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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`__________________________________________
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`DOUGLAS MARLAND, et al.,
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`Plaintiffs,
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`v.
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`DONALD J. TRUMP, in his official capacity as
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`President of the United States, et al.,
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`Defendants.
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`__________________________________________)
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`NOTICE OF APPEAL
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`On October 30, 2020, the Court entered an order and memorandum opinion granting
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`Plaintiffs’ motion for a preliminary injunction. See ECF No. 35; ECF No. 36 (“Order and
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`Opinion”) (both attached hereto). Defendants hereby appeal the Court’s Order and Opinion to the
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`United States Court of Appeals for the Third Circuit.
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`Dated: November 12, 2020
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`Respectfully submitted,
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`JEFFREY BOSSERT CLARK
`Acting Assistant Attorney General
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`JOHN V. COGHLAN
`Deputy Assistant Attorney General
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`ALEXANDER K. HAAS
`Branch Director
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`DIANE KELLEHER
`Assistant Branch Director
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`/s/ Daniel Schwei
`DANIEL SCHWEI
`Special Counsel
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`Case 2:20-cv-04597-WB Document 38 Filed 11/12/20 Page 2 of 32
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`SERENA M. ORLOFF
`MICHAEL DREZNER
`AMY E. POWELL
`STUART J. ROBINSON
`Trial Attorneys
`United States Department of Justice
`Civil Division, Federal Programs Branch
`Ben Franklin Station, P.O. Box No. 883
`Washington, DC 20044
`Phone: (202) 305-8693
`Fax: (202) 616-8470
`E-mail: daniel.s.schwei@usdoj.gov
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`Counsel for Defendants
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`Case 2:20-cv-04597-WB Document 35 Filed 10/30/20 Page 1 of 28Case 2:20-cv-04597-WB Document 38 Filed 11/12/20 Page 3 of 32
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`CIVIL ACTION
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`NO. 20-4597
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`DOUGLAS MARLAND, COSETTE
`RINAB, and ALEC CHAMBERS,
`Plaintiffs,
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`v.
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`DONALD J. TRUMP, in his official
`capacity as President of the United States;
`WILBUR L. ROSS, JR., in his official
`capacity as Secretary of Commerce; and
`U.S. DEPARTMENT OF COMMERCE,
`Defendants.
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`OPINION
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`Plaintiffs Douglas Marland, Cosette Rinab, and Alec Chambers have filed a motion to
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`preliminarily enjoin the implementation by the Secretary of the U.S. Department of Commerce
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`of President Trump’s Executive Order 13942, which concerns limitations on the video-sharing
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`application (or “app”) TikTok. Plaintiffs contend that, absent an injunction, TikTok will be
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`effectively banned within the United States beginning November 12, 2020.
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`I.
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`BACKGROUND
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`A. The International Emergency Economic Powers Act
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`Executive Order 13942, by its terms, was issued pursuant to the President’s authority
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`under the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. § 1701 et seq..
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`Enacted in 1977, IEEPA is “the source of statutory authority for the Executive’s exercise of
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`emergency economic powers in response to peacetime crises.” United States v. Amirnazmi, 645
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`F.3d 564, 572 (3d Cir. 2011). IEEPA authorizes the President to declare a national emergency
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`“to deal with any unusual and extraordinary threat, which has its source in whole or substantial
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`part outside the United States, to the national security, foreign policy, or economy of the United
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`1
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`States.” 50 U.S.C. § 1701(a). Once the President declares a national emergency, IEEPA permits
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`him to:
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`investigate, block during the pendency of an investigation, regulate, direct and
`compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding,
`use, transfer, withdrawal, transportation, importation or exportation of, or dealing
`in, or exercising any right, power, or privilege with respect to, or transactions
`involving, any property which any foreign country or a national thereof has any
`interest by any person, or with respect to any property, subject to the jurisdiction of
`the United States.
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`Id. § 1702(a)(1)(B).
