As Donald Trump rises to the presidency, backed by a Republican Congress with little appetite for oversight, millions of Americans are looking to the judicial branch to prevent American democracy from jumping the rails.
The American Civil Liberties Union is eager to leverage the courts and the Constitution to block the most dangerous parts of Trump's agenda. The group is meeting this moment of crisis with swagger: Hours after Trump won the election, it began circulating an image of the president-elect's face superimposed with the message "SEE YOU IN COURT."
Anthony Romero is the ACLU's 51-year-old executive director, a post he's held since shortly before the 9/11 attacks. The civil liberties crisis that followed under President Bush caught the progressive universe flat-footed – it would take years of litigation by the ACLU and others to expose, and begin to roll back, unconstitutional abuses like the CIA's torture program and NSA's warrantless mass surveillance.
Under Trump, the ACLU is braced and ready from day one, anticipating an onslaught of illegal and unconstitutional orders and policies. The group has been using the transition period to staff up and to prepare legal strategies that Romero believes can block many Trump abuses before they begin. It's also sounding the alarm about Trump cabinet picks: The ACLU's national legal director will be testifying at the confirmation hearing of attorney general nominee Jeff Sessions this Wednesday, highlighting the Alabama senator's "hostility to civil rights and civil liberties."
Rolling Stone caught up with Romero to ask how his group understands the Trump threat, its plan for slowing down the new president's 100-day blitz and the long game for limiting the damage of a president who's openly hostile to essential American liberties.
What do Americans need to brace for under President Trump?
We have to take President-elect Trump as his word – and his words have been crystal clear. His policies on immigration, Muslims, torture, freedom of speech and criminal justice all point to very troubling changes in the stance of the federal government. Taken together, they represent an enormous civil liberties crisis.
The challenges cannot be overstated. You're talking about the rights and lives of millions of Americans at stake, whether they be Muslims or undocumented immigrants or women. But given the fact that the Trump agenda affects millions, there's also a great possibility for resistance – citizen action and legislative action and litigation – as a result.
Give us examples of the threats you see.
Trump wants to deport close to three million undocumented immigrants who have criminal records. That scale of deportation would be unprecedented in American history. Even president Obama's deportation machine – which has been in high gear for the last eight years – has only deported a fraction of that number. The manner in which the Department of Homeland Security would have to undertake such deportations raises significant constitutional questions around racial profiling, unreasonable searches and seizures, and dragnet deportation raids.
The proposed plan to ban and surveil Muslims raises significant civil liberties concerns. To target one group because of their religious affiliation would run in the face of First Amendment protections of freedom of religion. Racial and ethnic profiling would put local law enforcement and federal law enforcement officials at odds with the very communities they're there to serve.
Take also the promise to defund Planned Parenthood. The impact on reproductive health services and clinics cannot be overstated. It's hard to imagine how these clinics remain open. You'd find clinics closing especially in places where it's already hard to find abortion services. And you're likely to find state officials who will enact even more restrictive abortion laws.
How confident are you that Trump's loose talk – on torture, say – can be blocked before it becomes policy?
I still put great stock in the system of checks and balances. There are nodes of dissent in the Republican Party. Senators like John McCain would certainly be averse to any decision to use torture or waterboarding to interrogate terrorism suspects. And there are others: Rand Paul on issues of surveillance, Susan Collins on questions of reproductive right and abortion rights. So Congress must play its proper check-and-balance role when the president begins to walk down an unconstitutional path.
The courts provide the most important avenue to stop President Trump from making good on his campaign promises. Even with the increasingly conservative federal judiciary, we can raise the fundamental constitutional questions involving the First, Fourth, Fifth, Eighth, and 14th Amendments.
Is the ACLU going to be able to preempt some of what's coming?
We're looking at a wholesale campaign to resist these policies. We're organizing our legal strategies and theories, and developing the cases which we know we'll have to bring.
Some of them we'll try to bring preemptively, to hold off the worst of the policies from taking effect. Some of them will be brought right as the policies are taking effect, to try to deprive the Trump administration of momentum.
On day one, we can anticipate executive orders that Trump will enact or roll back. Protections for the DREAMers [undocumented Americans brought to the U.S. as children] were established by executive order under Obama. If Trump removes them, we're looking at legal theories to possibly jump into court right away.
Is there muscle memory from the ACLU's work during the Bush administration that's helpful now?
The events of 9/11 – nobody could really anticipate what was on the horizon. Within a month after the 9/11 attacks, we saw the enactment of the USA Patriot Act. This time around, we can clearly see the writing on the wall. We're using the time between the election and inauguration so we're prepared from day one. We can staff up properly in the key geographies that are likely to be heavily impacted by Trump policies – especially along the U.S.-Mexico border on immigration issues. We're making outreach to different Muslim and immigrant communities.
