Presidential Power Archives - Princeton Legal Journal

When Two Worlds Collide: Evaluating Free Speech and National Security Claims around Trump’s WeChat Ban

by Nalin Ranjan

Introduction

Immigrants have come a long way from hopelessly striving toward the 20^th-century ideal of full assimilation into American society. Descendants of Jewish immigrants, whom many believed could not be trusted, can now proudly take credit for developments in the sciences, politics, medicine, and the arts; blossoming Chinatowns have replaced enclaves that once shied away from any expression of their heritage for fear of persecution; Mexicans whose ancestors worked under poor conditions and compensation in the fields founded the United Farm Workers to ensure their voices were heard. The stories of immigrants who refused to merely conform to the expectations placed upon them are endless. They have long known that the immigrant experience entails keeping close to — and not abandoning — their unique cultures and communities.

It was thus that President Trump’s August 2020 ban on Chinese messaging service WeChat was met with large-scale trepidation amongst the Chinese-American community. For the unfamiliar, WeChat is the world’s third-largest messaging service and by far the most popular means of communication amongst first-generation Chinese immigrants, with nearly three million active daily users in the US. For many, it is the primary — if not only — means of keeping in touch with fellow Chinese immigrants and families back home. However, given its Chinese ownership, the app has been subject to intense scrutiny amid escalating tensions between the two countries.

Legal action against the ban was swiftly taken, resulting in a preliminary injunction of the original order. And before further arguments were made, the Biden administration walked back the Trump-era restrictions. However, they also made it clear that they would continue probing the issue and that a further ban was not entirely out of the question just yet. In this article, I examine relevant constitutional arguments that may have been made in favor of the ban had further litigation continued. Whether or not the ban stands to constitutional muster will ultimately determine whether it is a legal restriction with unfortunate consequences or a fundamental violation of certain Americans’ right to communicate freely.

Background

President Trump initially issued Executive Order 13943 in August 2020, prohibiting “any transaction that is related to WeChat by any person, or with respect to any property… with Tencent Holdings Ltd [the parent company of WeChat]… or any subsidiary of that entity.” The order outlined seven restrictions — each prohibiting a certain type of transaction with WeChat or its parent company —that together would have immediately rendered WeChat services both useless and illegal to use. In particular, restrictions 1-4 would have crippled WeChat’s technological infrastructure and content-distribution backbone, while restriction 6, which bars “any utilization of the WeChat mobile application’s constituent code, functions, or services,” would have been nothing short of an explicit ban on using WeChat’s services for then-users in the United States.

Make no mistake: most of the restrictions of the order could only be reasonably challenged in court by Tencent itself.¹ But restriction 6, whose target is the American populace rather than a service/network/other technology managed by Tencent, could reasonably be challenged by American WeChat users, as it places an explicit restriction on a place Americans may go to express speech. My analysis hereinafter will focus on restriction 6, because 1) resolving first amendment challenges to restriction 6 entails tackling issues that would arise in challenges to other portions of the ban, and 2) first amendment challenges to restriction 6 most closely echo the concerns of American WeChat users, who are the most important stakeholders in this issue.

Constitutionally, time, place, or manner (TPM) restrictions are permissible, but they must 1) apply equally to all forms of speech subject to the TPM restriction (i.e. be content-neutral), and 2) pass the test of intermediate scrutiny.² Given that the ban seeks to impose a broad and sweeping restriction on the use of WeChat, it is clear that it passes the content-neutrality criterion: no particular message substance would be favored over another since all communication on WeChat would be prohibited. Thus, the only — albeit substantial — remaining obstacle that the ban must overcome is the test of intermediate scrutiny, which requires that a TPM restriction 1) serve a significant governmental interest unrelated to speech content, 2) be narrowly tailored, and 3) leave open adequate channels for communication.

Does there exist a significant government interest that would be served by the ban?

As stated in President Trump’s initial executive order, the central motivation for issuing the ban is to protect national security. (The executive order clarifies that other threats, such as those to foreign policy and the economy, derive from the primary threat to US national security.) The precise definition of “national security” is somewhat elusive, but most would agree with the National Law Review’s characterization, which says that it “encompasses safeguarding the nation’s borders against foreign threats and terrorism… [which, in particular, may include] cyber-crimes, cyber-attacks, and other internet-based crimes.” And like most, we will grant that national security is a significant governmental interest unrelated to the particular content of restricted speech in this case.

