The A.C.L.U. v. Trump 2.0
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In Donald Trump's first term in office, the American Civil Liberties Union, the ACLU, filed 434 lawsuits against the administration. They included suits against the so-called Muslim ban, family separation at the border, and many more. There is no telling how many lawsuits they will file in a second Donald Trump administration. The executive director of the ACLU is Anthony Romero.

Romero has held the job since 2001, September 2001 to be exact. He started in the role just a few days before the September 11th attack. Romero has done the job under four presidents. Since Donald Trump's second inauguration, the ACLU has filed suits to block executive orders ending birthright citizenship, defunding gender-affirming health care, and much more. I spoke with Anthony Romero last week.

Let's begin with the most essential question, legal and political. Are we less than a month into the Trump administration, the second Trump administration, on the brink of a constitutional crisis? I think we could very well be there. We're at the Rubicon.

Whether we've crossed it is yet to be determined. Well, describe what the Rubicon is. What is the Rubicon? The Rubicon is the flagrant abuse of judicial power. If the Trump administration decides to run the gauntlet and openly defy a judicial order in a way that is not about an appeal, it's not about clarifying, it's not about getting a congressional fix, but an open defiance to a judicial order, then I think we're there.

What are the issues where that's a possibility? Well, there are 40 cases, David. There have been a bunch of lawsuits around the Doge and whether or not the Doge and Elon Musk have overextended their power. This is the Department of Government Efficiency led by Elon Musk. Exactly. There are some who say that they're violating the Privacy Act, that they're accessing personal identifiable information on American citizens. There are social security numbers, there are tax returns, all sorts of information that are in the government data banks.

Now, whether or not they've actually accessed that, whether there's harm, whether or not the individuals who are bringing cases have standing, those are all to be determined by the judges. But there are about four cases, I think, that have been filed there thus far.

Then there's all the questions around shutting down or the closure of grants from the federal government, from USAID and other agencies. This is considered illegal by legal experts because... Congress appropriates the money. Right. It's not the president's power to rewrite the appropriations from Congress. Now, you have the vice president of the United States saying the following. Judges are not allowed to control the executive's legitimate actions.

What say you as the head of the ACLU?

then I think the courts or Congress often give them the room for. We've seen the Republican Party become the party of Trump, and its awareness that if they defy Trump in any way, they're going to lose their seat doesn't give you a lot of confidence, does it? The other thing to play on confidence is

Look at the Supreme Court, the Merrick Garland moment when they were able to replace that appointment with one of their own. Six to three. It has been a generational shift in the consolidation of conservative power in the Supreme Court. If I'm a good old conservative, I'm not going to fritter away that power. Why would I immediately allow my Supreme Court or my federal judges to

to be diminished in their status and power. And I think there will be moments when good people of conscience will stand up. So what stands between us and the ruination of the Constitution is the conscience of good people. It's judges. The judges are the front line right now. It's not people in the streets as much. It's really the judges who are playing a critical role in this effort. Where do you think the Rubicon will be? On what issue and in what court?

I think the one I'm most worried about is birthright citizenship. Tell me about that. Yeah, that was the first executive order. That was the first case we filed two hours after he signed it. They want to eliminate the right to citizenship if you are born here. Which was established when? It was in the 14th Amendment. It's also in the statute. It's how we created citizenship.

the American citizens out of the children of slaves. It's also the way that we became a nation of immigrants and leveled the playing field. It's the great equalizer, David.

And so to go at it and say an executive order saying, I'm going to repeal birthright citizenship is both trying to undo a core tenet of the Constitution and also the statutory provisions, which are equally clear. So we have belt and suspenders on when it comes to birthright citizenship. And they're trying to rip them both off. And that's what's so...

goes the direction that the Trump administration wants to, which is to say get rid of it. Right. What are the repercussions and what are the actions that could follow? If they were allowed to repeal birthright citizenship, that means that people even who are here lawfully and whose kid is born here would not be a U.S. citizen. Do we have any sense of the number of people that would be in jeopardy? There would be hundreds of thousands. You know, we have clients already in our litigation who are pregnant women who

whose children would be born after the date of the executive order, whose citizenship would be called into question. So siblings would be potentially rent-apart and parents and children would be rent-apart as well. And you would have this, you would create a legal vehicle for intergenerational stigma and discrimination.

