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TIKTOK: TIME TO EXPAND THE EQUAL PROTECTION CLAUSE Brown, Samantha

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ABSTRACT (ENGLISH) Anti-Asian sentiment in the United States increased during the COVID-19 pandemic. The Trump administration used this change in public opinion to justify taking aggressive action against China and Chinese companies. For example, then President Donald J. Trump extended the United States' tough stance on China to technology issues, as evidenced by his August 6 and 14, 2020, executive orders. These orders, discussed in detail in Section I.C, imposed a ban on any transaction with TikTok Inc.'s Chinese owner ByteDance Ltd. Legal scholars challenged the constitutionality of these orders, as did TikTok Inc. and ByteDance Ltd. by bringing suit. Throughout the original lawsuit and subsequent appeals, the August 6 order was not subjected to Equal Protection analysis because of the limited nature of modern Fourteenth Amendment jurisprudence. Even though the matter was recently dismissed by the Biden administration, the lawsuit could have been a perfect test case for expanding the Fourteenth Amendment's scope by using the anti-racist principles on which the Amendment was established. Strengthening the Fourteenth Amendment in this way would allow American courts to better reflect modern social values and protect minority groups. FULL TEXT Headnote ABSTRACT: Anti-Asian sentiment in the United States increased during the COVID-19 pandemic. The Trump administration used this change in public opinion to justify taking aggressive action against China and Chinese companies. For example, then President Donald J. Trump extended the United States' tough stance on China to technology issues, as evidenced by his August 6 and 14, 2020, executive orders. These orders, discussed in detail in Section I.C, imposed a ban on any transaction with TikTok Inc.'s Chinese owner ByteDance Ltd. Legal scholars challenged the constitutionality of these orders, as did TikTok Inc. and ByteDance Ltd. by bringing suit. Throughout the original lawsuit and subsequent appeals, the August 6 order was not subjected to Equal Protection analysis because of the limited nature of modern Fourteenth Amendment jurisprudence. Even though the matter was recently dismissed by the Biden administration, the lawsuit could have been a perfect test case for expanding the Fourteenth Amendment's scope by using the anti-racist principles on which the Amendment was established. Strengthening the Fourteenth Amendment in this way would allow American courts to better reflect modern social values and protect minority groups. CITATION: Samantha Brown, Comment, TikTok: Time to Expand the Equal Protection Clause, 62 Jurimetrics J. 49- 75 (2021). As of September 27, 2021, 130 million Americans were using TikTok,1 a social media platform on which users create and upload short videos as well as interact with other users' videos. TikTok Inc.2 is a California-incorporated company owned by ByteDance Ltd.3 ByteDance Ltd. is headquartered in Beijing, China.4 It is a multinational company with offices throughout the world, including in the United States.5 In August 2020, the Trump administration challenged TikTok's U.S. presence through executive orders, citing privacy and national security concerns stemming from its data collection practices.6 Such practices include automatic collection of users' "internet and other network activity information such as location data and browsing and search histories."7 TikTok Inc., ByteDance Ltd., and members of the legal community voiced concerns regarding the

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constitutionality of these orders on various grounds, but none involved the Fourteenth Amendment.8 Indeed, none of TikTok Inc. and ByteDance Ltd's Complaint's seven Claims for Relief mention the Fourteenth Amendment.9 Limited grounds exist for bringing a successful Equal Protection claim under modern Fourteenth Amendment jurisprudence.10 Because TikTok Inc. and ByteDance Ltd. 's lawsuit does not neatly fit within modern Fourteenth Amendment analysis (tiers of scrutiny),11 their constitutional claims are focused on alleged violations of the First and Fifth Amendments.12 However, extending the scope of the Fourteenth Amendment to better reflect the values at the heart of the Amendment, including anti-racism, would allow TikTok Inc. and ByteDance Ltd. to bring a winning Equal Protection claim against the government regarding its August 6 and August 14 orders. This Article is divided into several Parts to demonstrate why the Fourteenth Amendment's protections should be expanded. Section LA gives a brief synopsis of the history of racism toward Asians in the United States. Section LB describes the Fourteenth Amendment's history, including its proponents' intent and how the Amendment's power has decreased over the past 150 years. Section I.C highlights the course of the lawsuit between coplaintiffs TikTok Inc. and ByteDance Ltd. and the Trump administration. Part II explains how the Fourteenth Amendment's protections can and should be increased and applied to this lawsuit in the plaintiffs' favor. Section III.A describes how the strengthened Amendment could be applied in other cases. Section III.B explains how such an expansion is supported by case law, academia, and the current state of racism in the United States, while Section III.C outlines alternatives to and criticisms of such an expansion. I. BACKGROUND This Part first presents an account of anti-Asian sentiment in the United States. Then follows a discussion of the history of the Fourteenth Amendment, including the circumstances surrounding its ratification as well as how the application of its Equal Protection Clause developed into the modern tiers of scrutiny analysis. Thirdly, this Part provides a chronology of the lawsuit initiated by TikTok Inc. and ByteDance Ltd. regarding Trump's August 6 executive order.13 A. Racism Against Asians in the United States Asian immigration to the United States began in the 1850s, spurred by young Chinese men inspired by the Gold Rush.14 By 1870, Chinese laborers comprised twenty percent of California's labor force.15 Upon arrival, immigrants faced significant anti-Chinese legislation16 and violence on the West Coast.17 Such hostility only increased following the economic depression stemming from the Great Financial Panic of 1873,18 Concerns regarding unemployment and the maintenance of "white 'racial purity'"19 reached farther than the West Coast. At the federal level, Congress passed the Chinese Exclusion Act in 1882.20 This legislation restricting Chinese immigration was brutally effective.21 The year it was passed, 39,500 Chinese individuals immigrated to the United States.22 Five years later, only ten Chinese individuals immigrated.23 While Chinese immigration had been stymied, by 1885 large numbers of Japanese, Korean, and Indian laborers were arriving to the West Coast.24 As happened to Chinese immigrants, these Asian groups were discriminated against by their white neighbors. Anti-Japanese sentiment specifically culminated in a series of agreements between the United States and Japan in 1907 and 1908 in which Japan promised not to allow further emigration of its citizens to the United States.25 Anti-Asian sentiment persisted, as evidenced by the Immigration Act of 1917,26 which barred immigration from the Asia-Pacific zone entirely.27 By 1924, all Asian immigrants except Filipinos28 "were fully excluded by law, denied citizenship and naturalization, and prevented from marrying Caucasians or owning land."29 Eventually, as a result of racism and the economic conditions of the Great Depression, Filipinos were targeted through the passage of the Tydings-McDuffie Act.30 The Act imposed an extremely low annual Filipino immigration quota of merely fifty individuals.31 U.S. immigration laws continued to discriminate against Asians until 1965, when quotas increased to 20,000 immigrants per country.32 Asians have been discriminated against in the United States in ways other than restrictive immigration policies. For example, during World War II, President Franklin Delano Roosevelt issued Executive Order 9066, which sanctioned the creation of "military areas" from which persons could be excluded.33 While this order was facially neutral

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regarding race, its application was very skewed- only 11,000 and 1,500 German and Italian citizens and aliens were arrested, respectively, compared with 110,000 Japanese citizens and aliens.34 Civilian Exclusion Order No. 3435 sparked the conflict behind the landmark 1944 case Korematsu v. United States?6 In this case, the Supreme Court upheld the internment of Japanese Americans based on their exclusion from the West Coast Military Area.37 This decision has been widely criticized,38 even referred to by legal commentators as "an odious and discredited artifact of popular bigotry"39 and "a stain on American jurisprudence."40 To address the harm caused by Japanese internment in the United States, Congress passed the Civil Liberties Act of 1988.41 However, Korematsu was not expressly overturned by the Supreme Court until 2018 in Trump v. Hawaii in which the Court held, "Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and-to be clear-'has no place in law under the Constitution.'"42 Additional cases further represent the indoctrination of racist, anti-Asian ideas into American law. For example, in 1854 the California Supreme Court held that Chinese persons were not permitted to testify in court.43 Because of this and other legal, cultural, and societal barriers, it was nearly impossible for Chinese crime victims to obtainjustice.44 In 1922, the U.S. Supreme Court ruled that only white Caucasians were eligible for naturalization, rejecting the citizenship application of a man of Japanese birth who had lived in the United States for twenty years.45 The assertion that persons of Asian descent were not white and therefore ineligible for citizenship was reaffirmed by the Court the following year.46 The history of racism against Asians in the United States goes further than the law. In the nineteenth century, the "yellow peril"-concern about Asians "bringing unfair labor competition, disease, [and] vice" to the United States- motivated racist language47 and physical violence, including lynching.48 Because of this racism and attendant discrimination and segregation, Asians had to form their own living and working communities.49 Anti-Asian racism in the United States is not a thing of the distant past. The 1982 murder of Vincent Chin is an iconic example of a more recent anti-Asian hate crime.50 Chin was born in China but grew up in Detroit, Michigan.51 During a night out, Chin was chased and beaten severely with a baseball bat by two men who blamed the decline of Detroit's automotive industry on Japanese manufacturers.52 The men incorrectly characterized Chin as Japanese and their attack inflicted fatal injuries.53 More recently, the 2003 severe acute respiratory syndrome (SARS) outbreak caused stigmatization of Asian Americans due to its Chinese origin.54 Specifically, some Americans "became fearful or suspicious of all people who looked Asian, regardless of their nationality or actual risk factors for SARS."55 Such profiling is eerily like American attitudes toward Asians during the COVTD-19 pandemic.56 For example, hate crimes against Asians increased 1,900 percent in New York City from 2019 to 2020.57 This trend persisted into 2021. Stop AAPI Hate is a nonprofit organization that records instances of hate and discrimination against Asian Americans and Pacific Islanders in the United States.58 Per this organization's May 2021 report, 2,410 hate incidents occurred in the first three months of 2021 alone.59 The proportion of such incidents involving physical assault increased from 10.2 percent in 2020 to 16.7 percent in 2021.60 Additionally, more persons sixty years old or older reported hate incidents in 2021 than in 2020.61 B. Fourteenth Amendment The last battle of the American Civil War occurred on May 13, 1865.62 President Abraham Lincoln issued the Emancipation Proclamation two years before, on January 1, 1863.63 Yet, even after the war's end, newly freed slaves' conditions remained nearly identical to those of the antebellum period.64 The suppressed status of free Black people was maintained by mob violence, denial of protection of the laws, and Black Codes, among other factors.65 Within this historical context, the Reconstruction Amendments, including the Fourteenth Amendment, were drafted, proposed, and ratified. The Thirteenth Amendment reads in part, "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."66 Congress proposed this amendment in January 1865 and ratified it in December.67 However, the Southern states' ongoing codification of segregation, discrimination, and racism in Black Codes "underscored for

