Why we are suing the Administration

Re:Why we are suing the Administration by mmmmmbop on Tuesday September 01, 2020 @12:41PM (#24343660)

You are spot-on about the constitution guaranteeing that laws must not be passed just to punish a certain company. What I believe you are missing, however, is that there is existing law that the divesting order is based on.

Any acquisition involving foreign commerce is subject to the approval of the CFIUS (Committee on Foreign Investment in the United States). Following is an explanation taken from a recent Congressional Research Service report [1] (page 5).

"These regulations created an essentially voluntary system of notification by the parties to an acquisition [...]. Despite the voluntary nature of the notification, firms largely comply with the provision, because the regulations stipulate that foreign acquisitions that are governed by the Exon-Florio review process that do not notify the committee remain subject indefinitely to divestment or other appropriate actions by the President. The regulations make it clear that the President alone determines 'whether a transaction threatens national security.'"

When ByteDance acquired TikTok, they chose not to undergo that review. This was their legal right. However, that made their acquisition liable to be retroactively disallowed by the President.

[1] https://fas.org/sgp/crs/natsec/RL33312.pdf

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Re:Why we are suing the Administration by mcherm on Tuesday September 01, 2020 @09:40PM (#24349191)

You say that

> The regulations make it clear that the President alone determines 'whether a transaction threatens national security.'

HOWEVER, I maintain that this authority can only be exercised under certain restrictions. For instance, if the President were to declare that all social media companies that "fact check" his statements threatened national security that would be a violation of the first amendment (free speech). As such, the courts would be responsible for overturning his declaration.

Similarly, if the President were to just declare ByteDance to be a threat to national security without even having a reason for doing so, I maintain it would violate the requirement to engage in due process. He doesn't need to have a GOOD reason, but it can't be "because I feel like it" or "because they said mean things about me".

I'm not clear on whether the right to due process is inapplicable because ByteDance voluntarily chose not to undergo the review.

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Re:Why we are suing the Administration by SergeAx on Tuesday September 01, 2020 @04:38PM (#24346777)

I am quite inexperienced in US law, but are you just told that acquisition of one foreign company by another foreign company should be reviewed by some random US committee?!

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Re:Why we are suing the Administration by mmmmmbop on Tuesday September 01, 2020 @07:24PM (#24348292)

Of course the U.S. has no authority over any two foreign companies that do no business within the country. However, if one of the two companies engages in interstate commerce in the U.S. -- which TikTok does -- it is considered to be a U.S. business [1] for the purposes of the CFIUS review.

[1] https://casetext.com/regulation/code-of-federal-regulations/...

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