I mean, it's like any of us who've traveled to places like Germany or Japan. These countries still struggle with what it means to be a German citizen or a Japanese citizen. You see the discrimination against Koreans in Japan. That's generations.

That's because they haven't had a concept like birthright citizenship like the way we do. What court is your suit filed in? It's in the First Circuit. It's in federal court. And describe the First Circuit and the potential fate of this case. It's a good—we picked the First Circuit. You know, we're good lawyers. So we think about the clients. I mean, there are four different lawsuits that I keep track of. Ours was the first, two hours after he signed. That means that we were working up this lawsuit. For months. Months.

identifying the clients, identifying the theories, identifying the venues, honing the pleadings. So as soon as we could see the executive order, we could fill it in and file, literally on a federal holiday, Martin Luther King Day. Who else has filed birthright citizenship cases? We have the attorneys general. We have many of them on the East Coast. I think there are two cases on the East Coast, one case on the West Coast.

And the attorneys general are important contributions because they're making administrative arguments. Like, how the hell are we supposed to implement this? Right. I looked at my birth certificate. I found it. And it basically said, you know, Anthony D. Romero, son of Demetrio and Coralie Romero, born in New York City. Mm-hmm.

There's no vehicle for these states to corroborate the citizenship of the parents. How are they going to do the administrative investigations on whether or not you're a citizen? If you lose... You ain't going to lose. Okay, but if you lose, that court...

Could then send it, it would then be sent to the Supreme Court? It would go up, it would go up into the Federal Court of Appeals and then the Supreme Court. And knowing what you know about the Supreme Court, ideologically, politically? I think we win. You win anyway? We win anyway. Because you have to say that? No, no. I've never been this bold. I've been in my job 23 years. I don't usually predict the outcome of our cases because my heart's been broken multiple times.

And you don't think your heart will be broken again? No. Why? Because I think this is really, really going a step too far. I think Roberts and the majority of the court, Alito and Thomas are the only ones I can't bet on. But I think even Gorsuch and Kavanaugh and Amy Coney Barrett and certainly the three liberals are there at a point where the Supreme Court would eviscerate their legitimacy.

among constituents and audiences, I really care. I care a lot about the Supreme Court. Is your confidence...

specific to birthright citizenship or is it across the board with executive power? No, it's birthright citizenship. The rest of it is more up for grabs. Where else could you locate a constitutional crisis that's now happening or in the process of happening? I think these other suits around congressional appropriation of funds that are now being disregarded by the executive branch are

Those very well could be the precipitating factor for a constitutional crisis. What happens when and if there is a constitutional crisis? What happens if a White House refuses to obey a court order? A federal judge called out the Trump administration for blatantly ignoring an order to resume federal funding for the Office of Management and Budget. It had been frozen. What can you do now?

If Trump simply ignores the judges and doesn't want to listen to anybody and just directs his people to keep doing what they're doing. What possible authority or power does anyone have in this, much less the ACLU? I think you keep running the gauntlet. I mean, that judge, Judge McConnell, that's the Rhode Island judge I think you're referencing. That's right. You know, basically the Trump administration is arguing not that we don't have to heed you.

They argue in their response to the judge, no, we are heeding you. We think your order was more limited. The judge then clarified on Monday early in the week saying that, no, he had meant for them to reinstate all the grants writ large. And so this will continue to move up the food chain. The crisis moment comes when the Supreme Court rules, let's say, with Judge McConnell.

and says the Trump administration has fragrantly disregarded a clear judicial order and thou must comply. And if they don't comply, then we're in a different moment. So we have to exhaust all the remedies. We have to get fines. We have to ask for incarceration of individuals who flagrantly disregard judicial orders. And that includes? That includes the federal agency heads.

And it also includes the president of the United States. If he himself or the vice president, sure. Sure. No one's above the law. Right. Anthony Romero is the director of the American Civil Liberties Union and will continue our conversation in a moment. This is the New Yorker Radio Hour.