Would the ban — as outlined in the original executive order and implemented in the Commerce Secretary’s addendum — prevent some action that gravely endangers US national security? The executive order would answer affirmatively, holding that the relevant action it prevents is the capture of “vast swaths of information from its users, which threatens to allow the Chinese Communist Party access to Americans’ personal and proprietary information.” This conclusion, however, is based on multiple unsound foundations.

First, the characterization of the information WeChat collects as “personal and proprietary” is misleading, if not plainly incorrect. Upon registering, users must agree to a privacy policy that explicitly describes how one’s information will be shared with other subdivisions of Tencent, service providers (middlemen providing services that enable the functioning of the app), third parties with whom the user interacts, advertising partners, and notably, governments/regulatory agencies that request it. Of course, this finding is wholly unsurprising to the average WeChat user. In addition to the common knowledge that using an online service will expose one’s information to its administrator, there is also a common cultural element at play: many WeChat users, as first-generation Chinese immigrants, are familiar with the authoritative role the CCP takes in regulating the flow of information and communication. A sentiment of an anonymous user on tech forum SlashDot sums up the typical WeChat user’s attitudes on this issue: “WeChat is a great app, and I use it all the time. But I have never considered it to be private.” Ultimately, users are knowingly consenting to share their data with WeChat and its wide range of affiliates, so the suggestion that users’ “personal and proprietary” information will land into the hands of an actor that shouldn’t have access to it — including the CCP — is both legally and empirically incorrect.

Second, the mere collection of “vast swaths of data” on consenting American users is not in itself a threat to national security, even if this data lands into the hands of presumed US adversaries like the CCP. It is certainly true that WeChat follows the typical social media company strategy of collecting a wide range of identifying information and day-to-day activity data from users that may compromise their individual privacy, but it is difficult to see how such perfunctory data could be used to threaten US national security as a whole. Knowledge of what certain consenting individuals are doing, where they are going, and what some of their preferences are seldom, if ever, provides the edge needed to engineer large-scale attacks on US citizens or institutions. And the US government has implicitly recognized this fact: the combined revenue of the data analytics and online advertising market — both heavily reliant on collection and exchange of highly specific personalized data — totaled almost $100 billion in 2020 with no indication of slowing down. These markets, which feature thousands of companies of varying sizes, are officially sanctioned — and even participated in — by the US government. Were the possession of terabytes of perfunctory data truly a prospect with imminent national security concerns, history suggests governmental oversight would be swift and uncompromising — or at the very least, more stringent than the lax attitude currently adopted that treats personal data as little more than an arbitrary, freely exchangeable good.³

In short, there is little evidence to suggest that a blanket ban on the use of WeChat would significantly remedy any existing national security vulnerability.

Would the WeChat ban leave open adequate channels for communication?

As established in Ward v. Rock of Racism, “the basic test for gauging the sufficiency of alternative channels is whether the speaker is afforded a forum that is accessible and where the intended audience is expected to pass.” In other words, the subject of a TPM speech restriction must be afforded another venue in which the intended audience may reasonably participate in a similar capacity. Appellate court precedent has established this requirement as one admitting a strict interpretation. For example, refusal to grant a permit to the Million Youth March sufficiently close to the movement’s desired location in Harlem was ruled in 1998 to be a First Amendment violation, because the city’s proposed relocation to Randall’s Island would have “adversely affect[ed] plaintiff’s ability to reach its target audience” by “limit[ing] [the movement’s] reach to [only] those who make an affirmative decision to travel to [Randall’s Island].”

The alternatives afforded to WeChat users, unfortunately, are quite worse than a two-mile walk eastward to Randall’s Island. As Peng notes in her testimony, the only available alternatives to contact relatives abroad are costly and provide vastly inferior functionality:

“Without WeChat, I will have to go back to the old way of buying calling cards and making expensive international calls. I will also not be able to reach all of my family members with one click. I will not be able to look at them through video calls with my own eyes. Nor can they see that I am well with their own eyes.”

For the unfamiliar, the reason that Peng would have to go back to calling cards is that most apps that seem like viable alternatives (WhatsApp, Snapchat, Messenger, Line, etc.) are blocked by the Great Chinese Firewall.

And for those whose only proficient language is Mandarin (or another dialect spoken in China),⁴ the lack of other Chinese-friendly messaging apps would all but require attaining sufficient proficiency in another language. Even if we discount the many cases where this is effectively impossible (e.g., for senior citizens), such a requirement would fundamentally run contrary to the American notion of free expression. Learning a particular language should never be an explicit prerequisite to communicate, nor is the government within its right to revoke access to platforms so as to implicitly institute this as a requirement.

