115. President-Elect Trump's Law-Free TikTok Brief

A friend-of-the-Court brief filed by the incoming President's nominee to be the next Solicitor General is a revealing—and alarming—example of political arguments wholly divorced from law.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):

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On the Docket

The biggest news at the Supreme Court last week was almost certainly the flurry of briefs that came in on Friday afternoon in the TikTok case—about which I’ve written previously. In addition to simultaneous briefs from the parties, the Court received 21 amicus curiae (“friend of the Court”) briefs, the most prominent of which was a brief by “President Donald J. Trump,” at least nominally in support of neither party. The Trump brief, on which Trump’s intended nominee to be Solicitor General, John Sauer, is counsel of record (indeed, Sauer is the only listed counsel), is a striking document. It includes a series of wholly irrelevant platitudes about Trump; and, even though it takes no position on whether the TikTok statute is or is not constitutional, it urges the Court to “stay” the January 19 effective date to allow for Trump, once he comes to office, to pursue some (unspecified) political solution to the dispute.

As noted below, there are two basic problems with the brief. The first is that it’s asking the Court to do something that the Court … has no power to do. Without at least some view as to the constitutionality of the statute, there’s no basis for the Court to do anything to prevent the statute’s operative provisions from going into effect on January 19. The second is that the brief is, both in that ask and elsewhere, relying on political considerations wholly divorced from law—an ominous harbinger not just from the incoming President, but from his nominee to represent the United States (and not just Trump) before the Supreme Court. I’ve written before about the extent to which at least some of the Court’s legal analysis is necessarily suffused with—if not influenced by—high politics. But this isn’t that; it’s pure politics, all the way down. And the ridiculous puffery aside, that’s quite an opening salvo for the Court to receive from the President-Elect and Solicitor General-designate.

The Court itself made no other news last week. There were no orders by the full Court; and no significant rulings on applications by individual justices. Indeed, we don’t expect to hear anything formal from the Court until Friday, January 10—the date of the TikTok argument. (The Court will likely issue a housekeeping order at some point with respect to the division of time at that argument—but that’s it.) The only other anticipated news on the horizon is the Chief Justice’s year-end report, which is due to be publicly released at 6:00 p.m. ET on Tuesday.

Finally, President Biden on Monday vetoed the Judicial Understaffing Delays Getting Emergencies Solved (JUDGES) Act of 2024. In last Thursday’s bonus issue, I wrote about why I think the veto was an unfortunate development for court- (and Court-)reform conversations.

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The One First “Long Read”: The Trump TikTok Brief

As I noted in my first post about the TikTok case, the basic issue before the Supreme Court is whether Congress violated the First Amendment when it prohibited U.S. companies from providing support for TikTok if it is still controlled by Chinese owners as of January 19, 2025. The statute at issue channeled constitutional challenges to the law into the D.C. Circuit—a three-judge panel of which unanimously upheld the statute on December 6 (and then refused to provide emergency relief while TikTok and some of its creators appealed that ruling to the Supreme Court).

TikTok and a group of creators then sought both emergency relief and plenary review from the Supreme Court. The problem for emergency relief, as I’ve explained, is that the Court couldn’t block the statute on an interim basis unless its unconstitutionality was “indisputably clear.” Whatever else might be said about the TikTok statute, it is certainly not “indisputably” unconstitutional. Instead, the Court cleverly deferred emergency relief pending very expedited briefing and argument. And I continue to believe that the most likely outcome is that the Court will rule quickly after oral argument to deny the emergency applications (such that the January 19 deadline will remain in full force)—and then eventually hand down a ruling affirming the D.C. Circuit on the merits.

Against that backdrop, President-Elect Trump’s amicus brief is striking. It leads with the claim that “President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government.” And building on that theme, it urges the Court, repeatedly, to “stay” the statute’s January 19 effective date—presumably to buy time for the incoming President to do … something … to make the underlying dispute go away (the brief is rather coy about what, exactly, that something might be—or when it would happen).

Critically, although the brief alludes to both First Amendment and Article II problems with the TikTok statute, it does not actually argue that the statute is unconstitutional (hence the nominal designation of the brief as being in support of “neither party”). It just argues that the questions are significant enough to warrant a temporary (although, it should be noted, entirely open-ended) pause in the statute’s operation. To me, there, are three separate issues with the brief—each of which warrants at least a bit of explication.

