One of the Constitution’s most direct commands to the President is to “take care that the laws be faithfully executed.”  And that simply means, two law professors once wrote, that a President’s “defiance [of a law] cannot be considered faithful execution.”

But a law that Congress passed last year by large majorities, that has been upheld by a unanimous Supreme Court, and was due to go into effect six months ago, is still on hold: President Trump, without any further action by Congress, has postponed the law three times – currently, until September 17.

That is the peculiar status of the law that would ban operation in the U.S. of TikTok, the highly popular online platform.  Across America, 170 million users engage on TikTok, and a billion people around the world do so.  The ban in the U.S. was designed to prevent the government of China, which has ultimate control over TikTok, from sweeping up vast amounts of private data about Americans.

Congress aimed to force a change of ownership of TikTok, at least in this country, and ordered it shut down if that did not happen promptly.  The President was given the option of a ordering a one-time postponement, but only if a deal was in the works in the meantime.  That has not happened.

What is now raising a storm of criticism, especially among constitutional experts, is what Trump and his Administration have done besides three times delaying the law.  The President ordered U.S. Attorney General Pam Bondi not to enforce it, and she has written letters to a group of private tech companies doing business with TikTok that they can defy the law and won’t be prosecuted for doing so.

Bondi relied on a far-reaching constitutional theory that, since she had a duty to read the law so that it did not “infringe upon core Presidential national security and foreign affairs powers,” the companies who continued to service the platform would not break the law and would be spared “any legal liability.”

Reaching into the future, the Attorney General said she was using her power to “irrevocably relinquish” any claims that the government might have against those who worked with TikTok.  Nearly two-dozen letters sent privately to the companies by Bondi were released under a Freedom of Information Act disclosures request.

Jack Goldsmith, a Harvard law professor who is one of the legal academy’s most fervent supporters of a strong Presidency, reacted last week by calling these developments “an authority to license illegal conduct….an astounding assertion of executive power – maybe the broadest I have ever seen.”

Steve Vladeck, a liberal law professor at Georgetown University, likened the theory to a legal power that the kings of England long had – “the dispensing power.”  He said that what the Attorney General had done was not even required by the President’s orders to her.

Beginning with King Henry III in the 13^th Century, English kings claimed and used the power to excuse conduct that had been explicitly banned or criminalized by an act of Parliament.  That power existed for four centuries, until Parliament banned it in 1689 in reaction to the abuses of King James II.  James, a Roman Catholic, had used that technique to bring more Catholics into the army and other government posts, despite laws against such participation by individuals who were not adherents of the Protestant Church of England.  William of Orange, the deposed James’ successor to the Crown, vowed never to use dispensing power.

In America, as long ago as 1838, the Supreme Court denounced the “dispensing power,” declaring in the case of Kendall v. United States that “it has no countenance for its support in any part of the Constitution, and is asserting a principle which, if carried out to its results, in all cases falling within it, would be clothing the President with a power entirely to control the legislation of Congress, and paralyze the administration of justice.”

A University of Minnesota law professor, Alan S. Rozenshtein, has been closely tracking “the legal saga for TikTok and the companies that facilitate its U.S. services.”  He noted recently that the companies are relying on promises of non-enforcement of the ban, but that the President may later change his mind.  The professor cited the companies’ potential punishment, under the law, running to “nearly a trillion dollars in potential liability” for violations of the ban — $5,000 for each of the 170 million U.S. users of the platform.

Further, Rozenshtein wrote that, in Trump’s initial order delaying the ban, there is a standard line that is always included in presidential directives that it is not creating “any right or benefit” and thus the companies would have no legal basis for suing to try to compel Trump to keep his promise or the promise made by the Attorney General.  And, the professor added, a future President might not feel bound by such guarantees.

TikTok was scheduled, under the law, to cease operating in the U.S. on January 19, and President Biden, then still in office, had taken no action to extend that deadline.  The platform did go dark briefly, but then reopened a day later when, on Trump’s first day in office, he ordered the initial delay.  The further delays were defended as necessary to facilitate discussions over the sale of TikTok’s U.S. operations.

The law had been challenged in the courts on the theory that it was a government attempt to control free speech online, in violation of the Constitution’s First Amendment.  The Supreme Court stepped in, and in a much-expedited process, rejected the challenge on January 17.

It was the fear, expressed by both Congress and by the Biden Administration, of the potential threat to the privacy of Americans’ personal data that led the Court to uphold it.

The ban, the Court ruled, was not a direct attempt to regulate online speech, because it only would prohibit TikTok from continuing in this country if its Chinese owner did not sell it to some owner who did not pose the risk to data privacy.

TikTok is owned by a large Chinese tech company, ByteDance, but the communist government of China maintains strict control over the operations of all business operations so TikTok is not considered an uncontrolled mode of expression.