Amicus Curiae Brief — TikTok Inc., et al., Petitioners v. Merrick B. Garland, Attorney General

Nos. 24-656, 24-657

In the

Supreme Court of the United States



TIKTOK INC. & BYTEDANCE LTD.,

Petitioners,

BRIAN FIREBAUGH, et al.,

v.

Petitioners,

MERRICK B. GARLAND,

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.



On Writs of Certiorari to the

U.S. Court of Appeals for the D.C. Circuit



BRIEF OF AMICUS CURIAE

THE FORUM FOR CONSTITUTIONAL RIGHTS

IN SUPPORT OF NEITHER PARTY



MAHESHA P. SUBBARAMAN

Counsel of Record

SUBBARAMAN PLLC

80 S. 9th St., Ste. 900

Minneapolis, MN 55402

(612) 315-9210

mps@subblaw.com

December 27, 2024

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

TABLE OF CONTENTS

Page

Table of Authorities ................................................

ii

Interest of the Amici Curiae ...................................

1

Summary of the Argument .....................................

2

Argument ................................................................

3

I. This Court neither gives advisory opinions

nor tolerates legislation eliciting advisory

opinions (the Muskrat rule) .........................

9

II. The Protecting Americans from Foreign

Adversary Controlled Applications Act—or

TikTok ban—elicits an advisory opinion on

terms even worse than the legislation that

the Court condemned in Muskrat................ 17

III. The Court should consider directing the

parties to address at oral argument—or

inviting an amicus to argue—the TikTok

ban’s advisory-opinion problem ................... 28

Conclusion ............................................................... 30

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ........... 7

Atl. Marine Constr. Co. v. U.S. Dist. Ct.,

570 U.S. 947 (2013) ............................................. 29

Bostock v. Clayton Cnty., 590 U.S. 644 (2020) ......... 22

Broadrick v. Oklahoma, 413 U.S. 601 (1973) .... 12-13

California v. Texas, 593 U.S. 659 (2021) ................... 6

Chi. & S. Airlines, Inc. v. Waterman Steamship

Corp., 333 U.S. 103 (1948) .................................. 12

Dart Cherokee Basin Operating Co. v. Owens,

574 U.S. 81 (2014) ............................................... 28

Duke Power Co. v. Carolina Envtl. Study Group,

438 U.S. 59 (1978) ................................................. 6

Durousseau v. United States, 6 U.S. 307 (1810) ...... 24

Ex parte McCardle, 74 U.S. 506 (1869) .................... 28

FBI v. Fikre, 601 U.S. 234 (2024) ............................... 1

Fla. Power & Light Co. v. Lorion,

470 U.S. 729 (1985) ............................................... 7

Flast v. Cohen, 392 U.S. 83 (1968) ........... 9, 10, 16, 29

Florida v. HHS,

716 F. Supp. 2d 1120 (N.D. Fla. 2010) ................. 6

Glidden Co. v. Zdanok, 370 U.S. 530 (1962) ............ 11

Hamdan v. Gates,

565 F. Supp. 2d 130 (D.D.C. 2008) ..................... 24

Hamdan v. Rumsfeld, 548 U.S. 557 (2006).............. 23

iiii

TABLE OF AUTHORITIES—cont’d

Page(s)

Hayburn's Case, 2 U.S. 409 (1792)........................... 11

Hohn v. United States, 524 U.S. 236 (1998) ...... 24, 29

Hutto v. Davis, 454 U.S. 370 (1982) ......................... 24

ICC v. Brimson, 154 U.S. 447 (1894) ....................... 12

In re Aiken Cnty., 725 F.3d 255 (D.C. Cir. 2013) ..... 27

In re Beck, 526 F. Supp. 2d 1291 (S.D. Fla. 2007) ... 16

Iselin v. United States, 270 U.S. 245 (1926) ............ 22

Keller v. Potomac Elec. Power Co.,

261 U.S. 428 (1923) ............................................. 27

Liverpool, N.Y. & Phila, S.S. Co. v. Comm’rs,

113 U.S. 33 (1885) ............................................... 13

Loan Syndications & Trading Ass'n v. SEC,

818 F.3d 716 (D.C. Cir. 2016) ............................... 7

Marbury v. Madison, 5 U.S. 137 (1803) ..................... 8

Massachusetts v. Mellon, 262 U.S. 447 (1923) ......... 12

MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007) ............................................... 9

Mississippi v. Louisiana, 506 U.S. 73 (1992) ........... 20

Montgomery v. Louisiana, 575 U.S. 933 (2015) ....... 29

Morrison v. Olson, 487 U.S. 654 (1988) ................... 16

Murthy v. Missouri, 603 U.S. 43 (2024) ..................... 5

Muskrat v. United States,

219 U.S. 346 (1911) ........................... 13, 14, 15, 16

Nashville, Chattanooga, & St. Louis Ry. Co.

v. Wallace, 288 U.S. 249 (1933)........................... 12

iv

TABLE OF AUTHORITIES—cont’d

Page(s)

NFIB v. Sebelius, 567 U.S. 519 (2012) ....................... 6

NLRB v. Noel Canning, 537 U.S. 513 (2014) ............. 5

NRA v. Vullo, 620 U.S. 175 (2024) ............................. 4

O'Grady v. United States,

89 U.S. 641 (1875) ................................... 12, 24, 25

Ortiz v. United States, 585 U.S. 427 (2018) ............. 28

Packingham v. North Carolina,

582 U.S. 98 (2017) ................................................. 3

Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995) ....................................... 11, 25

Reid v. United States, 211 U.S. 529 (1909) .............. 28

Reno v. ACLU, 521 U.S. 844 (1997) ........................... 3

Rotkiske v. Klemm, 598 U.S. 8 (2019) ...................... 23

SAS Inst., Inc. v. Iancu, 584 U.S. 357 (2018)........... 20

Slack v. McDaniel, 529 U.S. 473 (2000) ................... 22

Steel Co. v. Citizens for a Better Envt.,

523 U.S. 83 (1998) .............................................. 28

Thomas v. Collins, 323 U.S. 516 (1945) ..................... 5

TikTok Inc. v. Garland,

No. 24-1113, 2024 U.S. App. 30916

(D.C. Cir. Dec. 6, 2024) .......................................... 8

United States v. Ferreira, 54 U.S. 40 (1852) ............ 11

United States v. Fruehauf, 365 U.S. 146 (1961) ........ 9

United States v. O’Grady, 89 U.S. 641 (1875).......... 12

Warger v. Shauers, 574 U.S. 40 (2014) .................... 24

v

TABLE OF AUTHORITIES—cont’d

Page(s)

CONSTITUTIONAL PROVISIONS

U.S. CONST. art. III................................................ 5–25

U.S. CONST. art. III, §2 .............................................. 24

U.S. CONST. amend. I ......................................... 3–5, 25

U.S. CONST. amend. V (Due Process Clause) ........... 14

STATUTORY & REGULATORY PROVISIONS

2 U.S.C. §1407(c) ....................................................... 21

5 U.S.C. §§701 et seq. (APA) ....................................... 7

5 U.S.C. §7123(c) ....................................................... 21

7 U.S.C. §136n(b) ...................................................... 21

7 U.S.C. §194(h) ........................................................ 21

7 U.S.C. §228b-3(h) ................................................... 21

8 U.S.C. §1252(a)(1) .................................................. 21

10 U.S.C. §950g(e)..................................................... 24

12 U.S.C. §1467(j) ..................................................... 21

12 U.S.C. §1786(j)(2) ................................................. 21

15 U.S.C. §21(c), (d) .................................................. 21

15 U.S.C. §45(c), (d) .................................................. 21

15 U.S.C. §77i(a) ....................................................... 21

15 U.S.C. §720e(a)..................................................... 23

15 U.S.C. §2618(a)(1)(B), (a)(1)(C)(ii), (c)(2) ............ 21

vi

TABLE OF AUTHORITIES—cont’d

Page(s)