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most members of Congress the necessity for federal legislation if the promise of the [Thirteenth] [AJmendment was to be achieved."68 Thankfully for them, Section Two of the Thirteenth Amendment grants Congress the power to enforce it "by appropriate legislation."69 To that end, the Civil Rights Act of 1866 conveyed several rights to freed slaves, including birthright citizenship.70 Supporters of the bill, which later became the Act, asserted that the only rights secured by it would be "those specifically enumerated."71 Thus, "the rights of citizens" would be granted to free Black people, but nothing more.72 Regarding civil rights, the issue of segregation was never fully addressed in the debates, probably to appease Democrats and conservative Republicans.73 With the Thirteenth Amendment and Civil Rights Act of 1866 fresh on their minds, the members of the Joint Committee on Reconstruction turned to addressing racial discrimination in another amendment.74 Introduced in the House of Representatives by Representative John Bingham, the Committee's first draft included provisions empowering Congress "to secure to the citizens of each State all privileges and immunities of citizens in the several States" and to ensure "all persons in the several States equal protection in the rights of life, liberty and property."75 Representative Bingham argued that the draft "imposed no new obligations on the states, but merely allowed Congress to enforce rights (like the rights to jury trial, free speech, and freedom of religion) that states should already have respected."76 This draft received criticism for being both too broad77 and not strong enough.78 Consequently, the Committee reworked it and introduced a new version,79 Section One of which read: 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.80 In his speech introducing the new draft to the Senate, Committee member Senator Jacob Howard stated that the above-mentioned "privileges and immunities" cannot be fully, exactly, and precisely defined, but that they include "the personal rights guarantied and secured by the first eight amendments of the Constitution."81 Senator Howard noted that the proposed amendment would "abol-ish[] all class legislation," but that it was not intended to extend the right of suffrage to free Black people.82 In July 1868, Congress ratified the proposed amendment as the Fourteenth Amendment.83 At that time, legal scholars believed the Privileges or Immunities Clause guaranteed equal basic rights, regardless of race or former enslavement.84 However, the Supreme Court's decisions in the Slaughterhouse Cases and United States v. Cruikshank soon stripped the Privileges or Immunities Clause of its importance.85 In the Slaughterhouse Cases, the legislation at issue granted a monopolistic charter to the Crescent City Slaughter- House Company that forbade New Orleans' butchers from practicing their trade outside the Company's facilities.86 The butcher plaintiffs brought a Thirteenth Amendment claim and several Fourteenth Amendment claims, relying on the Equal Protection, Due Process, and Privileges or Immunities Clauses.87 Regarding the plaintiffs' Privileges or Immunities Clause argument, the Supreme Court distinguished between the privileges and immunities of citizens of the United States versus those of its states' citizens.88 The Court essentially eviscerated the Clause by determining that it only protects federal privileges and immunities.89 However, at the time, these privileges and immunities were so narrow that most could not be abridged by states in the first place.90 A few years later, the Supreme Court in United States v. Cruikshank reaffirmed this logic and determined that the Bill of Rights' protections only applied to violations by the federal government, not those committed by the States or private parties.91 Unsurprisingly, Fourteenth Amendment jurisprudence following the Slaughterhouse Cases and Cruikshank relied exclusively on the Due Process and Equal Protection Clauses.92 Aside from gutting the Fourteenth Amendment's Privileges or Immunities Clause, the Court in the Slaughterhouse Cases also confirmed the purpose of the Reconstruction Amendments. It stated this purpose as providing for "the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him."93 This narrow purpose led the Court to reject the plaintiffs' Equal Protection Clause argument due to the plaintiffs not being formerly enslaved.94 However, Justice Joseph P.

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Bradley in his dissent argued that the Fourteenth Amendment applied to "all citizens," not just those "of the African race."95 Courts have since adopted Justice Bradley's view. For example, in the 1886 case Yick Wo v. Hopkins, the Supreme Court extended the Equal Protection Clause to Chinese Americans.96 In that case, the Court held that the San Francisco Board of Supervisors violated the Clause by granting permits to operate laundries in wooden buildings to all but one of about 80 Caucasian applicants but to none of the 200 Chinese applicants.97 Similarly, an earlier California District Court case held that an ordinance requiring inmate haircut uniformity violated the Equal Protection Clause in its application, as the ordinance "was intended only for the Chinese" and was "not enforced against any other persons."98 In 1898, the Supreme Court extended the birthright citizenship guaranteed by the Fourteenth Amendment to a man born in San Francisco to parents of Chinese descent.99 Thus, by the end of the nineteenth century, courts recognized that "laws that do not overtly classify on the basis of race may nonetheless violate the Fourteenth Amendment if they are administered in a race-dependent manner."100 Thereby, classes other than African Americans, including Asian Americans, were protected by the Fourteenth Amendment.101 However, these protections are limited in application. In 1976, the Supreme Court held that the disparate impact claim available under Title VII of the Civil Rights Act of 1964 was not available under the Fourteenth Amendment.102 Therefore, to succeed on an Equal Protection Clause claim, a party must show discriminatory intent.103 The modern tiers of scrutiny analysis further limits the scope of the Fourteenth Amendment's protections. Suspect classifications (those based on race, national origin, religion, and alienage) are subject to strict scrutiny,104 while those that are "quasi-suspect" (on the basis of sex or illegitimacy) receive intermediate scrutiny.105 Distinctions based on none of the above categories are subject to rational basis scrutiny.106 To pass strict scrutiny, the highest level of scrutiny, legislation must further a compelling governmental interest and be narrowly tailored to achieve that interest.107 To survive intermediate scrutiny, the challenged statute must serve an important governmental objective and be substantially related to the achievement of that objective.108 Rational basis review is easiest for a law to pass, because it only requires a nonarbitrary, rational classification supported by a "plausible policy reason" that is considered true by "the governmental decision maker" behind the classification.109 Although heightened scrutiny overturns some legislation meant to distinguish on the basis of immutable traits (like race), other similar regulations may be upheld if they do not explicitly differentiate on such bases.110 Likewise, the discriminatory intent requirement of a Fourteenth Amendment claim further decreases the number of Equal Protection cases that canbe successfully brought.: These limitations, coupled with the ineffectual Privileges or Immunities Clause,112 clash with the Fourteenth Amendment's authors' intent of creating a strong anti-racist constitutional provision. C. TikTok Lawsuit On May 15, 2019, then President Tramp issued Executive Order 13,873, titled "Securing the Information and Communications Technology and Service Supply Chain."113 This order declared a national emergency based on an alleged national security threat.114 Regarding this threat, the order explains: [F]oreign adversaries are increasingly creating and exploiting vulnerabilities in information and communications technology and services ... to commit malicious cyber-enabled actions, including economic and industrial espionage against the United States and its people .... [T]he unrestricted acquisition or use in the United States of information and communications technology or services designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of foreign adversaries augments the ability of foreign adversaries to create and exploit vulnerabilities in information and communications technology or services, with potentially catastrophic effects, and thereby constitutes an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States. This threat exists both in the case of individual acquisitions or uses of such technology or services, and when acquisitions or uses of such technologies are considered as a class.115 This national emergency was extended for one year on May 13, 2020, through a presidential notice.116 The notice

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stated that the concerns enumerated in Executive Order 13,873 "continue[d] to pose an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States," requiring an extension of the national emergency.117 Tramp determined additional steps were necessary to address the national emergency and issued the Executive Order, Addressing the Threat Posed by TikTok, on August 6, 2020.118 In this order, Tramp described Chinese mobile applications, including TikTok, as threats to the United States' "national security, foreign policy, and economy."119 Tramp presented a range of concerns regarding TikTok explicitly, including censorship,120 disinformation,121 and data privacy.122 To prevent these concerns from manifesting, the order prohibited "any transaction by any person, or with respect to any property, subject to the jurisdiction of the United States by ByteDance Ltd. ... or its subsidiaries," effectively ceasing all TikTok operations in the United States.123 A few days later, Trump issued the Order Regarding the Acquisition of Musically124 by ByteDance Ltd.125 The order imposed further restrictions on ByteDance Ltd., alleging that ByteDance Ltd. 's acquisition of Muscial.ly threatened the national security of the United States.126 In response to this threat, the order prohibited the acquisition of Muscial.ly by ByteDance Ltd.127 The order also prescribed several requirements for ByteDance Ltd., including to divest all interest and rights in "any tangible or intangible property, wherever located, used to support or enable ByteDance Ltd.'s operation of TikTok application in the United States" and in "any data obtained or derived from TikTok application or Musically application users in the United States."128 Additionally, ByteDance Ltd. was required to certify in writing to the Committee on Foreign Investment in the United States (CFIUS) its completion of the divestment and destruction requirements as well as report to CFIUS weekly.129 The order also prohibited ByteDance Ltd. from making a sale or transfer of its tangible or intangible assets, property, or data unless CFIUS was informed and did not object.130 In response to the August 6 executive order, TikTok Inc. and ByteDance Ltd. filed a Complaint for Injunctive and Declaratory Relief as coplaintiffs in the U.S. District Court for the Central District of California.131 The U.S. Departmerit of Commerce, then Secretary of Commerce Wilbur L. Ross, Jr., and Trump were listed as the defendants.132 In their Complaint, the plaintiffs alleged that the order was unlawful and unconstitutional for several reasons: (1) the order was issued for political reasons, not the "unusual and extraordinary threat" required for a president to exercise power under the International Emergency Economic Powers Act (IEEPA); (2) the order violated the companies' Fifth Amendment due process and takings protections; (3) the order directly violated the IEEPA by restricting "personal communications and the transmission of informational rights;" (4) the order violated the nondelegation doctrine; (5) the order exceeded the government's power because the order was not based on a bona fide national emergency and prohibited any transactions with ByteDance Ltd. when the purported threat was limited to TikTok only; and (6) the order violated TikTok Inc.'s First Amendment rights.133 As directed by the August 6 order, the U.S. Department of Commerce's Office of the Secretary published a list of prohibited transactions in September 2020.134 The first prohibited transaction was "any provision of services" regarding the distribution or maintenance of TikTok, its code, or its updates.135 This prohibition was scheduled to go into effect at 11:59 p.m. on September 27, 2020.136 The second through fifth prohibitions were set to take effect at 11:59 p.m. on November 12, 2020, and contained broad bans, including on "any provision of internet hosting services" or "content delivery networks services" and any use of TikTok's "constituent code, functions, or services in the functioning of software or services."137 The sixth prohibited transaction was not strictly a transaction; rather, it granted the Commerce Department power to modify the prohibitions.138 In response to the Commerce Secretary's enumerated prohibitions, Tik Tok Inc. and ByteDance Ltd. dismissed their California district court case139 and filed a new Complaint in the U.S. District Court for the District of Columbia.140 Plaintiffs updated their Complaint to include the prohibitions as well as an allegation that the order violated the Administrative Procedure Act by being "arbitrary and capricious."141 In response to the first prohibition's approaching applicability, Tik Tok Inc. and ByteDance Ltd. moved for preliminary injunctive relief on September 23, 2020,142 which Judge Carl J. Nichols granted.143 In response to Judge Nichols' decision, the defendants appealed to the U.S. Court of Appeals for the D.C. Circuit.144