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Stephen Colbert here to tell you about The Late Show Pod Show, which is the podcast of The Late Show with my producer, Becca. Becca, what's up? So The Late Show Pod Show is everything you love about The Late Show on a podcast. I want to know about you. Enough. People see everybody in an ad talks about the thing they're trying to sell. I'd like to know about you, the person behind creating the podcast. Oh, hi, Beth.

I'm having a really good day. Barry baked some bread and my friend Kara got me some chicken salad. It's a really nice day in the office today. Listen to The Late Show Pod Show with Stephen Colbert wherever you get your podcasts. This is the New Yorker Radio Hour. I'm David Remnick. And I'm speaking today with the director of the American Civil Liberties Union, Anthony Romero. The ACLU is one of the oldest civil rights organizations in the country. It dates back to 1920.

And when it comes to issues of free speech, the ACLU has defended the Ku Klux Klan and more recently, the organizers of the 2017 Charlottesville rally in the Westboro Baptist Church, which is often called a hate group. But the ACLU is closely associated as well with liberal causes. It's fought the Trump administration and state officials tooth and nail on issues like immigration.

So I'll continue my conversation now with the ACLU's Anthony Romero. I mean, we've been here before. Like, for instance, we've had two lawsuits. I dug them up yesterday. We've had two different lawsuits years ago against Sheriff Joe Arpaio and Chris Kobach. Back up and explain those cases a little bit. Sheriff Joe Arpaio was someone who was trying to round up immigrants. He was tough on immigrants in Arizona. SB 1070, show me your papers guy, right? He was corralling people up and kind of having Gestapo-like...

law enforcement efforts focused on immigrants. And Chris Kobach was the one who was trying to purge people from the polls who we thought... Which was where? In Kansas. And both of these individuals we sued. And we won. And they didn't like the fact that we won. And so they tried to defy these court orders in both of those instances. We would have to litigate the implementation of their contempt. And so you would threaten them with fines and threaten them with incarceration.

Ultimately, you're going to do that with the president of the United States. You bet. And part of it is to figure out how you can bring in people into the debate who are otherwise on the side of Donald Trump and Elon Musk and to say, wait a minute, this is a step too far. Who are we talking about? There are many conservatives. Some of them I've just begun to talk to yesterday to kind of run by them. If he openly defies a court order, what can we do together?

Now, if we do not succeed, let's say no one comes, the cavalry doesn't ride and the Alamo is by itself. Then what? Then we've got to take to the streets in a different way. We've got to shut down this country and people of right and left. What does that mean? You know, we're just beginning to think it through. We're talking with colleagues and other organizations. There's got to be a moment when people of goodwill will just say, this is way too far.

What's the historical precedent for that anywhere? Well, there have been efforts. Marbury v. Madison was a case when the government tried to snub his nose at the role of the Supreme Court. The Supreme Court was not what it was. It's not as powerful or established an institution as it is today.

You had FDR who tried to pack the court. It's not new that presidents bristle at judicial oversight. I mean, Clinton passed some of the most egregious court stripping measures. For example? Where he basically tried to get the courts out of the business of looking at prisons' rights cases or immigrants' rights cases.

And that had to be litigated. And you had to check the Clinton effort to say, hey, I'm not... But I can just hear the listener's mind saying, okay, that was Bill Clinton and that was bad enough. This is a person, an executive, a politician of a very, very different world. Totally agree. Totally agree. And we've got to take it one step at a time. And when you say shut the country down and take to the streets...

Who's doing that? What does that mean? I think you have to call on, for instance, corporate leaders. We'll have to yank them into the pool with us. You know, if they believe that part of what is going to protect good corporate interests or the workings of the economy is rule of law, there's got to be a moment when people are saying, you know, can you countenance this?

I mean, President Biden had a number of instances where he also bristled at judicial oversight and judicial review. I mean, he hated the effort to shut down the student loan program. It's one of his signature programs. Never got it through because the courts got in his way. But it's really quite another matter when there's a final order of the highest court of the land and the president just says, doesn't bother me. Don't have to heed you or hear you. That is a moment when I think we'll be able to harvest something.

the opinions of people and get people engaged in a very different way. It won't matter the content. It will matter whether or not we will allow an executive branch to assume such extreme power. Haven't the courts, though, changed in recent years? I mean...