15 U.S.C. §3416(a)(4) ................................................ 21

19 U.S.C. §1516a(g)(4)(A), (H) .................................. 21

26 U.S.C. §7482(a)(1) ................................................ 21

28 U.S.C. §1254(1) .................................................... 22

28 U.S.C. §1295(a) .................................................... 22

28 U.S.C. §1651 ......................................................... 24

28 U.S.C. §2265(c)(2) ................................................ 23

28 U.S.C. §§2341-2351 .............................................. 21

28 U.S.C. §2342, 2344 ................................................. 7

38 U.S.C. §7292(c) ..................................................... 21

42 U.S.C. §1327(b)(3) ................................................ 23

49 U.S.C. §46110(a), (c), (e) ...................................... 21

89 F.R. 60793 (2024) ................................................. 25

Act of March 3, 1863, ch. 92, §5, 12 Stat. 765.......... 11

Act of March 17, 1866, ch. 19, §1, 14 Stat. 9............ 11

Military Commissions Act,

Pub. L. No. 109-366, 120 Stat. 2600 (2006) .. 23, 24

Protecting Americans from Foreign Adversary

Controlled Applications Act,

Pub. L. No. 118–50, div. H, 138 Stat. 9551–8, 17–29

OTHER AUTHORITIES

Ashwin Sehsagiri, How TikTok Changed America,

N.Y. TIMES, Apr. 19, 2024,

https://tinyurl.com/4765esvu................................. 3

vii

TABLE OF AUTHORITIES—cont’d

Page(s)

BLACK’S LAW DICTIONARY (8th ed. 2004) .................. 20

Brendan Bordelon, Biden and Congress Want

to Ban TikTok, POLITICO, Apr. 16, 2023,

https://tinyurl.com/52jtjrvf ................................ 3, 5

Challenge (noun), MERRIAM-WEBSTER

DICTIONARY, https:// tinyurl.com/4jcyp5y6 ......... 20

170 CONG. REC. S2970 (daily ed. Apr. 23, 2024) ........ 4

Drew Harwell, How TikTok Ate the Internet,

WASH. POST, Oct. 14, 2022,

https://tinyurl.com/4tk93mjk ............................ 3, 4

Gram Slattery, Trump Says It Could Be

Worth Keeping TikTok in US for a Little

While, REUTERS, Dec. 23, 2024,

https://tinyurl.com/5bv7mcw4 ............................. 27

H.R. REP. NO. 118-417 (2024) ..................................... 4

Letter from Supreme Court Justices to

President George Washington (Aug. 8, 1793),

https://tinyurl.com/3d82s369 .............................. 10

Letter from Thomas Jefferson to the Justices

of the U.S. Supreme Court (July 18, 1793),

https://tinyurl.com/4f8syyyt .................................. 9

Questions for Supreme Court (Enclosure

to Jefferson Letter) (July 18, 1793),

https://tinyurl.com/348ttsy8 .................................. 9

Taylor Lorenz, TikTok, a Pioneer in Short,

Vertical Videos, Now Wants Horizontal

Ones, WASH. POST, Jan. 31, 2024,

https://tinyurl.com/a8n2tfrr .................................. 3

1

INTEREST OF THE AMICUS CURIAE 1

The Forum for Constitutional Rights (FCR) is a

general non-partisan public-benefit corporation that

is organized and operated under Minnesota law. FCR

offers public education about constitutional history

and rights, including (but not limited to) the First

Amendment. FCR files amicus briefs in cases that

involve key constitutional protections. See, e.g., Brief

of Amici Curiae Restore the Fourth, Inc. & Forum for

Constitutional Rights in Support of Respondent, FBI

v. Fikre, 601 U.S. 234 (2024) (No. 22-1178); Brief of

Amici Curiae Forum for Constitutional Rights, et al.,

in Support of Petitioner, Ark. Times v. Waldrip, No.

22-379 (U.S. amicus brief filed Nov. 23, 2022).

FCR is interested in this case because of its

potential broad impact on both judicial independence

and constitutional cohesion, depending on how the

Court parses the Protecting Americans from Foreign

Adversary Controlled Applications Act. The Act’s

judicial-review provision and other related provisions

enable the Act’s constitutional validity to be decided

in the abstract—at a time when the Act expressly

bars enforcement of its terms, making the Act’s freespeech harms easier to miss. The President-elect has

also said he will not enforce the Act, leaving in doubt

the need for judicial review. Deciding this case would

then entail giving an advisory opinion—something

Congress cannot enable federal courts to do.

1

This amicus brief is filed in accordance with S. Ct. R. 37.3.

No counsel for a party authored this amicus brief in whole or in

part; nor has any person or any entity, other than the named

amicus curiae and their counsel, contributed money intended to

fund the preparation or submission of this amicus brief.

2

SUMMARY OF THE ARGUMENT

The Protecting Americans from Foreign

Adversary Controlled Applications Act (or TikTok

ban) raises key constitutional questions beyond the

First Amendment issues already briefed in this case.

The Act’s judicial-review provision and other related

provisions violate Article III in serious ways.

First, the Act grants the D.C. Circuit “exclusive

jurisdiction” over “any challenge” to the Act itself.

Unlike numerous similar statutes across the U.S.

Code, the Act contains no text preserving Supreme

Court review. The Act thereby gives the D.C. Circuit

‘supreme’ authority over the Act, violating Article

III’s creation of just “one” Supreme Court.

Second, through a reapplication procedure, the

Act permits the Executive Branch to nullify judicial

decisions invalidating applications of the Act. This

mechanism contravenes Article III, which does not

permit executive revision of judicial decisions.

Third, the Act authorizes courts to review the

Act in the abstract, divorced from the concreteness

and adversity that Article III’s case-or-controversy

rule demands. This scheme defies the oldest thread

of American jurisprudence: no advisory opinions.

Because no severability provision applies to the

Act’s defective jurisdictional terms, the entire ban

should fall with these terms. This reality then merits

thoughtful consideration at oral argument, which the

Court may secure either by prompting the parties or

by appointing an amicus to address jurisdiction.

3

ARGUMENT

Over 1 billion people across the world, including

170 million Americans, 2 use TikTok: a smartphone

application that allows individuals to create, share,

and watch short videos between 15 seconds and 10

minutes in length. 3 TikTok’s video recommendations

for each user (generated by a proprietary algorithm)

have transformed the way that Americans consume

news, books, film, music, and even politics. 4 TikTok

represents “the modern Internet”—a “protean,” stillnew revolution with “vast potential to alter how we

think, express ourselves, and define who we want to

be.” Packingham v. North Carolina, 582 U.S. 98, 105

(2017); see Reno v. ACLU, 521 U.S. 844 (1997).

