165. TikTok and the Dispensing Power

Attorney General Bondi's TikTok-related letters rest on a view of presidential power that has no support in even the most capacious understandings of the "unitary executive" theory.

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Amidst all of the other news from last week, we finally received, thanks to a Freedom of Information Act request, copies of 21 letters that Attorney General Bondi sent to U.S. tech companies earlier this year. Bondi’s letters apparently helped to induce those companies to decide to continue supporting the TikTok app—despite a federal statute expressly forbidding them from doing so after January 19, a statute that the Supreme Court had upheld against a First Amendment challenge on January 17. (The statute’s full name is the Protecting Americans from Foreign Adversary Controlled Applications Act; I’m going to call it the “TikTok statute” for ease of reference.)

From a legal reasoning perspective, Bondi’s letters are bollocks. In addition to claiming that the companies’ behavior does not violate the statute (which it unambiguously does), Bondi asserts that she has the legal authority to irrevocably release all potential claims that might arise out of the companies’ ongoing violations of the act (and purports to release those claims)—a power to license unlawful activity on a case-by-case basis, if you will, which was known in pre-revolutionary England as the “dispensing” power.

I wrote back in January about how the TikTok executive order President Trump signed on his first day of office committed whoever the Attorney General would be to take that first position about the meaning of the statute (which should’ve been reason enough for any principled lawyer to refuse nomination to the office, and for the Senate to refuse to confirm any nominee). But it’s the second claim—that the President, through the Attorney General, has a dispensing power—that is even more extreme; that is not even required by the executive order; and that, if it becomes a precedent, would turn the separation of powers (if not the rule of law itself) entirely on its head.

But first, the more-Court-specific news.

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On the Docket

As expected, the Court handed down two sets of orders last week—one on Monday and one on Thursday. Between the two order lists, the justices:

1. Issued a “per curiam” opinion in Goldey v. Fields summarily reversing the Fourth Circuit in a case in which the court of appeals had allowed a “Bivens” suit against federal prison officials for an Eighth Amendment excessive-force claim to go ahead. (For background on Bivens, see this earlier post.) The Court suggested that, because the plaintiff’s claim arose in a “new context,” the court of appeals should not have allowed the suit to go forward. Interestingly, there were no public dissents;

2. Added 12(!) new cases to their docket for next term (two of which are consolidated), including a pair of major cases about discrimination against transgender students in public school athletic programs and another challenge (by the National Republican Senatorial Committee) to the constitutionality of specific statutory limits on campaign finance;

3. Penned five separate opinions respecting denials of certiorari in the two order lists—including a Thomas/Gorsuch dissent from the denial of certiorari in a case about whether a policy barring landlords from evicting tenants for the nonpayment of rent, even during a public health crisis, effects a physical taking under the Fifth Amendment’s Takings Clause.

Although we expect three sets of housekeeping orders from the Court over the summer (on July 21, August 18, and September 5), that should be it for regular order lists until after the justices next meet in person (for their Long Conference on Monday, September 29). Everything besides housekeeping that we get from the Court this summer will be miscellaneous orders respecting emergency applications.

And speaking of those, the biggest headline the Court made last week was Thursday afternoon’s ruling in the third-country removals case, in which the majority granted the Trump administration’s “motion for clarification” of its unexplained June 23 order—and cleared the way for the government to finalize the removal of eight migrants to South Sudan. I published a post on Friday summarizing Thursday’s ruling and the unusual split between Justice Kagan and Justices Sotomayor and Jackson—and will refer folks back to that post for more on both Thursday’s ruling and the underlying dispute.

Turning to this week, although the Court has nothing formal scheduled, it is still sitting on four major emergency applications, three of which are “ripe” for a decision (because they are fully briefed). The first two are in the two reduction-in-force cases, in which the Trump administration is asking the justices to put back into effect mass firings of federal employees at multiple federal agencies, including the Department of Education. And the third is the Florida immigration case about which I wrote last week—where Florida is asking the Court to put back into effect a state law that attempts to create state-level immigration crimes.

