The House and Senate overcame the objections of their performative wings to approve a $95 billion foreign aid bill. Along with the splash of cash is a provision that would ban or force the sale of Chinese-owned social media company TikTok.
The votes were bipartisan and based on the idea that the wildly popular platform is little more than a Chinese intelligence/propaganda device that steals users' data and hands it off to the ChiComs.
Who, presumably, will do something nefarious with it.
However, nefarious means and actions are not limited to the CCP. Kentucky Sen. Rand Paul (who ultimately did not vote on the Senate version of the bill) wrote in Reason there are substantial constitutional issues at play in the TikTok kerfuffle – few of which got much attention among the “China hysterics” in Congress:
I think the Supreme Court will ultimately rule [a ban or forced sale] unconstitutional, because it would violate the First Amendment rights of over 100 million Americans who use TikTok to express themselves.
In addition, I believe the Court will rule that the forced sale violates the Fifth Amendment. Under the Constitution, the government cannot take your property without accusing and convicting you of a crime—in short, without due process. Since Americans are part of TikTok's ownership, they will eventually get their day in court.
The Court could also conclude that naming and forcing the sale of a specific company amounts to a bill of attainder, legislation that targets a single entity.
Constitutional niceties usually don't carry much weight with our political class. But a court test of a forced government divestiture would provide a fascinating and broadly horrifying spectacle.
Paul also notes that in return for a forced sale or ban, the Chinese government could turn its attention to American companies with major presences in China – Apple for one. Tesla, too. Those companies might be forced to bend even further to Chinese demands for user data. And back in the USA, what's to stop the federal government from banning other Chinese companies with dodgy data practices?
Once it starts rolling, the ban-wagon can extend to any number of foreign entities that fit the moment's hysteria.
It might all end – abruptly and with many bruised egos – in the federal courts. However, it should not take court action to remind the worthies that their actions have constitutional, political, and economic implications. You know – the things that are much more important than any particular incumbent's desire to remain in office.
The opinions expressed in this article are those of the author and do not necessarily reflect the positions of American Liberty News.
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