If Trump announced that he would not enforce the TikTok ban law, can he later change his mind and fine U.S. app stores retroactively?

Question

The U.S. Congress passed the Protecting Americans from Foreign Adversary Controlled Applications Act (division H of Public Law 118–50), which targets TikTok. The law prohibits U.S. companies and app stores (mainly Google's Play Store and Apple's App Store) from hosting TikTok unless Chinese parent company ByteDance divests from it.

However, president-elect Trump seems to be opposed to this TikTok ban. According to this article:

Another move Trump could technically make if the TikTok ban takes effect is to say his Justice Department just won’t enforce the ban, inviting companies like Apple and Google to leave the app up on its app stores without facing the harsh financial penalties that the law imposes. But that’s unlikely to work, as legal experts have noted companies would likely comply with the ban anyway, rather than risk facing penalties if Trump ever changed his mind.

(also this and this article mentions this)

If Trump and U.S. Department of Justice publicly announced that they would not enforce the law, and companies like Google and Apple (relying on that announcement) kept TikTok in their app stores, could Trump (or a future president or the Department of Justice) later change his mind and fine the companies for not complying with the law even "retroactively"?

Could the companies use such a public statement as a defense against the fines?

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The law is currently being challenged as unconstitutional before the U.S. Supreme Court in TikTok v. Garland, but for the purposes of this question, assume that the law was upheld.

Answer 1

If Trump announced that he would not enforce the TikTok ban law, can he later change his mind and fine U.S. app stores retroactively?

No.

He or a future administration could change his mind, but not retroactively. The statement would have to be made officially once he is in office, however, in an authoritative statement, and not merely in a speech made while he was not currently the President.

In U.S. law, good faith reliance on a public official statement of a public official with authority to decide if a law is enforced is legally enforceable legally estops the government from enforcing the law against that person, until the official (or that official's successor) says otherwise and allows the person relying upon it a reasonable time to change their position to conform to the law. See U.S. v. Laud, 385 U.S. 475 (1967), Cox v. Louisiana, 379 U.S. 559 (1965), and Raley v. Ohio, 360 U.S. 423 (1959).

This is, for example, the reason that state legalized marijuana businesses were initially established in the U.S., despite it remaining illegal to do so on federal statute books. Marijuana firms acted in reliance on official statements that U.S. controlled substances laws would not be enforced made by relevant U.S. Justice Department (the full story is more complicated as some of those official statements were withdrawn but replaced with federal appropriations bills forbidding the use of funds for marijuana enforcement in this context, and later, by official statements of President Biden).

Answer 2

As a matter of policy, no. As a matter of law, yes

To be clear, the situation you outline is neither a pardon nor entrapment.

As a matter of policy, if the executive branch publicly announces that a particular law will not be enforced, then there is a strong convention that they cannot retroactively reverse their position. However, conventions in the USA are not what they once were.

Should the executive break with convention, then it is not a defense to say “that person told me it was ok”. No matter who “that person” is.

Answer 3

There is no clear answer, but the United States has said there may be an argument based in due process and entrapment by estoppel.

In the oral argument at the Supreme Court of the United States in TikTok, Inc. v. Garland, Att'y Gen. (transcript), Justice Kavanaugh asked:

Could the president say that we're not going to enforce this law?

...

And would that then adequately -- would that be binding, in other words, protect the regulated community such that it could rely on that under due process principles going forward?

Solicitor General Prelogar, on behalf of the United States, answered:

GENERAL PRELOGAR: That raises a tricky question, so I think there would be a strong --

JUSTICE KAVANAUGH: Well, then it's not going to be adequate, right?

GENERAL PRELOGAR: Well, I -- I think there is a strong due process argument that the third-party service providers could invoke if there were enforcement action based on a period of time when the president said the law wouldn't be enforced. The con -- kind of canonical case

JUSTICE KAVANAUGH: They're not going to take that risk unless they have the assurance that a presidential statement of non-enforcement is, in fact, something that can be fully relied on because the risk is too severe otherwise, right?

GENERAL PRELOGAR: I think that they might judge that based on this Court's precedent in the due process space and principles of entrapment by estoppel, maybe they have a sufficient safeguard here to allow them to continue to operate.

Answer 4

The constitutional description of the pardon power is rather vague.

[...] he shall have Power to grant Reprieves and Pardons for Offences against the United States [...]

• This is generally assumed to include fines, not just prison terms. There was a case in 1885 (the Laura) in this regard.
• Pardons can probably be granted preemptively. (Does that cover acts not yet committed, or only prosecutions not yet started? Lawyers would argue.)
• President-elect Trump has argued repeatedly that the form of his pardon power was extremely wide-ranging, and not bound by the traditional signed and filed document.

So the companies could argue that they had received a preemptive pardon for any fines involving TikTok. The wisdom of relying on this argument belongs on Politics Stack Exchange, not here.