The Trump administration also has a new application pending before the Court (its 20th), asking the justices to clear the way for the President to remove without cause members of the Consumer Product Safety Commission. The response to that application isn’t due until 4 p.m. this Friday (July 11), although the Department of Justice has also asked for an “administrative stay,” which the Chief Justice (in his capacity as Circuit Justice for the Fourth Circuit) might rule upon before then. Regardless, this is the pattern we expect this summer—where the Court will continue to receive and dispose of major emergency applications during its recess, almost certainly without plenary review (including oral argument).

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The One First “Long Read”:
The Attorney General’s Law-Free TikTok Letters

Although it may seem like a distant memory at this point, it was only on January 17—less than six months ago—that the Supreme Court, after hyper-expedited merits review, upheld the TikTok statute against a First Amendment challenge. On his first day in office, President Trump signed an executive order that promised not to enforce the statute for 75 days (a period that could be renewed). But it was only after Attorney General Bondi sent letters to various U.S. tech companies some time later that full access to TikTok was restored—letters that, at least at the time, were not made public (or even leaked). Given that timing, the natural question that arose was what, exactly, Bondi had promised to the tech companies to get them to turn the switch back on?

Late last week, in response to FOIA requests, 21 of those letters were made public. The letters are worth reading in their entirety (in some cases, multiple letters to the same company sent at different times were included). But to summarize the highlights, across those letters, the Attorney General of the United States memorialized some variation of the following three conclusions:

1. Companies that continue to support the TikTok app are not, in fact, violating the TikTok statute;

2. The TikTok statute is “properly read” to not “infringe upon . . . core Presidential national security and foreign affairs powers”; and

3. The Department of Justice is “irrevocably relinquishing any claims the United States might have had” against the recipients of the letters for both previous and ongoing violations of the act.

Each of these three arguments is ludicrous. The first argument is inconsistent with the literal text of the statute—which is not exactly ambiguous about what it prohibits. Unless TikTok’s Chinese owners divested by January 19 (and they didn’t), U.S. companies are barred from:

Providing services to distribute, maintain, or update such foreign adversary controlled application (including any source code of such application) by means of a marketplace (including an online mobile application store) through which users within the land or maritime borders of the United States may access, maintain, or update such application.

Of course, “providing services” to distribute, maintain, or update the TikTok app is … literally what these companies are doing. Thus, there is no plausible argument that these companies are not violating the TikTok statute; they are continuing to do exactly what it bars.

And as University of Minnesota law professor Alan Rozenshtein has pointed out, because the statute is not in any way ambiguous, the second argument is also frivolous; there is no way to “properly read” the statute to “avoid” a constitutional question. (As Rozenshtein explains, the constitutional question isn’t actually difficult, here, either; other constitutional issues aside, the statute falls well within Congress’s Article I power to regulate foreign commerce, and with respect to Article II, the statute doesn’t require the President—as opposed to U.S. tech companies—to stop doing … anything.) But it’s the third argument, in particular, that reflects a truly scary potential expansion of executive power—to encompass a prerogative that English kings exercised only until 1689, and that the Founders decisively rejected.

The “dispensing” power claimed by pre-18th-century English kings was the power to decide, on an ad hoc basis, which laws could and should be set aside in individual cases—to exempt the King’s favorites not just from the retrospective operation of criminal laws (for which after-the-fact pardons could have the same effect), but from the retrospective and prospective application of civil laws, as well. The idea was that the King could literally “dispense” with application of whichever laws he wanted, for whatever reasons he wanted, in whatever cases he wanted.

One of the centerpieces of the English Bill of Rights, adopted by Parliament in 1689 at the end of the Glorious Revolution (as part of a package of reforms that had both the purpose and effect of pushing England toward a constitutional monarchy), was the express abolition of the dispensing power. And when the U.S. Constitution was drafted in 1787, the Take Care Clause of Article II (requiring the President to “take Care that the Laws be faithfully executed”) was largely understood as a repudiation of any dispensing authority. Indeed, the Supreme Court would reassert that understanding in 1838, noting that a “dispensing power”

has no countenance for its support in any part of the Constitution, and is asserting a principle which, if carried out in its results to all cases falling within it, would be clothing the President with a power entirely to control the legislation of Congress and paralyze the administration of justice.