Donald Trump had a healthy long time to install a lot of... 28% of the federal judges are Trump appointees. And have you sensed that difference in your cases? Sure, sure. And they're on the bench and sometimes they watch his back and sometimes they rule in ways that are...

kind of head scratching in terms of how far they will go to protect the person who put them on the bench. Also true, 65% of the judges have been appointed by Obama and Biden. So there's a larger number of them that will change as they start to move judicial appointments. I mean, what's in front of us? I mean, let's talk a little bit what else might be in front of us, right? Yep. That's not just the onslaught of the executive orders. Now, this is where I'm going to

curl or uncurl your listener's hair. They're hanging on their hair. I have no hair. But, for instance, we have yet not seen the mass deportations that I think are on the horizon. When they start revving up that machinery...

That's going to be massive, right? So that's number one. I think the deportations is something to watch out for. Have you looked at the polls on how people favor deportations? Yeah, but when they start seeing that their nannies or their gardeners or their fellow workers or the local shoeshine guy or their neighbors are getting ripped up and that U.S. citizen kids are put in then kind of family protective services as a result of it, when they start seeing, because what they ran on was saying we're going to get rid of the criminals.

Well, that's clearly not what they're doing already. But when they really ramp up and they start grabbing all these individuals who are part of the social fabric, I think we'll harvest that. Now, we've already seen ICE scoop up U.S. citizens and immigrants not convicted of crimes. What's the legal path to protect people in schools and churches, daycare centers from the threat of deportation? Well, there are sanctuary city laws and sanctuary jurisdiction laws that are, in fact,

Which are the source of contempt for the Republican Party. Yeah, and they can be defended. And it's important that, like, for instance, the litigation they're bringing against the city of Chicago, we think is really far afield. They cannot use the power of the purse in pulling money from roads and hospitals and schools to pressure them on immigration. And that's got to be challenged in court. The governors and the state attorneys general, especially in the blue states, have enormous power to put up roadblocks.

I mean, for instance, one of the things that Trump... You find that they're feeling their sense of authority or are they backing off? I think some of the governors are beginning to find their sense of authority in Colorado, in New Mexico. How about New York? In New York, we're working on it. You're not confident of Governor Hochul? Well, I think the governors...

really working with us. I think the mayor is a bit more complicated on the immigrants' rights issue. Eric Adams in New York? I think it's complicated. Complicated is a euphemism for what? For not what we like it to be. For not standing up. Not what we want it to be. You talk about a firewall of freedom, a firewall of freedom using state and local laws to protect people from federal actions that might violate their rights. So what legal protections need support?

I think on immigrants in particular, I think the governors have enormous power and latitude. They can't obstruct federal immigration enforcement, but they don't have to collude. There are shield laws that I think the governors can also enact for trans kids, for trans individuals. Like you saw Letitia James in New York.

When this one kind of executive order then triggered the shutting down of access to medical care in New York City hospitals with people who had private insurance, the New York attorney general stepped up and said, wait a minute, if you start canceling those appointments, you're going to run afoul of our state laws. Let's talk about that. You're suing the Trump administration for his executive order forcing passports to reflect gender assigned at birth, which is laid out a very narrow binary definition. Right.

of gender, as many people understand it. What's the point of Trump making that claim? And how do you form a legal case against it and him? It's fearmongering. It's clear it's fearmongering. It's a card that he played in the election. You saw the ads he ran. The ads being, she is for them, I'm for you, right? It was clear fearmongering. Of a community of 1.5 million people,

who are really under assault. You have over 500 state laws that have been targeted on the trans community. It's really an onslaught the likes of which we haven't seen in generations.

