4 ms·

The law states that it cannot be owned by a Chinese company. So they could be sold to owners in almost any other country (the law explicitly lists China, North

by kyrra 2y ago

The law states that it cannot be owned by a Chinese company. So they could be sold to owners in almost any other country (the law explicitly lists China, North Korea, Iran, and Russia as being banned. Edit: text of the bill: https://www.congress.gov/118/bills/hr7521/BILLS-118hr7521rfs.xml https://www.congress.gov/118/bills/hr7521/BILLS-118hr7521rfs..., which references a different part of the statute for the list of countries here: https://www.law.cornell.edu/uscode/text/10/4872 https://www.law.cornell.edu/uscode/text/10/4872

withinboredom 2y ago
It’s interesting that they didn’t press the constitutionality of this. They fought over “free speech” where it’s more clear that this might be a bill of attainder or violation of the 14th amendment.
- motorest 2y ago
  > It’s interesting that they didn’t press the constitutionality of this. They fought over “free speech” where it’s more clear that this might be a bill of attainder or violation of the 14th amendment. Please explain in layman's terms why do you believe the 14th amendment applies to the federal government rejecting a corporation owned and controlled by a totalitarian regime from operating within the US.
  - withinboredom 2y ago
    > No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. I believe this applies to the USA as a whole as well, not just to states (Bolling v. Sharpe (1954) according to ChatGPT). One could argue the law is unconstitutional because it applies a punishment without due process.
    - philwelch 2y ago
      “Citizens of the United States” and “person within its jurisdiction” don’t apply to the Chinese Communist Party.
      - withinboredom 2y ago
        Pretty sure it was a US company... probably owned by Chinese, but I haven't been following it super closely and can't see how that matters any bit. It's sad how much the US has changed in the last decade since I became an expat almost a decade ago.
        motorest 2y ago
        > Pretty sure it was a US company... probably owned by Chinese (...) ByteDance Ltd. is a Chinese internet technology company headquartered in Haidian, Beijing. https://en.wikipedia.org/wiki/ByteDance https://en.wikipedia.org/wiki/ByteDance
        withinboredom 2y ago
        I mean, literally right here in the first page of the arguments (page 4): > First, TikTok incorporated as a U.S. company speaking in the United States. https://www.supremecourt.gov/oral_arguments/argument_transcripts/2024/24-656_1an2.pdf https://www.supremecourt.gov/oral_arguments/argument_transcr...
        motorest 2y ago
        I think you're confused. The company being targeted is ByteDance, not TikTok. The US government wants ByteDance to sell it's controlling position on TikTok to someone else, or else TikTok can no longer operate in the US. ByteDance is a Chinese company that is a de-facto shell corporation of China's CCP. For the 14th amendment to apply, you would need to argue that either a Chinese corporation or China's CCP would be US citizens.
    - whimsicalism 2y ago
- gpm 2y ago
  They tried the bill of attainder argument too. The court of appeals thought about it and decided it wasn't. Start on page 59 of their ruling [0]. They tried to appeal this to the supreme court, the supreme court declined to hear that part of the case. See bottom of page 34 on their petition for a writ of certiorari [1]. [0] https://storage.courtlistener.com/recap/gov.uscourts.cadc.40861/gov.uscourts.cadc.40861.1208687460.0_6.pdf https://storage.courtlistener.com/recap/gov.uscourts.cadc.40... [1] http://www.supremecourt.gov/DocketPDF/24/24A587/335257/20241216144658388_TikTok%20Inc.%20v.%20Garland%20-%20SCOTUS%20Application%20for%20Injunction.pdf http://www.supremecourt.gov/DocketPDF/24/24A587/335257/20241...
