President Trump, claiming power that the Constitution does not give him, has ordered government officials not to enforce the new federal law banning TikTok, the very popular social media platform.

As a result of that law, TikTok was shut down for just a few hours this week. Congress, in passing the law last April, had explicitly ordered an end to Chinese ownership of TikTok, or else the platform could no longer operate anywhere in the United States. The law set a specific deadline for midnight last Sunday: no new owner by then, no TikTok for 170 million American users.

TikTok promptly restored its service last Monday morning, after President Trump had promised to do something to “save the platform.” It has kept operating after Trump signed an Executive Order that seems clearly to violate the Constitution in these ways:
• It changes the actual text of a law passed by Congress, without any new action by Congress.
• It violates a specific provision of the Constitution about the presidential duty to carry out federal laws. It also violates the oath of office Trump took on Monday.
• It gives power to the U.S. Attorney General that does not exist in a federal law; only Congress could do that.
• It places in the federal Executive Branch complete control over the fate of TikTok, at least for several weeks, to the exclusion of all other parts of government, at all levels.

When the Constitution was originally written in 1787, the new national government was designed in ways to limit its awesome powers. There remained an abiding fear of the concentration of power that royalty had in Europe, which the colonies firmly renounced in declaring their independence. Some of the smaller states feared that they would be overwhelmed by national power.

A written Constitution was considered necessary to define limits on that power. Then, in the first Congress and in ratifying states, the Constitution was promptly altered to reinforce those limits: the Tenth Amendment explicitly declares that the national government would have only “those powers” delegated to it, with all power beyond that to be held by the states or by the nation’s sovereign people. This has come to be known among constitutional scholars as the doctrine of “enumerated powers.”

There is no doubt that Congress had used its own Article I power to legislate in passing the TikTok ban last year. The measure had passed the House by a vote of 360 to 58 and the Senate 79 to 18, and had been signed into law by President Biden the day after Congress had enacted it. That kind of overwhelming support is rare indeed in a Congress often almost paralyzed by partisan division.

Under the Constitution, Biden had only two options: sign the bill, or veto it. Had he voted it, there was a strong likelihood that Congress would have overridden that to enshrine the bill into law. Biden, who strongly supported the measure, signed it. He also chose not to extend the sell-or-close deadline, a power that Congress had given him to aid in seeking new ownership for TikTok.

So, when Trump became President on Monday, he had no constitutional options, or so it appeared. As part of the oath he took, he promised to “faithfully execute” his office and to “protect and defend the Constitution” to the best of his ability.

Further, the Constitution’s Article II, which defines the powers and duties of the Presidency, requires in its Section 3 that “he shall take care that the laws be faithfully executed.”

The new President created an option for himself. His Executive Order on TikTok claimed: “I have the unique constitutional responsibility for the national security of the United States, the conduct of foreign policy and other vital economic functions. To fulfill those responsibilities, I intend to consult with my advisors…on the national security concerns posed by TikTok, and to pursue a resolution that protects national security while saving a platform used by 170 million Americans.”

The law passed by Congress did not authorize that option, even if it had conceded that the Presidency does have sweeping powers over national security, foreign affairs, and economic policy. Congress, of course, had chosen the specific “resolution” that it was dictating: sell or shut down.

The new President, though, did not stop with giving his government new authority after the deadline to consult and to negotiate. His order added these mandates:
• It explicitly directs the U.S. Attorney General “not to take any action on behalf of the United States to enforce the Act for 75 days.” During that time span, the order adds, the Justice Department “shall take no action to enforce the Act or impose any penalties against any entity for any non-compliance with the Act.”
• It nullified the effect of the deadline provision of the law by declaring that the ban on penalties would protect TikTok for “any conduct” in which it had engaged after the deadline had passed or during the 75-day period it was being allowed to operate in the U.S.
• To make sure that TikTok was fully insulated from penalties, it barred “attempted enforcement by the states or private parties,” declaring that such an effort would be an “encroachment on the powers of the Executive.” That provision is intended to shut down any attempts by state officials to protect their residents from any misuse of their private data by TikTok or its Chinese owners, and to close the courts to any lawsuits by users claiming the theft of their data.

That final action was perhaps the most far-reaching, seeking to accomplish for the Executive Branch a complete concentration of power across all parts of the national government, all parts of state and local government, and the federal court system.

When the Supreme Court upheld the TikTok law three days before the deadline, it relied primarily upon the Biden Administration’s argument at the time that the sale of ownership of TikTok was necessary to stop the Chinese government from stealing vast amounts of Americans’ personal and private data through the interconnected electronic exchanges on the platform.

Trump’s TikTok order, for the time being at least, appears to forbid any remedy for any such theft that occurs.

That, too, has serious constitutional implications. In probably the most famous decision in the Supreme Court’s long history, the 1803 ruling in Marbury v. Madison, Chief Justice John Marshall wrote: “It is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.”

That promise, it seems, is subject to presidential veto.