ACLU President Deborah Archer speaks at the Aspen Ideas Festival.Daniel Bayer/Aspen Ideas Festival
During the four years of the Trump presidency, the American Civil Liberties Union (ACLU) filed more than 430 legal actions against the Republican administration.
In preparation for the possibility of Trump winning a second term, the organization is gearing up again for a busy time, laying out potential legal and advocacy actions.
The hope of publicly speaking about the plan, ACLU President Deborah Archer says, is to offer “a glimpse into the power potential and the ability we have to fight back.”
During Trump’s first term, several of the ACLU’s lawsuits opposed his immigration agenda—such as family separation and the travel ban on foreigners from Muslim-majority countries—with varying degrees of success. The organization hopes to build on the lessons learned.
If Trump returns to the White House, the ACLU would challenge his proposed mass deportation and detention proposals on several legal bases, including by arguing they would violate constitutional protections against unreasonable searches and seizures. The group is also prepared to protect reproductive rights, including by going to court to stop the weaponization of the Comstock Act to ban abortion nationwide.
That’s not to say the ACLU won’t be alert if President Joe Biden were to win re-election. The organization recently sued the administration over a rule restricting access to asylum at the southern border. And they would continue to challenge his administration on other key issues.
Archer spoke with Mother Jones at the Aspen Ideas Festival about the ACLU’s plan. The event by the Aspen Institute celebrated 20 years with the theme “Bright Minds for Dark Times.”
This conversation has been edited for length and clarity.
When Trump was first running for president, the ACLU warned that his proposed policies, if implemented, would trigger a constitutional crisis. What is at stake with this election?
I think a lot of people say that our democracy is at stake and some people say that they’re exaggerating, that that’s an overstatement. I don’t know that that’s an overstatement. I think democracy is fragile. We have to work to protect it every day. We can see in so many ways that the foundation is being threatened. Our democratic institutions, our processes for political participation and engagement in our democratic systems, our democratic norms are all at issue in this election. The ACLU is not a partisan organization and we don’t endorse or oppose candidates for office. But I think when you look at what Donald Trump has said and plans that [the campaign] have for a possible second term, we can see that there are not only lots of potential threats to our democracy, but threats to civil rights and civil liberties more broadly.
That’s not to say that there wouldn’t be challenges with a second Biden administration. Biden has not been perfect. Some of the ways that the administration is responding to challenges around immigration, we think are not respecting the Constitution and federal laws. He’s not doing enough to ensure protections for voting rights and to rebuild the Voting Rights Act. We think there’s more that the federal government could be doing to protect access to abortion care. Some of it is that he’s not using all the levers and all the power that the federal government holds to protect civil rights and civil liberties. But there are also opportunities.
Like he did in 2016, Trump is once again vowing to mass deport millions of undocumented people from the country. He didn’t do it while he was president, but is there reason to believe he might be better equipped to pursue that now?
I think people recognize that Donald Trump cannot actually implement his plans around immigration without violating the Constitution and federal laws and upending due process. They will definitely be better prepared. We are hearing conversations where they have learned from the mistakes and the challenges in that first Trump presidency and are trying to figure out ways to get around the roadblocks that were placed in front of them to try to have different personnel in place to be able to implement their vision more easily.
We also have to acknowledge that Donald Trump had an impact on the federal courts. We certainly have seen cases where judges have ruled against what we think is the law. But at the same time, we’ve seen Trump-appointed judges who we think have stepped up to protect civil rights and civil liberties.
The courts are not a lost cause at all. At the same time, we know the fight will not just be in the court, but we have to be prepared to engage at the legislative level, at the advocacy level, activating and supporting communities to do some of the work to challenge those policies.
And we’ll be better prepared as well.
Former Trump officials have spent the past several years planning and laying the groundwork for Trump to take his plans even further. How is the ACLU preparing for a potential second Trump presidency?
We are again releasing memos focused on the two likely nominees for the major parties. We will eventually be releasing 13 memos in total—six for President Biden and seven focusing on Donald Trump. There are six things that they have in common: immigration; reproductive freedom and access to abortion care; voting; criminal legal system reform; surveillance, protest, and free speech; and LGBTQ rights.
In addition to those six that we’re looking at for both candidates, we’re looking at Diversity, Equity, and Inclusion (DEI) for Donald Trump. I think we’re seeing attacks on every tool that we have been able to use to help increase access to opportunity to make our society more racially equitable and to encourage diversity. Certainly, it started out in the education space, but it is moving to every realm. They are attacking those efforts that public institutions and private institutions are taking to live up to the promises of our multiracial democracy. We are seeing those efforts expand into challenges to what communities can do to support themselves. I think some of it is really driven by a society that is more diverse and more inclusive than it has ever been and we’re seeing a reaction to that—a retrenchment in response to that progress.
Do you see a throughline between the Supreme Court decision ending affirmative action in higher education and the attacks on DEI?
The folks who want to limit access to educational opportunities for people of color are the same folks who want to limit conversations around race and LGBTQ rights in classrooms. It’s all part of the same philosophy and different parts of a multi-pronged plan of attack.
The election is obviously important, but how do we strengthen protections to civil rights and liberties moving forward regardless of who wins in November?
People have put a lot of focus on presidential elections, which are incredibly important. Presidents hold a lot of power. But I think after the pandemic, we saw the power that states hold. We’ve seen the power that local governments hold. When you look at the rash of anti-trans legislation that we’re seeing, it’s happening at the state level. When we look at some of the most restrictive voting rights efforts, that’s happening at the state level. Putting all of our focus on what’s happening at the federal level lets a lot of discrimination and equality oppression go unchecked. We certainly are equipped—we have affiliates in all 50 states—and we’re ready to focus on that.
I agree that we’re focusing a lot on this election. Some of it makes it seem like everything was perfect before Trump, that Trump created this. But all of this was there: the discrimination and pushback was all there beforehand. And it’ll be there whether or not he’s in office. To put all of our focus on him could give a false sense of security that if he is not elected, our civil rights and civil liberties are secure. They’re not—because there are lots of forces that are attacking our fundamental rights.