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The plaintiffs filed an additional motion for preliminary injunction on October 14, 2020, regarding the four Commerce Prohibitions scheduled to take effect on November 12, 2020.145 Judge Nichols granted the plaintiffs' preliminary injunction regarding these four prohibitions.146 As they did in response to Judge Nichols' grant of the plaintiffs' motion regarding the first prohibition, the defendants filed an appeal to the D.C. Circuit Court.147 Roughly a month after the defendants' second appeal, Joseph R. Biden became the forty-sixth president of the United States.148 Consequently, he replaced Trump in the lawsuits.149 On June 9, 2021, President Biden issued the Executive Order on Protecting Americans' Sensitive Data From Foreign Adversaries, which revoked Trump's August 6 order.150 It also revoked "any orders, rules, regulations, guidelines, or policies . .. implementing or enforcing" Trump's order.151 Shortly thereafter, the new defendants filed unopposed motions to dismiss both appeals.152 The lawsuits involving TikTok Inc, ByteDance Ltd., and Trump's executive order are now closed. II. THE FOURTEENTH AMENDMENT SHOULD PROTECT TIKTOK INC. AND BYTEDANCE LTD. The plaintiffs' Complaints did not contain a Fourteenth Amendment claim.153 Rather, their constitutional law analysis relied primarily on the Fifth and First Amendments.154 However, the plaintiffs could have argued for an expansion of the Equal Protection Clause to prohibit violations of the Fourteenth Amendment's anti-racist intent and spirit. This expansion would render Trump's August 6 executive order invalid, as corporations are entitled to the same Fourteenth Amendment protections as natural persons.155 Though the Equal Protection Clause typically applies to state legislation,156 expanding the Clause's scope to executive orders would square with the Fourteenth Amendment's purpose. In the August 6 order, Trump alleged that "mobile applications developed and owned by" Chinese companies "threaten the national security, foreign policy, and economy of the United States," and identified TikTok, through its owner ByteDance Ltd., as an especially concerning Chinese application.157 Because the order only addresses Chinese companies, it classifies on the basis of national origin.158 National origin is a suspect category,159 and thus the order must pass strict scrutiny to be upheld. As explained in Section LB, to pass strict scrutiny the executive order must advance a compelling governmental interest and be narrowly tailored to that interest.160 Trump's order's claims centered around data privacy, censorship, and disinformation concerns.161 These concerns could be considered compelling governmental interests since they relate to national security.162 The order is narrowly tailored because it allegedly addressed concerns specific to TikTok.163 However, as TikTok Inc. and ByteDance Ltd. explained in their Complaints, the national security concerns alleged in the order are unfounded.164 As discussed in the plaintiffs' Complaint filed in D.C. District Court, the government's stated purpose for targeting TikTok was to prevent the application from being "manipulated by the Chinese government."165 However, TikTok Inc. had already taken "extraordinary measures to protect the privacy and security of TikTok's U.S. user data," including storing such data outside of China and preventing the data from comingling with that of ByteDance Ltd. 's other products.166 TikTok Inc. provided information about these measures to the government during CFIUS's review process regarding ByteDance Ltd.'s Musically acquisition.167 Also, during this process, the plaintiffs "made commitments [to the government] that were more than sufficient to address any conceivable U.S. government privacy or national security concerns."168 The plaintiffs are not the only ones to categorize the government's concerns regarding TikTok as unusual. Indeed, legal scholars, as well as leaders in the American technology industry, agree that the Trump administration's executive orders regarding TikTok were questionable.169 Paul Marquardt, who has "decades of experience" regarding CFIUS reviews,170 noted that "recent departures from established CFIUS processes in the TikTok matter [were] striking and concerning" and called "into question the scope, apolitical nature, confidentiality and security focus of the CFIUS process."171 Marquardt recognized that the August 6 executive order threatened to bar TikTok from the United States under the authority of the IEEPA.172 He characterized the threat of using the IEEPA in this way as "unprecedented," because CFIUS generally does not have jurisdiction to prevent a foreign business from selling in the United States.173 Marquardt observed that "[o]rdering the complete termination of the U.S. business, rather than ordering the acquired

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U.S. assets divested" was similarly unique.174 He further noted that the comments made by Trump officials regarding the CFIUS review of TikTok Inc. and ByteDance Ltd. were "extremely unusual," marking "a serious departure from the practice of past administrations, which have generally refused comment on ongoing CFIUS reviews."175 This departure strongly suggested that the Trump administration intended to "politicize" the CFIUS review.176 Marquardt went on to say that the most strikingly unprecedented aspect of the orders against TikTok was the requirement of payment to the U.S. Department of the Treasury.177 Marquardt concluded by describing the TikTok orders' surrounding developments, including the CFIUS review, as "disquieting" and threatening to CFIUS's global reputation as "largely apolitical."178 Even TikTok's U.S. competitors, now consider Trump's executive orders problematic. Before the order was issued, Mark Zuckerberg, CEO of the U.S.-based social networking site Facebook,179 perceived TikTok as a threat.180 Consequently, he met with elected officials, including Trump, to allegedly convince them that Chinese companies like ByteDance Ltd. were more hazardous to American business than monopoly concerns about Facebook.181 To further rally politicians to Facebook's side, the company extensively lobbied members of Congress.182 Indeed, in the first half of 2020, Facebook spent more than any other company on lobbying.183 However, even after taking these actions to stymie TikTok's success, Facebook executives spoke out against the August 6 order. A Wall Street Journal article reported that in a meeting shortly after the order was issued, Zuckerberg described it "unwelcome" and stated that he felt "the global harm"184 of the order "could outweigh any short-term gain to Face-book."185 As the plaintiffs' Complaints argue, the allegations contained in the August 6 executive order are groundless. Legal scholars and technology tycoons have further suggested that the order was unprecedented and may have been politically motivated.186 One such political purpose was attempting to win over voters leading up to the 2020 presidential election187 Therefore, the order fails the strict scrutiny test by not advancing an actual compelling government interest.188 However, even if the court had decided that the August 6 executive order advances a compelling governmental interest, the Trump administration targeted TikTok because of its association with China through ByteDance Ltd.189 Such targeting on the basis of national origin should be considered a violation of the Equal Protection Clause because of the Fourteenth Amendment's anti-racist intent. Trump's August 6 executive order came amid rising anti-Asian sentiment in the United States.190 This change in public opinion began once the COVTD-19 pandemic was linked to China.191 Some argue that the Trump administration then used this ideological shift to justify harsh action against China and Chinese companies like ByteDance Ltd.192 This stance was made clear by formal declarations from the administration and Trump himself193 Since the COVID-19 pandemic began affecting Americans, Trump blamed China for the virus's creation and transmission. For example, Trump constantly referred to COVID-19 as the "Wuhan virus," "Chinese virus," and "Kung Flu," despite pushback against such offensive terms, even by members of his own administration.194 At a campaign rally in June 2020, Trump stated that "China sent us the plague, thank you very much."195 During a press briefing the following month, he explicitly blamed China for the virus ("It's China's fault. Okay?").196 Trump also repeatedly used COVID-19 to justify his administration's political and economic policy regarding China. For example, during a press conference in July 2020, he bragged that "[n]o administration has been tougher on China than" his, including by "hold[ing] China fully responsible for concealing the virus and unleashing it upon the world."197 Trump later threatened China regarding the United States' COVTD-19-related economic downturn.198 Trump's anti-China comments suggest that his administration was motivated to appeal to his base through the spike in anti-Asian sentiment incited by COVID-19. Trump may have wanted to appear tough on China to engage with voters with anti-Asian sentiment for the 2020 presidential election. This is further supported by the administration's increased pressure on China following the virus's effect on America.199 Trump's comments blaming China for the virus, as well as linking the vims to U.S. foreign policy, demonstrate how his executive orders, particularly that of August 6, served an arguably racist political purpose rather than a valid national security one. The anti-racist goal of the Fourteenth Amendment should prevent such racially motivated orders from being enforced.

