Will TikTok be banned before Donald Trump even takes office? That is the question the Supreme Court will hear tomorrow. As things stand, a law will start to shut down TikTok in this country on the 19th, unless the company divests itself from ownership and control by the Chinese government. Which isn't very likely to happen in the next ten days. But the politics of the situation have been rather convoluted, so it's hard to predict what will happen or what the fallout will be in Washington.

Donald Trump oscillates between fearmongering about the Chinese government (which he always makes a point of calling "the Chinese Communist Party") and playing nice with them in order to cut deals and make money. You never know how he'll come down on any particular issue -- it mostly seems to depend on who has most recently lobbied him to adopt one stance or the other. Recently he's been ripping into China for something that is not actually true (Trump's false claim that the Chinese military are currently running the Panama Canal), but he's also flip-flopped on the TikTok ban once already (from being for a ban to now being against one), so it's anyone's guess how he'll react once he gets into office.

In fact, it was Donald Trump himself who got this particular ball rolling, back in 2020. When the news broke that Trump had been pushing the U.S. government to consider banning TikTok, the company that owns it (ByteDance) entered into negotiations with Microsoft and others to divest the company to an American owner -- but then the negotiations fell apart and ByteDance sued to stop the ban entirely.

When Joe Biden took over, things ramped up. Biden issued an executive order, while Congress considered a few different ways to force ByteDance to divest or face a TikTok ban (one of which was sponsored by Marco Rubio, interestingly enough, who is slated to become Trump's secretary of State). In March of last year, a bill finally did make it through Congress (with bipartisan support), which is the law ByteDance is now challenging at the Supreme Court.

Meanwhile, during the campaign, Trump changed his position (as he apparently realized TikTok was a powerful way for him to reach voters) and is now against a ban (or at the least, he promised to oppose one on the campaign trail, for whatever that's worth). And he has filed a "friend of the court" brief with the Supreme Court which (rather extraordinarily, from a legal perspective) doesn't weigh in on the merits of the case but instead just begs the court to issue a stay so that once Trump is president again he can have some time to cut some sort of deal.

The legal arguments boil down to essentially: "First Amendment/free speech" on the TikTok side, and: "national security" on the administration's side. The administration counters the First Amendment argument by pointing out they're not against the app itself, just against it being owned/controlled by the Chinese government. If they'd just sell to an American subsidiary, TikTok wouldn't be banned -- thus no "free speech" argument exists.

The court could do a number of things. It could rule for the government (which would uphold an appeals court ruling which backed the ban), it could rule for TikTok (which would overturn the ban as being unconstitutional), or it could find some way to punt the ball (by issuing a "stay" which will basically freeze the status quo and just reset the legal clock.

They'll have to do one of these in an incredibly short period of time (for them). They'll only have ten days from the oral arguments to when the ban is scheduled to go into effect, so this is a rare instance where we won't have to wait weeks for the outcome.

Nobody really knows what the court will do. Their previous rulings on similar subjects can be interpreted a number of ways, in terms of reading the tea leaves to predict the outcome of this case. The court is usually (historically) pretty deferential to the "national security" argument as well.

The safest course of action for the high court is likely to be finding some way of punting the football. They could find some technical reason to send the case back to the lower courts to decide, while putting a legal stay on the deadline until the court case is resolved. That would likely add at least a year's delay in the law being implemented. This could give Trump time to approve some sort of deal with the company as well, which could even be used as a bargaining chip in other negotiations with China over other subjects.

That would be my prediction, at any rate. The easiest thing for the court to do is implement a big delay, without really tackling the constitutional arguments. It seems the Biden administration's argument that the First Amendment issue doesn't really exist (since they'd allow the app to continue if the company changed ownership) is a compelling one, and the court usually defers to national security arguments on all sorts of issues. But you never know -- especially with this court.

-- Chris Weigant

Follow Chris on Twitter: @ChrisWeigant