Enter the TikTok ban: Congress’s response to

the fact that a company based in China owns TikTok.

“[B]anning a popular communications tool, foreign or

otherwise, is virtually without precedent in the

United States.” 5 Yet, on April 24, 2024, Congress

enacted what it called the Protecting Americans from

Foreign Advisory Controlled Applications Act. See

Decl. of Adam Presser (TikTok Head of Operations) at

¶11, TikTok Inc. v. Garland, No. 24-1113 (D.C. Cir. dated June

17, 2024), in App’x to Pet’rs Br. 804–05, TikTok Inc. v. Garland,

No. 24-1113 (D.C. Cir. filed June 20, 2024).

3

See Taylor Lorenz, TikTok, a Pioneer in Short, Vertical

Videos, Now Wants Horizontal Ones, WASH. POST, Jan. 31,

2024, https://tinyurl.com/a8n2tfrr.

4

See Ashwin Sehsagiri, How TikTok Changed America,

N.Y. TIMES, Apr. 19, 2024, https://tinyurl.com/4765esvu; see also

Drew Harwell, How TikTok Ate the Internet, WASH. POST, Oct.

14, 2022, https://tinyurl.com/4tk93mjk.

5

Brendan Bordelon, Biden and Congress Want to Ban

TikTok, POLITICO. Apr. 16, 2023, https://tinyurl.com/52jtjrvf.

2

4

Pub. L. No. 118–50, div. H, 138 Stat. 955. Effective

January 19, 2025, the Act bans the distribution,

maintenance, or updating of any “foreign adversary

controlled application.” See id. §2(a)(1), (a)(2).

The Act defines “foreign adversary controlled

application” to mean “TikTok.” Id. §2(g)(3)(A)(ii). The

term also covers other technologies (e.g., websites) if

the technology has over 1,000,000 monthly active

users and allows users to generate, share, and view

text, images, videos, or like content. Id. §2(g)(3)(B).

The Act bans these technologies to the extent their

owners are based in any “foreign adversary country”

and the President finds such ownership is a national

security threat. Id. The Act provides just one way

that the owners of these technologies (and TikTok’s

owner) may end the ban: a “qualified divestiture,”

meaning a sale or transfer of the technology that, as

determined by the President, terminates the ability

of the relevant foreign adversary country to exercise

control over the technology. Id. §2(c)(1), (g)(6).

In passing the TikTok ban, Congress made no

secret of the fact that Congress was on a mission to

“suppress disfavored expression.” NRA v. Vullo, 620

U.S. 175, 188 (2024). The House Committee Report

accompanying the ban stressed the need to prevent

foreign adversary nations from using technology like

TikTok to “push misinformation, disinformation, and

propaganda on the American public.” H.R. REP. NO.

118–417, at 2 (2024). On the Senate floor, Senator

Pete Ricketts praised the ban as a countermeasure to

“the Chinese Communist Party using their control of

TikTok to skew public opinion on foreign events.” 170

CONG. REC. S2970 (daily ed. Apr. 23, 2024).

5

The Supreme Court has agreed to review the

TikTok ban in terms of whether the ban violates the

First Amendment’s protection of free speech. It does.

“The very purpose of the First Amendment is to

foreclose public authority from assuming a guardianship of the public mind.” Thomas v. Collins, 323 U.S.

516, 545 (1945) (Jackson, J., concurring). In banning

TikTok so long as a company in China owns TikTok,

Congress presumes to guard the public mind from

any propaganda that the government of China might

compel TikTok’s owner to push through TikTok. The

authors of the First Amendment knew better. They

did “not trust any government to separate the true

from the false for us,” realizing instead “every person

must be his own watchman for truth.” Id.

The TikTok ban poses an even greater problem,

however, beyond the ban’s derogation of free speech

—a threat that seems to have been overlooked by the

parties and the D.C. Circuit in the relatively quick

pace of this litigation. This threat stems from the

ban’s judicial-review provision and various other

elements of the ban that govern the ban’s operation.

Through these provisions, the ban violates Article III

of the Constitution, which both creates the Judicial

Branch and “limits the jurisdiction of federal courts

to ‘Cases’ and ‘Controversies.’” Murthy v. Missouri,

603 U.S. 43, 57 (2024). “If a dispute is not a proper

case or controversy, the courts have no business

deciding it . . . .” Id. (cleaned up). This rule is one of

the Constitution’s bedrock “government-structuring

provisions,” which are “no less critical to preserving

liberty than are . . . [the] provisions of the Bill of

Rights.” NLRB v. Noel Canning, 537 U.S. 513, 570

(2014) (Scalia, J., concurring in the judgment).

6

At this point, it is worth considering the strange

way that the question of the TikTok ban’s validity

reaches this Court. Pre-enforcement constitutional

challenges to statutes usually reach this Court after

having traveled one of two distinct paths:

Path #1: A party files suit in district court under

28 U.S.C. §1331 against the agency charged by law

with enforcing the challenged statute. 6 The case-orcontroversy rule then requires the party to establish

(among other things) that the challenged statute is

enforceable and that the party faces a credible threat

of enforcement from the sued agency. See California

v. Texas, 593 U.S. 659, 669–74 (2021). Otherwise,

there is no one and nothing for the court to enjoin—

any decision of the challenge amounts to an advisory

opinion. Id. The district court’s fact-finding powers

may prove critical in resolving this concern. Cf. Duke

Power Co. v. Carolina Envtl. Study Grp., 438 U.S. 59,

72 (1978) (“The District Judge held four days of

hearings on . . . standing and ripeness . . . .”).

If the case-or-controversy rule poses no bar, the

district court decides the constitutional challenge,

the court of appeals decides any appeal, and this

Court decides whether to grant review. This is how

pre-enforcement challenges to the Affordable Care

Act (ACA) reached this Court. See NFIB v. Sebelius,

567 U.S. 519, 540 (2012); see also Florida v. HHS,

716 F. Supp. 2d 1120, 1149 (N.D. Fla. 2010) (“There

is no reason whatsoever to doubt that the federal

government will enforce the [ACA] . . . .”).

6

This path assumes that the challenged statute lacks any

special judicial-review provision of its own and no other special

review scheme (like the Hobbs Act) governs the statute.

7

Path #2: A party seeks judicial review of some

“final agency action” implementing the challenged

statute (e.g., a regulation or order) before any actual

enforcement of the statute. Congress may require the

party to obtain such review by filing a petition for

review of agency action in the court of appeals. E.g.,

28 U.S.C. §§2342, 2344. Otherwise, the party may

sue the relevant agency in district court under the

Administrative Procedure Act (APA), 5 U.S.C. §§701

et seq. The case-or-controversy rule then poses no bar

to the court deciding the validity of the challenged

statute—as part of reviewing the final agency action

at issue—presuming the “administrative decision has

been formalized and its effects felt in a concrete way

by the challenging parties.” Abbott Laboratories v.

Gardner, 387 U.S. 136, 138–39, 148 (1967).

In an APA case, the district court decides the

constitutional challenge, the court of appeals decides

any appeal, and this Court decides whether to grant

review. See 28 U.S.C. §§1254, 1291, 1331. Resolution

of “petitions for direct review of agency action” entail

the court of appeals deciding any challenge raised by

the petition followed by this Court deciding whether

to grant review. Loan Syndications & Trading Ass’n

v. SEC, 818 F.3d 716, 717 (D.C. Cir. 2016). In either

circumstance, the “focal point for judicial review” is

“the administrative record already in existence.” Fla.

