For the venerable American Civil Liberties Union, Donald Trump’s four years in the White House had the intensity of life during wartime.
The group filed its first lawsuit against the Trump administration on January 28, 2017, just eight days after Trump took office and one day after he promulgated his first attempt at banning the entry into the U.S. of travelers from several Muslim-majority nations.
The pace of the organization’s legal combat against Trump never let up. Ultimately the ACLU filed more than 250 lawsuits against Trump’s administration on issues as varied as immigration, abortion, contraception, fair housing, and the rights of racial-justice protesters forcibly dispersed by federal troops around the White House.
Like environmental groups, media outlets, and other institutions to the left of center in American politics, the ACLU experienced a renewed burst of relevance and visibility during the Trump years. Fueled by the demand for unstinting “resistance” from the many voters and donors stunned by Trump’s election and horrified by his actions, the group’s staff during his presidency roughly doubled, its budget nearly tripled, and its membership increased by a factor of four. The ACLU won some big cases (overturning Trump’s policy of separating migrant parents from their children and blocking his effort to add a citizenship question to the census) and lost others (the Supreme Court eventually upheld Trump’s third try at the Muslim ban after courts rejected two earlier iterations). The fights placed the ACLU at the center of the political arena, nearly 100 years after it was founded, in 1920.
[From the January/February 2024 issue: Civil rights undone]
In an interview last week, Anthony D. Romero, the ACLU’s longtime executive director, told me that he believes protecting civil liberties will be even harder if Trump wins a second term in November. I spoke with Romero about the challenges that a reelected Trump could pose to rights and liberties, how the ACLU is already coordinating with other advocacy groups to develop plans for fighting Trump’s agenda in the courts, and why Romero thinks legal battles may be less important than public protest in determining how American democracy will look in 2029 if Trump wins.
The following conversation has been edited for length and clarity.
Ronald Brownstein: When you look across both what Trump has explicitly already said and what you see unfolding in the red states as a template, what are you most concerned about in terms of civil rights and civil liberties in a second Trump term?
Anthony D. Romero: Our greatest concerns have to do with the areas where Donald Trump already has a track record. Clearly, we expect him to double down on the immigration issue. It is the centerpiece of his “Make America great again” ideology. The Muslim ban was the first executive order he signed.
We can expect a militarization of the border, the third-country transit ban, the shutting down of asylum. This time, he’s likely to make good on his promise to create a deportation force and enact nationwide deportations. So immigration will be front and center.
A second issue will be abortion, because it is animating politics in the Republican Party. Trump is already playing with the idea of a federal abortion ban—whether it’s 14 weeks, 15 weeks, he hasn’t made up his mind yet—but it’s clear that is the direction he’s going to be pushed into by his party.
Brownstein: Will he also face greater pressure in the party for executive-branch action on abortion?
Romero: Correct. Whether it’s mifepristone, the Comstock Act, restrictions on the U.S. Postal Service—you bet.
Certainly he will address the other culture-war grievances from the Republican Party: restrictions on gender-affirming health care for transgender individuals; attacks on diversity, equity, and inclusion; the attack on birthright citizenship. He said it was a target when he was running for office the first time around, but he didn’t do anything on it; this time he is more likely to. Birthright citizenship, in addition to it being at the core of the immigration issue, is also at the core of race relations and racial justice. It was the way that America converted African slaves into U.S. citizens. It is hallowed ground for the civil-rights community, which is an invitation for him to trample all over it.
The final set of buckets, I would say, would be around his weaponization of the Department of Justice to go after his political adversaries; his threatened use of the Insurrection Act to curtail demonstrations; the threat to use police and even the National Guard to deal with crime in blue cities. He’s going to want to pick a fight in blue-state jurisdictions and use the power of the federal government to do so.
Brownstein: Another area, I suppose, in immigration would be allowing red states to enforce the immigration laws?
Romero: I think he will endeavor to enact the restrictive policies for them. But if he gives the red states the carte blanche to do what they want, then it’s going to be hard for him to curtail the blue states from enacting sanctuary-city laws. Consistency has never been an impediment to Trump, but from a legal-theory point of view, I’m not sure he is going to want to throw away the preeminence of the executive branch by allowing the state governors to usurp the federal-government role. I think he’s going to want to fill that role himself.
Brownstein: Why do you think that this term could be more difficult even than his first?
Romero: I think the adults in the Republican Party are not going to get in the room with him this time. I think you will only have the most zealous and ideological of players join a second Trump administration, and the institutionalists and the establishment types who curtailed his worst abuses will be in a form of exile even while they are in power.
The retirement of Mitch McConnell, health issues aside, points to this very issue: The institutionalists and the establishment Republicans are not going to populate the administration and the Cabinet the way they once did. Stephen Miller will be more like the norm rather than the exception.
