President Donald Trump has decided to disregard an act of Congress. To justify that disregard, his administration is asserting a shockingly broad authority that legal scholars dub the “dispensing power.” Once claimed by absolute monarchs, it is the power, in effect, to declare on a case-by-case basis that certain duly enacted laws won’t apply to the king’s friends and allies (in other words, they will be dispensed with) — just because the king says so.
To understand how we got here, let’s go back to Jan. 19, the day before Trump’s second inauguration. American users of the hugely popular short video app TikTok saw a groveling message personally thanking Trump for allowing the platform to continue operating: “Thank you for your patience and support. As a result of President Trump’s efforts, TikTok is back in the U.S.!”
It should go without saying that Trump shouldn’t be allowed to grant himself the power to overrule Congress.
Two days earlier, the Supreme Court upheld a law, enacted during the Biden administration, requiring TikTok’s Chinese parent firm to either sell the company to an American buyer or effectively shutter it. The law also threatened app stores and hosting providers that continued serving TikTok past the sale deadline with stiff penalties. The platform even went dark for a few hours, but Trump announced he would halt enforcement of the law once he took office, to allow more time for a sale to be negotiated. In April, he granted a second extension, and in June he announced a third, to last 90 days.
As legal observers quickly noted, all this flew in the face of the unambiguous text of the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACAA). The statute empowers the president to grant a “1-time extension of not more than 90 days” — not to decline to enforce the law indefinitely at his own discretion — and requires him to provide a certification to Congress that the divestment process is underway if such an extension is provided. Under the circumstances, wouldn’t other technology companies be fearful of incurring legal liability by continuing to do business with TikTok?
Apparently not, because we’ve now learned that Attorney General Pam Bondi reassured those companies, in a series of letters made public via the Freedom of Information Act, that the president was exercising an inherent presidential authority, not only to set aside the TikTok law, but also to decree for all time — purportedly binding even future administrations — that businesses clearly violating the law weren’t really violating it after all.
It can’t be overestimated what an extraordinary claim this is. Harvard Law professor Jack Goldsmith, who headed the Office of Legal Counsel during the George W. Bush administration, called it “an astounding assertion of executive power — maybe the broadest I have ever seen any president or Justice Department make, ever, in any context — and that is saying something.”
In a world of finite government resources, executives necessarily enjoy a certain amount of discretion over enforcement priorities: They can direct law enforcement and prosecutors not to clog the dockets with low-level marijuana offenses, for instance, so long as there are murderers and kidnappers left to bring to justice.
But the Trump administration is essentially claiming the president has “dispensing power,” not just in the case of TikTok, but writ large. It’s precisely to limit that sort of lawless, unilateral discretion that the Framers of our Constitution included the “Take Care Clause” commanding presidents to “take Care that the Laws be faithfully executed.” Trump here is purporting not merely to drag his heels enforcing the law but to nullify it — and to provide companies that violate it during the period he has suspended it with a perpetual guarantee of immunity.
Make no mistake, there is a strong argument to be made that PAFACAA was a foolish law, drafted in the throes of an overblown moral panic around TikTok as a dire national security threat, pushed along in no small part by a propaganda campaign financed by TikTok’s competitors. It made a joke of the United States’ long-standing diplomatic posture that countries should permit robust international competition in digital services — though many naturally had concerns about allowing American firms, subject to American government pressure, to become dominant.
Having the law in place while Trump asserts the power to single-handedly nullify it both sets a chilling broader precedent.
To the extent there were legitimate security concerns about the platform — to wit, that the Chinese government might pressure parent firm ByteDance to use it for promoting Chinese propaganda or exfiltrating user data — there were far smarter ways to address them that didn’t require threatening to completely shut down an expressive arena used by 170 million Americans.
But the statute did pass, and it was signed into law and then upheld by the Supreme Court. And having the law in place while Trump asserts the power to single-handedly nullify it both sets a chilling broader precedent, and it leaves us in the worst of all possible worlds with respect to TikTok, in particular.
It should go without saying that Trump shouldn’t be allowed to grant himself the power to overrule Congress. But there’s an added outrage here, which is that TikTok now operates on the personal sufferance and whim of Donald Trump — with a sword of Damocles dangling over the company in perpetuity. TikTok is highly incentivized to not make Trump mad, in the hope he’ll continue to extend its exemption from the law indefinitely. And TikTok’s groveling message shows it understands exactly how important it is to remain in his good graces.
Even when the law in question is a foolish one, allowing a validly enacted and constitutional statute to be nullified at the whim of a single individual places dangerous monarchical power in the executive’s hand. It is, quite literally, a license to break the law — if you are the president’s friend — and Congress and the courts must urgently repudiate it.