The Brief’s Law-(and Authority-)Free Ask

First, and most importantly, the brief asks the Supreme Court to do something it just … can’t do. Although the brief refers to the relief it is seeking as a “stay,” there’s no question that the only way the Supreme Court can prevent the TikTok statute’s operative provisions from going into effect on January 19 is to enjoin them. Indeed, this was the exact problem that prevented the justices from granting the emergency relief that both TikTok and the creator-challengers sought. If a true “stay” were all that was needed, there’d be plenty of room for the kinds of equitable, pragmatic arguments offered by Trump (and, it should be said, TikTok and the creators) in support of such a measure. But the only court order that can prevent the statute from going into effect at this point is some kind of injunction. That’s a unique feature of how the statute was written and how the litigation has unfolded—but the relevant point here is that it’s an undeniable one.

To be sure, the Supreme Court can enjoin the statute—if it believes that the statute is unconstitutional. I’ve written before about the very high standard for an “injunction pending appeal,” which requires that the parties’ right to relief be “indisputably clear.” It certainly is not yet “indisputably clear” that the TikTok statute is unconstitutional. But were it to become so, then there’d at least be an argument that the standard for an injunction is satisfied. Thus, if a majority of the Court were to conclude, after and in light of the arguments on January 10, that the statute is, indeed, unconstitutional, then there would be at least a plausible argument in support of the Court’s power to immediately enjoin the statute—to give practical effect to that conclusion.

But that’s not Trump’s argument. Rather, Trump’s argument is that the Court should “stay” the January 19 effective date because the statute raises constitutional questions—questions that might be mooted by the notably non-specific political solution the brief suggests Trump would pursue. And therein lies the rub: The Court has no authority to block the statute solely because something that might happen on some un-specific future date could moot the constitutional questions it presents. Its authority depends upon at least an interim determination that the statute is unconstitutional. To argue for a pause without any constitutional determination is not merely to inject politics into a legal dispute; it’s to ask for the law to take a backseat to the politics altogether.

It’s not surprising, then, that the only authority Trump’s brief offers to support such a move is not remotely on point. Specifically, the brief cites to the Court’s 2016 ruling in Zubik v. Burwell—a messy dispute about the adequacy of different accommodations that HHS had provided to non-profit religious employers with religious objections to the Affordable Care Act’s mandate that health insurance cover contraception. In that case, after oral argument, the Court vacated a series of lower-court rulings and remanded to the lower courts “[i]n light of the positions asserted by the parties in their supplemental briefs.” The point of the remand was to give the lower courts another opportunity to consider the complex legal arguments because the parties’ positions had changed. And critically, nothing in the Court’s disposition in Zubik blocked … anything. No statute was paused; no injunction was entered. The justices merely wiped away a bunch of lower-court rulings and asked the lower courts to try again. Of course, the Court could do that here, too—but that disposition wouldn’t have the desired effect; the statute’s operative provisions are going to go into effect on January 19 unless the Supreme Court blocks them; vacating the D.C. Circuit’s decision wouldn’t be enough.

One almost wonders why the brief even bothers to cite such an obviously inapposite authority. But regardless, the central relief the brief seeks is relief that is precluded by the rest of the brief’s refusal to take a position on whether the statute is, in fact, unconstitutional. That’s not just a technical point; it’s evidence that the brief is making a purely political argument without any relevant legal support.

The Not-so-Unitary Executive

The other significant argument that the brief attempts to develop is the claim that the TikTok statute interferes with Article II in various respects—especially because of its timing.¹ Quoting from the brief, “the statutory deadline for divestment falls on the day before President Trump’s inauguration, raising concerns that the Act effectively forestalls the incoming Administration’s ability to address the question. At [sic] very least, this timing raises yet another significant question under Article II.”

To be clear, there’s nothing outwardly problematic about amici raising Article II objections not raised by the current President; indeed, it’s easy to think of reasons, both in this case and others, why a President might soft-peddle Article II objections to a statute he’d prefer to see upheld. And it’s both settled and, in my view, correct that Article II objections don’t go away just because the current President isn’t making them.

