Document Type

Article

Publication Date

2-6-2024

Volume

28

Issue

2

Source Publication Abbreviation

ASIL Insights

Abstract

This article examines the U.S. District Court for the District of Montana's decision to preliminarily enjoin enforcement of Montana’s state law banning TikTok, citing foreign affairs preemption. The court found that the law conflicted with federal authority under the Defense Production Act (DPA), intruded upon the federal domain of foreign affairs, and violated the dormant foreign commerce clause. The case, now on appeal to the Ninth Circuit, highlights the tension between state-level regulation and federal control over foreign relations, particularly in the context of national security concerns surrounding Chinese-owned technology platforms. The article explores the legal arguments presented by TikTok and the State of Montana, focusing on the doctrines of direct conflict, field preemption, and the dormant foreign commerce clause. It underscores the broader implications for foreign affairs preemption jurisprudence and the potential resurgence of this legal doctrine as states consider similar legislation targeting foreign-owned digital platforms.

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