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`While Congress, through IEEPA, conferred on the Executive substantial authority to
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`confront national emergencies, it also took care to identify certain substantive limitations on the
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`President’s otherwise broad powers. As originally enacted, IEEPA limited the President’s
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`authority to regulate “any postal, telegraphic, telephonic, or other personal communication,
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`which does not involve a transfer of anything of value.” 50 U.S.C. § 1702(b)(1). In 1988,
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`Congress enacted the Berman Amendment, in response to “several seizures by the United States
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`of shipments of magazines and books” from countries subject to trade embargoes, as well as “to
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`the Treasury Department’s restrictions on the permissible forms of payment for informational
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`materials purchased from Cuba.” Amirnazmi, 645 F.3d at 584 (quoting Kalantari v. NITV, Inc.,
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`352 F.3d 1202, 1205 (9th Cir. 2003)). The Berman Amendment constrained the President’s
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`ability to regulate certain types of information and informational materials when relying on
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`IEEPA to respond to a national emergency. See id. Further, the amendment “removed from the
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`Executive’s purview the authority to regulate or prohibit such transactions ‘directly or
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`indirectly.’” Id.
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`The President’s IEEPA authority was further limited in 1994, when Congress, through
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`the Free Trade in Ideas Act, expanded the Berman Amendment “to restrict the Executive from
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`2
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`regulating transactions concerning informational materials ‘regardless of format or medium of
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`transmission.’” Id. at 585. This “informational materials” exception to the President’s IEEPA
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`authority provides:
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`The authority granted to the President by this section does not include the authority
`to regulate or prohibit, directly or indirectly . . .
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`(3) the importation from any country, or the exportation to any country, whether
`commercial or otherwise, regardless of format or medium of transmission, of
`any information or informational materials, including but not limited to,
`publications, films, posters, phonograph records, photographs, microfilms,
`microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds.
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`Id. § 1702(b).
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`The House Conference Report clarified that under the informational materials exception,
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`“no embargo may prohibit or restrict directly or indirectly the import or export of information
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`that is protected under the First Amendment to the U.S. Constitution.” H.R. Conf. Rep. No. 103-
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`482, at 239 (1994), reprinted in 1994 U.S.C.C.A.N. 398, 483. To that end, the Report notes that
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`the exception was “explicitly intended, by including the words ‘directly or indirectly,’ to have a
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`broad scope,” and to “facilitate transactions and activities incident to the flow of information and
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`informational materials without regard to the type of information, its format, or means of
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`transmission.” Id.
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`B. Executive Order 13873
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`On May 15, 2019, prior to issuing the executive order challenged by Plaintiffs here,
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`President Trump issued Executive Order 13873 (the “ICTS Executive Order”), which declared a
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`national emergency under IEEPA and the National Emergencies Act, 50 U.S.C. § 1601 et seq.,
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`with respect to the threat posed by foreign adversaries to the United States’ information and
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`communications technology and services. See Securing the Information and Communications
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`Technology and Services Supply Chain, 84 Fed. Reg. 22,689 (May 15, 2019). Specifically, the
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`3
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`President found that “foreign adversaries are increasingly creating and exploiting vulnerabilities
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`in information and communications technology and services, which store and communicate vast
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`amounts of sensitive information, facilitate the digital economy, and support critical
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`infrastructure and vital emergency services, in order to commit malicious cyber-enabled
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`actions.” Id. The ICTS Executive Order does not, however, name the particular foreign
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`adversaries or technologies posing a threat to national security.
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`In May 2020, the President renewed the ICTS Executive Order for one year, and again
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`did not specify a particular foreign adversary or technology of concern. See Continuation of the
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`National Emergency with Respect to Securing the Information and Communications Technology
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`and Services Supply Chain, 85 Fed. Reg. 28,321 (May 13, 2020).
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`C. Executive Order 13942
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`Citing the ICTS Executive Order and pursuant to his authority under IEEPA, President
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`Trump issued Executive Order 13942 (the “TikTok Executive Order”) on August 6, 2020. See
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`Addressing the Threat Posed by TikTok, and Taking Additional Steps to Address the National
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`Emergency with Respect to the Information and Communications Technology and Services
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`Supply Chain, 85 Fed. Reg. 48,637 (Aug. 6, 2020). The TikTok Executive Order is more
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`specific than either the May 2019 or the May 2020 ICTS Executive Orders: It identifies the
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`country of concern – China; the company of concern – ByteDance Ltd.; and the technology of
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`concern – the TikTok mobile application.
