• During his 2024 presidential campaign, Donald Trump said he would “never ban TikTok”.
• Without court intervention, TikTok could be banned as soon as Trump takes office.

Donald Trump may not be able to save TikTok, despite promising to do so during the election campaign.

In June, the president-elect told app users he would “never ban TikTok.” This may have earned it support from the app’s fans, business partners and employees who rely on TikTok to make money.

As it stands, TikTok continues to march towards its demise due to a April law passed by Congress which requires its owner, ByteDance, to either divest itself of its US assets or be banned from app stores.

TikTok is challenging the law in the United States Court of Appeals for the District of Columbia Circuit. So far, It’s not going very well for the company.. TikTok advances a free speech argument against alleged national security concerns related to its owner being based in China, which the U.S. government has designated as a foreign adversary. The DC circuit often shows deference to Congress when it comes to national security. The case could ultimately end up before the Supreme Court.

Without court intervention, the application is likely to be sold (unlikely) or prohibited on January 19, the day before the inauguration. Before leaving office, President Joe Biden has the option to extend that deadline by 90 days, and he has not indicated he will do so.

Legal experts told Business Insider that TikTok’s future in the United States is still very uncertain despite Trump’s election victory. The company must first prevail in court to give its app a chance to stick, because Trump can’t simply repeal the law.

“Given that the law was passed by Congress, I’m not sure how much leeway a future Trump administration would have to ignore it,” said GS Hans, clinical professor of law at Cornell Law School, at BI.

Trump could try to persuade Congress to repeal or amend the law, although that seems unlikely, said Matthew Schettenhelm, a litigation and policy analyst at Bloomberg Intelligence.

“If TikTok loses the lawsuit, as I expected, it will be much harder to watch Trump prevent the ban from going into effect on January 19,” he said.

Trump has two options to try to save TikTok once in office. Neither is simple, legal sources told BI.

First strategy: do not apply the law

Trump could protect TikTok by directing his Justice Department not to enforce the Protecting Americans from Apps Controlled by Foreign Adversaries Act regarding TikTok.

“There is some history with the Justice Department or the president challenging an existing law, not enforcing it, potentially declaring it illegal or refusing to defend it,” said Aram A. Gavoor, a former lawyer Justice Department principal who is now associate dean for academic affairs at George Washington University Law School.

As an example, Gavoor cited the decision by former President Barack Obama’s administration to stop defending the Defense of Marriage Acta since-repealed law that barred federal recognition of same-sex marriage.

If Trump avoids enforcing the divestment or ban law, it may not withstand a legal challenge, because it is possible that the Supreme Court has already upheld its constitutionality by the time he tries to ignore it.

And if Trump’s Justice Department chooses not to defend the law, Bloomberg’s Schettenhelm said it could be risky for U.S. companies like Apple and Google that host TikTok in app stores to keep it. Trump has already flip flop on TikTok after try to ban and then force a sale of the application in 2020. Who’s to say that he might not change his mind again?

“I’m not sure they would want to risk enormous liability hoping that President Trump wouldn’t change his mind and start enforcing the law against them,” Schettenhelm said.

Second strategy: act as if the law does not apply to TikTok

Trump could also argue that TikTok is not subject to the divestment or ban bill.

This one seems a bit absurd, since the bill specifically names TikTok and ByteDance as covered companies.

Gavoor said it was possible that TikTok and ByteDance could reorganize so as not to “trigger the direct definition of their names or a subsidiary or successor entity” under the law.

“They’re definitely looking at a whole variety of potential corporate structures,” Gavoor said.

Alan Rozenshtein, a law professor at the University of Minnesota, also said Fast business that Trump could declare that ByteDance has divested from TikTok without actually requiring it to do so.

Both of these approaches would attempt to circumvent the wording of the bill to avoid enforcing it.

Cornell’s Hans said any tactics a future Trump administration might adopt to maintain TikTok would be “uncharted territory.”

“Given that the effective date of the law is the day before Inauguration Day, all kinds of questions remain open about how this is going to play out,” he said.

Of course, given all the legal hurdles, Trump could decide that saving TikTok isn’t worth it as he tackles other issues in his first days in office.

Representatives for the Trump campaign and TikTok did not respond to requests for comment.