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III. COURTS SHOULD EXPAND THE FOURTEENTH AMENDMENT'S SCOPE The D.C. District Court, though correct in granting Tik Tok Inc.'s and ByteDance Ltd.'s preliminary injunctions and enjoining the Commerce Department's implementation of its prohibitions, did not rely on the Equal Protection Clause. It could have employed a more expansive interpretation of the Clause, which would embolden other courts to do the same, beginning a new form of Fourteenth Amendment jurisprudence. This novel approach would prohibit actions that, while racist in effect, would otherwise survive because they lack an explicitly racist intent. Section III. A discusses how to apply this approach. Next, Section III.B provides legal and academic support for an expansion of the Fourteenth Amendment's power. Finally, Section III.C examines alternatives to and criticisms of such an expansion. A. Application In implementing this expanded approach to the Equal Protection Clause, courts should look for any evidence of racial bias, rather than solely discriminatory intent, to strike actions as unconstitutional. To do this, judges must employ a totality of the circumstances test. This test should involve a careful weighing of all the circumstances surrounding an act, including the race and national origin of the parties involved. Rebuking a color-blind approach permits the fact finder to consider the effect of unconscious or structural racism. If any evidence is shown that the offending action was based on racist principles, even unintentionally, the act must be deemed unconstitutional and in violation of the anti-racist intent of the Fourteenth Amendment. This approach is significantly more flexible than the tiers of scrutiny analysis; consequently, it is also more difficult to apply. However, efficiency in our judicial system should not be prioritized over the protection of marginalized groups. Also, this approach will become more efficient as it progresses: as harmed parties receive more protection under this interpretation of the Equal Protection Clause, clearer rules will emerge. Applying such an approach to the TikTok lawsuit would require judges to consider Trump's executive order within the context of the COVTD-19 pandemic, the resulting increase in anti-Asian sentiment, and the 2020 presidential election. By considering more than just the terms of the order itself, judges would perhaps see the order as motivated by political and racial reasons. Consequently, judges could then deem the order unconstitutional due to its racial motivation, specifically the desire to capitalize on increasing anti-Asian sentiment to appeal to voters with a certain political ideology. B. Support Case law supports an expansion of the Equal Protection Clause. For example, the Court has on numerous occasions held that the Clause prevents the government from instituting a "racial hierarchy"200 and that the goal of the Fourteenth and other Reconstruction Amendments is a "political system in which race no longer matters."201 While this goal is laudable, it has not yet been actualized, as evidenced by, for example, the disproportionate number of persons of color ensnared in the criminal justice system202 and the subsequent dis-enfranchisement of minority communities.203 For the Equal Protection Clause to accomplish these stated goals, it needs broader power. Currently, courts' interpretations of the Clause permit actions with inconspicuously racist intents. This current interpretation also enables actions to continue that may not be intentionally racist but still have significantly racist effects. These latter actions reflect structural, or institutional, racism. As William M. Wieck observed, "Structural racism is a complex, dynamic system of conferring social benefits on some groups and imposing burdens on others that results in segregation, poverty, and denial of opportunity for millions of people of color."204 Because structural racism involves engrained "cultural beliefs, historical legacies, and [public and private] institutional policies,"205 it is often less obvious206 than traditional racism.207 Consequently, actions reflecting structural racism are upheld under modern Fourteenth Amendment jurisprudence as lacking racial categorization or a clear racist intent.208 The Supreme Court has noted that the goal of racial equality in the United States is one "to which the Nation continues to aspire."209 However, the Supreme Court has been slow to recognize racism. The concept of racism was introduced in social science scholarship by anthropologist Ruth Benedict in 194O 210 a few years iater rtie word racism was first used by the Supreme Court.211 Since then, however, the word racism has hardly appeared in

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Supreme Court decisions; when it does, it is generally featured in isolated dissents and concurrences.212 Indeed, it was not until 1992 that the word "racism" was used substantively in a Supreme Court majority opinion.213 The trend is the same regarding the term structural racism. As of November 14, 2021, no Supreme Court opinions reference "structural racism," and only one refers to "institutional racism."214 In this opinion, Justices Clarence Thomas and Antonin Scalia belittle the concept, stating that it is "the conspiracy theorist's belief that 'institutional racism' is at fault for every racial disparity in our society."215 While the Court seems content to ignore the realities of structural racism, legal academics have taken to educating themselves and others. For example, in 2002, Berkley Law professor Ian Haney Lopez detailed the effect of institutional racism on jury selection in the California Superior Court system.216 Lopez's work demonstrated how institutional racism contributed to a near total exclusion of Chicano jurors.217 Lopez is hardly alone in discussing the effects of structural racism on the law.218 However, notwithstanding the plethora of publications on this topic, the Supreme Court seems reluctant to adopt such analyses. Expanding the Fourteenth Amendment's protections through reliance on its founders' anti-racist intent would permit the courts to employ a new constitutional hook in addressing structural racism.219 C. Alternatives Some may argue that expanding Fourteenth Amendment jurisprudence is not the best way to increase protection for racial minorities and address structural racism. While anti-racist legislation could achieve the same result as expanding the scope of the Equal Protection Clause, such legislation has not been successful. For example, the Civil Rights Act of 1964 permits racist acts so long as they are not intentionally racist.220 This is especially true when the acts are committed by public officials.221 Additionally, while the Voting Rights Act of 1965 prohibits racial gerrymandering,222 the Supreme Court recently deemed partisan gerrymandering nonjusticiable by federal courts.223 This ruling allows states to sanction racial gerrymandering under the guise of partisan gerrymandering.224 While the Civil Rights and Voting Rights Acts are incredibly important, they fall short of preventing all racist acts-especially those motivated by unconscious biases or otherwise non-invidious purposes. Expanding the scope of the protection afforded under the Fourteenth Amendment by strengthening the reach of the Equal Protection Clause would fill these gaps. Rather than strengthening the Equal Protection Clause, some may focus instead on reviving the Privileges or Immunities Clause. However, reincarnating this Clause would be more difficult than expanding the Equal Protection Clause, because the Equal Protection Clause is regularly used whi Immunities Clause has been dead in the water since the nineteenth century.225 For example, the Court relied heavily on the Equal Protection Clause in its recent decision extending the fundamental right of marriage to same-sex couples.226 Conversely, the Court has hardly mentioned the Privileges or Immunities Clause since the Slaughterhouse Cases.227 While proponents of revitalizing the Privileges or Immunities Clause may point to Justice Thomas' recent mentions of the Clause,228 it is important to note that these are in concurrences and therefore do not create binding precedent. Critics of expanding Fourteenth Amendment jurisprudence may allege that the change reflects judicial activism rather than sound legal principles. However, as discussed in Section LB, the statesmen that drafted and proposed the Fourteenth Amendment had "anti-racist aspirations."229 These aspirations are evidenced in the original drafts of the Amendment as well as the historical context of its framing and ratification.230 Therefore, an originalist understanding of the Fourteenth Amendment would permit for greater, rather than reduced, protection against racist acts. In summary, expanding Fourteenth Amendment jurisprudence through strengthening the Equal Protection Clause based on the Amendment's anti-racist intent is the best solution to addressing racially motivated acts that lack the intent to be currently actionable. Such a change would allow the judiciary to address the actual state of racism in the United States. The lawsuit instigated by Tik Tok Inc. and ByteDance Ltd. could have employed an expanded interpretation of the Fourteenth Amendment. If the courts involved adopted this analysis, the judiciary would begin to better honor the Fourteenth Amendment's intent, while also addressing modern concerns. While the proceedings regarding the

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TikTok order have been dismissed, similar claims can be brought to advance this theory. As legal scholar and professor Charles Lawrence III said, racism is a "societal disease" and "the Constitution commands our collective responsibility for its cure."231 By prohibiting acts based on structural racism, including those founded on unconscious biases, an expanded approach to the Equal Protection Clause would better reflect the current reality of racism in the United States. Doing so would accelerate the country's healing from the plague of racism. Sidebar *J.D. Candidate, Sandra Day O'Connor College of Law, Arizona State University. I am extremely grateful to Professor Ann Ching for her feedback and guidance as well as to Professor Ilan Wurman, whose Fourteenth Amendment class inspired this Comment. All errors are my own. 1. TikTok Statistics, Wallaroo Media, https://wallaroomedia.com/blog/social-media/tiktok -statistics/ [https://perma.cc/F4KX-EAJT]. 2. For clarity, throughout this work the social media platform is referred to as "TikTok" while the business entity is referred to as "TikTok Inc." 3. Complaint for Injunctive &Declaratory Relief, para. 12-13, TikTok Inc. v. Trump, 507 F. Supp. 3d 92 (D.D.C. 2020) (No. l:20-CV-2658) [hereinafter Complaint, No. l:20-CV-2658]. 4. Id. para. 13. 5. Id. 6. See Exec. Order No. 13942, 85 Fed. Reg. 48,637, 48,637 (Aug. 11, 2020) ("This data collection threatens to allow the Chinese Communist Party access to Americans' personal and proprietary information-potentially allowing China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage."); see also Regarding the Acquisition of Musical.ly by ByteDance Ltd., 85 Fed. Reg. 51,297, 51,297 (Aug. 14,2020). 7. Exec. Order No. 13942, 85 Fed. Reg. at 48,637. 8. See Complaint, No. l:20-CV-2658, supranots3, para. 7; see, e.g., Paul Marquardt, Unusual TikTok Review Calls CFIUS Processes into Question, LAW360 (Aug. 7, 2020, 6:56 PM), https:// www.law360.com/articles/1299589/unusual-tiktok-review-calls-cfius-processes-into-question [https: //perma.cc/48W8-LQZJ]. 9. See Complaint, No. l:20-CV-2658, supra note 3, para. 7. 10. Rational Basis Test, Legal Info. Inst., https://www.law.cornell.edu/wex/rational_basis_ test [https://perma.cc/Z5M4-LWRV]; see Williamson v. Lee Optical Co., 348 U.S. 483, 488 (1955). Under the tiers of scrutiny analysis, legislation that does not discriminate against a quasi-suspect or suspect class is only subject to the rational basis test-under which the legislation is more likely to be upheld. Id. at 489. 11. TikTok Inc. and ByteDance Ltd.'s action does not fit within these limited grounds because it does not allege an explicitly racial intent behind President Trump's executive orders. See Complaint, No. L20-CV-2658, supra note 3, paras. 95-96; Complaint for Injunctive &Declaratory Relief, TikTok Inc. v. Trump, No. 2:20-CV-7672 (CD. Cal. dismissed Sept. 20, 2020) [hereinafter Complaint, No. 2:20-CV-7672]. 12. See Complaint, No. L20-CV-2658, supranote 3. 13. This chronology was current as of July 12, 2021, when the last actions in the appeals cases were taken by the parties. Unopposed Motion to Voluntarily Dismiss Appeal, TikTok Inc. v. Trump, 507 F. Supp. 3d 92, No. 20-5302 (D.C. Cir. dismissed July 12,2021) [hereinafter Unopposed Motion Dismissed July 12, 2021]; Unopposed Motion to Voluntarily Dismiss Appeal, TikTok Inc. v. Trump, No. 20-5381 (D.C. Cir. dismissed July 14, 2021) [hereinafter Unopposed Motion Dismissed July 14, 2021], sub nom. TikTok Inc. v. Biden. 14. Chinese Immigration and the Chinese Exclusion Acts, OFF. HISTORIAN, https://history. state.gov/milestones/1866-1898/chinese-immigration [https://perma.cc/C7YE-DEAE]. 15. Asian Americans Then and Now, Asia Soc'Y, https://asiasociety.org/education/asian-americans-then-and-now [https://perma.cc/N8WB-C4RY].