Not even the staunchest defenders of the unitary executive theory have argued otherwise—because, however much power the President may have over the executive branch, it was (and always has been) understood that a dispensing power is trampling on the legislature’s constitutional prerogative. Presidents may, at various points in American history, have declined to enforce certain statutes for certain periods of time based on their belief that the statute is unconstitutional. But the power to decline to enforce a statute just isn’t the same thing as the dispensing power; the former does nothing to alter the potential liability that those who violate the statute might face; the latter at least purports to render them formally immune.¹

The tricky part here isn’t that Bondi’s approach is blatantly unconstitutional; it’s that it’s difficult to remedy through litigation. As Rozenshtein has pointed out, it’s not at all clear who might have standing to challenge the letters (or the Trump administration’s broader behavior vis-a-vis TikTok) in court. Perhaps one of TikTok’s competitors could, but there are some fairly obvious political reasons why they might choose not to do so. And so here, again, we come back to what has been the most fundamental breakdown in the separation of powers over the last 5.5 months—the fecklessness of Congress.

At other points in American history, we might’ve expected Congress to assert its institutional prerogatives against an executive branch purporting to exercise a dispensing power—by blocking nominees (or impeaching appointees like the Attorney General); by cutting off funding; or by otherwise making life difficult for the executive branch until and unless it played ball with the legislature. Of course, there’s no reason to expect any of these reactions anytime soon. If anything, the exercise of a dispensing power vis-a-vis TikTok, specifically, takes Congress off the hook for the mess it arguably created when it passed the TikTok statute last year.

But there is an immense danger in Bondi’s assertion of a dispensing power here—that it might set a precedent for assertions of the same authority in future cases in which the dispensations are far less popular and far more corrupting. As the Supreme Court put it in 1886, “illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.” The best defense against such solidification of precedent is to make clear, as emphatically and publicly as possible, why the test cases aren’t actually viable—and why the broader theory is constitutionally indefensible. Hence, this post.

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SCOTUS Trivia: The Four Three-Level Justices

You probably didn’t know that today marks the 132nd anniversary of the death of Justice Samuel Blatchford—who was appointed to the Court in 1882 by President Arthur and served for eleven relatively distinguished years. But Blatchford is the first of four answers to one of my favorite trivia questions: Who are the only justices to have held office separately as a federal district judge; a federal circuit judge; and a justice? Blatchford was appointed to the Southern District of New York by President Andrew Johnson in 1867; and to the Second Circuit by President Hayes in 1878. (Part of why Blatchford was the first person to hold this quirky honor is because the position of standalone circuit judge didn’t really exist before 1866, and there were only a handful of such judges before the reorganization of the federal courts in 1891).²

Even relatively casual Court-watchers probably know who the third and fourth answers to the trivia question are. The third judge to serve at all three levels of the Article III judiciary is Justice Sonia Sotomayor, who was appointed to the Southern District of New York by President George H.W. Bush in 1992, and elevated to the Second Circuit in 1998 by President Clinton. Indeed, Sotomayor is the only judge in U.S. history to serve more than five years at all three levels. And Justice Ketanji Brown Jackson became the fourth when she was appointed to the Court in 2022—having served on both the D.C. federal district court and the D.C. Circuit.

The real trivia, then, is the second justice to serve at all three levels. The answer is Justice Charles Evans Whittaker—who was appointed by President Eisenhower to the Western District of Missouri in 1954; to the Eighth Circuit just under two years later; and to the Supreme Court nine months after that. Whittaker served on the Court for only five years—resigning in 1962 after suffering what has been described as a nervous breakdown brought on by the pressures of the job and the intensity of the cases. Among other things, Whittaker is the only justice ever appointed from Missouri—and the last justice to have graduated from a public law school (the University of Missouri-Kansas City).³

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1. As my friend and Georgetown colleague Professor Marty Lederman points out, it’s not clear just how confident these companies should be that Bondi’s letters absolve them of any potential liability.

2. There was a brief period in 1801–02 with standalone circuit judges—between when the Federalist-dominated Congress passed the Midnight Judges Act in February 1801 and the Democratic-Republicans repealed that act in January 1802. Suffice it to say, none of the handful of judges appointed under the 1801 Act also served on both a district court and the Supreme Court.

3. Speaking of trivia, UMKC is one of seven law schools that can claim both U.S. presidents and Supreme Court justices among their alumni (President Truman also graduated from UMKC). The other six law schools, in alphabetical order, are Albany; Cincinnati; Columbia; Harvard; Virginia; and Yale.