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`Specifically, it names TikTok – a global video-sharing application, or “app,” owned by
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`Chinese company ByteDance and used by over 100 million Americans – as a threat to the
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`“national security, foreign policy, and economy of the United States.” Id. Because of TikTok’s
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`foreign ownership and the company’s ability to “automatically capture[] vast swaths of
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`4
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`information from its users,” President Trump identified a risk that the People’s Republic of
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`China (the “PRC”) and the Chinese Communist Party (the “CCP”) could use TikTok to “access .
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`. . Americans’ personal information for blackmail, and conduct corporate espionage.” Further,
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`the President identified a risk of the CCP using TikTok “for disinformation campaigns that
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`benefit the [CCP], such as when TikTok videos spread debunked conspiracy theories about the
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`origins of the 2019 Novel Coronavirus.” The President determined that “additional steps must
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`be taken” to deal with these risks to the national security.
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`The TikTok Executive Order directed the Secretary of Commerce to identify a list of
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`transactions related to ByteDance and its subsidiaries – including TikTok – by persons subject to
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`the jurisdiction of the United States. Separately, ByteDance was ordered to divest itself of
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`TikTok’s U.S. operations, including any interest in U.S. user data. See Regarding the
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`Acquisition of Musical.ly by ByteDance Ltd., 85 Fed. Reg. 51,297 (Aug. 14, 2020).
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`D. The Commerce Identification
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`Pursuant to the President’s directive, the Commerce Department issued a memorandum
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`on September 17, 2020 recommending to the Secretary of Commerce, Defendant Wilbur L.
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`Ross, that certain categories of TikTok-related transactions be prohibited. The memorandum
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`discusses the threats to national security posed by ByteDance and TikTok, noting that the
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`Chinese government is “building massive databases of Americans’ personal information” to help
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`“further its intelligence-gathering and to understand more about who to target for espionage,
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`whether electronically or via human recruitment.”
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`On September 18, 2020, the Secretary of Commerce published a list of six prohibited
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`transactions that was shortly revised and re-published.1 See Identification of Prohibited
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`1 The revision postponed the date of implementation of one prohibition by one week but made no other substantive
`changes.
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`5
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`Transactions to Implement Executive Order 13942 and Address the Threat Posed by TikTok and
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`the National Emergency with Respect to the Information and Communications Technology and
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`Services Supply Chain, 85 Fed. Reg. 60,061 (Sept. 24, 2020) (the “Commerce Identification”).
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`As relevant here, the Commerce Identification prohibits the following:
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`(1) Any provision of services, occurring on or after 11:59 p.m. eastern standard
`time on September 27, 2020, to distribute or maintain the TikTok mobile
`application, constituent code, or application updates through an online mobile
`application store[;]
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`(2) Any provision of internet hosting services, occurring on or after 11:59 p.m.
`eastern standard time on November 12, 2020, enabling the functioning or
`optimization of the TikTok mobile application[;]
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`(3) Any provision of content delivery network services, occurring on or after 11:59
`p.m. eastern standard time on November 12, 2020, enabling the functioning or
`optimization of the TikTok mobile application[;]
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`(4) Any provision of directly contracted or arranged internet transit or peering
`services, occurring on or after 11:59 p.m. eastern standard time on November
`12, 2020, enabling the functioning or optimization of the TikTok mobile
`application[; and]
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`(5) Any utilization, occurring on or after 11:59 p.m. eastern standard time on
`November 12, 2020, of the TikTok mobile application’s constituent code,
`functions, or services in the functioning of software or services developed
`and/or accessible within the land and maritime borders of the United States and
`its territories.
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`Id.