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16. One example is California's Foreign Miners Tax, imposed in May 1852, which inflicted a monthly tax of $3 upon Chinese miners. History.com Staff, Chinese Exclusion Act, HIST., https:// www.history.com/topics/immigration/chinese-exclusion-act-1882 [https://perma.cc/3MUA-4W9S] (Sept. 13, 2019) ("By 1870, Chinese miners had paid $5 million to the state of California via the Foreign Miners Tax, yet they faced continuing discrimination at work and in their camps."). 17. Asian Americans Then and Now, supranote 15. 18. The Panic of 1873, PBS, https://www.pbs.org/wgbh/americanexperience/features/grant-panic/ [https://perma.cc/NU64-GAC8]; see Asian Americans Then and Nov/, supranote 15. 19. History.com Staff, supra note 16. 20. Chinese Exclusion Act, Pub. L. No. 47-126, 22 Stat. 58 (1882). 21. It is notable that this Act is "the only United States law to prevent immigration and naturalization on the basis of race." Asian Americans Then and Now, supra note 15. 22. Id. 23. Id. 24. Id. 25. Masuda Hajimu, Gentlemen's Agreement, in 2 THE WILEY BLACKWELL ENCYCLOPEDIA of Race, Ethnicity, and Nationalism 883,883 (2016). 26. See Immigration Act of 1917, Pub. L. No. 64-301, 39 Stat. 874 (1917). 27. Id. §3 (prohibiting immigration to the United States from "islands not possessed by the United States adjacent to the Continent of Asia, situate south of the twentieth parallel latitude north, west of the one hundred and sixtieth meridian of longitude east from Greenwich, and north of the tenth parallel of latitude south" and from "any country, province, or dependency situate on the Continent of Asia west of the one hundred and tenth meridian of longitude east from Greenwich and east of the fiftieth meridian of longitude east from Greenwich and south of the fiftieth parallel of latitude north"). 28. Asian Americans Then and Now, supra note 15 ("Filipinos were not legally excluded by the immigration laws because the Philippines was already annexed by the United States as a result of the 1898 Spanish-American War."). 29. Id. 30. Id; see also Tydings-McDuffie Act, Pub L. No. 73-127, 48 Stat. 456 (1934). 31. Tydings-McDuffie Act at §8(a)(1). 32. Asian Americans Then and Now, supra note 15; see also Immigration and Nationality Act of 1965, Pub. L. No. 89-236, §2(a), 79 Stat. 911, 911-12 (1965). 33. Exec. Order No. 9066, 7 Fed. Reg. 1,407, 1,407 (Feb. 25, 1942) ("I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time desig- nate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion."). 34. Arthur H. Garrison, National Security and Presidential Power: Judicial Deference and Establishing Constitutional Boundaries in World War Two and the Korean War, 39 CUMB. L. REV. 609, 610 (2009). 35. Civilian Exclusion Order No. 34 was one of a series of such orders issued by Lieutenant General John L. DeWitt under the authority of Executive Order 9066. Brian Niiya, Civilian Exclusion Orders, Densho Encyc. (June 12, 2020, 4:43 PM), https://encyclopedia.densho.org/ Civilianexclusionorders/ [https://perma.cc/G9SD-L9XZ]. 36. See Korematsu v. United States, 323 U.S. 214, 215-16 (1944). Note that preceding this case, the Court upheld a curfew that only applied to persons of Japanese ancestry. See Hirabayashi v. United States, 320 U.S. 81, 88-89, 102 (1943). The Court relies heavily on its Hirabayashi decision m Korematsu. See Korematsu, 323 U.S. at 217-18. 37. Korematsu, 323 U.S. at 223-24.

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38. See Richard A. Primus, Canon, Anti-Canon, and Judicial Dissent, 48 DUKE L.J. 243, 276 (1998). 39. Bruce Fein, History Overrules Odious Supreme Court Precedent, HuffPost (Nov. 26, 2017), https://www.huffpost.com/entry/history-overrules-odious_b_13226296. 40. Carl Takei, Opinion, The Incarceration of Japanese Americans in World War II Does Not Provide a Legal Cover for aMuslim Registry, L.A. TIMES (Nov. 27,2016, 5:00 AM), https://www.la times.com/opinion/op-ed/la-oe-takei- constitutionality-of-japanese-internment-20161127-story.html [https ://perma.cc/LHP7-V9SR]. 41. Civil Liberties Act of 1988, Pub. L. No. 100-383, 102 Stat. 904 (1988). The enumerated purposes of this Act include "acknowledging] the fundamental injustice of the evacuation, relocation, and internment of United States citizens and permanent resident aliens of Japanese ancestry during World War II" and "apologizing] on behalf of the people of the United States for the evacuation, relocation, and internment of such citizens and permanent resident aliens." Act of Aug. 10, 1988, Pub. L. No. 100-383, §l(l)-(2), 102 Stat. 903, 903 (1988) (containing the Civil Liberties Act of 1988). 42. Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (quoting Korematsu, 323 U.S. at 248 (Jackson, J., dissenting)). Note, however, that there is some debate over whether this decision actually overturned Korematsu since the section of the majority opinion proclaimed to do so is merely dicta. See, e.g., Anil Kalhan, Trump v. Hawaii and Chief Justice Roberts's "Korematsu Overruled" Parlor Trick, Am. Const. Soc'Y (June 29, 2018), https://www.acslaw.org/expertforum/trump-v-hawaii-and-chief-justice-robertss-korematsu-overruled-parlor-trick/ [https://perma.cc/EF7P-SGJU]. 43. People v. Hall, 4 Cal. 399, 403 (Cal. 1854). 44. History.com Staff, supra note 16. 45. See Ozawa v. United States, 260 U.S. 178, 198 (1922) ("The effect of the conclusion that the words 'white person' mean a Caucasian is not to establish a sharp line of demarcation between those who are entitled and those who are not entitled to naturalization, but rather a zone of more or less debatable ground outside of which, upon the one hand, are those clearly eligible, and outside of which, upon the other hand, are those clearly ineligible for citizenship. .. . The appellant, in the case now under consideration, however, is clearly of a race which is not Caucasian and therefore belongs entirely outside the zone on the negative side."). 46. United States v. Thind, 261 U.S. 204, 214-15 (1923) (Because Congress's intent was to "exclude Asiatics generally from citizenship," an Indian man was ineligible.). 47. Andrew R. Chow, Violence Against Asian Americans Is on the Rise-But It's Part of a Long History, Time (May 20, 2020, 11:11 AM), https://time.com/5834427/violence-against-asian-americans-history/ [https://perma.cc/KX2J- 7PD5] ("Racially-charged language soon dominated tabloids, cartoons, town halls and the speeches of politicians, who used anti-Chinese rhetoric as an easy way to curry favor with voters. Horace Greeley, a prominent political figure and the founder of the New-York Tribune, labeled Chinese-Americans as 'uncivilized, unclean, and filthy beyond all conception without any of the higher domestic or social relations.'"). 48. Id. ("In 1871, at least seventeen Chinese immigrants were hanged in makeshift gallows by a large white mob in Chinatown in Los Angeles. In 1885, an armed mob forcibly drove a Chinese population out of its Tacoma, Wash, homes, menacing its community with rifles, breaking into houses and smashing doors and windows. The same year, white workers in Wyoming massacred 28 Chinese coal miners."); see also Kelly Wallace, Forgotten Los Angeles History: The Chinese Massacre of 1871, L.A. Pub. Libr. (May 19, 2017), https://www.lapl.org/collections-resources/ blogs/lapl/chinese-massacre-1871 [https://perma.cc/52WF-YRV6]. 49. See, e.g., The Story of Chinatown, PBS, https://www.pbs.org/kqed/chinatown/resource guide/story.html [https://perma.cc/NXW2-3RZ3]. 50. Becky Little, How the 1982 Murder of Vincent Chin Ignited a Push for Asian American Rights, Hist. (May 5, 2020), https://www.history.com/news/vincent-chin-murder-asian-american-rights [https://perma.cc/V7S5-UAVV]. 51. Id. 52. Id. 53. Id.

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54. Bobbie Person et al., Fear and Stigma: The Epidemic Within the SARS Outbreak, 10 Emerging Infectious Diseases 358,358-59 (2004) (stating that the SARS virus "spontaneously appeared in the [Chinese] southern province of Guangdong"). 55. Id. 56. See, e.g., Russell Jeung et al., Stop AAPI Hate, Stop AAPI Hate National Report: 3/19/20-3/31/21 (2021) at 7, https://stopaapihate.org/wp-content/uploads/2021/05/Stop-AAPI-Hate-Report-National-210506.pdf [https://perma.cc/97V8-HDNX]; Covid-19 Fueling Anti-Asian Racism and Xenophobia Worldwide, HUM. Rts. WATCH (May 12, 2020, 3:19 PM), https://www.hrw.org/ news/2020/05/12/covid-19-fueling-anti-asian-racism-and- xenophobia-worldwide# [https://perma.cc/ TCS7-BXD8]. 57. {Catherine Donlevy, Anti-Asian Hate Crime Jumps 1,900 Percent: Meng's Resolution Denouncing COVID-Driven Bias Passes House, QUEENS CHRON. (Sept. 24, 2020), https://www. qchron.com/editions/queenswide/anti-asian- hate-crime-jumps-l-900-percent/article_f007a05b-f43 e-54ca-a3c6-lb5493333dea.html [https://perma.cc/K9E4-C9D5] (referencing NYPD data). 58. About, Stop AAPI Hate, https://stopaapihate.org/about/ [https://perma.cc/M6RG-QRTQ]. 59. See Jeung ET AL., supra note 56, at 2. 60. Id. 61. Id. 62. Civil War Facts, Am. Battlefield Tr., https://www.battlefields.org/learn/articles/civil-war- facts#When%20did%20the%20Civil%20War%20End [https://perma.cc/ADN6-2LHE] (Apr. 20, 2021). 63. See The Emancipation Proclamation, Nat'L ARCHIVES (Aug. 5, 2021), https://www. archives.gov/exhibits/featured-documents/emancipation-proclamation [https://perma.cc/D5SJ-FSPE]. 64. Ilan Wurman, The Second Founding: An Introduction to the Fourteenth Amendment 91 (2020). 65. Id. at 90-91; Paul Brest et al., Processes of Constitutional Decisionmaking: Cases and Materials 331 (Rachel E. Barkowetal. eds., 7th ed. 2018). 66. U.S. Const, amend. XIII, §1. 67. Brest et al., supra note 65, at 331. 68. Id. at 332. 69. U.S. Const, amend. XIII, §2. 70. Civil Rights Act of 1866, ch. 31, §1, 14 Stat. 27, 27 (1866). ("That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding."). 71. Brest et al., supra note 65, at 333-34. 72. Id. 73. Id. at 334. 74. Id. at 336. 75. Id. 76. Id. at 337. 77. Id. ("Representative Hale of New York objected that 'it is a grant of power in general terms-a grant of the right to legislate for the protection of life, liberty, and property, simply qualified with the condition that it shall be equal legislation.'"). 78. Id. ("Representative Giles Hotchkiss of New York objected that although Bingham's draft gave Congress the