Then I think they are going to be smarter and more experienced and therefore more effective the second time around. They are not going to make rookie mistakes like the Muslim ban—the fact that it took them three tries to perfect it. I think you see a greater level of focus even in what he talks about on the campaign and the [lack of focus] that was endemic to Trump One might be mitigated with greater discipline and greater focus the second time around.
Brownstein: In the interview where Miller laid out in remarkable detail their plans on mass deportation, he also said, We’re going to be doing so many things at once that no one can respond to, and that is part of the strategy.
Romero: I don’t doubt it. And in some ways, they have finally woken up to the fact that what they have on their side is the scale of the federal government. It was always a bit astonishing to me that we could make as much progress as we could in Trump’s first term, given the awesome asymmetry between the power of the federal government and the power of civil society.
Brownstein: What is your feeling about the kind of bulwark the Supreme Court will be for civil liberties?
Romero: I am worried, and yet I think we must give it our best shot. At this point, all we need to do is get to five [votes on the Supreme Court], and on any case or controversy, the point is, what other two justices can you peel away [to join the three Democratic-appointed justices]? I’m not willing to give up the litigation ghost in a second Trump administration. At some level, all we must do is survive four years; we don’t have to survive eight years of Trump. All we have to do is play for his final four years, because that’s all he’s got.
Brownstein: What do you consider potentially the most volatile or incendiary of his proposals? To me, the various ways in which he is talking about using federal forces in blue cities seems the most explosive.
Romero: Definitely. The deportation force can implicate 11 million to 13 million undocumented people. Remember that undocumented people live in families and communities alongside many American citizens, so the level of disruption when you start ripping out people who don’t have legal papers can be extensive.
[Ronald Brownstein: Trump’s ‘knock on the door’]
Certainly, the power of the National Guard and use of the Insurrection Act put a lot of things at his fingertips that are incredibly worrisome. That’s why litigation, I think, will be important; litigation preserves the status quo, litigation takes time, and when you are buying time, that is a good thing.
Litigation also helps focus public attention. Part of what happened in the first Trump administration is the avalanche of Trump policies and outrages became a little numbing for the public at one level, and yet with litigation, you could really focus a spotlight on key policies. Family separation is an example I would use: The litigation that we filed engendered such a public outcry that even Trump himself had to backtrack on the policy.
But lawyers are going to play a much less important role in a second Trump administration, because of the specter of a much more consistent and greater assault on civil liberties and civil rights. That’s where you really have to convert the public into a protagonist and not a spectator. And you saw elements of that in the first Trump administration. The women’s marches were largely a spontaneous outburst of energy from constituents. Certainly, the George Floyd protests that happened in the summer of 2020, in the middle of a global pandemic, were also an indication that people were willing to take to the streets on issues that really mattered to them. I’ve got to believe that we’ll have the potential of mobilizing the public in that way. Part of what we’ve got to do is get ready for that kind of energy and activism that will be beyond any of our control—the work we have to do as legal observers on protests, know-your-rights training.
Brownstein: Is that under way?
Romero: We’re beginning to map that out—what we need to do, and relationships we need to build.
Brownstein: If Trump wins, I don’t know if he does everything that he’s saying. But if he does even two-thirds of what he is saying, what do blue state governors like J. B. Pritzker, Gavin Newsom, and Kathy Hochul do? What do their attorneys general do? How much pressure could Trump put on the fundamental cohesion of the country if he follows through on this idea of using federal force in blue jurisdictions?
Romero: The real wild card is the extent to which it devolves into a confusing chaos or even violence, in which case Trump’s use of the executive powers will look more justifiable in the eyes of ordinary Americans. Remember the play he made around [sending federal forces to quell the 2020 protests in] Portland? There was an element of Trump’s actions in Portland that resonated with the American public. In some ways, the greatest danger is when Trump’s extreme policies tap into the commonsense reactions of the American people, when he truly is playing the populist role. That’s what I think is the most dangerous.
Brownstein: How different could America look after four years of another Trump presidency? And what do you think could be the most important differences from where we are now that we might face?
Romero: I think we could very much be on the brink of losing our democracy and losing certain rights and liberties that would be lost for a generation. I am not one given to hyperbole, especially in the face of real threat, but the efforts to curtail protest and demonstrations; the promise to enact gestapo-like searches and deportation forces; the enactment of federal bans on reproductive rights or gender-affirming care or diversity-and-inclusion efforts could fundamentally change the way that we think about rights and liberties in the United States.
Right now, we bemoan the idea that our zip code determines our rights and liberties. That if I am 10010 in New York—my zip code—I am de facto going to have a much greater enjoyment of rights and liberties than if I were in a zip code in Alabama or Mississippi. And the challenge with a second Trump administration is that rights and liberties may be lost even in blue states. We are already living with a status quo where rights and liberties are curtailed in red states, but it’s the metastasis into blue states and liberal and progressive jurisdictions that is perhaps the most concerning.