And part of what our case, we have both this case and we have the one on the transgender affirming health care, is to make equal protection arguments. Where are you on gender affirming care for trans youth? So that was a case we had first in the Supreme Court. We argued the Scrametti case, which is challenging a Tennessee statute that was banning

gender-affirming healthcare for minors. And so we were in court arguing that that violated the equal protection of Tennessee citizens, including parents who are our clients in this case, parents who decide that this isn't the best interest of their case. Is the ACLU for gender-affirming care for minors without permission of parents? No, no. It's always with parents in the loop. Mm-hmm.

minors don't have the same protections under the law that adults do. That's part of what we're doing in the passport case, if we go back to the passport case. I mean, it's both equal protection because people are subjected to harassment and violence if they're misidentified with the wrong gender on their passports. It's open hunting season for them. But there's also a free speech right here, David. It's just like, how can the government tell me that I cannot, I can change my name.

I can legally change my name. I can change it to Antonia tomorrow. They can't stop me from doing that. So there are good First Amendment arguments also on the passports case as well. The ACLU has fought for the free speech of leftist students on campus as well as somebody like Ann Coulter. Your traditional defense of the First Amendment is bipartisan. But when a

gazillionaire like Elon Musk buys a social media platform and brings Nazis back to it. How does the ACLU absorb that? You know, I think the same principles apply, right? It's just that we have to make sure that the government stays out of the business of regulating people's private speech. That is probably my biggest concern right now that hasn't yet materialized or matured.

But it may. Were you comfortable with the way Facebook and Twitter barred certain people from— No. You were not comfortable with that? No. We criticized Facebook and Twitter when they deplatformed Donald Trump. I mean, they kept people like Bolsonaro and Orban on, but they deplatformed Trump.

We felt that they were not calling balls and strikes as they saw them. And we applauded them when they replatformed them. So are you pleased that, say, Mark Zuckerberg has changed his policy on Facebook? No, I think Facebook is afforded a lot of latitude because it's a private entity. The right to set its terms of service. I think there are some people that would argue that within the ACLU, there was a...

a sense of argument and conflict over essential matters having to do with free speech, platforming, not platforming. Would the ACLU today defend the right of American Nazis to march in Skokie, Illinois? You bet. We just took the NRA case a year ago. You know, the NRA came to us saying, you're the best litigant, litigation organization on free speech.

This was a case of Governor Cuomo and the administration trying to shut down the NRA because they didn't agree with its pro-gun policies. And we saw it as a free speech issue, and we brought that case and won 9-0 in the Supreme Court. How does the ACLU feel about cases at, say, universities where protesters shut down a speaker? No, the heckler's veto is a problem, right? You have a right to free speech, but you don't have a right to shut down information, debate, discussions. There are limits, right?

Let's go back to the first Trump administration of the hundreds of legal battles you oversaw in that first term. 434. What do you think of as your biggest legal victory and what was your biggest legal defeat?

I think the biggest victories had to do with family separation, when we were able to stop them in their tracks on separating families as a deterrent to people coming to this country. It was a massive moment where people from across the political spectrum came together. Laura Bush was tweeting on this. And it was a moment when we were able to use both the courts and public opinion to kind of put pressure on the Trump administration, ultimately reaffirming

rescinding their own kind of policy guidance or zero tolerance guidance on this one. I think the other ones had to do with the U.S. Census when they tried to purge the count of immigrants, of undocumented immigrants in the U.S. Census. We litigated that twice to the Supreme Court in front of the Roberts Supreme Court and won. So I think that we are... Those are victories. What about defeats? The building of the wall. That was litigation we brought to try to stop

the misappropriation of funds from one agency to build the wall in the South, and that just petered out. Was that a wicked case? It was a hard case. It was a hard case because you're dealing with the ability for the government to enforce its borders, which is really recognized by the courts and the general public. Do you sense in the political and public world any politicians who are forcefully, clearly, and effectively

speaking up for what you're talking about? I'm looking. I mean, I think there are... You're looking. I'm looking. And not finding yet. There's a lot of mumbling. There's a lot of... You see the articles about how some Democrats are trying to find their feet from under them. What's the problem? I don't have to run for office. Right. I don't have to be popular. When I file my transgender rights lawsuit, I don't need 51% of the American people to agree with me.

I know what's right. The equal protection arguments are what's right. I think Democrats have a harder job because they're trying to figure out how, when he's picked a fight with them on the culture war issues. Let me ask you a question. If they're not going to stand up now, when will they stand up and for what? It's a great question. It's a great question. Are you despairing of it? No, I think it comes around. I compare this moment, David, to the 9-11 moment, right? That's when I started my job, the week before 9-11.