Conclusion

For now, Chinese-American WeChat users can breathe a sigh of relief. Yet it is clear that the issue is far from resolved, as the Biden Administration has indicated that a subsequent restriction is well within the realm of possibility. However, amid ever-changing political headwinds, American WeChat users can cling steadfastly to the legal rock that is intermediate scrutiny. Indeed, striking down the Trump-era ban would have only required that one intermediate scrutiny criterion be unmet. That the ban spectacularly fails multiple criteria is a serious indication that subsequent administrations will need to dedicate genuine, good-faith effort to crafting a more measured response that does not irreparably sever certain Americans’ access to their most significant outlet of communication.

¹ Foreign entities may bring suit in US courts; see Servicios Azucareros v. John Deere.

² First developed in Craig v. Boren.

³ See this article, for example. Most data exchanged over US networks is unregulated. That is, most companies are not under any obligation not to share your data with third parties, who can in turn do as they wish with that data (including selling it again). And none of them are obligated to tell you what they do with your data.

⁴ No publicly available sources have an estimate on the true number of English-deficient WeChat users in the United States. But an extremely conservative estimate would likely lie in the hundred-thousands.

The Problems with Legislative Overrides of Judicial Rulings

by Beck Reiferson and Benjamin Edelson

In April 2021, President Joe Biden signed an executive order establishing the ‘Presidential Commission on the Supreme Court of the United States,’ a commission of legal scholars formed to discuss potential reforms to the Supreme Court. In October of that same year, the Commission released discussion materials prepared in advance of its fourth meeting. These materials outline a variety of proposed reforms to modify “the Court’s role in the constitutional system.”¹ One reform that the Commission considers is the establishment of “legislative overrides of Supreme Court decisions.”² The purpose of such overrides would be “to minimize judicial supremacy—i.e., the system under which the Court is the final and authoritative arbiter of the constitutionality of statutes or executive action.”³ These concerns about the Court wielding quasi-legislative power are valid. We believe, however, that legislative overrides are a poor solution for two important reasons: (1) they would undermine the principle of checks and balances, which is central to the functioning of our constitutional system, and (2) they would be contrary to one of the key purposes of the Court—to keep some fundamental issues (e.g. the right to vote, the free exercise of religion, etc.) out of the democratic sphere and safe from the influence of political majorities.

The system of checks and balances is one of the most important features of the United States’ constitutional system. In the words of James Madison, the purpose of checks and balances is to keep the branches of government “in their proper places.”⁴ Congress’s gaining the power to override judicial decisions would threaten the proper functioning of this system. For one, the Court would lose its ability to prevent the legislature from passing unconstitutional laws, since the legislature could simply overrule any judicial ruling that invalidated a recently passed law. There would be no reason to expect Congress to ever invalidate a law it had just passed: if a congressperson who voted in favor of a law were to then vote to uphold the Court’s decision that the law did not pass constitutional muster, it would amount to an admission that they voted for an unconstitutional law. The vote to overrule the Court, then, would most likely be simply a rehash of the vote to pass the bill. With a simple majority, Congress could exceed any constitutional limits put in place to restrain it, thereby defeating the purpose of imposing any restrictions upon Congressional authority at all. In an effort to combat judicial supremacy, a system of legislative overrides would result in judicial impotence: a judiciary incapable of checking a legislative branch that would instead be left to check itself.

The severity of these problems would be reduced if legislative overrides required a supermajority, rather than a simple majority of half of each legislative chamber. (The Commission’s document does not specify what the necessary voting threshold would be.) This, however, would then become redundant with the amendment process, which requires a two-thirds majority of both chambers of Congress. So if legislative overrides were to be meaningfully distinct from the existing amendment process, they would have to require something less than a supermajority—and we would run into the same issues described above.

One could argue that legislative overrides would actually reinforce the system of checks and balances by imposing a check upon the judicial branch. We do not find this very plausible. It is not the purpose of a check or balance to render the checked or balanced branch too weak to properly function. The purpose of checks and balances is to ensure that no branch exceeds its constitutional limits, not to prevent one branch from fulfilling its role in the constitutional system while letting another branch enjoy carte blanche.

