This morning we sued Donald Trump and Pam Bondi for the approval of the illegal sale of TikTok's U.S. assets to administration allies like Oracle. This deal allows both China-allied ByteDance and Trump-allied Oracle to censor content they don't like.
5/ The US offers five reasons today to try to distinguish the SCOTUS tariffs decision:
wait, what?
4/ The next key test on this comes at the D.C. Circuit argument next Monday -- before Judges Wilkins, Katsas, and Childs. Paul Clement is among counsel for the Chamber of Commerce. media.cadc.uscourts.gov/calendar/cal...
3/ The US will argue $100k H-1B fee isn’t major question & isn’t taxation, in part bc few have agreed to pay. That has a shot, but I’m skeptical. I doubt it would’ve changed analysis if few paid tariffs. And $100k multiplied by any # of H1Bs raises substantial government revenue.
2/ After the SCOTUS tariffs decision, there is a pretty strong argument that Congress doesn’t give the president the power to reach into pocketbooks even when it grants very broad other powers. That government action is different “in kind.”
1/ If Congress gives the president extremely broad powers to “restrict” or “regulate” X, can the president implement that power by imposing enormous new fees before someone may do X? That was key in SCOTUS tariffs case. A challenge to President Trump’s $100K H-1B fee is next.
Not clear the courts thought the TikTok law permits TikTok Inc or ByteDance to retain ownership of the app or algorithm.
The curious thing about Trump's TikTok "qualified divestiture": it appears not to involve any divestiture by ByteDance at all. Our take today.
Worth reading Judge Pan's dissent today raising dispensing power.
D.C. Circuit said groups that were denied appropriated funding couldn't sue for constitutional violation, only a statutory one. On statutory issue, court found no "extreme" violation. media.cadc.uscourts.gov/opinions/doc...
Puzzlingly, the "irrevocably relinquish" language is only included for some companies, for some periods. For example, it wasn't included in a 4/5 letter to Microsoft. But it then was added in a second letter to the company on 4/8.
x.com/mattschett/s...
Key Paramount-Trump legal backdrop:
1) Texas has anti-SLAPP law -- path to speedy dismissal of free-speech cases -- but CA5 says it doesn't apply in federal courts. There's no federal anti-SLAPP law.
2) No time limit in law on FCC reviews. FCC's on day 230 of informal 180-day review.
It's hard to challenge a decision not to prosecute.
But a written statement about whether the law has been violated?
It's possible the "no violation" letters are the support on which the current status quo is built.
www.forbes.com/sites/richar...
Admin law question re TikTok law extension:
Would AG letters "stating that there has been no violation of the statute" qualify as "agency action" ("statement of...particular applicability and future effect designed to...interpret... law") under APA?
www.whitehouse.gov/presidential...
The FCC has now passed its nonbinding 180-day timeline to act on Skydance-Paramount matter. FCC Chair Brendan Carr told Congress last July that he would support "deemed granted" remedy so FCC shot clock would have "teeth."
www.fcc.gov/transaction/...
www.congress.gov/118/meeting/...
Thanks!
@mattschett.bsky.social thanks again for pointing this out! I updated my piece to refer to it and gave you a hat tip in the update.
www.americanprogress.org/article/publ...
Or 10-K, my bad -- I see your link now.
Sure! That looks right. Think it was in the last 10-Q.
Akamai made such a disclosure.
Fox settled Dominion suit about 2020 election coverage for $787 million. Summary judgment briefs in Smartmatic’s similar case against Fox are due today.
Brendan Carr, 2019: regulating hot-button issues like immigration "dangerous"; "How do you define?"; "Facebook wants politicians to start making those decisions"
www.bloomberg.com/news/videos/...
Carr, 2025: news coverage doesn't meet my definition of public interest: x.com/BrendanCarrF...
Two qs about CA5 ruling in ATT v FCC on 4/17:
1-Is constitutional avoidance still a thing? Court skipped statutory challenge to take up constitutional issue.
2-Judge Haynes said she concurs in judgment only, but didn't explain why. Is that common?
www.ca5.uscourts.gov/opinions/pub...
TikTok itself explained the law's "operational relationship" language in its petition to the D.C. Circuit last May. It said that the statute "requires" moving all TikTok source code to a new TikTok owner.
At oral argument, Justice Sotomayor asked if the part of the law that stops the post-divestiture companies from "conferring on the algorithm" should be cut out of the law -- the SG resisted that, but was willing to accept it.
The Supreme Court didn't make that cut.
For a transaction to be a "qualified divestiture" under the TikTok law, Trump must determine there's no "operational relationship" between a new US entity and any "formerly affiliated" entity (ByteDance), including "any" cooperation with respect to algorithm's operation.
The FCC has been described as an independent agency for decades, including by SCOTUS itself.
But yesterday, the US Solicitor General basically seemed to admit the FCC is *not* actually an independent agency at all.
www.supremecourt.gov/oral_argumen...
Strangely, no judge at the Eighth Circuit stopped to ask the FCC why it was still defending an order that Brendan Carr and fellow Republican Nathan Simington dissented to.
The FCC could opt not to defend the rules, by urging the court to hold the case in abeyance until it can re-visit its rules. But by keeping up the fight, the FCC opens the door to the court wiping away the rules much faster than the FCC itself could through a rulemaking.
