LEILA FADEL, HOST:
The Trump administration has released copies of letters it sent to tech companies telling them they wouldn't be prosecuted or punished for violating a congressional ban on TikTok. Now, this is a law that passed under the Biden administration. And it was then upheld by the Supreme Court earlier this year. So can the administration just not enforce it? To discuss this, we're joined by Zachary Price. He's a constitutional law professor at the University of California College of Law, San Francisco. Good morning, and thanks for being on the program.
ZACHARY PRICE: Thanks very much. Delighted to be here.
FADEL: So, constitutionally, can the president's administration just not enforce a law?
PRICE: I don't think so. So executive officials have some discretion over how laws are enforced, which cases to pursue, what sorts of violations to prioritize. But they don't have authority over whether laws have effect at all. There have been controversies over where to draw that line, but I think what the administration is doing falls on the wrong side of it.
FADEL: So how is this different than things we've seen in the past? For example, President Obama exercised discretion with DACA protections for the young immigrants known as DREAMers and with the Affordable Care Act. I mean, how is this different?
PRICE: Yeah, so I thought those actions by the Obama administration were unlawful as well for the same reasons. President Obama delayed the effect of certain provisions of the Affordable Care Act, which was analogous - and in the DACA program, granted what's called deferred action, gave a sort of promise to certain immigrants that they wouldn't be deported for a certain period. And I think those were also efforts to effectively change the law rather than just decide how to enforce it.
But the DACA benefits did purport to be revocable. The administration claimed it was just sort of exercising discretion and not prioritizing people for the time being, not legalizing unlawful conduct. And with the Affordable Care Act delays, they said they had the power to grant transition relief, delay the effect of certain provisions in a complex statute. Here, you have the president coming in and just completely denying force to an entire statute that Congress enacted based solely on disagreement with the policy they reflect.
FADEL: Now, in the letters the Justice Department wrote, quote from the attorney general, that "the president's stated goal of protecting national security while making available a communications platform used by millions of Americans." What do you make of that argument?
PRICE: I don't think it's sound. They are claiming a national security, foreign affairs power to do this. And it's true that those are areas of special presidential responsibility. But the Constitution obligates the president to take care that the laws are faithfully executed. And Congress has authority in this area as well. It has the power to regulate commerce between the states and with foreign nations, and pursuant to that power, enacted the TikTok ban. So it's a valid law within Congress' power. And that implicates that duty of the president to ensure that the law is faithfully executed. And it's antithetical to that to claim the power to deny the law effect altogether.
FADEL: That's Zachary Price, law professor at the University of California College of Law, San Francisco. Thank you for your time.
PRICE: Thank you very much. Transcript provided by NPR, Copyright NPR.
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