Another of the Commission’s worries is that in interpreting the Constitution, the Court wields too much power. Giving a democratically elected branch the final say on issues of constitutionality, it thinks, would be more in line with the ideals underlying our system of government. The “chief aim” of legislative overrides, the Commission writes, “is to allocate power away from the Supreme Court and toward the elected branches…the Supreme Court exercises excessive power over the resolution of major social, political, and cultural decisions – decisions that would be better resolved through the democratic process” (p. 25). As expressed earlier, we are very sympathetic to these concerns. But we think questions of hermeneutics – and the controversies that arise for the Court boil down to debates about interpretation, not normativity – are not ones that are best resolved democratically. Leave normativity to the people; let them decide what things they value as a society. But let a separate, highly qualified panel deal with the issue of how to interpret complicated, often vague texts. Conflating these two distinct tasks into a common enterprise will only lead to each being performed less effectively and correctly.

The Court is a check on democracy, an (ideally) independent body that reviews the legislature’s acts and determines whether or not it meets the acceptable standards of law as previously set out by the people themselves. This seems to us to be the point of a Bill of Rights in the first place. Deciding which rights are so basic and valuable as to merit their removal from the democratic sphere is up to the people’s delegates. The legislature has expanded and shrunk the list from time to time via constitutional amendment. There is definitely value in designating some rights as ‘off-limits’ like this: it prevents the government from acting poorly towards groups that are underrepresented in the legislature. Who should determine whether or not Congress has violated these ‘rules of the legislative game’? An extra-legislative body, one intimately familiar with the rules. As argued above, it would be pointless at best and dangerous at worst for this body to be the legislature itself, since the legislature obviously has a vested interest in a given law’s passage.

We are not sure how best to prevent a supposedly independent Court from abusing its considerable power, though. The best fix, we think, would be for Justices to interpret the Constitution and statutes as tightly as they can, with as little room for ambiguity or creativity as possible. This, however, gets us into other hermeneutical controversies that we do not have the space to address. In any event, for the above reasons, it seems to us that granting the legislative branch itself the power to override judicial decisions would be one of the worst solutions to this problem—a solution that is fundamentally contrary to the purpose of the Court itself.

¹ https://www.whitehouse.gov/wp-content/uploads/2021/10/COURTS-ROLE.pdf, pg. 1.

² See footnote 1, pg. 25.

³ Ibid.

⁴ James Madison, “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments” in The Federalist Papers.

National Popular Vote: Circumventing the United States Constitution

by Alexandra Orbuch

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1 Prin.L.J.F. 35

In 2016, Donald Trump became President of the United States after winning a majority of electors (he won 304 electoral votes, surpassing the necessary 270 votes) but losing the popular vote to Hillary Clinton. For reference, the national popular vote is the direct vote of individual citizens. The electoral vote, on the other hand, is cast by electors chosen as the result of the popular vote in each state.

As a result of this electoral outcome, the vociferous objections of many with strong sentiments against the electoral college resurfaced. The issue of the electoral college, however, is not a new one.

Founded in 2006, National Popular Vote (NPV) was created to lobby for The National Popular Vote Interstate Compact (NPVIC) which would allocate the electoral votes of the states in the compact to the overall winner of the U.S. popular vote. In the words of the NPV’s Agreement Among the States to Elect the President by National Popular Vote:

“The National Popular Vote Interstate Compact will go into effect when enacted by states possessing a majority of the electoral votes—that is, enough to elect a President (270 of 538). At that time, every voter in the country will acquire a direct vote for a group of at least 270 presidential electors supporting their choice for President. All of this group of 270+ presidential electors will be supporters of the candidate who received the most popular votes in all 50 states and DC—thus making that candidate President.”

While there is a separate debate to be had about the relevance or “fairness” of the electoral college system, I want to explore the legality of the NPVIC here. The National Popular Vote Interstate Compact collectively apportions votes to the winner of the overall popular vote without a constitutional amendment abolishing the electoral college or the assent of Congress. Yet, by May 2021, 15 states and Washington, D.C., had signed onto the National Popular Vote Interstate Compact.

This constitutes a violation of the Compact Clause, which states that “No State shall, without the Consent of Congress…enter into any Agreement or Compact with another State.”

As I will outline below, NPV is a compact of a political nature that encroaches upon the power of non-member states, does not allow for signatories to withdraw at will, and gives its member states far more power than they would have had in its absence. All of the aforementioned contractual features, when taken together, form an unlawful interstate compact.

According to Virginia v. Tennessee, interstate compacts are defined as “all forms of stipulation, written or verbal…which may tend to increase and build up the political influence of the contracting states, so as to encroach upon or impair the supremacy of the United States, or interfere with their rightful management of particular subjects placed under their entire control.” The NPVIC does just that. It would have the power to change the results of federal elections and “interfere with the federalist structure of the US Constitution’s procedure for electing a president.”

