National Security | Global Trends | Constitutional Law

In an extraordinary use of executive discretion, President Donald Trump has repeatedly directed the Department of Justice not to enforce a law he himself signed—the Protecting Americans from Foreign Adversary-Controlled Applications Act (PAFACA)—which mandates that TikTok’s Chinese parent, ByteDance, divest from the app or face a nationwide ban. While the law passed with bipartisan support and was upheld by the U.S. Supreme Court, enforcement has been unilaterally delayed through a series of presidential orders.

The episode has triggered a deep legal and constitutional debate: Can the President simply decline to enforce a valid law based on foreign-affairs justification? Trump’s defenders call it prudent diplomacy. Critics call it a revival of the “dispensing power”—a monarchical authority repudiated by both English and American constitutional traditions.

The Legal Framework: PAFACA and Its Mandate

Signed into law in April 2024, PAFACA requires ByteDance to divest TikTok within 270 days or face a U.S. ban enforced through civil penalties against platform operators like Apple, Google, and Amazon. ByteDance has not divested, and TikTok has continued operations in the United States—despite the fact that the law’s enforcement deadline passed in January 2025.

After a legal challenge, the U.S. Supreme Court unanimously upheld the law’s constitutionality in TikTok Inc. v. Garland (Jan. 2025), clearing the way for enforcement.

But that enforcement never came.

Trump’s Executive Delays and DOJ Non-Enforcement Letters

President Trump has since issued three successive executive orders delaying the law’s enforcement:

• January 20, 2025: 75-day pause
• April 4, 2025: second 75-day extension
• June 19, 2025: a 90-day extension, now pushing enforcement to September 17, 2025

Meanwhile, the DOJ—under both Acting Attorney General Charles McHenry and current AG Pam Bondi—has sent formal letters to tech companies, assuring them they will not face penalties for continuing to support TikTok.

The administration justifies these actions as exercises of presidential discretion in the realm of foreign affairs, suggesting the delays allow ByteDance to continue exploring “voluntary compliance” through partial ownership transfers or U.S.-based restructuring.

The Constitutional Issue: The Return of the Dispensing Power?

Critics argue Trump’s actions amount to an unconstitutional suspension of duly enacted law. Legal scholars have drawn parallels to the “dispensing power”, a royal prerogative claimed by English monarchs to selectively enforce laws—a power decisively outlawed in the 1689 English Bill of Rights and expressly rejected by U.S. constitutional norms.

Under Article II of the U.S. Constitution, the President is required to “take Care that the Laws be faithfully executed.” Historically, this has been interpreted to bar the executive from nullifying laws through non-enforcement. As Justice Scalia once wrote, “A power to dispense with laws is not executive—it is legislative.”

While limited non-enforcement has been tolerated (e.g., prosecutorial discretion), no modern precedent supports suspending enforcement of a nationwide statutory ban upheld by the Supreme Court—especially through letters to private companies effectively promising immunity.

Congressional Response: Frustration Without Action

Although several Republican lawmakers—such as Sen. Josh Hawley and Rep. John Moolenaar—have expressed frustration with the delays, no formal legal action has been taken. Congress has the authority to:

• Pass clarifying amendments mandating strict enforcement dates;
• Challenge non-enforcement through litigation;
• Pursue appropriations restrictions to force DOJ compliance.

But so far, political hesitancy and deference to executive foreign-affairs discretion have prevented direct confrontation.

Legal Implications and Precedent Risk

Trump’s use of presidential delay as a backdoor to nullify legislation sets a troubling precedent:

• Private companies now rely on DOJ guidance that contradicts federal statute;
• Executive supremacy in the name of foreign policy could undermine the separation of powers;
• The judiciary’s role is bypassed, even after affirming a law’s constitutionality.

If this maneuver stands unchallenged, future administrations may invoke the same logic to decline enforcement of laws on climate change, health care, or antitrust—effectively rendering statutes optional.

Conclusion

The TikTok saga has exposed a legal gray zone with sharp constitutional edges. Trump’s refusal to enforce a valid, court-approved law—under the pretext of foreign-affairs discretion—raises an urgent question for the American legal system: Can any president delay the force of law indefinitely by fiat?

Unless Congress or the courts push back, the U.S. may be witnessing the quiet return of an executive power it once cast aside with the birth of the republic.