Power & Light Co. v. Lorion, 470 U.S. 729, 743–44

(1985). This remains so even when the record for the

final agency action at issue lacks information that

the court needs to decide a constitutional challenge

or to enforce the case-or-controversy rule. The court’s

“proper course” is to “remand [the case] to the agency

for additional investigation or explanation.” Id.

8

The pre-enforcement challenges to the TikTok

ban now before the Court did not travel either of the

above-stated paths. Rather, these challenges reach

the Court following the D.C. Circuit’s consideration

of “petitions for review of [the] constitutionality of

the Protecting Americans from Foreign Adversary

Controlled Applications Act.” TikTok Inc. v. Garland,

No. 24-1113, 2024 U.S. App. 30916, at *1 (D.C. Cir.

Dec. 6, 2024). This language tracks the ban’s judicialreview provision, which authorizes the filing of “[a]

petition for review challenging [the Act]” with the

D.C. Circuit “not later than 165 days after the date”

of the Act’s passage. Pub. L. No. 118–50 at §3.

Congress has thus authorized direct review of

a statute, hot-off-the-presses, making Congress the

object of the litigation rather than any government

action (actual or threatened). During oral argument

before the D.C. Circuit, Judge Rao picked up on this.

TikTok’s counsel argued that the record before the

court lacked facts necessary for the TikTok ban to

survive strict scrutiny under the First Amendment.

Judge Rao responded: “I think you’re arguing for us

to remand without vacatur to Congress for more

findings. . . . Many of your arguments want us to

treat [Congress] like they’re an agency. It’s a very

strange framework . . . .” Oral Arg. at 38:48 to 39:14,

TikTok, No. 24-1113 (D.C. Cir. Sept. 16, 2024).

And yet, that strange framework is what the

TikTok ban’s judicial-review provision enacts. It then

“becomes necessary to inquire whether a jurisdiction

so conferred can be exercised.” Marbury v. Madison,

5 U.S. 137, 175 (1803). The following analysis shows

it cannot, and this reality may sink the ban.

9

I.

This Court neither gives advisory opinions

nor tolerates legislation eliciting advisory

opinions (the Muskrat rule).

Born from Article III’s case-or-controversy rule,

“the oldest and most consistent thread in the federal

law of justiciability is that the federal courts will not

give advisory opinions.” Flast v. Cohen, 392 U.S. 83,

96 (1968). Generally speaking, advisory opinions are

“[judicial] expressions” that carry no binding effect or

that address issues lacking the “clear concreteness

provided when a question emerges precisely framed

and necessary for decision [in a case].” United States

v. Fruehauf, 365 U.S. 146, 157 (1961); see also, e.g.,

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118,

127 (2007) (distinguishing between court resolution

of a “definite and concrete” dispute “through a decree

of a conclusive character” versus what a court does

when it issues “an opinion advising what the law

would be upon a hypothetical state of facts”).

For example, in July 1793, Thomas Jefferson

presented the Supreme Court with 29 questions that

President George Washington wanted the Court to

answer in relation to “[t]he war which has taken

place among the powers of Europe” and “transactions

within [American] ports.” 7 These questions included

such inquiries as whether France could as of right

“erect courts within the jurisdiction of the U.S. for

the trial & condemnation of prizes made by armed

vessels in her service?” 8 Jefferson stressed the legal

7

Letter from Thomas Jefferson to the Justices of the U.S.

Supreme Court (July 18, 1793), https://tinyurl.com/4f8syyyt.

8

Enclosure to Jefferson Letter: Questions for Supreme

Court (July 18, 1793), https://tinyurl.com/348ttsy8.

10

nature of the questions: the questions “depend[ed] for

their solution on the construction of [American]

treaties, on the laws of nature and nations, and on

the laws of the land.” 9 Jefferson also stressed the

national security importance of the questions: the

Court’s “advice” would “secure” the nation “against

errors dangerous to the peace of the U.S.” 10

The Court turned down President Washington’s

request. 11 The Court explained that “[t]he lines of

separation drawn by the Constitution” afforded a

“strong argument[]” against “extrajudicially deciding

the questions alluded to,” as did the Court’s status as

“a court in the last resort.” 12 And that remains the

Court’s position to this day: “[f]ederal judicial power

is limited to those disputes which confine federal

courts to a role consistent with a system of separated

powers and which are traditionally thought to be

capable of resolution through the judicial process.”

Flast, 392 U.S. at 97. This “rule against advisory

opinions” ensures that federal courts stick “to the

role assigned them by Article III.” Id. at 96.

Dozens of the Court’s decisions speak to the rule

against advisory opinions. Two branches of this case

law matter here. The first branch guards against any

provision that would allow the Executive Branch to

reduce federal court decisions to advisory opinions.

The second branch guards against any provision that

would allow parties to elicit advisory opinions.

Letter from Thomas Jefferson, supra note 8.

Id.

11

Letter from Supreme Court Justices to President George

Washington, (Aug. 8, 1793), https://tinyurl.com/3d82s369.

12

Id. (some capitalization omitted).

9

10

11

No Executive Disregard—“Congress cannot vest

review of the decisions of Article III courts in officials

of the Executive Branch.” Plaut v. Spendthrift Farm,

Inc., 514 U.S. 211, 218 (1995). The Court faced this

issue for the first time in Hayburn’s Case, 2 U.S. 409

(1792). At issue was a statute empowering circuit

courts to award disability benefits to veterans subject

to later disallowance by the Secretary of War if he

suspected a mistake. See United States v. Ferreira,

54 U.S. 40, 49 (1852). Chief Justice Jay issued an

opinion declaring the statute “radically inconsistent

with the independence of that judicial power which is

vested in the courts.” Hayburn’s Case, 2 U.S. at 410

n.†. The statute violated Article III by rendering

court “judgments” subject to “revision and control” by

“an officer in the executive department.” Id.

Congress ran into this problem again in 1863

when it created the Court of Claims to administer

money claims against the federal government. See

Glidden Co. v. Zdanok, 370 U.S. 530, 552–53 (1962)

(plurality op.). Congress authorized the new court to

issue “final judgment[s]” appealable to the Supreme

Court. Act of March 3, 1863, ch. 92, §5, 12 Stat. 765,

766. But Congress also provided that government

payment of any Court of Claims judgment required

“an appropriation” by the Secretary of the Treasury.”

Id. at §14. This Court subsequently refused to review

Court of Claims judgments on appeal, deeming the

appropriation proviso to grant Treasury a “revisory

authority” over judgments at odds with the “exercise

of judicial power.” Glidden, 370 U.S. at 554.

Congress repealed the proviso. See Act of March

17, 1866, ch. 19, §1, 14 Stat. 9. But Treasury failed to

12

listen, proceeding on its own accord to offset a Court

of Claims judgment against a tax debt owed by the

judgment-holder. United States v. O’Grady, 89 U.S.

641 (1875). This Court ruled the offset unlawful. Id.

at 648. The Court explained that when “no appeal is

taken,” an Article III court’s judgment is “absolutely

conclusive of the rights of the parties” and is not

subject to “re-examination and revision” by any other

government department. See id. at 648–49.

