Hello and happy Saturday. While all eyes were on the incoming Trump administration this week—with many of the president-elect’s Cabinet nominees facing Senate confirmation hearings—outgoing President Joe Biden decided against a quiet departure.
In addition to lame-duck traditions like issuing slews of commutations and executive orders, an administration official said Thursday that Biden would not enforce a ban on TikTok—mandated by a bill that he signed into law last April—as a deadline for its Chinese parent company to divest looms. Then on Friday, he issued an odd proclamation stating that, based on the commonwealth of Virginia’s 2020 ratification of the 1972 Equal Rights Amendment, that “the 28th Amendment is the law of the land.”
First, TikTok. The social media app is immensely popular, but also a national security concern. ByteDance, TikTok’s China-based parent company, has long claimed it wasn’t doing anything improper with all the data it was hoovering up from the 170 million Americans who use the app, but security experts have long believed otherwise. In fact, Donald Trump vowed to ban the app during his first term.
Congress passed a bipartisan measure last spring that would potentially ban TikTok—by requiring app stores to make it unavailable—if ByteDance did not sell the app by January 19, 2025. ByteDance quickly sued on First Amendment grounds. (We published a debate weighing the free speech implications of a ban vs. the national security concerns in March.) We were waiting for the Supreme Court to rule on the matter when the Biden administration made clear Thursday it would not enforce the law. The Supreme Court did uphold the ban on Friday, though, confusing the matter even more. And then there’s the fact that President-elect Trump has not only changed his mind about banning TikTok, he invited the company’s CEO to attend his inauguration.
All of that has left Nick Catoggio a little gloomy. As he wrote Friday in Boiling Frogs:
I don’t know what else to call all of this except a terrifying rout for China and its propaganda operations, portending many more to come as conflict between our two nations develops. The outgoing U.S. president can’t summon the will to enforce the law; the incoming president can’t decide if letting China brainwash his youngest constituents will be good or bad for him; the people themselves are too dissolute from years of social-media lotus-eating to care whether the United States or China rules the world.
Biden’s TikTok news added a layer of confusion to a story that was already in the news, but his assertion that Virginia’s 2020 ratification of the Equal Rights Amendment meant that it was the “law of the land” came out of nowhere.
Some background: Congress passed the Equal Rights Amendment in 1972, sending a joint resolution to the states that included a seven-year deadline for ratification. That deadline was later extended to 10 years, but by 1982, only 35 states had ratified it, short of the required 38. Between 2017 and 2020, Nevada, Illinois, and Virginia all voted to ratify the amendment. The American Bar Association and other groups have argued that the deadline is unconstitutional and that the amendment should be enacted. But the Justice Department has twice issued guidance that the 1982 deadline was valid and the amendment had expired.
While Biden issued a statement Friday declaring the 28th Amendment to be “law of the land,” we do not (yet) live in a country where the president can amend the Constitution by decree. Notably, Biden has also not taken the one step required to enact it: ordering the national archivist to publish the amendment. Archivist Colleen Shogan issued a statement Friday saying that the amendment can’t be certified.
Jonah Goldberg tackled the controversy in his Friday G-File, and he is annoyed both by Biden’s unserious behavior and the drama that is likely to result.
I don’t know what happens next. Well, that’s not quite right. I know what happens next as much as Biden does: needless legal, political, and constitutional drama. Activists will take what is in effect a presidential fatwah as gospel and start filing lawsuits based upon the 28th Amendment being a thing. Opponents will say it’s not a thing. The Jen Rubin crowd will accuse the Trump administration of violating the Constitution for not recognizing the 28th Amendment. MSNBC will devote countless hours—until it’s sold—to this historic victory and its consequences. Fox will devote countless hours to Biden’s lawless gambit and the hypocrisy of liberals who claim to be in favor of constitutional norms. And they’ll have a point.
I’d like to say we’ll have more on this story next week, but … the inauguration is Monday and as of noon that day the drama around TikTok and the Equal Rights Amendment (and the border crisis, and the RUSSIA-Ukraine war, and the ceasefire between Israel and Hamas) will all fall under the purview of Donald J. Trump. On that, we’ll definitely have more to say.
In the meantime, thanks for reading and have a wonderful weekend.
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