TikTok takes its case to SCOTUS
The Supreme Court could decide if the popular social app has to sell itself or be removed from US app stores as mandated by a law Congress passed last year.
First Things First
👋🏾 Hi, hey, hello! Welcome back to Once Upon a Hill. In this evening’s edition, my preview of tomorrow’s Supreme Court oral arguments on whether the TikTok ban Congress passed last spring is unconstitutional.
But let’s start with two key votes, one in each chamber of Congress, that serve as a reminder that elections have consequences.
First. the Senate moved in a decisive 84–9 vote to advance the Laken Riley Act, the bill that would require the federal government to detain undocumented immigrants who have been charged with theft in the US. (The bill also allows state attorneys general to sue the federal government for perceived violations of the Immigration and Nationality Act.)
33 senators who caucus with Democrats, including Senate Minority Leader Chuck Schumer (D-N.Y.), joined all voting Republicans to open debate on the Laken Riley Act and clear a significant procedural hurdle. It’s unclear if GOP leadership will allow an amendment process or how many of the Democrats who supported opening debate on the bill will vote for final passage.
“This is not a vote on the bill itself,” Schumer said earlier today. “This is a motion to proceed, a vote that says we should have a debate and should have amendments.”
ICYMI: The House passed the bill on Tuesday in a 264–159 vote with House Democrats providing 48 votes in favor of the measure. The bill is named after Laken Riley, a 22-year-old nursing student who was murdered last February while she was jogging at the University of Georgia by a 26-year-old Venezuelan man who had unlawfully entered the country and had previously been arrested on theft and shoplifting charges.
Meanwhile, in its final vote of the week, the House passed a bill by a 243–140–1 tally to impose sanctions against the International Criminal Court for issuing arrest warrants for Prime Minister Benjamin Netanyahu of Israel and his former Defense Minister Yoav Gallant over alleged war crimes in Gaza.
Republicans argued that Israel’s actions were legitimate since they were in response to Hamas’ attacks on Oct. 7, 2023, which killed over 1,200 Israelis, took over 240 hostages and were described as the deadliest day for Jewish people since the Holocaust. The GOP added that the ICC’s warrants undermine Israel’s right to self-defense.
45 Democrats voted in favor of the bill. And although leadership did not formally whip against the bill, Rep. Gregory Meeks of New York, the top Democrat on the House Foreign Relations Committee, opposed the measure. 10 first-term Democrats voted for the bill and three flipped their votes from opposing it last year to supporting it today (Reps. Sheila Cherfilus-McCormick (Fla.), Haley Stevens (Mich.) and Emilia Sykes (Ohio).
Leadership noted the bill requires the US government to impose sanctions on any foreign individual—and their family members—who help the ICC investigate, arrest, or prosecute Americans or citizens of U.S. allies without their country’s consent. It also blocks visas for these individuals, even if they’re eligible to immigrate to the US.
The sanctions could target US allies, their leaders, businesses working with the ICC, and even families of ICC employees just because of their relative’s job. The bill also cuts off any current US funding for the ICC and bans future funding. And while there is a national security waiver, it’s very limited.
House Minority Leader Hakeem Jeffries (D-N.Y.) voted against the bill as he did last year. He told reporters on Wednesday morning that he would evaluate his vote on the latest version ahead of the roll.
The House passed a version of the bill last June in a 247–155–2 vote weeks after the ICC announced it applied for the arrest warrants. (42 Democrats voted for it; two Republican—Reps. Warren Davidson (Ohio) and Thomas Massie (Ky.)—voted present.) But the bill stalled in the Senate after then-Majority Leader Chuck Schumer (D-N.Y.) prevented it from floor consideration. New HSIC—head senator in charge—John Thune (R-S.D.) said this week that he will put the bill up for a vote after the Laken Riley Act.
The two bills demonstrate the power of a unified government when both chambers are on the same page. Two bills that collected dust in the Senate last year because Democrats were a check on the House could be signed into law because they’re now in the minority.