According to the opinion in United States Steel Corporation v. Multistate Tax Commission, “A proper understanding of what would encroach upon federal authority…must also incorporate encroachments on the authority and power of non-Compact States.” This component of defining a compact is certainly relevant in the case of NPVIC. Should the NPV Interstate Compact go into effect, non-member states would be negatively affected and votes of individual states would be of no consequence when compared to the popular vote. The election would be determined not by all voices, but instead by the one combined deafening voice of the compact.

The National Popular Vote Manifesto promises that “The Compact ensures that every vote, in every state, will matter in every presidential election.” The key implication here is that the indirect election does not represent the will of the people, acting instead to dilute the one-man-one-vote principle which constitutes the basis of the electoral system. However, this argument misses a key consideration. We live in a republic that was founded to be a counterbalance to passing popular opinions and fads. It was intended to allow for the expression of regional and state concerns in addition to individual concerns. In the words of Baten v. McMaster: “the system reflects a considered balance between national and state power.”’ And the electoral college makes it so all states are represented in elections.

In contrast, with a popular vote, politicians would need only to campaign in areas with the largest population. They would flock to California and New York, yielding to those voter bases and tailoring agendas to fit their demands, meanwhile ignoring states like Wyoming and Montana. Ironically, this was exactly the reason the founders had for instituting the electoral college: to prevent tyranny of the majority.

The NPVIC is allowing just that. By circumventing the laborious process of amending the constitution, it is withholding the power of the rest of the states of our great nation to decide on the fate of the electoral college. It is allowing the electoral college to remain in name only. In that vein, I would like to discuss these aforementioned non-member states.

Statista put together a chart featuring the “number of times each state has consecutively voted for its most recent party in U.S. presidential elections from 1964 to 2020.” Every single state that has enacted the NPV Bill is designated as Democratic learning with significant voting streaks. California has a Democratic voting streak of 8 elections; District of Columbia: 15; Hawaii: 9; New York: 9; California: 8. The list goes on.

This brings to light a frightening reality. Not only does the NPV Bill violate the Compact Clause by harming non-signatory states, it effectively silences half of the two-party political system in this country. All states who have signed on lean left, leaving the right-wing of America out of the picture should the bill take effect. The National Popular Vote Compact Bill could change the outcome of U.S. elections in perpetuity. If that does not fall under the category of “encroachments on the authority and power of non-Compact States,” then I do not know what does.

Now that we have discussed how the NPV Interstate Compact violates the Compact Clause through its encroachment on non-signatory states, let us turn to the next component: the inability of signatory states to withdraw from the compact at will. In United States Steel Corporation v. Multistate Tax Commission, the Supreme Court opined that in a permissible compact, “each State [would] retain[] complete freedom to adopt or reject the rules and regulations of the Commission…each State [would be] free to withdraw at any time.”

Under the rules of the National Popular Vote Compact Bill, however, a member state cannot withdraw at will from the compact at any point in time. Should a state want to exit the compact within six months of the end of a president’s term; if the said state chooses to leave, they will still have to allocate their electoral votes to the winner of the popular vote in that election cycle. In the words of the NPVIC, “[a]ny member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.”

The prohibition of compacts in the constitution applies to “treaties of a political character,” according to Virginia v. Tennessee. A compact that impacts the outcomes of governmental elections is undeniably political in character and thus unconstitutional.

Finally, an unconstitutional compact is one that “authorize[s] member States to exercise…powers they could not exercise in its absence.” By giving its member states powers that they otherwise would not have had, the NPV Interstate Compact meets this standard of unconstitutionality. ;t allocates electoral votes to the winner of the overall popular vote rather than just to the winner of the vote in their respective states and gives the signatory states more power than those who refuse to sign the bill. As discussed earlier, the states involved would effectively be silencing the rest of the country. And as we have seen, that means that the right-wing of the country would lose its voice in elections and thereby in policy making essentially eradicating the diversity of thought and plurality that is so key to the American political character.

The NPV’s manifesto says the following: “The National Popular Vote interstate compact will go into effect when enacted by states possessing a majority of the electoral votes—that is, enough to elect a President (270 of 538).” Individual states–and even a minority of multiple states–would not possess the power that a compact with the majority of electoral votes would.

Hence, my argument stands that the NPV Bill violates the Compact Clause of the United States Constitution. The Compact’s founders and proponents need to come to terms with the very real fact that they are waging war on our Constitutional order by being unfaithful to the manifest restrictions that document imposes upon the electoral system. No matter what they may think of the merits of our current system, there is no justification for shunting aside the constitution.