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`The Commerce Identification states that its prohibitions “only apply to the parties to
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`business-to-business transactions,” and not to the exchange “of personal or business information”
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`among users of the TikTok app. Id. The Commerce Department’s September 17 memorandum
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`notes, however, that the effect of the November 12 prohibitions will be to “significantly reduce
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`the functionality and usability of the app in the United States,” and that “these prohibitions may
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`ultimately make the application less effective and may be challenging for U.S.-based TikTok
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`6
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`users.”
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`E. Plaintiffs’ Suit
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`In contrast to the picture presented by the Government, Plaintiffs offer an entirely
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`different perspective on the TikTok app. TikTok allows users, including Plaintiffs, to create,
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`share, and view short-form videos – ranging from 15 to 60 seconds in length – on any subject,
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`including politics, comedy, music, and social issues. Plaintiffs consume a variety of content on
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`the app, such as self-help videos, finance videos, psychology videos, and political videos.
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`Plaintiff Rinab, for instance, has experienced greater success in her college finance classes by
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`watching TikTok videos explaining market manipulation schemes, and has used the app to learn
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`about a presidential candidate’s views on climate change and gun control.
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`Plaintiffs also rely on TikTok to earn a living. The app has over 700 million users
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`globally, and over 100 million users in the United States alone. Fifty million of these U.S. users
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`use the app on a daily basis. This large audience gives content creators like Plaintiffs the
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`opportunity to profit from the videos they post on TikTok. Plaintiff Rinab, for example, creates
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`videos for fashion brands and other companies, and earns between $5,000 and $10,000 per video.
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`Further, the exposure Plaintiffs have obtained through TikTok has resulted in promotional and
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`branding opportunities. For instance, Plaintiff Chambers earned $12,000 for promoting the Extra
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`gum brand in a TikTok video. Plaintiff Marland currently has 2.7 million followers on the app,
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`Plaintiff Chambers has 1.8 million followers, and Plaintiff Rinab has 2.3 million followers.
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`Without access to the TikTok app, Plaintiffs will lose access to all of these followers, as well as
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`to the professional opportunities afforded by TikTok.
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`Plaintiffs filed suit on September 18, 2020, seeking, inter alia, to enjoin the Secretary of
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`Commerce’s enforcement of the TikTok Executive Order through the Commerce Identification.
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`7
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`On September 26, the Court denied Plaintiffs’ Motion for a Temporary Restraining Order with
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`respect to the Commerce Identification’s September 27 prohibition, finding that Plaintiffs did not
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`demonstrate a likelihood of success on the merits of their constitutional claims and did not meet
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`their burden of showing irreparable harm as to their statutory claims. See Marland v. Trump,
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`2020 WL 5749928, at *9-10 (E.D. Pa. Sept. 26, 2020). Before the Commerce Identification
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`could take effect, however, a federal district court in the District of Columbia preliminarily
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`enjoined the September 27 prohibition, finding that the plaintiff in that case – TikTok Inc. –
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`established a likelihood of success on its claim that the TikTok Executive Order and Commerce
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`Identification violate IEEPA, as well as a likelihood of irreparable harm if the September 27
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`prohibition took effect. See TikTok Inc. v. Trump, 2020 WL 5763634 (D.D.C. Sept. 27, 2020).
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`The Government’s appeal from this decision is currently pending before the U.S. Court of
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`Appeals for the District of Columbia Circuit. See TikTok Inc. v. Trump, No. 20-5302 (D.C. Cir.
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`Oct. 8, 2020).
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`Plaintiffs filed an Amended Complaint in this case on October 1, 2020, and filed a
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`Motion for Preliminary Injunctive Relief on October 13, 2020. A hearing on Plaintiffs’ Motion
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`was held on October 28, 2020.
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`II.
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`LEGAL STANDARD
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`A preliminary injunction is an extraordinary remedy; it “should be granted only in limited
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`circumstances.” Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1426-
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`27 (3d Cir. 1994). “A plaintiff seeking a preliminary injunction must establish that he is likely to
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`succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary
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`relief, that the balance of equities tips in his favor, and that an injunction is in the public
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`interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The “failure to establish
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`8
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`any element . . . renders a preliminary injunction inappropriate.” NutraSweet Co. v. Vit-Mar
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`Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999). The movant bears the burden of showing that
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`these four factors weigh in favor of granting the injunction. See Opticians Ass’n of Am. v. Indep.
