That’s the sound of a major opinion from the D.C. Circuit. Last week, in TikTok Inc. v. Garland, the Court of Appeals held that the Foreign Adversary Controlled Applications Act’s provisions about the TikTok platform do not violate the U.S. Constitution.

The First Amendment issue got the most treatment. Judge Ginsburg, who wrote the majority opinion, which Judge Rao fully joined, assumed but did not hold that strict scrutiny would apply. The majority concluded that the Act passed strict scrutiny because its ban-or-sale rule was narrowly tailored to address a national security risk. Chief Judge Srinivasan wrote separately, concurring in the judgment that the Act did not violate the First Amendment but doing so after applying intermediate scrutiny.

The gist of the First Amendment analysis was this. First, the Government had two compelling national security justifications: “to counter (1) the [People’s Republic of China’s] efforts to collect data of and about persons in the United States, and (2) the risk of the PRC covertly manipulating content on TikTok.” And Congress narrowly tailored the Act by imposing a ban-or-sale rule, which was “limited to foreign adversary control of a substantial medium of communication and include[d] a divestiture exemption.” This ban-or-sale structure “addressed precisely the harms [Congress sought] to counter and only those harms.”

Judge Ginsburg rejected TikTok’s argument that its proposed National Security Agreement (NSA), which it discussed with Executive Branch officials, would have been a less restrictive alternative. To accept that argument, he reasoned, would have been

to reject the Government’s risk assessment and override its ultimate judgment. That would be wholly inappropriate after Executive Branch officials “conducted dozens of meetings,” considered “scores of drafts of proposed mitigation terms,” and engaged with TikTok as well as Oracle for more than two years in an effort to work out an acceptable agreement. Here “respect for the Government’s conclusions is appropriate.” [Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010)].

The petitioners attempt to draw a distinction between the Executive’s rejection of the proposed NSA and the Congress’s deliberations prior to passing the Act. The petitioners complain the Congress failed even to consider TikTok’s proposed NSA. Because the Act applies narrowly to the TikTok platform, TikTok goes so far as to argue the Congress was required to make legislative findings to explain its rationale for passing the Act. These objections are unavailing. The Congress “is not obligated, when enacting its statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review.” Time Warner Entm’t Co. v. FCC, 93 F.3d 957, 976 (D.C. Cir. 1996) (cleaned up); Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 133 (1989) (Scalia, J., concurring) (“Neither due process nor the First Amendment requires legislation to be supported by committee reports, floor debates, or even consideration, but only by a vote”). Moreover, the petitioners cannot credibly claim the Congress was any less aware than the Executive of the proposed NSA as a potential alternative. Prior to passage of the Act, while the Executive was negotiating the proposed NSA with TikTok, Executive Branch officials briefed congressional committees several times. The record shows that congresspersons were aware of TikTok’s voluntary mitigation efforts; TikTok and its supporters, including the PRC itself, lobbied the Congress not to pass the Act; and TikTok displayed “a pop-up message urging users to contact their representatives about the Act,” which prompted a deluge of calls to congresspersons. We think it clear the Congress did not reject the proposed NSA for lack of familiarity; like the Executive, the Congress found it wanting.

The panel made shorter work of the remaining constitutional claims. The equal protection claim failed because “[m]erely singling a company out, . . . does not amount to an equal protection violation if doing so furthers an appropriate governmental interest.” In rejecting this claim, Judge Ginsburg again referred to the “prolonged negotiation” between TikTok and the executive branch as well as the “individualized consideration by Congress prior to being required to divest.” TikTok’s bill of attainder argument failed because “the Act is not a punishment”: Instead, “[t]he closer historical analog to the Act is a line-of-business restriction.” Nor was there “‘unmistakable evidence of punitive intent’” or a “backward-looking punitive[] purpose.” Finally, the Act did not result in a per se taking because it left “TikTok with a number of possibilities short of total economic deprivation.”

The D.C. Circuit decided two other cases last week. Adams v. Commissioner of Internal Revenue affirmed a decision of the Tax Court that a taxpayer had forfeited the chance to challenge the IRS’s calculation of his seriously delinquent tax debt. It held that a seriously delinquent taxpayer can’t wait until they are about to lose their passport, which happens after they have had multiple opportunities to respond, to challenge their underlying tax liability. In Harris v. U.S. Dep’t of Transportation, the D.C. Circuit held that 28 U.S.C. § 1442(a) allows for removal from a state appellate court to a federal district court, reasoning that “[a] contrary reading would enable a plaintiff to thwart section 1442(a)(1) by swiftly appealing a state court dismissal before the federal government had a reasonable chance to remove.” Judge Henderson wrote the opinion for the unanimous panel and also penned a separate concurring opinion advising district judges about how to treat the state court’s judgment after removal.