This prohibition applies with full force even

when Congress has granted jurisdiction to an Article

III court to “aid an administrative or executive body

in the performance of duties legally imposed upon it

by Congress.” ICC v. Brimson, 154 U.S. 447, 487

(1894). The Court has noted that for Article III courts

to “review an administrative decision” with “only the

force of a recommendation” would be “to render an

advisory opinion in its most obnoxious form.” Chi. &

S. Airlines, Inc. v. Waterman Steamship Corp., 333

U.S. 103, 113–14 (1948). Article III permits only

“conclusive” judgments immune from “later review or

alteration by administrative action.” Id.

No Granting Legislation Review—Congress can

neither authorize nor effectively allow parties “to

secure an abstract determination by the Court of the

validity of a statute.” Nashville, Chattanooga, & St.

Louis Ry. Co. v. Wallace, 288 U.S. 249, 262 (1933).

Federal courts have “no power per se to review and

annul acts of Congress on the ground that they are

unconstitutional.” Massachusetts v. Mellon, 262 U.S.

447, 488 (1923). Any such power would allow courts

to become “roving commissions . . . on the validity of

the Nation’s laws.” Broadrick v. Oklahoma, 413 U.S.

13

601, 610 (1973). Article III thus affords federal courts

“no jurisdiction to pronounce any [federal] statute . . .

irreconcilable with the Constitution, except as [the

court] is called upon to adjudge the legal rights of

litigants in actual controversies.” Liverpool, N.Y. &

Phila. S.S. Co. v. Comm’rs, 113 U.S. 33, 39 (1885)

(bold added). By extension, Congress cannot grant to

courts any jurisdiction contrary to this rule.

In Muskrat v. United States, 219 U.S. 346 (1911)

the Court rejected an effort by Congress to evade this

prohibition. Congress enacted laws in 1904 and 1906

adjusting and impairing land rights that Congress

had previously granted to Cherokee citizens under a

1902 law. Id. at 348–49. Anticipating that the 1904

and 1906 laws might raise constitutional issues (as a

matter of property rights), in 1907, Congress enacted

a judicial-review provision. Id. at 350–51 (citing Act

of March 1, 1907, ch. 2285, 34 Stat. 1015, 1028).

The provision said all of the following:

•

It authorized the filing of suits “to determine

the validity of any acts of Congress passed

since the [1902] act” insofar as the later acts

imposed additional land “restrictions” (e.g.,

limits on alienation) or served to reduce the

size of individual land allotments. Id.

•

It named as party plaintiffs four persons who

obtained land under the 1902 law—David

Muskrat, J. Henry Dick, William Brown, and

Levi Gritts—allowing them to sue “on their

own behalf” and “on behalf of all Cherokee

citizens” with similar interests. Id.

14

•

It named “as a party defendant” the “United

States” and “charged” the Attorney General

“with the defense of said suits.” Id.

•

It established the suits “shall be brought on

or before” September 1, 1907. Id.

•

It conferred “jurisdiction . . . upon the Court

of Claims, with the right of appeal, by either

party, to the Supreme Court of the United

States, to hear, determine, and adjudicate

each of said suits.” Id.

•

It allowed the named plaintiffs to recover

their attorney’s fees from the government if

the final judgment “den[ied] the validity of

any portion of the said acts authorized to be

brought into question.” Id.

In accordance with these terms, Muskrat and

the other named plaintiffs filed a timely “petition” in

the Court of Claims to have the 1904 and 1906 laws

declared “unconstitutional” as a violation of the Due

Process Clause’s protection of private property. See

Muskrat v. United States, 44 Ct. Cl. 137, 137 (1908)

(arguments of counsel). “[B]oth parties . . . asked the

court to make findings of fact,” which the court did

while observing “the findings are mainly deductions

from statutes and treaties.” Id. at 150.

In the end, the Court of Claims sustained the

validity of the 1904 and 1906 laws, dismissed the

petition, and entered judgment in favor of the United

States. See id. at 148. The court explained that while

“the right of private property is a sacred right, it has

15

its limitations.” Id. at 162. One of these limitations

was Congress’s “plenary power to guard, protect, and

administer upon the tribal property of the Cherokee

Nation.” Id. at 148. That power made the parties’

dispute one “for the legislative branch and not for the

courts to determine.” Id. Muskrat and his fellow

plaintiffs appealed to the Supreme Court.

The Supreme Court “reversed” and “remanded

to the Court of Claims, with directions to dismiss . . .

for want of jurisdiction.” Muskrat, 219 U.S. at 363.

The Court explained: “[t]hese cases arise under an

act of Congress undertaking to confer jurisdiction

upon the Court of Claims, and upon this court on

appeal, to determine the validity of certain acts of

Congress.” The “first question” the Court then had to

resolve was the Court’s “jurisdiction . . . to entertain

the proceeding.” Id. at 351. That question, in turn,

“depend[ed] on whether the jurisdiction conferred” by

the 1907 judicial-review provision was “within the

power of Congress [to grant], having in view [Article

III’s] limitations of the judicial power.” Id.

The Court said ‘no’: the 1907 judicial-review

provision violated Article III because the provision

authorized judicial review of bare legislation. See id.

at 360–63. It made no difference that Congress cast

this ‘legislation review’ in the form of a case—e.g.,

directing the Attorney General to defend the 1904

and 1906 laws. Id. The judicial-review provision’s

“whole purpose” was to “determine the constitutional

validity” of the 1904 and 1906 laws in a contrived

“proceeding against the Government” in which “the

only judgment required” was “to settle the doubtful

character of the legislation in question.” Id.

16

This led the Court to conclude: “Congress, in

the act of March 1, 1907, exceeded the limitations of

legislative authority . . . [by] requir[ing] of this court

action not judicial in its nature within the meaning

of the Constitution.” Id. at 362. The Court stressed

that judicial power to declare a law unconstitutional

did not exist so that courts may sit “as a body with

revisory power” over statutes. Id. at 361. Such power

existed only because “the rights of the litigants in

justiciable controversies require the court to choose”

between the Constitution and “a law purporting to

be enacted within constitutional authority.” Id. “It is

legitimate only in the last resort and as a necessity

in the [conclusive] determination of real, earnest and

vital controversy between individuals.” Id.

In sum: Congress cannot enact judicial-review

provisions that expressly or effectively require courts

“to give opinions in the nature of advice concerning

legislative action.” Id. at 362. “This limitation moors

the federal courts to their constitutional mandates

and keeps them from drifting into the executive or

legislative functions of government.” In re Beck, 526

F. Supp. 2d 1291, 1300 (S.D. Fla. 2007).

At the same time, applying this limitation is not

easy. The Court’s numerous decisions enforcing the

rule against advisory opinions show that violations of

the rule (like in Muskrat) often come “clad in sheep’s

clothing.” Morrison v. Olson, 487 U.S. 654, 698 (1988)

(Scalia, J., dissenting). In such cases, only “a careful

and perceptive analysis” of how the relevant judicialreview provision affects “the equilibrium of power”

will expose the violation. Id. But in the case of the

TikTok ban, “this wolf comes as a wolf.” Id.

17

II.

The Protecting Americans from Foreign

Adversary Controlled Applications Act—or

TikTok ban—elicits an advisory opinion on

terms even worse than the legislation that

the Court condemned in Muskrat.