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`Opticians of Am., 920 F.2d 187, 192 (3d Cir. 1990).
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`“[C]ourts must balance the competing claims of injury and must consider the effect on
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`each party of the granting or withholding of the requested relief.” Reilly v. City of Harrisburg,
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`858 F.3d 173, 177-78 (3d Cir. 2017) (quoting Winter, 555 U.S. at 24). A “movant for
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`preliminary equitable relief must meet the threshold for the first two ‘most critical’ factors [–
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`likelihood of success and irreparable harm.] If these gateway factors are met, a court then
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`considers the remaining two factors and determines in its sound discretion if all four factors,
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`taken together, balance in favor of granting the requested preliminary relief.” Id. at 179.
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`Considerations of balancing of harms and the public interest “merge when the Government is the
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`opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009).
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`III. DISCUSSION
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`A. Likelihood of Success on the Merits
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`In demonstrating the likelihood of success on the merits, a plaintiff need not show that it
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`is more likely than not that he will succeed. Singer Mgmt. Consultants, Inc. v. Milgram, 650
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`F.3d 223, 229 (3d Cir. 2011) (en banc). Instead, a plaintiff must “show[] a reasonable
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`probability of success on the merits.” Am. Exp. Travel Related Servs., Inc. v. Sidamon-Eristoff,
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`669 F.3d 359, 366 (3d Cir. 2012). This requires a showing “significantly better than negligible,
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`but not necessarily more likely than not.” Reilly, 858 F.3d at 179.
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`Initially, although Plaintiffs challenge the validity of both the TikTok Executive Order
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`and the Commerce Identification, only the Commerce Identification – which identifies the
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`prohibited transactions related to TikTok and specifies when these prohibitions will go into
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`9
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`effect – has operative effect, and is capable of being enjoined.2 Accordingly, only the validity of
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`the Commerce Identification, and its November 12 prohibitions, is presently at issue. Plaintiffs
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`challenge the Commerce Identification on both statutory and constitutional grounds. First, they
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`contend that the Commerce Identification violates both the First and Fifth Amendments to the
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`U.S. Constitution. They then contend that the Commerce Identification violates the
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`Administrative Procedure Act, 5 U.S.C. § 701 et seq., as it is both arbitrary and capricious, see
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`id. § 706(2)(A), and ultra vires, see id. § 706(2)(C). Plaintiffs’ ultra vires claim consists of three
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`separate arguments: (1) the Commerce Identification contravenes IEEPA’s “informational
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`materials” exception, 50 U.S.C. § 1702(b)(3); (2) the Commerce Identification contravenes
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`IEEPA’s prohibition on the regulation of “personal communication[s] . . . not involv[ing] a
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`transfer of anything of value,” id. § 1702(b)(1), and (3) the Commerce Identification is not
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`responsive to the national emergency declared in the ICTS Executive Order, and therefore
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`requires the declaration of a new national emergency to take effect, see id. § 1701(b).
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`The Court declines to reach the majority of these arguments, as Plaintiffs establish a
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`likelihood of success on the merits of their claim that the issuance of the Commerce
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`Identification is ultra vires.
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`i. APA Cause of Action
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` Pursuant to the APA, a reviewing court must “hold unlawful and set aside agency
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`action” when that action is ultra vires, or “in excess of statutory jurisdiction, authority, or
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`limitations, or short of statutory right.” Id. § 706(2)(C). The parties agree – as they must – that
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`2 Because only the Commerce Identification has operative effect, the Court does not consider whether the TikTok
`Executive Order is capable of being enjoined. The Court does, however, reject Plaintiffs’ invitation to enjoin, in the
`context of this matter and at this point in time, any future actions the Secretary of Commerce may take to implement
`the TikTok Executive Order, as any ruling as to these hypothetical future acts would at present be impermissibly
`advisory. See Chafin v. Chafin, 568 U.S. 165, 172 (2013) (“Federal courts may not . . . give ‘opinion[s] advising
`what the law would be upon a hypothetical state of facts.’” (alteration in original) (quoting Lewis v. Cont’l Bank
`Corp., 494 U.S. 472, 477 (1990))).