  - withinboredom 2y ago
    Ah, interesting! I just read the arguments from the supreme court case and not the whole history of the thing. Reading the appeals court case, it appears that they did agree with it being a bill of attainder but decided the national security implications overruled it?
    - gpm 2y ago
      > it appears that they did agree with it being a bill of attainder but decided the national security implications overruled it? Not how I would phrase it. A bill of attainder is two things, it targets a specific person, and it punishes them. They decide the bill definitely targets TikTok, which is possibly close enough to a "specific person", but it doesn't punish them. Thus it doesn't satisfy the second prong and they don't have to even finish deciding the first prong and left the "possibly" in there. National security really comes in when trying to decide it was a punishment. It's not a traditional punishment, but one of the other ways they could decide it was a punishment would be if it didn't further any purposes but punishment, and in this case the purpose it happens to further was national security. As far as I can tell this analysis would be the exact same if congress passed the bill instead because they decided TikTok was harming schools ability to keep order. It just has to be any non-punitive purpose.
      - withinboredom 2y ago
- LPisGood 2y ago
  I don’t think it’s even close to a bill of attainder. For one, it targets a class of companies operating from a collection of countries, not an individual person (and SCOTUS has never ruled on corporate personhood for the purposes of being a bill of attainder). Secondly, the law in question does not declare a corporation guilty of any crime, it just offers restrictions on foreign control of certain businesses. Third, the law targets non-American holdings, making it less likely that it could be considered a bill of attainder, since laws directly targeting foreign countries and agents thereof have been accepted in American law.
  - withinboredom 2y ago
    Thanks for your opinion? It would be nice if you explained why you think so.
    - LPisGood 2y ago
      That’s true. I’ve updated the post.
  - withinboredom 2y ago
    While your words make sense to me, I cannot wrap my head around viewing it that way. It clearly makes them post facto guilty of the crime of owning the company (which is also not constitutional) and their punishment is either divestiture or shutdown -- which is an actual punishment given out by courts, not congressmen.
    - LPisGood 2y ago
      First, you could say something similar about many restrictions. If there is one steel monopoly and you ban being a monopoly then we can apply the same logic you have there. To be completely fair, the “illegal part” of being a monopoly is not generally in the existence of the monopoly itself, but in the monopolistic actions the company may take. However, those actions may be a fundamental part of the function of the company, and I’d argue that country of ownership is another property that should be eligible for restriction. Second, and _far_ more importantly, it is not clear to me that it’s unconstitutional to make a law that a foreign company can’t operate a certain type of business in America.