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power to protect equal rights, it said nothing about judicial enforcement."). 19. Id. at 338. 80. U.S. Const, amend. XIV, §1. 81. Cong. Globe, 39th Cong., 1 st Sess. 2764, 2765 (1866), reprinted in Brest et al., supra note 65, at 338, 340. 82. Id. at 2766, reprinted in Brest ET AL., supra note 65, at 341-42 ("[T]he first section of the proposed amendment does not give to either of these classes the right of voting. The right of suffrage is not, in law, one of the privileges or immunities thus secured by the Constitution. It is merely the creature of law. It has always been regarded in this country as the result of positive local law, not regarded as one of those fundamental rights lying at the basis of all society and without which a people cannot exist except as slaves . . . ."). 83. Brest et al., supra note 65, at 332. 84. Id. at 343. 85. Id; see also The Slaughter-House Cases, 83 U.S. 36 (1873); United States v. Cruikshank, 92 U.S. 542(1876). 86. Brest et al., supra note 65, at 359-60. 87. See The Slaughter-House Cases, 83 U.S. at 57, 58, 66. 88. Id. at 74. 89. Id. ("Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State ... it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment."). 90. See, e.g., U.S. Const, amends. I-X. 91. United States v. Cruikshank, 92 U.S. 542, 552 (1876) ("The right [of assembly] was not created by the [First] amendment; neither was its continuance guaranteed, except as against congressional interference."). 92. Brest et al., supra note 65, at 343. 93. The Slaughter-House Cases, 83 U.S. at 71. 94. Id. at 81 ("We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision [the Equal Protection Clause of the Fourteenth Amendment]. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other."). 95. Id. at 123 (Bradley, J., dissenting) ("It is fiitile to argue that none but persons of the African race are intended to be benefitted by this amendment. They may have been the primary cause of the amendment, but its language is general, embracing all citizens . . . ."). 96. See Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886). 97. Id. 98. Ho Ah Kow v. Nunan, 12 F. Cas. 252, 255 (C.C.D. Cal. 1879) (No. 6,546). 99. See United States v. Ark, 169 U.S. 649, 705 (1898); see also F. Michael Higglnbotham, Race Law: Cases, Commentary, and Questions 280 (4th ed. 2015) ("The majority of the justices [in Ark] reasoned that irrespective of cultural differences or lack of assimilation, the Fourteenth Amendment applied to all persons, irrespective of race, including Asian Americans."). 100. Brest et al., supra note 65, at 1082. 101. Id. 102. See Washington v. Davis, 426 U.S. 229, 238-39 (1976) ("As the Court of Appeals understood Title VII, employees or applicants proceeding under it need not concern themselves with the employer's possibly discriminatory purpose but instead may focus solely on the racially differential impact of the challenged hiring or promotion practices. This is not the constitutional rule. We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII, and we decline to do so today."). 103. See id. at 240 ("[T]he invidious quality of a law claimed to be racially discriminatory must ultimately be traced to

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a racially discriminatory purpose."). 104. See Grutter v. Bollinger, 539 U.S. 306, 326 (2003) ("We have held that all racial classifications imposed by government 'must be analyzed by a reviewing court under strict scrutiny.'"); Hernandez v. Texas, 347 U.S. 475, 479 (1954) (demonstrating that national origin is also a suspect classification subject to strict scrutiny); Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm'n, 138 S. Ct. 1719, 1734 (2018) ("[T]he government can prevail only if it satisfies strict scrutiny, showing that its restrictions on religion both serve a compelling interest and are narrowly tailored" (referencing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993))); Soskin v. Reinertson, 353 F.3d 1242, 1256 (10th Cir. 2004) (noting that while alienage is a suspect classification, discrimination among subclassifications of aliens is nonsuspect). 105. Brest et al., supra note 65, at 1362-63; see Clark v. Jeter, 486 U.S. 456, 461 (1988) ("Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy."). 106. Purvi S. Patel, Equal Protection, 8 GEO. J. GENDER &L. 145, 152 (2007). But see City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448, 450 (1985) (holding a city's requirement of a special permit for the construction of a group home for the mentally disabled unconstitutional as applied, using the "rational basis with a bite" standard). 107. See, e.g., Republican Party v. White, 536 U.S. 765, 774-75 (2002). 108. Craig v. Boren, 429 U.S. 190, 197 (1976). 109. SeeNordlingerv. Hahn, 505 U.S. 1, 11 (1992). 110. See, e.g., E.E.O.C. v. Catastrophe Mgmt. Sols, 876 F.3d 1273, 1274 (11th Cir. 2017) (holding that an employer's practice of forbidding dreadlocks, a protective hairstyle often worn by Black women and men, was not illegal because it did not explicitly discriminate on the basis of race). 111. See, e.g., Doron Samuel-Siegel et al, Reckoning with Structural Racism: A Restorative Jurisprudence of Equal Protection, 23 RICH. PUB. INT. L. REV. 137, 138 (2020) (arguing that the intent doctrine is partly to blame for the "failure to reckon with racism as it exists today"). 112. Andrew Hamm, Barnett on Original Meaning and the Privileges or Immunities Clause, SCOTUSblog (Nov. 5, 2015, 2:43 PM), https://www.scotusblog.eom/2015/l 1/barnett-on-original-meaning-and-the-privileges-and- immunities-clause/ [https://perma.cc/A2DP-E565] ("In the Slaughterhouse Cases of 1873, the Supreme Court upheld a Louisiana state statute granting a franchise to a single slaughterhouse in New Orleans and forbidding animal slaughter elsewhere in the city. The decision has been heavily criticized for ending Reconstruction by effectively removing the Privileges or Immunities clause from the Fourteenth Amendment.... [which has] remained noticeably absent from Supreme Court jurisprudence .... (That absence was made even more apparent by the presence in the audience of Justice Clarence Thomas, who in McDonald v. Chicago became one of the few Justices in history to cite the clause.)"). 113. Exec. Order No. 13,873, 3 C.F.R. §13873 (2020). 114. Id. at317-18. 115. Id. at317. 116. Notice on the Continuation of the National Emergency with Respect to Securing the Information and Communications Technology and Services Supply Chain, 85 Fed. Reg. 29,321 (May 13, 2020). 117. A/. 118. Exec. Order No. 13942, 85 Fed. Reg. 48,637, 48,637 (Aug. 11, 2020). 119. A/. 120. Id. ("TikTok also reportedly censors content that the Chinese Communist Party deems politically sensitive . . . ."). 121. Id. ("This mobile application may also be used for disinformation campaigns that benefit the Chinese Community party . . . ."). 122. Id. ("TikTok automatically captures vast swaths of information from its users, including internet and other

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network activity information such as location data and browsing and search histories. This data collection threatens to allow the Chinese Communist Party access to Americans' personal and proprietary information . . . ."). 123. Id. at 48,637-38. 124. Musical.ly was a Chinese social media platform on which users created, uploaded, and interacted with short lip- syncing videos. See Liza Lin &Rolfe Winkler, Social Media App Musically Is Acquired for as Much as $1 Billion, WALL St. J. (Nov. 9, 2017, 8:46 PM), https:// www. wsj .com/articles/lip-syncing-app-musical-ly-is-acquired-for-as- much-as-1 -billion-1510278123 [https://perma.cc/SCR8-8WNJ]; Dami Lee, The Popular Musically App Has Been Rebranded as TikTok, Verge (Aug. 2, 2018, 1:27 PM), https://www.theverge.com/2018/8/2/17644260/musically- rebrand-tiktok-bytedance-douyin [https://perma.cc/T7N3-QEVJ]. ByteDance Ltd. acquired Musical, ly in 2017, merging Musical.ly and TikTok in 2018. Id. 125. Regarding the Acquisition of Musical.ly by ByteDance Ltd, 85 Fed. Reg. 51,297, 51,297 (Aug. 19, 2020). 126. Id. (concerns are neither enumerated nor explained). 127. Id. ("The transaction resulting in the acquisition by ByteDance of Musical.ly, to the extent that Musical.ly or any of its assets is used in furtherance or support of, or relating to, Musical.ly's activities in interstate commerce in the United States ('Musical.ly in the United States'), is hereby prohibited, and ownership by ByteDance of any interest in Musical.ly in the United States, whether effected directly or indirectly through ByteDance, or through ByteDance's subsidiaries, affiliates, or Chinese shareholders, is also prohibited."). 128. Id. 129. Id. 130. Id. at 51,297-98. 131. Complaint, No. 2:20-CV-7672, supranote 11, para. 1. 132. Id. 133. Id. para. 5. 134. Identification of Prohibited Transactions to Implement Executive Order 13942 and Address the Threat Posed by TikTok and the National Emergency with Respect to the Information and Communications Technology and Services Supply Chain, 85 Fed. Reg. 60,061 (Sept. 21, 2020) (to be codified at 15 C.F.R. ch. VII). 135. Id. at 60,062. 136. Id. 137. Id. 138. See id. ("Any other transaction by any person, or with respect to any property, subject to the jurisdiction of the United States, with ByteDance Ltd., or its subsidiaries, including TikTok Inc., in which any such company has any interest, as may be identified at a future date under the authority delegated under Executive Order 13942."). 139. Plaintiffs' Notice of Voluntary Dismissal Without Prejudice Pursuant to Federal Rule of Civ. Proc. 41(A)(1) at 1, TikTok Inc. v. Trump, No. 2:20-CV-7672 (CD. Cal. dismissed Sept. 20, 2020). 140. Complaint, No. l:20-CV-2658, supranote 3, at 6 n.2. 141. Id. para. 83. Compare id. paras. 30-43, with Complaint, No. 2:20-CV-7672, supra note 11, paras. 27-36. 142. Plaintiffs' Application for a Preliminary Injunction &Request for Expedited Briefing &a Hearing at 1, TikTok Inc. v. Trump, 507 F. Supp. 3d 92 (D.D.C. 2020) (No. 1:20-CV-2658), 2020 BL 481945. 143. TikTok Inc. v. Trump, 490 F. Supp. 3d 73, 76 (D.D.C. 2020). 144. Notice of Appeal Oct. 8, 2020, TikTok Inc. v. Trump, 507 F. Supp. 3d 92 (D.D.C. 2020) (No. l:20-CV-2658), 2020 BL 481945. 145. Plaintiffs' Renewed Motion for a Preliminary Injunction Against Com. Dep't Prohibitions 2-5, TikTok Inc. v. Trump, 507 F. Supp. 3d 92 (D.D.C. 2020) (No. l:20-CV-2658), 2020 BL 481945. 146. TikTok Inc. v. Trump, 507 F. Supp. 3d 92, 115 (D.D.C. 2020). 147. Notice of Appeal Dec. 28,2020, TikTok Inc. v. Trump, 507 F. Supp. 3d 92 (D.D.C. 2020) (No. l:20-CV-2658), 2020 BL 481945. 148. Jacob Pramuk, Joe Biden Is Sworn in as President: 'Democracy Has Prevailed,' CNBC (Jan. 20, 2021, 8:51