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`10
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`the TikTok Executive Order, as a presidential action, is not subject to the requirements of the
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`APA. Dalton v. Specter, 511 U.S. 462, 469 (1994) (“[T]he President’s actions [are] not
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`reviewable under the APA, because the President is not an ‘agency’ within the meaning of the
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`APA.”).3 They dispute, however, whether the Commerce Identification is reviewable under the
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`APA.
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`The APA provides for judicial review of agency action, see 5 U.S.C. § 702 (“A person
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`suffering legal wrong because of agency action, or adversely affected or aggrieved by agency
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`action within the meaning of a relevant statute, is entitled to judicial review therof.”), and
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`establishes a strong presumption in favor of reviewability of agency action, Weyerhaeuser Co. v.
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`U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 370 (2018). Still, not all agency actions will come
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`within the statute’s ambit. For instance, for the APA’s judicial review provisions to apply, an
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`agency action must be “final.” 5 U.S.C. § 704 (“[F]inal agency action for which there is no other
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`adequate remedy in a court [is] subject to judicial review.”). Here, while the Government does
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`not contest that the Commerce Identification constitutes a “final” agency action, it argues that the
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`Identification is nevertheless unreviewable for two reasons. Neither is persuasive.
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`First, the Government argues that judicial review of the Commerce Identification is
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`precluded under IEEPA and the National Emergencies Act (the “NEA”). Under § 701(a)(1) of
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`the APA, courts may not review agency action when such review is precluded by a relevant
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`statute, such as the statute authorizing the agency action. See Block v. Cmty. Nutrition Inst., 467
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`3 To the extent the Government suggests that the bar on APA review of presidential action extends to agency actions
`taken under a delegation of presidential authority, this argument is rejected. See Chamber of Commerce v. Reich, 74
`F.3d 1322, 1327 (D.C. Cir. 1996) (“[T]hat the Secretary’s regulations are based on the President’s Executive Order
`hardly seems to insulate them from judicial review under the APA, even if the validity of the Order were thereby
`drawn into question.”); Hawaii v. Trump, 878 F.3d 662, 680-81 (9th Cir. 2017), rev’d on other grounds, Trump v.
`Hawaii, 138 S. Ct. 2392 (2018) (finding final agency action reviewable under the APA, despite the fact that this
`agency action was implementing an executive proclamation).
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`U.S. 340, 345 (1984). IEEPA does not contain a provision expressly precluding judicial review,
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`and courts have in fact reviewed agency actions taken pursuant to IEEPA under the APA. See,
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`e.g., Holy Land Found. v. Ashcroft, 333 F.3d 156, 162 (D.C. Cir. 2003). Despite, however, the
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`absence of an express statutory provision barring judicial review, the “presumption favoring
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`judicial review of administrative action . . . may be overcome by inferences of intent drawn from
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`the statutory scheme as a whole.” Sackett v. EPA, 566 U.S. 120, 128 (2012) (quoting Block, 467
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`U.S. at 349). The Government argues that a congressional intent to preclude judicial review of
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`agency actions taken pursuant to IEEPA may be inferred from various provisions of the NEA,
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`which outline the President’s authority to declare a national emergency. See 50 U.S.C. § 1621
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`(authorizing President to declare a national emergency); id. § 1622 (detailing termination of a
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`national emergency); id. § 1641 (detailing the accountability and reporting requirements of the
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`President after a national emergency declaration). But while these provisions may suggest that
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`the “essentially political questions surrounding the declaration or continuance of a national
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`emergency” are nonreviewable, courts are nevertheless “free to review whether the actions taken
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`pursuant to a national emergency comport with the power delegated by Congress.” United States
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`v. Spawr Optical Res., Inc., 685 F.2d 1076, 1080, 1081 (9th Cir. 1982). In short, the
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`Government points to nothing in the language or structure of IEEPA which suggests that the
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`Court is precluded from reviewing whether the Commerce Identification complies with IEEPA’s
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`informational materials exception.