The Evening Report
The Supreme Court will hold opening arguments tomorrow on whether to uphold or reverse a lower court decision that declined to block a law that would remove TikTok from US app stores if its China-based owner refuses to fully divest the app later this month. TikTok said it plans to shut down the app in the US unless the Supreme Court strikes down the law.
The arguments follow a request from the app’s parent company ByteDance to prevent the law from going into effect and come after TikTok’s CEO Shou Chew with President-elect Donald Trump at Mar-a-Lago and after Trump told reporters that he has a “warm spot” in his heart for the app—despite previously supporting a ban during his first term—because he believes it helped him close the youth voter gap with Vice President Kamala Harris in the November election.
House Democratic Caucus Chair Pete Aguilar told me last month that Trump’s support is rooted in self-interest and still supports the legislation requiring a divestment or sale.
“I and a lot of other Democrats for national security purposes, voted for that piece of legislation. The legislation allows a process to take place, but January is an important part of that process,” Aguilar added. “There could be a delay or a window of discussion within the legislation, but I agree with the spirit and the letter of the law and look forward to the administration following the law.”
Rep. Lori Trahan, a member of House Democratic leadership and the powerful House Energy and Commerce Committee, which has jurisdiction over the issue, told me this morning that she hopes TikTok ultimately divests from its Chinese ownership.
“TikTok is a hugely popular, hugely valuable company. It would be a very lucrative deal for an American investor,” she said. “Even as that vote came out of committee unanimously—and it was on the national security concerns—I think that there’s a recognition that it does provide a lot of value for small businesses, for influences, brand makers.”
Trahan, who said with a chuckle that she has to go home and defend the bill to her children, doesn’t characterize the legislation as a ban.
“I think the [intention] does get sort of obscured,” she added. “And it’s not a foregone conclusion, right? Given the vote here, the Supreme Court decision, there’s still a lot of options left to keep TikTok up and running.”
TikTok asked the Supreme Court last month to temporarily block the law because it violates the app and its 170 million US users’s First Amendment rights.
“Congress’s unprecedented attempt to single out applicants and bar them from operating one of the most significant speech platforms in this nation presents grave constitutional problems that this court likely will not allow to stand,” the app’s lawyers wrote in its emergency application.
A three-judge panel of the US Court of Appeals for the District of Columbia Circuit rejected a challenge to the law in early December.
The Supreme Court could announce its decision within days of the oral arguments.
The TikTok bill—formally entitled “The Protecting Americans From Foreign Adversary Controlled Applications Act”—was attached to The 21st Century Peace Through Strength Act as a so-called “sidecar” bill filled with several Republican and bipartisan bills related to Russia, China and Iran that passed alongside separate measures to provide security assistance to Ukraine, Israel and Taiwan. The sidecar passed in a 360–58 vote.
The bill was amended to give ByteDance up to nine months to sell its stake in TikTok with the option for an additional 90-day extension by the president. A previous version of the legislation set a six-month deadline. Without an extension, the ban is set to go into effect Jan. 19, the day before Inauguration Day. TikTok says it’s unfeasible to sell the app by the deadline and China’s government would probably block a sale anyway.
Rep. Robert Garcia (D-Calif.), a staunch opponent of the divest-or-ban law and avid TikTok user, said a blanket ban on a single app is unacceptable government overreach. Instead, he prefers a bill that addresses the threats all social apps pose.
“I think that TikTok is a huge platform for millions of Americans, whether they completely rely as a small business to sell goods, to communicate with people,” Garcia told me this morning. “I said that before I agree that TikTok, there are a lot of issues and a lot of privacy issues that we should be concerned about. But we should have the same concerns with Meta, with other companies. So there needs to be a much more broader legislation that doesn’t target one company. So it’s very concerning and I’m hopeful that the Supreme Court does the right thing and figures out a better way.”
Do you have questions about the new Congress or the incoming Trump presidency? Drop me a line at michael@onceuponahill.com or send me a message below to get in touch and I’ll report back with answers.
Today in Congress
The House met this morning to debate the ICC sanctions bill before the vote on final passage. This was the last vote of the week.
The Senate met this afternoon ahead of the vote to advance the Laken Riley Act.