mean, there's other actors involved. I don't totally understand what does the Apple App Store, do they have decisions to make about this? So, yeah, I'm curious to see what happens.
And of course, there's also a question of, we've been told that there's no way that ByteDance will agree to sell TikTok with the algorithm. Yeah. When is being going to be forbidden by the Chinese government for doing so? Yeah.
But you always wonder whether any of that was a negotiating position or whether at this point they would be willing to let it go with a worse version of the algorithm or what. So we'll find out. I mean, I won't find out because I'm not on TikTok, so I wouldn't know if TikTok went dark.
You will be told in some format.
I'll read about it on the uncool, being a middle-aged dad, I am on TikTok and Blue Sky and a little bit of Facebook. So I'm sure on those old, old-gen social media, they'll at some point mention whether the kids are still on TikTok or not.
And we do have, Divided Argument does have a Blue Sky account, FYI. We don't have a TikTok account, do we? We do not, to my knowledge. I don't remember. If we do, it would be because I created one and I have no memory of that, but it's possible however many years ago I did, but I do not believe so. We do have an Instagram. We're on the gram. We're on Facebook.
And we're on Blue Sky and X, formerly known as Twitter. It's still Twitter to me. Yeah, I always call it Twitter. And the... Twitter.com still gets you there. Okay. Well, I am out of time. I don't know about you, but it might be time to wrap it up. Thanks for listening.
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