Section 3 of Protecting Americans from Foreign

Adversary Controlled Applications Act sets forth the

Act’s judicial-review provision. For clarity’s sake, §3’s

full text is reproduced below, but with all references

to “division” replaced with the synonym “Act”:

(a) RIGHT OF ACTION.—A petition for review

challenging this [Act] or any action,

finding, or determination under this [Act]

may be filed only in the United States

Court of Appeals for the District of

Columbia Circuit.

(b) EXCLUSIVE JURISDICTION.—The United

States Court of Appeals for the District of

Columbia Circuit shall have exclusive

jurisdiction over any challenge to this

[Act] or any action, finding, or

determination under this [Act].

(c) STATUTE OF LIMITATIONS.—A challenge

may only be brought—

(1) in the case of a challenge to this

division, not later than 165 days

after the [Apr. 24, 2024] date of the

enactment of this [Act];

(2) in the case of a challenge to any

action, finding, or determination

under this [Act], not later than 90

days after the date of such action,

finding, or determination.

18

Four other provisions of the Act also bear upon

the proper interpretation of the Act’s judicial-review

provision (and its advisory-opinion problem):

Under §2(g)(3), the Act identifies who is subject

to the Act’s prohibitions. Subsection (g)(3)(A) states

that the Act’s prohibitions apply directly to “TikTok,”

to TikTok’s parent company (“ByteDance, Ltd.”), and

to subsidiaries or future successors of either entity.

Subsection (g)(3)(B) then provides that the applies to

any “covered company” that is both “controlled by a

foreign adversary” and determined by the President

to be “a significant threat to the national security.”

Subsections (g)(3)(A) and (g)(3)(b) thereby enact two

separate, independent ways that an entity may be (or

may become) subject to the Act’s prohibitions.

Under §2(a)(2), the Act prescribes exactly when

the Act’s prohibitions become enforceable against the

TikTok entities described under (g)(3)(A) and against

any later, President-designated “covered company”

falling under (g)(3)(B). For the TikTok entities, the

Act becomes enforceable on January 19, 2025—i.e.,

“270 days after the date of the enactment” of the Act.

Id. §2(a)(2)(A). And for later President-designated

covered companies, the Act becomes enforceable “270

days after the date” of the President’s designation of

the covered company as a national-security threat.

Id. §2(a)(2)(B). The President may grant to a (g)(3)(A)

or (g)(3)(B) entity “a 1-time extension” of the Act’s

enforceability, but the extension cannot be for more

than 90 days. Id. §2(a)(3). The President must also

make several certifications to Congress that together

confirm the extension is part of a broader “path to [a

violator] executing a qualified divestiture.” Id.

19

Under §2(d), the Act prescribes “enforcement”

of the Act’s prohibitions. Subsection (d)(1)(A) dictates

that violators shall pay a “civil penalty” not to exceed

$5,000 multiplied by the number of people using the

violator’s application. Subsection (d)(2) then states

that the U.S. Attorney General (AG) “shall conduct

investigations related to potential violations.” If the

AG “determin[es] that a violation has occurred,” the

AG “shall pursue enforcement” of the civil penalty

and “may bring an action in an appropriate [federal]

district court . . . for appropriate relief.” Id.

Finally, in §2(e), the Act addresses the subject of

“[s]everability.” This severability provision expressly

limits its effect to invalidation of §2—i.e., it does not

prescribe a rule of severability for §3’s judicial-review

provision. In this regard, subsection (e)(1) provides

that if a court invalidates “any provision of this

section” or invalidates “applications of this section

to any person or circumstance,” then “the invalidity

shall not affect the other provisions or applications of

this section that can be given effect.” Subsection

(e)(2) then provides that “[i]f the application of any

provision of [§2] is held invalid with respect to” a

“(g)(3)(A) [entity],” this “shall not affect or preclude

the application of the same provision . . . by means of

. . . (g)(3)(B)” to the same (g)(3)(A) entity.

With all of these provisions in mind, it becomes

clear that the TikTok ban violates the rule against

advisory opinions in two ways: (1) through §2(e)(2)’s

severability text, which allows the Executive Branch

to disregard invalidation of the ban; and (2) through

§3(b)’s grant of legislation review. But first, there is a

critical jurisdictional impediment to consider.

20

1. Jurisdictional Impediment. Section 3 of the

Act states: “[t]he United States Court of Appeals for

the District of Columbia Circuit shall have exclusive

jurisdiction over any challenge to this [statute] . . . .”

Section 3’s “description of [D.C. Circuit] jurisdiction

as ‘exclusive’ necessarily denies jurisdiction . . . to

any other federal court” to hear formal questioning of

the Act’s legality. Mississippi v. Louisiana, 506 U.S.

73, 77–78 (1992). The “uncompromising language” of

§3 would then appear to bar this Court’s exercise of

jurisdiction here, as this matter consists entirely of a

formal questioning of the Act’s legality. Id.

This result follows from “the plain meaning of

‘exclusive.’” Id. It also follows from the plain meaning

of “any”—a word that “naturally carries an expansive

meaning.” SAS Inst., Inc. v. Iancu, 584 U.S. 357, 362

(2018) (cleaned up). “When used (as here) with a

singular noun in affirmative contexts, the word ‘any’

ordinarily refers to a member of a particular group or

class without distinction or limitation and in this

way implies every member of the class or group.” Id.

at 363. In short: “‘any’ means ‘every.’” Id. at 359–60.

Finally, this result follows from the plain meaning of

‘challenge’: “a calling to account or into question” 13

or, as legal dictionaries put it, “an act or instance of

formally questioning the legality of . . . [a] thing.”

BLACK’S LAW DICTIONARY 244 (8th ed. 2004).

Review of comparable statutes bolsters the view

that §3 bars the Court from exercising jurisdiction.

Surveying the U.S. Code, a familiar pattern appears:

13

Challenge (noun), MERRIAM-WEBSTER DICTIONARY, https://

tinyurl.com/4jcyp5y6 (last accessed Dec. 26, 2024).

21

virtually every time that Congress grants “exclusive

jurisdiction” to a court of appeals, Congress pairs this

grant with additional language conferring appellate

jurisdiction on this Court. The most obvious example

is the Administrative Orders Review Act, also known

as the Hobbs Act. See 28 U.S.C. §§2341–2351. Under

§2342, the Hobbs Act establishes that “[t]he court of

appeals . . . has exclusive jurisdiction to enjoin, set

aside, suspend (in whole or in part), or to determine

the validity of” a host of final agency actions when

performed by certain federal agencies.” 14 Then,

under §2350, the Hobbs Act provides that any

injunctive order or final judgment “of the court of

appeals in a [Hobbs Act] proceeding . . . are subject to

review by the Supreme Court on a writ of certiorari.”

Dozens of statutes authorizing exclusive circuit

court review mirror this kind of pairing. Sometimes

the pair appears in the same sentence or subsection.

See e.g., 7 U.S.C. §136n(b); 7 U.S.C. §194(h); 7 U.S.C.

§228b–3(h); 12 U.S.C. §1467(j); 15 U.S.C. §77i(a); 15

U.S.C. §3416(a)(4); 26 U.S.C. §7482(a)(1); 38 U.S.C.

§7292(c). Other times, as the Hobbs Act illustrates,

the grants appear in different subsections, sections,

or divisions of the same statute. See, e.g., 12 U.S.C.