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PM), https://www.cnbc.com/2021/01/20/joe-biden-sworn-in-46th-president-united-states.html [https://perma.ee/2XK3-4MMQI. 149. See generally Docket for TikTok Inc. v. Trump, 507 F. Supp. 3d 92 (D.D.C. 2020) (No. 20-5302) (D.C. Cir. dismissed July 20, 2021), sub nom. TikTok Inc. v. Biden; Docket for TikTok Inc. v. Trump, 490 F. Supp. 3d 73 (D.D.C. 2020) (No. 20-5381) (D.C. Cir. dismissed July 14, 2021), sub nom. TikTok Inc. v. Biden. 150. Exec. Order No. 14034, 86 Fed. Reg. 31,423, 31,424 (June 11, 2021). 151. Id. 152. Unopposed Motion Dismissed July 12, 2021, supranote 13; Unopposed Motion Dismissed July 14, 2021, supranote 13. 153. See Complaint, No. l:20-CV-2658, supra note 3, para. 7; Complaint, No. 2:20-CV-7672, xwpra note 11, para. 5. 154. See Complaint, No. l:20-CV-2658, supra note 3, paras. 89-108, 136-141; Complaint, No. 2:20-CV-7672, supra note 11, paras. 74-81, 115-129. 155. See Pembina Consol. Silver Mining &Milling Co. v. Pennsylvania, 125 U.S. 181, 188-89 (1888) ("The inhibition of the amendment that no State shall deprive any person within its jurisdiction of the equal protection of the laws was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation. Under the designation of person there is no doubt that a private corporation is included."). 156. See, e.g., Brown v. Bd. of Educ, 347 U.S. 483 (1954). 157. Exec. Order No. 13942, 85 Fed. Reg. 48,637, 48,637 (Aug. 11, 2020). 158. While case law does not explicitly state that corporations have national origins in the same way as natural persons, numerous cases exist in which Fourteenth Amendment protections are extended to both domestic and foreign corporations. See, e.g., Pembina Consol. Silver Mining &Milling Co., 125 U.S. at 189; Home Ins. Co. v. New York, 134 U.S. 594, 606 (1890); Louis K. Liggett Co. v. Baldridge, 278 U.S. 105, 111 (1928). Additionally, Title VII of the Civil Rights Act of 1964, like the Fourteenth Amendment, protects against discrimination on the basis of national origin, and defines protected persons under Title VII to include corporations. See 42 U.S.C. §2000(e)(a) (2018). Case law supports broad application of Title VII protection to nonnatural persons. See United States v. Milwaukee, 395 F. Supp. 725, 728 (E.D. Wis. 1975). But see Frey v. Hotel Coleman, 903 F.3d 671, 679 (7th Cir. 2018) ("Corporations do not have races, colors, religions, genders, or national origins."). 159. See, e.g., Hernandez v. Texas, 347 U.S. 475, 479 (1954). 160. See, e.g., Republican Party v. White, 536 U.S. 765, 774-75 (2002). 161. See Exec. Order No. 13942, 85 Fed. Reg. at 48,637. 162. See Nat'l Sec. Letter v. Sessions, 863 F.3d 1110, 1123 (9th Cir. 2017) ("[W]e readily conclude that national security is a compelling government interest."); Haig v. Agee, 453 U.S. 280, 307 (1981) ("It is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." (quoting in part Aptheker v. Sec'y of State, 378 U.S. 500, 509 (1964))). 163. Exec. Order No. 13942, 85 Fed. Reg. at 48,637. It could be argued that the executive order's language is ambiguous due to the commas used in section 1(a). Id. at 48,638. However, the preamble of the executive order is less ambiguous and seems to refer to TikTok and China specifically. Id. at 48.637. 164. See Complaint, No. l:20-CV-2658, supranote 3, para. 52; Complaint, No. 2:20-CV-7672, supra note 11, paras. 2, 4. 165. Complaint, No. l:20-CV-2658, supranote 3, para. 3. 166. Id. 167. Id. 168. Id. 169. See, e.g., Marquardt, supra note 8; Georgia Wells et al., Facebook CEO Mark Zuckerberg Stoked Washington's Fears About TikTok, WALL St. J. (Aug. 23, 2020, 8:33 PM), https://www.wsj. com/articles/facebook- ceo-mark-zuckerberg-stoked-washingtons-fears-about-tiktok-11598223133 [https://perma.cc/E93P-7J67]. 170. Paul D. Marquardt, Davis Polk, https://www.davispolk.com/lawyers/paul-marquardt [https ://perma.cc/C2G7-

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JJTC]. 171. Marquardt, supra note 8. 172. Id; see also Exec. Order No. 13,873, 3 C.F.R. §13873 (2020). 173. Marquardt, supra note 8. 174. Id. 175. Id. Such officials include former Secretary of State Michael Pompeo, former Treasury Secretary Steven Mnuchin, former White House trade adviser Peter Navarro, and Trump himself. Id. 176. Id. 177. Id. ("Trump has stated that as a condition to any divestiture of TikTok, '[a] very substantial portion of that price is going to have to come into the Treasury of the United States' rather than to the owner ByteDance."). 178. Id. 179. See Company Info, Facebook, https://about.ib.com/company-info/ [https://perma.cc/ER F3-4MRQ]. 180. Wells et al., supra note 169. 181. Id. ("The CEO's comments in Washington about the Chinese app were tied into Face-book' s campaign to blunt antitrust and regulatory threats by emphasizing Facebook's importance to U.S. tech pre-eminence . . . ."). 182. See id. 183. Id. 184. Wells et al., supra note 169; see Ryan Mac &Craig Silverman, Mark Zuckerberg Says a Ban on TikTok Would Set "A Really Bad Long-Term Precedent," BuzzFEED News (July 17, 2018, 4:38 PM), https://www.buzzfeednews.com/article/ryanmac/zuckerberg-facebook-all-hands-tiktok-ban [https://perma.cc/PX8W- J3TB]. For example, Zuckerberg expressed concerns that a TikTok ban in the United States could support a future ban of Facebook products in another country. Id. 185. Wells et al., supra note 169; see also Mac &Silverman, supra note 184. 186. See, e.g., Marquardt, supra note 8. 187. Both Trump and then Democratic candidate Joe Biden's campaigns focused on the issue of China leading up to the election. See Deb Riechmann &Jonathan Lemire, Trump, Biden Try to Outdo Each Other on Tough Talk on China, ABC News (July 12, 2020, 12:31 PM), https://abcnews .go.com/Politics/wireStory/trump-biden-outdo-tough- talk-china-71739227 [https://perma.cc/27H4-A8KA]. 188. Trump's supporters may have argued that securing his reelection is a compelling government interest. See Lew Jan Olowski, This Is Why Trump Should Be Reelected, Balt. Sun (Jan. 7, 2020, 12:17 PM), https://www.baltimoresun.com/opinion/op-ed/bs-ed-op-0108-reelect-trump-2020 0107-stryi5fes5gbxftv7pakeyj43m- story.html [https://perma.cc/3SNH-GQPF]. However, no case law supports the argument that one candidate winning an election over another is a compelling government interest; rather, it suggests the opposite. For example, in the famous fourth footnote of United States v. Carolene Products Co., the Court notes that any interference with rights crucial to the political process should be held to strict scrutiny. United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4 (1938). This suggests that while free and fair elections are compelling government interests, particular results of elections are not. 189. Catherine Shu &Rita Liao, Trump Signs Orders Banning US Business with TikTok Owner ByteDance and Tencent 's WeChat, TECHCRUNCH (Aug. 6,2020,7:27 PM), https://techcrunc h.com/2020/08/06/trump-signs- executive-orders-banning-transactions-with-tiktok-and-wechat/ [https: //perma.cc/2N73 -7KGV]. 190. See JEUNG ET AL., supra note 56, at 2; see also Marina Fang, Trump Is the Biggest 'Super spreader' of Anti- Asian Racism, Advocates and Scholars Warn, HuffPost (Oct. 21, 2020, 5:11 PM), https://www.huffpost.com/entry/trump-anti-asian-racism-covid-19_n_5f905c0fc5b62333b 24133f5 [https://perma.cc/ZSJ9-4KNA] (referencing "the alarming surge in anti-Asian racism related to the COVID-19 pandemic"); Covid-19 Fueling Anti-Asian Racism and Xenophobia Worldwide, supra note 56. 191. See Covid-19 Fueling Anti-Asian Racism and Xenophobia Worldwide, supra note 56. 192. Adam Smith, TikTok Ban: Why is Trump Considering Action Against Chinese App in US?, MSN (Sept. 14,

