Blurring The Lines of Separation of Powers

By Zoe Robert '25

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Since Montesquieu’s The Spirit of the Law, the separation of powers has been the foundation of our democracy. (1) Congress can pass laws, but the President has the power to veto them. Going the other way, if Congress disagrees with the veto, it can override it with a two-thirds majority vote. The Supreme Court, on the other hand, has the power to review laws passed by Congress and signed by the President and determine whether they are constitutional.

Principles like these have always limited those in power from overstepping their authority. Yet, President Trump’s Executive Order suspended enforcement of the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACAA) relating to the social media application TikTok. (2) It begs the question: Does the President have the executive power to override the legislative and judicial branches by suspending enforcement and imposing penalties for violating existing laws? 

On March 23, 2023, Shou Chew, the Chief Executive of TikTok Inc., a platform used by millions of Americans, appeared before Congress. (3) The hearing aimed to discuss concerns over TikTok’s consumer privacy and data security practices, its impact on children, and its relationship with the Chinese Communist Party. (4) Chew attempted to debunk some national security concerns by saying TikTok is not owned or controlled by the Chinese government and that American data is stored and overseen by American personnel. (5) However, while TikTok Inc. and its parent TikTok LLC are incorporated and headquartered in the United States, its parent company, ByteDance Ltd., is a privately held company headquartered in Beijing and incorporated in the Cayman Islands. (6) The national security concern—control and influence by the Chinese government and its use of American data for espionage and potential malware injections—prevailed. (7)

This led President Biden to sign the PAFACAA. (8) PAFACAA makes it unlawful for an entity to distribute, maintain, or update a foreign adversary-controlled application. (9) The Act specifically targeted TikTok. (10) By its terms, the PAFACAA was to take effect on January 19, 2025, absent a showing to Congress that the application was actively undergoing a “qualified divestiture.” (11) In which case, a 90 day extension would be granted. (12) However, such showing was never made. Nonetheless, on January 20, 2025, within hours of his inauguration, President Trump ordered the Attorney General not to enforce PAFACAA for 75 days. (13) 

The stated purpose of the Executive Order was “to permit [the new] Administration an opportunity to determine the appropriate course with respect to TikTok,” (14) noting that “the unfortunate timing” of the Act interfered with the President’s ability to negotiate a resolution that would avoid an “abrupt shutdown” of TikTok while addressing national security concerns.” (15) The Order further directed the Attorney General to notify potential violators of the Act that they will not be held liable for actions taken during or before the expiration of the 75 days. (16) 

Absent showing that ByteDance had, in fact, expressed a willingness to relinquish ownership to an American company, President Trump’s executive order extending TikTok’s shelf-life to “negotiate a resolution” was a transparent attempt to circumvent the PAFACAA to TikTok’s benefit. (17)

President Trump’s Executive Order arguably blurs the lines of separation of powers. Article II, Section 3 of the Constitution, the “Take Care Clause,” provides that the President shall “take Care that the Laws be faithfully executed.” (18) While the Take Care Clause has been broadly construed, there is little precedent interpreting the Clause to authorize the President to suspend enforcement of existing laws. (19)

An analogy can be made to actions taken during the Obama Administration. In 2014, President Obama, by Executive Order, established the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA). (20) DAPA provided temporary protection from, among other things, deportation under existing law for undocumented parents of American citizens and legal permanent residents. (21) After multiple challenges on, among others, separation of powers grounds, the lower court enjoined enforcement of DAPA, blocking its implementation. (22) On review, the Supreme Court held only that the “judgment is affirmed by an equally divided Court.” Texas v. United States. 579 U.S. 547 (2016). No written opinion was issued addressing the questions of executive authority or separation of powers. (23) One wonders what the holding might have been had Justice Scalia not died before the case was decided. United States Senator John Coryn, a Republican from Texas, may have offered some insight. Coryn shared in a statement that “The president can’t circumvent the legislative process simply because he doesn’t get what he wants, and I’m glad the rule of law was affirmed.” (24)

Do pragmatic concerns ever justify executive overreach? If so, how do we make those determinations consistent with our democratic principles, including the separation of powers? Does granting the executive branch this power over the legislature and judiciary, even temporarily, undermine Americans’ confidence in the predictability of government and laws? 

This raises a question of reliance. On whom should the American people rely: The legislature who enacted the law, the executive who suspended enforcement of the law, or the judiciary who may impose penalties for its violation?

Legal Scholar Zachary Price attempted to answer these questions. Price asked: Can regulated parties ever rely on official assurances that a law will not apply to them? (25) Price concluded that if the courts protect individual reliance on assurances of non-enforcement, it would effectively sanction the executive use of unauthorized power, thereby nullifying the role of the legislature. (26)

Only time will tell whether, in this case, the courts will clarify the issues left open by Texas v. United States, follow precedent favoring enforcement over reliance, or further blur the lines by protecting individual reliance even at the expense of our democratic principles. Now, more than ever, the power of judicial review is essential to ensure that each branch of government is held to the limits of its powers. (27) One thing is certain: the liquidation of these boundaries will leave Montesquieu rolling in his grave.

Endnotes

1. Montesquieu, The Spirit of the Laws, trans. Thomas Nugent (1748), https://media.bloomsbury.com/rep/files/primary-source-104-montesquieu.pdf.

2. The White House, "Application of Protecting Americans from Foreign Adversary Controlled Applications Act to TikTok," January 20, 2025, https://www.whitehouse.gov/presidential-actions/2025/01/application-of-protecting-americans-from-foreign-adversary-controlled-applications-act-to-tiktok/.

3. Justin Hendrix, "Transcript: TikTok CEO Testifies to Congress," Tech Policy Press, March 24, 2023, https://www.techpolicy.press/transcript-tiktok-ceo-testifies-to-congress/.

4. Ibid.

5. Ibid.

6. Ibid.

7. Ibid.

8. U.S. Congress, "H.R.7521 - Protecting Americans from Foreign Adversary Controlled Applications Act," 118th Congress (2023–2024), https://www.congress.gov/bill/118th-congress/house-bill/7521.

9. Ibid.

10. Ibid.

11. Ibid.

12. Ibid.

13. The White House, "Application of Protecting Americans from Foreign Adversary Controlled Applications Act to TikTok," January 20, 2025, https://www.whitehouse.gov/presidential-actions/2025/01/application-of-protecting-americans-from-foreign-adversary-controlled-applications-act-to-tiktok/.

14. Ibid.

15. Ibid.

16. Ibid.

17. Ibid.

18. Constitution Annotated, “Overview of Take Care Clause,” https://constitution.congress.gov/browse/essay/artII-S3-3-1/ALDE_00001160/.

19. Ibid.

20. Julián Aguilar and Madlin Mekelburg, "Supreme Court Tie Deals Blow to Obama's Immigration Order," The Texas Tribune, June 23, 2016, https://www.texastribune.org/2016/06/23/supreme-court-rules-obamas-immigration-order/.

21. Ibid.

22. Ibid.

23. Ibid.

24. Ibid.

25. Zachary S. Price, "The President's Power to Execute the Laws," William & Mary Law Review, February 1, 2017, https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3681&context=wmlr.

26. Ibid.

27. United States Courts, "About the Supreme Court," https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about#:~:text=Second%2C%20due%20to%20its%20power,laws%20that%20violate%20the%20Constitution.