§1786(j)(2); 15 U.S.C. §21(c), (d); 15 U.S.C. §45(c), (d);

15 U.S.C. §2618(a)(1)(B), (a)(1)(C)(ii), (c)(2); 19 U.S.C.

§1516a(g)(4)(A), (H); 49 U.S.C. §46110(a), (c), (e). And

then some laws say “[c]hapter 158 of title 28 shall

apply to judicial review”—language incorporating the

Hobbs Act and its grant of Supreme Court review.

See 2 U.S.C. §1407(c), 8 U.S.C. §1252(a)(1).

14

Some statutes make circuit court jurisdiction exclusive by

saying that: “[u]pon the filing of the record with the court, the

jurisdiction of the court shall be exclusive.” 5 U.S.C. §7123(c).

22

The general statute governing the jurisdiction of

the U.S. Court of Appeals for the Federal Circuit

vests “exclusive jurisdiction” of 14 separate matters

in that court without a paired reference to Supreme

Court review. See 28 U.S.C. §1295(a)(1)–(a)(14). But

for all 14 matters, the exclusive jurisdiction granted

by §1295(a) pertains to “an appeal” or takes force “by

appeal.” 15 “While an appeal is a continuation of the

litigation started in the trial court, it is a distinct

step.” Slack v. McDaniel, 529 U.S. 473, 482 (2000).

Section 1295(a)’s grant of exclusive jurisdiction to the

Federal Circuit over “appeals” then poses no conflict

with Supreme Court review as this later step occurs

by “certiorari” (not appeal). 28 U.S.C. §1254(1).

By contrast, §3(b) of the TikTok ban states the

D.C. Circuit “shall have exclusive jurisdiction over

any challenge to this [Act]”—not just any ‘petition for

review.’ And a certiorari petition asking the Court to

void the ban is no less a ‘challenge’ to the ban than a

brief arguing the same to the D.C. Circuit. The ban’s

drafters may not have realized §3’s broad language

(exclusive, any, challenge) would bar Supreme Court

review. “But the limits of the drafters’ imagination

supply no reason to ignore the law’s demands.”

Bostock v. Clayton Cnty., 590 U.S. 644, 653 (2020).

The Court also cannot simply read an allowance of

Supreme Court jurisdiction into §3, which is “not a

construction” of §3, but “an enlargement of it.” Iselin

v. United States, 270 U.S. 245, 250–51 (1926).

15

Section 1295(a)(6)g grants the Federal Circuit exclusive

jurisdiction ”to review the final determinations of the United

States International Trade Commission [ITC],” as made by the

ITC under 19 U.S.C §1337. Section 1337 authorizes parties to

take “appeal[s] . . . [to the] Federal Circuit.” Id. §1337(c).

23

“Atextual judicial supplementation” is especially

“inappropriate” when “Congress has shown that it

knows how to adopt the omitted language.” Rotkiske

v. Klemm, 598 U.S. 8, 14 (2019). And in statute after

statute granting exclusive circuit court jurisdiction,

Congress has shown exactly this. See, e.g., 15 U.S.C.

§720e(a) (“Except for review by the Supreme

Court on writ of certiorari, the United States Court

of Appeals for the District of Columbia Circuit shall

have original and exclusive jurisdiction . . . .”) 28

U.S.C. §2265(c)(2) (“The Court of Appeals for the

District of Columbia Circuit shall have exclusive

jurisdiction . . . subject to review by the Supreme

Court . . . .”); 42 U.S.C. §1327(b)(3) (same).

Turning to precedent, in Hamdan v. Rumsfeld,

548 U.S. 557 (2006), the Court briefly considered

whether Congress’s grant of “exclusive jurisdiction”

to the D.C. Circuit under the Detainee Treatment

Act (DTA) ousted Supreme Court’s jurisdiction. See

id. at 581 & n.11. Despite the relevant DTA sections

lacking any reference to the Supreme Court review,

the Court summarily declared: “[t]he [D.C.] Circuit's

jurisdiction, while ‘exclusive’ in one sense, would not

bar this Court’s review on appeal from a decision

under the DTA.” Id. at 581 n.11. The Court’s sole

authority for this view was the government’s reply

brief in Hamdan, see id., in which the government

“[did] not dispute that the DTA leaves unaffected

[the Court’s] certiorari jurisdiction under 28 U. S. C.

§1254(1).” Id. at 671 (Scalia, J., dissenting).

Of greater significance is what happened four

months after Hamdan: Congress passed the Military

Commissions Act (or MCA), Pub. L. No. 109-366, 120

24

Stat. 2600 (Oct. 17, 2006). See Hamdan v. Gates, 565

F. Supp. 2d 130, 131–33 (D.D.C. 2008) (detailing this

history). Like the DTA, the MCA granted the D.C.

Circuit “exclusive jurisdiction” over certain matters.

120 Stat. 2622 (text of §950g(a)). But the MCA then

provided: “[t]he Supreme Court may review by writ

of certiorari.” Id. (text of §950(d)). That text remains

present in the current version of the MCA. See 10

U.S.C. §950g(e). If Hamdan’s drive-by jurisdictional

dicta was right, “[i]t would have been unnecessary”

for Congress to adopt the text of §950g(e). Hohn v.

United States, 524 U.S. 236, 249–50 (1998).

An unavoidable Article III violation emerges. 16

“[T]he Constitution does not contemplate that there

shall be more than one Supreme Court . . . .” See

O’Grady, 89 U.S. at 647–48. Yet, the TikTok ban

gives the D.C. Circuit the first and last word here,

making the D.C. Circuit ‘supreme’ in this context. 17

Article III (§2) does render the Court’s “appellate

jurisdiction” subject to “such exceptions . . . as the

Congress shall make.” But Congress may not ignore

“the hierarchy of the federal court system created by

the Constitution.” Hutto v. Davis, 454 U.S. 370, 374

(1982); see Durousseau v. United States, 6 U.S. 307,

318 (1810) (Marshall, C.J., jurisdictional op.).

16

The All Writs Act, 28 U.S.C. §1651, does not change this

reality. Because the TikTok ban “specifically addresses the

particular issue at hand, it is that authority, and not the All

Writs Act, that is controlling.” Pa. Bureau of Correction, 474

U.S. 34, 43 (1985). The All Writs Act does not allow the Court

“to issue ad hoc writs whenever compliance with statutory

procedures appears inconvenient or less appropriate.” Id.

17

Because the TikTok ban’s preclusion of Supreme Court

review is unambiguous, the constitutional-avoidance canon has

“no application.” Warger v. Shauers, 574 U.S. 40, 50 (2014).

25

2. Executive Disregard. The TikTok ban allows

the Executive Branch to disregard court judgments,

creating an advisory-opinion problem. Section 2(e)(2)

provides that court invalidation of “the application of

any [ban] provision” to the entities described under

(g)(3)(A) “shall not affect or preclude the application

of the same provision” to the same entities “by means

of . . . (g)(3)(B).” So even if this Court invalidates the

ban in full as applied to TikTok—a (g)(3)(A) entity—

the Attorney General may resume enforcing the ban

in full against TikTok upon the President’s decision

that TikTok falls under (g)(3)(B) and the end of the

270-day waiting period following this determination.

And since the President has delegated all his powers

under the ban to the Attorney General, §2(e)(2) in

effect gives the AG a means to veto any merits-based

loss that the Court might hand him here. See 89 F.R.

60793 (2024) (delegation of authority to AG).