You remember the Patriot Act was enacted with everyone's assent in Congress except for one, Russ Feingold. And so I told my folks back at the ACLU, this is a time we have to ride this moment just like we did after 9-11 where we have to build public momentum.

The war on terror was very popular. The deportations that John Ashcroft did, the creation of Gitmo as a place to hold people and detain them, the whole question around— Gitmo is about to get a new lease on life, potentially. And they're going to try, and we're litigating that one, too. One of the characteristics of the moment we're living in and the weeks that we're living in is the absolute—

speed and volume of what's coming out of the White House. What Steve Bannon called flood the zone with shit. That's the strategy and it's being enacted with real efficiency and real skill as compared to the first. But the zone is responding. And, you know, look, so there are more than 50 or so executive orders that have come down

There are more than 40 lawsuits that have been filed in response. It's really quite a different moment. People realize that the zone is being flooded, and it requires us to coordinate with each other in a way I haven't seen before. You sound pretty confident. I'm not sure I'm confident in the ultimate outcome. I'm confident in the response that we're engaged with. I mean, we have filed over 10 lawsuits already in three weeks.

You know, those are real lawsuits. Those are real with plaintiffs and filings and real theories. One of the seminal texts that's been published in the last past decade, certainly, about the warning about authoritarianism is Timothy Snyder's On Tyranny. And he warns against knuckling under in advance. Yeah. And warning against exhaustion. Yeah.

Do you see that or do you see the opposite? Knuckling under in advance, you see that in other places. I mean, look, that's what a lot of these tech leaders, that beautiful parade of billionaires who were so preening for the camera behind the president as he took the oath of office.

Now, I know some of them personally, and I know that some of them were there because they felt they had to, to defend their corporate interests, their shareholder interests. Who do you know and who are you talking about? That's better not to kiss and tell on radio. But I think there, the knuckling under, you definitely see it in the private sector. I think the fatigue factor is a matter of pacing ourselves. This is one of the things I tell my folks. I say, yeah, we filed 10 suits already. We have another three or four in the hopper for the next week or so.

Is it possible to pace yourself considering the ferocity and speed at which things are happening? You've got to retain bandwidth. You know, if we run the gauntlet and we file all the cases that we need to right now and then don't have the ability to file them in years two, three, and four, we'll do the country no good. We have to play this game smartly. And we are picking and choosing our battles. There are some of them we say, let another group run. Who are your allies? Democracy Forward,

the American Federation for Garment Employees, FGE, the AFL-CIO, Planned Parenthood. There's a list of us. There's about 50 or 60 of us who talk multiple times a day. And so we say, okay, you got that case, we got this case. How do those conversations begin? With a long moan? No, they're just kind of, everyone's very pragmatic, very focused on what the moment requires of us. And it might take us five years or 10 years to,

But we will get there. And I think if we stay on it like water on stone, and I run an organization. Do we have five years or ten years? I mean, when you're talking about the health or even the existence of the Constitution and rule of law, do we have time like that? There will be flashpoints. Yes.

The defiance of a final judicial order. There will be flashpoints and there will be blood. There will be blood. And there will be a need for groups to then pick up the pieces from where we are then. And I think organizations like mine that have been around 105 years have to think about the staying power. What we do today is critical. What we do in 10 years, in 15, in 20 years is going to be equally critical. And that's why we just have to stay on it. Anthony Romero, thank you very much. My pleasure, David. Thank you.

Anthony Romero has been the executive director of the ACLU since 2001. I'm David Remnick. Thanks for joining us and see you next week. The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker. Our theme music was composed and performed by Meryl Garbus of TuneArts, with additional music by Louis Mitchell and Jared Paul.

This episode was produced by Max Balton, Adam Howard, David Krasnow, Jeffrey Masters, Louis Mitchell, Jared Paul, and Ursula Sommer. With guidance from Emily Botin and assistance from Michael May, David Gable, Alex Barge, Victor Guan, and Alejandra Decat. The New Yorker Radio Hour is supported in part by the Cherena Endowment Fund. ♪

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