What's notable, too, comparing the 9/11 world to the Trump era: the implications for the rights and lives of millions of Americans are much greater now. In the aftermath of 9/11, there were thousands of immigrants who were deported and several hundred placed in detention at Guantanamo. But the bulk of the national security policies placed into motion by President Bush didn't have a direct impact on the lives of Americans the way that these policies espoused by President-elect Trump will.
Trump seems to delight in thumbing his nose at established rights. Take his tweeted threat to imprison and strip the citizenship of people who burn the flag.
It's breathtaking. That is very well established law, at the highest level of our court system. A conservative Supreme Court rendered a decision that [flag-burning] is protected speech. Even for him to just tweet that as an offhanded statement shows a disregard for established law or established rights. It begins to echo a much more authoritarian political climate than anything we've seen for years.
Your "See You in Court" campaign has swagger to it. Are you confident?
So much of what President Trump is proposing is flat-out unconstitutional and illegal. The jailing and revocation of citizenship for U.S. citizens who burn a flag is unconstitutional and contrary to established law. That wouldn't be hard to stop dead in its tracks. The invocation of the use of torture or waterboarding is patently unconstitutional and violates international treaties that the U.S. government has signed.
In other places, it's newer terrain. We still think we have the good arguments on our side. The ban on Muslims we think would run afoul of the First and Fifth Amendment protections of American Muslims. But that may take more time. Litigation does take time.
You brought up 9/11 earlier. Do we need to be concerned about how President Trump could take advantage of a crisis to advance an authoritarian agenda?
The policies already espoused by President-elect Trump are breathtaking given the economic and political climate of the country – this moment of relative peace and economic prosperity. With wars or with a domestic terrorist attack, those policies could become supercharged. And then the ideologues that Trump seems to be appointing in top government positions are more likely to exploit the crisis to the advantage of their political agendas.
Part of what we need to do now is to reinforce the understanding of the wrongheadedness of Bush-era proposals – many political leaders of both the left and the right now believe that we went too far in the aftermath of 9/11.
Civil disobedience and direct action are on the rise. How should protestors approach the Trump presidency?
Our priority in the short term is defending the ability of the American public to speak freely, associate freely and petition their government. This is an essential check on government overreach – an essential part of keeping the democratic ecosystem alive and thriving.
That's why the statements of President-elect Trump –threatening to revoke citizenship of Americans who burn the flag or the castigation of the Hamilton cast for their statement to Vice President Pence – are incredibly troubling. They are indications of a complete lack of respect for basic rights. The were many demonstrations against President Bush and his wars overseas, both in Afghanistan in Iraq. Yet there wasn't the official condemnation of the protestors that we're now finding in the early days of President-elect Trump's tenure.
When we begin to shut down freedom of speech or freedom of association – those really are the canaries in the coal mine. If protesters' rights are trammelled or they're intimidated or they self-censor, then we're in for even darker days ahead of us.
The ACLU is nonpartisan. It doesn't historically favor or oppose cabinet nominations. But it's waving red flags about the nomination of Jeff Sessions for attorney general. What has you concerned?
The position of attorney general is very unique – the job is to rise above partisan politics and protect the rights of everyone, and not fall prey to the partisan politicking of other cabinet-level posts. Our attorneys general over time have shown much more independence from their presidents – take Janet Reno, for example, with Bill Clinton.
The appointment of Sen. Sessions raises fundamental questions about his commitment to civil rights and the enforcement of civil rights laws. It raises questions about how he would approach criminal justice. His past statements – even calling the ACLU "un-American" or a "communist" group – show what little regard he has for private organizations that play an indispensible role in the political process.
We don't take a position for or against. But Republicans and Democratic senators must probe Sen. Sessions on his suitability for discharging the oath of the country's highest-ranking law enforcement officer. We have to make sure that this person is willing to uphold all the laws that are on the books, and not just the laws he agrees with.
Trump takes the oath of office on January 20th. Walk us through the ACLU's strategy.
The actions of his administration the first 100 days will set the tone for what else comes the next several years. There will be a ferocious number of policy proposals in the first two years, to make the most use of Republican control of the Oval Office and the two branches of Congress. They understand that time is of the essence. And that's precisely why we have to be ready to hold them back.
Republicans slowed down Obama's proposals through litigation for many years – everything from immigration reform to health care reform to LGBT rights. The same strategy that Republicans used so effectively trying to gum up the Obama machinery is precisely what we're going to be doing, to forestall the ability of the Trump administration to make good on its plans.
We will pick battles with areas of established rights that give us an ability to jump into court and contest the legality of the Trump administration's actions. Whether President Trump likes it or not, there are key First Amendment rights that no president can revoke from an American citizen. The rights of protesters – clear rights of freedom of speech, association, the right to petition one's government. There are key prohibitions against the use of torture or cruel punishment. Even immigrants have certain due process rights that have been recognized by the Supreme Court, which will have to be enforced.
We welcome that opportunity, because we believe that our knowledge of the law and our ability to bring lawsuits all across this country is unprecedented. We are the world's largest public-interest law firm, and this is what we're here for – precisely in times of crisis like this.