This week: The latest in the TikTok wars and a breakdown for why the in-person deposition could go extinct. Plus, could a federal mask mandate legally happen?
Remember a year ago when the only news about TikTok centered on Mariah Carey dance competitions?
Well, in TikTok’s latest competition against the Trump administration there’s a new dance. Let’s call it the legal shuffle.
Yep, TikTok filed a lawsuit: It seemed inevitable after a White House executive order from earlier this month banned the app in America, effective mid-September. The company is seeking a permanent injunction of the order.
TikTok’s claim is based on two main points: First, it accuses the White House of violating due process by not allowing TikTok to respond to accusations. Second, it accuses the White House of misusing the International Emergency Economic Powers Act, which is the basis of the executive order.
TikTok is calling the administration out for politics, too
According to Reuters, TikTok described the White House’s actions as part of “a broader campaign of anti-China rhetoric” intended to influence the upcoming election.
Some 10,000 jobs could be on the line if a Trump ban goes through, according to TikTok. The lawsuit is running up against the deadline of the executive order and a November deadline by which Trump wants TikTok to be sold from its Chinese parent company.
A Joe Biden presidency could mean a federal mask mandate. The Democratic presidential nominee has included such a mandate as part of his pandemic plan. Could he actually do it, though?
States certainly have the power. But there are essentially two opposing legal views at the federal level:
The no way, not even through the Interstate Commerce Clause view
Writing for the Orange County Register, two California law professors spelled out why they believe the president and likely not even Congress could apply a blanket mask mandate.
There’s no presidential power: They argue a mandate does not fall within the range of a president’s executive order power and there is no Congressionally passed law for a president to enforce.
A limited Congressional mandate: The Interstate Commerce Clause, if Congress is interpreted as having power over any intrastate activity with a wide economic effect, could be used. But the professors note that the Supreme Court has backed away from such a wide interpretation in recent years.
The maybe, if you consider an obscure health law view
Section 361 of the Public Health Service Act allows the Secretary of Health and Human Services “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries . . . ”
The president, according to constitutional scholar Kevin Wagner, could work through the HHS to enact the mandate. However, it would likely create a court challenge.
In-person depositions were as much a tradition of law as the suit. After coronavirus, they may be an artifact, according to Law360.
Depositions have been one of law’s most change-resistant traditions: They tend to involve exhibits that are best distributed in person and are generally played back at trials through video, which used to require an in-person deposition. Lawyers also like to be in the same room as their clients.
But video conference technology hasn’t prevented any of that from happening: Lawyers can still swap exhibits by sharing screens, they can enter separate “rooms” to pull aside clients and they can record the video deposition. Coronavirus basically introduced lawyers to a technique they should have been following for years.
States have already extended remote deposition laws
Florida needed a state Supreme Court decision for video depositions to happen. That decision has now been extended and is expected to last even longer.
The top reason for the remote deposition’s staying power could be client cost. While attorney fees should remain the same, clients will have far fewer miscellaneous costs to pay.
What else we're forwarding
Covid-related cuts are on the decline: Some law firms are even reversing earlier cuts.
Still, it hasn’t been safe for everyone in the legal field: Partners of Big Law are being dropped at record rates this year, particularly those considered unproductive. One member of a top 100 firm told Law.com, “there’s nothing like a good disaster to get things in order.”