by kyrra 2y ago

withinboredom 2y ago

It’s interesting that they didn’t press the constitutionality of this. They fought over “free speech” where it’s more clear that this might be a bill of attainder or violation of the 14th amendment.

motorest 2y ago
> It’s interesting that they didn’t press the constitutionality of this. They fought over “free speech” where it’s more clear that this might be a bill of attainder or violation of the 14th amendment. Please explain in layman's terms why do you believe the 14th amendment applies to the federal government rejecting a corporation owned and controlled by a totalitarian regime from operating within the US.
- withinboredom 2y ago
  > No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. I believe this applies to the USA as a whole as well, not just to states (Bolling v. Sharpe (1954) according to ChatGPT). One could argue the law is unconstitutional because it applies a punishment without due process.
  - philwelch 2y ago
    “Citizens of the United States” and “person within its jurisdiction” don’t apply to the Chinese Communist Party.
    - withinboredom 2y ago
      Pretty sure it was a US company... probably owned by Chinese, but I haven't been following it super closely and can't see how that matters any bit. It's sad how much the US has changed in the last decade since I became an expat almost a decade ago.
      - motorest 2y ago
        > Pretty sure it was a US company... probably owned by Chinese (...) ByteDance Ltd. is a Chinese internet technology company headquartered in Haidian, Beijing. https://en.wikipedia.org/wiki/ByteDance https://en.wikipedia.org/wiki/ByteDance
        withinboredom 2y ago
        I mean, literally right here in the first page of the arguments (page 4): > First, TikTok incorporated as a U.S. company speaking in the United States. https://www.supremecourt.gov/oral_arguments/argument_transcripts/2024/24-656_1an2.pdf https://www.supremecourt.gov/oral_arguments/argument_transcr...
        motorest 2y ago
        I think you're confused. The company being targeted is ByteDance, not TikTok. The US government wants ByteDance to sell it's controlling position on TikTok to someone else, or else TikTok can no longer operate in the US. ByteDance is a Chinese company that is a de-facto shell corporation of China's CCP. For the 14th amendment to apply, you would need to argue that either a Chinese corporation or China's CCP would be US citizens.
  - whimsicalism 2y ago
gpm 2y ago
They tried the bill of attainder argument too. The court of appeals thought about it and decided it wasn't. Start on page 59 of their ruling [0]. They tried to appeal this to the supreme court, the supreme court declined to hear that part of the case. See bottom of page 34 on their petition for a writ of certiorari [1]. [0] https://storage.courtlistener.com/recap/gov.uscourts.cadc.40861/gov.uscourts.cadc.40861.1208687460.0_6.pdf https://storage.courtlistener.com/recap/gov.uscourts.cadc.40... [1] http://www.supremecourt.gov/DocketPDF/24/24A587/335257/20241216144658388_TikTok%20Inc.%20v.%20Garland%20-%20SCOTUS%20Application%20for%20Injunction.pdf http://www.supremecourt.gov/DocketPDF/24/24A587/335257/20241...
- withinboredom 2y ago
  Ah, interesting! I just read the arguments from the supreme court case and not the whole history of the thing. Reading the appeals court case, it appears that they did agree with it being a bill of attainder but decided the national security implications overruled it?
  - gpm 2y ago
    > it appears that they did agree with it being a bill of attainder but decided the national security implications overruled it? Not how I would phrase it. A bill of attainder is two things, it targets a specific person, and it punishes them. They decide the bill definitely targets TikTok, which is possibly close enough to a "specific person", but it doesn't punish them. Thus it doesn't satisfy the second prong and they don't have to even finish deciding the first prong and left the "possibly" in there. National security really comes in when trying to decide it was a punishment. It's not a traditional punishment, but one of the other ways they could decide it was a punishment would be if it didn't further any purposes but punishment, and in this case the purpose it happens to further was national security. As far as I can tell this analysis would be the exact same if congress passed the bill instead because they decided TikTok was harming schools ability to keep order. It just has to be any non-punitive purpose.
    - withinboredom 2y ago
LPisGood 2y ago
I don’t think it’s even close to a bill of attainder. For one, it targets a class of companies operating from a collection of countries, not an individual person (and SCOTUS has never ruled on corporate personhood for the purposes of being a bill of attainder). Secondly, the law in question does not declare a corporation guilty of any crime, it just offers restrictions on foreign control of certain businesses. Third, the law targets non-American holdings, making it less likely that it could be considered a bill of attainder, since laws directly targeting foreign countries and agents thereof have been accepted in American law.
- withinboredom 2y ago
  Thanks for your opinion? It would be nice if you explained why you think so.
  - LPisGood 2y ago
    That’s true. I’ve updated the post.
- withinboredom 2y ago
  While your words make sense to me, I cannot wrap my head around viewing it that way. It clearly makes them post facto guilty of the crime of owning the company (which is also not constitutional) and their punishment is either divestiture or shutdown -- which is an actual punishment given out by courts, not congressmen.
  - LPisGood 2y ago
    First, you could say something similar about many restrictions. If there is one steel monopoly and you ban being a monopoly then we can apply the same logic you have there. To be completely fair, the “illegal part” of being a monopoly is not generally in the existence of the monopoly itself, but in the monopolistic actions the company may take. However, those actions may be a fundamental part of the function of the company, and I’d argue that country of ownership is another property that should be eligible for restriction. Second, and _far_ more importantly, it is not clear to me that it’s unconstitutional to make a law that a foreign company can’t operate a certain type of business in America.