The issue is the extent to which the Article II objections here are tied to things that will happen before Trump is sworn in. There is no tradition, in the Court’s case law or elsewhere, of Article II giving privileges or powers to a President-Elect. Indeed, the Court’s systematic embrace of the theory of a “unitary” executive is flatly incompatible with the idea that Article II could simultaneously protect two different presidents’ interests. All of this follows, or should follow, from the fairly unobjectionable fact that, until noon on January 20, 2025, President-Elect Trump is not the President—and thus has no Article II prerogatives to infringe. If President Biden, the current holder of the office, wanted to utilize the statute’s 90-day extension provision, nothing is preventing him from doing so. The fact that he doesn’t want to—or that Congress wrote the statute in a way that leaves it up to him—can’t possibly infringe upon the prerogative of someone who isn’t yet the President, and won’t be when the relevant clock runs out.

Thus, the more that the Court is inclined to embrace arguments that Article II also protects the prerogatives of the president-elect, the more it is turning its own embrace of the unitary executive on its head. And the more that President-Elect Trump is making these arguments himself, the more he’s revealing that his goal isn’t the strongest arguments in support of the institution of the presidency, but rather whichever arguments get him what he wants in that particular moment. Again, that’s a remarkable message to send in a brief the entire premise of which is that it’s on behalf of the person who is about to become the President.

The Tone and Tenor

Finally, and relatedly, although it’s by far the least important feature of the brief, it’s impossible to miss its obsequious, ring-kissing tone—as pointed out by lots of folks online, such as Harvard law professor Jack Goldsmith. That’s especially significant because the brief was filed by D. John Sauer—President Trump’s intended nominee to become Solicitor General, i.e., the government’s representative before the Supreme Court.

I’ve written before in some detail about the significance of the federal government’s institutional credibility before the Supreme Court—including, if not especially, in circumstances in which the Justice Department is arguing for a position not necessarily supported by a majority of the justices. It’s bad enough that Trump’s amicus brief is asking the Court to act lawlessly without providing any authority for it to do so; but if we’re in for this kind of ego-stroking, navel-gazing writing in the government’s briefs going forward, that will have significant (and, in my view, significantly deleterious) long-term implications for the government’s relationship with the Court—including in innumerable contexts in which that relationship is worth preserving.

All in all, a not-terribly-auspicious start for the incoming Solicitor General and President-Elect. I don’t doubt that the brief will come up during the oral argument on January 10. But I’d be rather floored if a majority of the Court were to rely upon it.

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SCOTUS Trivia: The New Public Lottery

This isn’t really trivia, but I wanted to flag a positive new pilot program that the Court introduced earlier this month, and that will debut for the February 2025 argument session: The possibility for members of the public to participate in an online lottery for free tickets to the Court’s public sessions.

Except during COVID, the Court has always allowed for at least some members of the public to attend its public sessions—but only after waiting in line for hours, including for big oral arguments, camping out overnight. (There’s a separate line for members of the Supreme Court Bar.) Suffice it to say, the time commitment and lack of a guaranteed seat were significant deterrents.

Starting with the February 2025 argument session, though, the Court will make a limited number of tickets for public sessions available in advance via an online lottery. To quote from the Court’s press release:

Starting [December 12], members of the public can access the lottery for the February 2025 session through a link on the Court's website. The deadline to submit an application to the lottery is 5 p.m. Eastern time, four weeks before the particular argument or non-argument session. Three weeks before the session, the Court will notify applicants by email as to whether they have received tickets, have not received tickets, or are on a wait list. Applications for future lotteries will open shortly after a particular monthly argument calendar is released.

During the pilot program, the Court will continue to provide some seating for the public on a first-come, first-seated basis. Before a session begins, a line will form on the sidewalk on East Capitol Street adjacent to the Court building. Seating for the Bar section will remain on a first-come, first-seated basis during the pilot.

This is a neat initiative that I very much hope will become a permanent means by which members of the public can see the Court in action. Indeed, it ought to be beyond dispute that the more that the Court is doing to make each of its public sessions accessible to more people, the better. I can only hope that live-streams of all public sessions, and not just oral arguments, aren’t that far behind.

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1. The brief also waves its hands at Article II objections to the way the brief structures Executive Branch review of a “qualified divestiture,” but these arguments strike me as remarkably superficial. Congress is allowed to condition executive branch action on the executive’s compliance with certain statutorily prescribed processes; indeed, that’s a decent chunk of modern administrative law.