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2020), https://www.msn.com/en-xl/money/topstories/tiktok-ban-why-is-tram p-considering-action-against-chinese- app-in-us/ar-BB 190Ksq [https://perma.cc/6P7G-FAWG]. 193. Associated Press, Trump Orders ByteDance to Sell off US TikTok Assets, N.Y. POST (Aug. 14, 2020), https://nypost.com/2020/08/14/tramp-orders-bytedance-to-sell-off-us-tiktok-asset s/ [https://perma.cc/PSW9-F9TJ]; Echo Wang &David Shepardson, China's ByteDance Challenges Trump's TikTok Divestiture Order, Reuters (Nov. 11, 2020), https://www.reuters.com/article/usa-tiktok-idUSKBN27R07W [https://perma.cc/3DPN-Q3A4]. 194. David Nakamura, With 'Kung Flu,'Trump Sparks Backlash over Racist Language-and a Rallying Cry for Supporters, Wash. Post (June 24, 2020), https://www.washingtonpost.com/ politics/ with-kung-flu-trump-sparks- backlash-over-racist-language-and-a-rallying-cry-for-supporters /2020/06/24/485dl51e-b620-llea-aca5- ebb63d27elff_story.html [https://perma.cc/5DKU-PX8K]. 195. Donald Tramp, Tulsa Rally Speech (June 20, 2021) (transcript available at Donald Trump Tulsa, Oklahoma Rally Speech Transcript, REV (June 21, 2020), https://www.rev.com/blog/ transcripts/donald-tramp-tulsa-oklahoma- rally-speech-transcript [https://perma.cc/5DKU-PX8K]). 196. Donald Tramp, Remarks by President Tramp in Press Briefing (July 30, 2020) (transcript available at Remarks by President Trump in Press Briefing, WHITE HOUSE (July 30, 2020, 5:41 PM), https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-tramp-press-br iefmg-july-30- 2020/[https://perma.ee/AC6U-GSH2]). 197. Donald Tramp, Remarks by President Tramp in Press Conference (July 14, 2020) (transcript available at Remarks by President Trump in Press Conference, WHITE HOUSE (July 14, 2020, 5:29 PM), https://trampwhitehouse.archives.gov/briefings-statements/remarks-president-tra mp-press-conference-071420/ [https://perma.cc/F5NP-7CA5]). 198. Donald Tramp, President Tramp Remarks to Florida Sheriffs (July 31, 2020) (President Trump Remarks to Florida Sheriffs, CSPAN(July 31, 2020), https://www.c-span.org/video/747441 9-1/president-tramp-remarks-florida- sheriffs [https://perma.cc/N5SW-A2J5]). 199. Kylie Atwood &Stephen Collinson, Trump Administration Draws Up Plans to Punish China over Coronavirus Outbreak, CNN (Apr. 30, 2020, 2:51 PM), https://www.cnn.com/2020/04/ 30/politics/us-china-coronavirus-diplomacy- intelligence-donald-trump/index.html [https://perma.cc/ 2V5S-E3KR]. 200. Samuel-Siegel et al., supra note 111, at 170 (referencing Shaw v. Reno, 509 U.S. 630, 657 (1993) ("Racial classifications of any sort pose the risk of lasting harm to our society. They reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin.")); Palmore v. Sidoti, 466 U.S. 429, 432 (1984)) (citing Strauder v. West Virginia, 100 U.S. 303, 307-08, 310 (1880)) ("A core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race."). 201. Shaw, 509 U.S. at 657. 202. For example, one researcher noted: "African Americans are incarcerated in state prisons at a rate that is 5.1 times the imprisonment of whites. In five states . . ., the disparity is more than 10 to 1." Ashley Nellis, Sent'g Project, The Color of Justice: Racial and Ethnic Disparity in State Prisons 3 (2016), https://www.sentencingproject.org/wp- contenfuploads/2016/ 06/The-Color-of- Justice-Racial-and-Ethnic-Disparity-in-State-Prisons.pdf [https://perma.cc/38WE-D5AK]. 203. See, e.g., Christopher Uggen et al., Sent'g Project, Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction 11 (2020), https:// www.sentencingproject.org/wp- content/uploads/2020/10/Locked-Out-2020.pdf [https://perma.cc/S6 NY-6GQE] (demonstrating how "felony disenfranchisement provisions have an outsized impact on communities of color"). 204. William M. Wiecek, Structural Racism andtheLaw inAmerica Today: An Introduction, 100 Ky. L.J. 1,5(2011). 205. Id. 206. Id. at 6 ("Structural racism is invisible and operates behind the illusion of colorblindness and neutrality."). 207. Following from Wiecek's work, it seems reasonable to assert that "[fjraditional racism, of the Jim Crow, Ku Klux Klan variety," could be understood as a "conscious belief [of racial superiority/inferiority] and a will to act on that

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belief." Id. at 3. 208. See, e.g., McCleskey v. Kemp, 481 U.S. 279 (1987). In McCleskey, the Court affirmed the denial of the Black petitioner's application for a writ of habeas corpus on Fourteenth Amendment grounds by disregarding empirical evidence of racial disparities in the imposition of Georgia's death sentence. Id. at 279-80. These disparities were caused by structural racism, including racial biases against Black defendants held by predominantly white juries and judges. See generally David C. Baldus et al., Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. CRIM. L. &CRIMINOLOGY 661 (1983). 209. See Shaw v. Reno, 509 U.S. 630, 657 (1993). 210. Wiecek, supra note 204, at 2; see generally Ruth Benedict, Race: Science and Politics (1940). 211. Kathryn Stanchi, The Rhetoric of Racism in the United States Supreme Court, 62 B.C. L. Rev. 1251,1269 (2021). The word was used in a concurrence and a dissent, both authored by Justice Frank Murphy, on the same day. Steele v. Louisville &Nashville R.R. Co., 323 U.S. 192,209 (1944) (Murphy, J., concurring) ("The cloak of racism surrounding the actions of the Brotherhood [of Locomotive Firemen and Enginemen] in refusing membership to Negroes and in entering into and enforcing agreements discriminating against them, all under the guise of Congressional authority, still remains."); Korematsu v. United States, 323 U.S. 214, 233 (1944) (Murphy, J., dissenting) (Japanese wartime exclusion from the West Coast "falls into the ugly abyss of racism."). 212. Wiecek, supra note 204, at 2. 213. Id. at 2, 2 n.10 (referencing the majority opinion of Georgia v. McCollum, 505 U.S. 42, 58 (1992)). 214. See Grutter v. Bollinger, 539 U.S. 306, 377 (2003). 215. See id. 216. Ian F. Haney Lopez, Institutional Racism: Judicial Conduct and a New Theory of Racial Discrimination, 109 YALE L.J. 1717, 1722 (2000). 217. Id. 218. Works of this nature have become increasingly popular, especially in recent years because of the prominence and popularity of the Black Lives Matter movement. For example, Michelle Alexander's The New Jim Crow: Mass Incarceration in the Age of Colorblindness, originally published in 2010, has recently been billed as a must read. See, e.g., Ben Cost, 7 Books About Racism Every Adult Should Read Right Now, N.Y. Post (June 3, 2020, 7:18 PM), https://nypost.com/2020/ 06/03/7-books-about-racism-every-adult-should-read-right-now/ [https://perma.cc/7RBY-NGHQ]. 219. These problems of course manifest in the legal world but also affect other aspects of Americans' lives, including "housing, education, medical care, [and] nutrition." Wiecek, supra note 204, at 7. 220. See, e.g., Roberts v. Barbosa, 227 F. Supp. 20, 22 (S.D. Cal. 1964) (citations omitted) ("A complaint does not state a cause of action under the Civil Rights Act, absent allegations that the conduct alleged was in pursuance of a systematic policy of discrimination against a class or group of persons."). 221. Id. ("In a civil action for damages under the Civil Rights Act against public officials, highly specific facts are required to be alleged."). 222. Voting Rights Act of 1965, Pub. L. No. 89-110, §2, 79 Stat. 437, 437 (1965) (codified as amended at 52 U.S.C. §10301); Bush v. Vera, 517 U.S. 952, 976-77 (1996). 223. Rucho v. Common Cause, 139 S. Ct. 2484, 2508 (2019). 224. See Sara Tofighbakhsh, Racial Gerrymandering After Rucho v. Common Cause: Untangling Race and Party, 120 Colum. L. Rev. 1885, 1886-87 (2020) (discussing the difficulty in distinguishing racial from political motive in gerrymandering). 225. See Ilya Shapiro &Josh Blackman, The Once and Future Privileges or Immunities Clause, 26 Geo. Mason L. Rev. 1207, 1208 (2019) ("With this one-two punch [the Supreme Court's decisions in the Slaughter-House Cases and Cruikshank], the cornerstone of the Fourteenth Amendment [the Privileges or Immunities Clause] was forgotten. The Supreme Court would not revisit these decisions until 2010 . . . ."). 226. See Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015).

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227. Indeed, the term "privileges or immunities" is not even included in the majority opinion of Cruikshank-it is only used in Justice Nathan Clifford's dissent. See United States v. Cruikshank, 92 U.S. 542, 563 (1876) (Clifford, J, dissenting). 228. In McDonald v. City of Chicago, Justice Thomas concurred in the plurality opinion and argued that "the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment's Privileges or Immunities Clause." See McDonald v. Chicago, 561 U.S. 742, 806 (2010). Employing originalist theory, Justice Thomas explained that ordinary citizens at the time of the Fourteenth Amendment's adoption would have understood the Clause as protecting the right to keep and bear arms. Id. at 837-38. In summation, Justice Thomas argued that the Court should distinguish the Slaughterhouse Cases and overrule United States v. Cruikshank. Id. at 855, 858. Additionally, in Ramos v. Louisiana, Justice Thomas' concurrence argues that the Sixth Amendment's protection against nonunanimous felony jury verdicts also applies to the states through the Privileges or Immunities Clause. See Ramos v. Louisiana, 140 S. Ct. 1390, 1421 (2020) (Thomas, J., concurring). 229. Samuel-Siegel et al., supranote 111, at 140 n.14. 230. Charles Lawrence III, Unconscious Racism Revisited: Reflections on the Impact and Origins of "The Id, the Ego, and Equal Protection," 40 CONN. L. REV. 931, 955 (2008) ("We have the 14th Amendment only because we had slavery and a war that ended slavery. The origin is anti-racist, the Court's interpretation is not."); see also Wurman, supra note 64. 231. Lawrence, supra note 230, at 931. DETAILS

Subject: White people; Immigration policy; Asian people; Racism; Immigrants; Pandemics; Noncitizens; Jurisprudence; Citizenship; Asian Americans; Executive orders; Manual workers; Murders &murder attempts; State court decisions; COVID-19

Business indexing term: Subject: Manual workers

Location: United States--US; Detroit Michigan; China; California; Japan

Company / organization: Name: TikTok Inc; NAICS: 518210; Name: Bytedance Ltd; NAICS: 513210, 518210; Name: Congress; NAICS: 921120

Publication title: Jurimetrics; Chicago

Volume: 62

Issue: 1

Pages: 49-75

Publication year: 2021

Publication date: Fall 2021

Section: COMMENTS

Publisher: American Bar Association

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ProQuest document ID: 2614661106

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