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`Second, the Government argues that the Commerce Department’s exercise of authority
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`under IEEPA is nonreviewable under § 701(a)(2) of the APA, which bars judicial review of
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`agency actions “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). This narrow
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`exception to judicial review applies only in “those rare circumstances where the relevant statute
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`is drawn so that a court would have no meaningful standard against which to judge the agency’s
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`exercise of discretion.” Weyerhauser, 139 S. Ct. at 370 (quoting Lincoln v. Vigil, 508 U.S. 182,
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`191 (1993)); Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2568 (2019) (“[W]e have
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`generally limited the [§ 701(a)(2)] exception to ‘certain categories of administrative decisions
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`that courts traditionally have regarded as “committed to agency discretion,”’ such as a decision
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`not to institute enforcement proceedings, or a decision by an intelligence agency to terminate an
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`employee in the interest of national security.” (quoting Lincoln, 508 U.S. at 191)). This is not
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`one of those rare circumstances. While IEEPA confers broad authority to respond to national
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`emergencies, this authority is not unbounded; rather, actions taken pursuant to IEEPA may not,
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`among other things, “regulate or prohibit, directly or indirectly” the importation or exportation of
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`“informational materials.” 50 U.S.C. § 1702(b)(3); see New York, 139 S. Ct. at 2568 (finding
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`that because “the Census Act constrains the Secretary’s authority to determine the form and
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`content of the census in a number of ways,” the Act provided a meaningful standard by which to
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`judge the Secretary of Commerce’s decision to reinstate a citizenship question on the census
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`questionnaire). “Because this is not a case in which there is ‘no law to apply,’ the [Commerce
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`Identification] is subject to judicial review.” See New York, 139 S. Ct. at 2569 (quoting Citizens
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`to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)).
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`Accordingly, Plaintiffs’ ultra vires claim is reviewable under the APA, and the Court
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`may therefore address the merits of Plaintiffs’ argument that the Commerce Identification
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`contravenes the plain language of IEEPA’s informational materials exception.4
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`4 Even if the Commerce Identification were not reviewable under the APA, the Court still would find that Plaintiffs
`have stated a nonstatutory cause of action for their ultra vires claim. See Hawaii, 878 F.3d at 683 (observing that
`where APA review is unavailable, courts will still “permit[] judicial review of presidential orders implemented
`through the actions of other federal officials. This cause of action, which exists outside of the APA, allows courts to
`review ultra vires actions by the President that go beyond the scope of the President’s statutory authority.”); see also
`Franklin v. Massachusetts, 505 U.S. 788, 828 (1992) (Scalia, J., concurring) (“Review of the legality of Presidential
`action can ordinarily be obtained in a suit seeking to enjoin officers who attempt to enforce the President’s
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`ii. The Informational Materials Exception
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`Specifically, Plaintiffs assert that the Commerce Identification is in excess of the
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`statutory authority conferred by IEEPA, because it violates IEEPA’s express prohibition on the
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`direct or indirect regulation of informational materials. See 50 U.S.C. § 1702(b)(3).
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`“The starting point of all statutory construction is the text of the statute.” G.L. v. Ligonier
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`Valley Sch. Dist. Auth., 802 F.3d 601, 611 (3d Cir. 2015). Here, IEEPA’s informational
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`materials exception bars the President from “regulat[ing] or prohibit[ing], directly or indirectly”
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`the importation or exportation of “information or informational materials,” “whether commercial
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`or otherwise” and “regardless of format or medium of transmission.” 50 U.S.C. § 1702(b)(3).
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`The statute contains a nonexclusive, exemplary list of items which qualify as “informational
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`materials,” into which the content exchanged by TikTok users clearly falls. The short videos
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`created and exchanged on TikTok are expressive and informative, and are analogous to the
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`“films,” “artworks,” “photographs,” and “news wire