Article III forbids this. “Congress cannot vest

review of the decisions of Article III courts in officials

of the Executive Branch.” Plaut, 514 U.S. at 218. If

this Court should uphold TikTok’s First Amendment

claim and hold that the TikTok ban violates freedom

of speech, neither the President nor the AG may turn

around and say: “Well, I’m going to keep enforcing

the ban against TikTok anyway, but this time I’ll do

it through (g)(3)(B).” When a party’s claim “passes

into judgment in a court of competent jurisdiction it

ceases to be open, under any existing act of Congress,

to revision by any one of the executive departments

or of all such departments combined.” O’Grady, 89

U.S. at 648. Section 2(e)(2) of the TikTok ban violates

this structural principle, which safeguards both the

separation of powers and individual liberty.

26

3. Legislation Review. The TikTok ban grants

jurisdiction to review its bare legislative terms apart

from any enforcement or threatened enforcement of

the ban. The ban’s judicial-review provision makes

this clear in the two contrasting forms of jurisdiction

that §3(b) authorizes: review of “any challenge to this

[Act]” and review of “any challenge to . . . any action,

finding, or determination under this [Act].”

By its plain text, “any challenge to this [Act]—

the jurisdiction on which the present litigation rests

—allows judicial review of the “bare existence of [a

purportedly] unlawful statute” California, 593 U.S.

at 683. The Court squarely rejected such ‘legislation

review’ in Muskrat: “there is neither more nor less in

this procedure than an attempt to provide for a

judicial determination . . . of the constitutional

validity of an act of Congress.” 219 U.S. at 361.

Muskrat’s relevance does not stop there. Much

like the improper 1907 judicial-review provision in

Muskrat, the TikTok ban’s judicial-review provision

creates a right of action (§3(a)), confers jurisdiction

(§3(b)), and sets deadlines for filing suit (§3(c)). See

Muskrat, 219 U.S. at 350. The ban effectively names

party-plaintiffs through §2(g)(3)(A)’s naming of the

TikTok entities. And the ban effectively commits the

Attorney General to defending the ban in stating the

AG “shall pursue enforcement” (§2(d)(2)(A)).

That’s where the TikTok ban, much like the

1907 judicial-review provision, really falls apart. In

Muskrat, the Court observed: “[i]t is true the United

States is made a defendant to this action, but it has

no interest adverse to the claimants.” 219 U.S. at

27

361. Here, the government has no adverse interest as

the ban cannot be enforced until January 19, 2025.

“In the absence of contemporary enforcement . . . a

plaintiff . . . must show that the likelihood of future

enforcement is ‘substantial.’” California, 593 U.S. at

670. But President-elect Trump, who takes office on

January 20, 2025, has expressed his desire to save

TikTok, making the likelihood of future enforcement

of the ban anything but substantial. 18 And there can

be no question of the President’s “clear constitutional

authority to exercise prosecutorial discretion to

decline to prosecute violators.” In re Aiken Cnty. 725

F.3d 255, 266 (D.C. Cir. 2013) (Kavanaugh, J.).

“[L]egislative or administrative jurisdiction, it is

well settled, cannot be conferred” on federal courts

“either directly or by appeal.” Keller v. Potomac Elec.

Power Co., 261 U.S. 428, 444 (1923). Section 3 of the

TikTok ban violates this rule in authorizing judicial

review of “any challenge to this [Act]” separate and

apart from judicial review of “any action, finding, or

determination under this [Act].” The only question

that remains is severability. Congress included a

severability provision under §2(e)(1) of the ban and

limited the sweep of this provision to violations in §2.

No similar provision exists for §3’s judicial-review

provision. “When a statute limits a thing to be done

in a particular mode, it includes the negative of any

other mode.” Botany Worsted Mills v. United States,

278 U.S. 282, 289 (1929). Plain text then supports

the conclusion that if §3 is unconstitutional for any

reason, then the entire ban should fall. Id.

18

See, e.g., Gram Slattery, Trump Says It Could Be Worth

Keeping TikTok in US for a Little While, REUTERS, Dec. 23,

2024, https://tinyurl.com/5bv7mcw4.

28

III. The Court should consider directing the

parties to address at oral argument—or

inviting an amicus to argue—the TikTok

ban’s advisory-opinion problem.

“Without jurisdiction the court cannot proceed

at all in any cause.” Ex parte McCardle, 74 U.S. 506,

514 (1869). The Court has thus refused to cast aside

or assume away jurisdictional problems—even when

the problem is raised solely by an amicus curiae. See,

e.g., Ortiz v. United States, 585 U.S. 427, 435 (2018)

(“Both the Federal Government and Ortiz view th[e]

grant of jurisdiction as constitutionally proper. But

an amicus curiae, Professor Aditya Bamzai, argues

that it goes beyond what Article III allows.”); Dart

Cherokee Basin Op. Co., v. Owens, 574 U.S. 81, 90

(2014) (“An amicus brief filed . . . by Public Citizen

. . . raised a jurisdictional impediment.”).

In doing so, the Court has kept faith with the

maxim that “jurisdiction is not a matter of sympathy

or favor” and “courts are bound to take notice of the

limits of their authority.” Reid v. United States, 211

U.S. 529, 539, 29 S. Ct. 171, 172 (1909). The Court

has further avoided the advisory-opinion conundrum

that neglecting jurisdictional problems itself poses.

“Hypothetical jurisdiction produces nothing more

than a hypothetical judgment—which comes to the

same thing as an advisory opinion, disapproved by

this Court from the beginning.” Steel Co. v. Citizens

for a Better Envt., 523 U.S. 83, 101 (1998).

With this in mind—and presuming the Court

finds merit in the jurisdictional arguments raised by

FCR—the Court should consider directing the parties

29

to address FCR’s arguments at oral argument. The

Court has taken similar steps in other cases. See,

e.g., Atl. Marine Constr. Co. v. U.S. Dist. Ct., 570

U.S. 947, 947 (2013) (“The parties . . . should be

prepared to address at oral argument the arguments

raised in the brief of Professor Stephen E. Sachs as

amicus curiae in support of neither party.”).

Such prompting is especially appropriate here

given the accelerated briefing schedule and the fact

that no substantive debate over jurisdiction appears

to have occurred at the D.C. Circuit. The Court may

also wish to consider appointing an amicus to argue

against the Court’s jurisdiction (or even granting

FCR leave to do so) in the event that the parties

jointly maintain jurisdiction exists here. See, e.g.,

Montgomery v. Louisiana, 575 U.S. 933, 933 (2015)

(“invit[ing] [counsel] to brief and argue, as amicus

curiae, against this Court’s jurisdiction”); Hohn v.

United States, 522 U.S. 944, 945 (1997) (same).

30

CONCLUSION

The TikTok ban violates “the oldest and most

consistent thread in the federal law of justiciability”:

“federal courts will not give advisory opinions.” Flast

v. Cohen, 392 U.S. 83, 96 (1968). For that reason—

and because the offending provisions are inseverable

from the rest of the ban—the entire ban falls.

Respectfully submitted,

MAHESHA P. SUBBARAMAN

Counsel of Record

SUBBARAMAN PLLC

80 S. 8th St., Ste. 900

Minneapolis, MN 55402

(612) 315-9210

mps@subblaw.com

Counsel for Amicus Curiae

Dated: December 27, 2024