We Said We Would See Him in Court and We Did

Several months into the Trump administration, my wife was doing The New York Times crossword puzzle and came across this clue: “Group that told President Trump, ‘We’ll see you in court.’” I’m not generally much use when it comes to the crossword, but on that one I could help. She didn’t really need the assistance of course, as the ACLU is my employer, and she, The New York Times crossword puzzle drafters, and much of the country already knew that it was the ACLU who told the president we’d see him in court.

In fact, we told him that before he took office. Just days after he improbably won the presidential election, we took out ads in The New York Times and Los Angeles Times telling the president-elect that if he sought to implement some of the programs he had promised on the campaign trail — denying legal access to abortion, implementing restrictive immigration practices, undermining voting rights and more — we would sue. We kept our promise.

As we mark three years since we put President-elect Trump on notice, we’ve filed over 140 lawsuits, and over 100 other legal actions — Freedom of Information Act requests, administrative complaints, and other legal mechanisms to halt illegal policies — against the president, his administration, or those inspired by his victory to cut back on civil rights and civil liberties. We’ve won many of them, and in the process, protected the rights of millions of people to be treated with dignity and respect for their basic constitutional rights.

In his first week in the Oval Office, President Trump issued an executive order banning immigrants from seven predominantly Muslim countries from entering the U.S. The ACLU quickly responded by filing and winning the first legal challenge to the Muslim ban that very weekend. A federal court held an emergency hearing on a Saturday night, and enjoined its implementation the day after he put the policy in place. When the first ban was declared unconstitutional by the courts, Trump was forced to issue a revised ban. When we and others successfully challenged that revised ban, he issued still a third version. That, too, was struck down by the lower courts, although the Supreme Court upheld it on a 5-4 vote along party lines. But that third ban, while still a Muslim ban, was narrower than the first two, and we continue to challenge its implementation in the courts.

The lion’s share of our Trump-related work has focused on defending immigrants, because that is where the president has directed his most virulent, egregious and systematic attacks.

Trump has particularly targeted those seeking asylum, and we’ve countered him at every point. His goal is to deter asylum applicants — regardless of the validity of their claims to facing persecution at home. In what is surely the cruelest of his many anti-asylum initiatives, he separated children from their parents, in hopes that this would discourage other families from seeking refuge and safety here. We sued, obtained a ruling barring the practice, and continue to press the administration to reunite the thousands of families it so heartlessly separated. The ACLU has helped reunite more than two thousand families, but we keep discovering more who were separated, and we won’t rest until we’ve reunited them all.

Trump has also locked up asylum applicants without hearings in which they could show that they pose no flight risk or danger, and therefore should be freed. In our view, the government cannot constitutionally detain people absent a demonstrated reason for doing so, and where an asylum seeker poses neither a flight risk nor a danger, she cannot constitutionally be deprived of her liberty. Here, too, the courts have blocked the administration’s practice thanks to litigation by us and our allies, requiring it to hold hearings and release those who pose no threat.

The Trump administration also sought to change the legal standard in order to make it more difficult to get asylum based on fears of gang violence or domestic abuse in one’s home country. Again, we sued. And again, a federal court blocked the administration from implementing that policy.

Trump issued an executive order denying asylum to anyone who entered the country other than at an official port of entry — even though the asylum statute provides that asylum is available to all who face persecution at home, regardless of how or where they entered the U.S. The courts blocked that policy, too. He then sought to deny asylum to anyone who has traveled through another country to reach the U.S. and has not applied for and been denied asylum there. Again, the courts declared the policy illegal. The Supreme Court has temporarily stayed that injunction pending the government’s appeal, but our legal challenge continues.

Trump also sought to deny legal protections to immigrants from countries that either would not take their citizens back, or where conditions were so bad that we had long afforded their nationals temporary protected status, which allowed them to live and work among us. When Trump sought to revoke their status en masse, the ACLU and our allies sued, and obtained injunctions barring the wholesale denial of legal status to over 400,000 people.

Most recently, Trump sought to expand so-called “expedited removal,” a summary deportation process that short-circuits many of the essential procedural protections generally afforded to immigrants in deportation proceedings. These procedures have long been limited to persons apprehended within 100 miles of the border and within two weeks of illegal entry. Trump wants to expand exponentially the number of people who could be swiftly deported under this process, to include anyone who had entered illegally within the past two years, apprehended anywhere in the nation. Once again, we sued, and a federal judge blocked the initiative as illegal.

Trump has attempted, virtually since the day he took office, to build a wall at the southern border. He repeatedly asked Congress for funding to build the wall, and repeatedly they refused. He went ahead and ordered the wall built anyway, declaring a national emergency and diverting funds appropriated for other purposes. We sued to stop the diversion of funds, and the lower courts blocked wall construction. The Supreme Court granted a temporary stay, but the challenge continues with an argument in the U.S. Court of Appeals for the Ninth Circuit on November 12.

We are not the only ones to see Trump in court. Other groups have successfully challenged his revocation of protection for the approximately 800,000 so-called Dreamers, young undocumented people brought here by their parents, to whom the Obama administration gave deferred action status, allowing them to live, work, and go to school here. And the courts have also blocked Trump’s efforts to expand the definition of persons deportable as “public charges” to encompass immigrants who even briefly fall on hard times and need virtually any sort of government assistance.

In short, judicial review has been critical to protecting the basic human rights of tens of thousands of immigrants throughout this country. And that’s only the beginning.

As a candidate, Trump promised to overturn Roe v. Wade, the Supreme Court decision protecting abortion access, and in response, seven states have enacted laws banning abortion. We’ve challenged five of the state bans and obtained injunctions against each of them; our ally, the Center for Reproductive Rights, has blocked the other two. The states are appealing, but we will continue to defend this fundamental right.

We also successfully blocked the Trump administration’s own ban on abortion. This prohibition was applied selectively to some of the most vulnerable women in this country: undocumented teens held in U.S. custody. When one such teen, detained in Texas, learned that she was pregnant and sought to exercise her constitutional right to an abortion, the Trump administration refused to let her out of its facility to go to the clinic for the procedure. We sued in federal court, and won. We now have a nationwide injunction against the practice.

And most recently, a federal judge blocked President Trump’s so-called “conscience rule,” which would have allowed doctors, nurses, and other health care providers nationwide to place their own views over the needs of their patience and refuse to provide health care to which they object on moral or religious grounds. The court held that the rule was arbitrary and rested on demonstrably false assertions by the administration.

The president tried to rig the census, by adding a question about citizenship that would have deterred tens of thousands of immigrants from filling out the census form. The Census Bureau itself objected to the plan, because they knew it would lead to undercounting of people in areas where immigrants live, often urban areas that the administration sees as likely to vote Democratic. The Constitution requires the census to count all people, not just citizens. The undercounting would have translated into fewer representatives in Congress for districts with large immigrant populations, and less federal support for all the people who live there, citizen and noncitizen alike. The initiative’s pretextual rationale was initially drafted by a Republican gerrymandering specialist who advised in a confidential memo that it would advantage “Republicans and Non-Hispanic Whites.” We sued and won. In June 2019, the Supreme Court affirmed our victory, finding that the administration’s justification for adding the question was pretextual — or in plain English, a lie. Trump bristled at the defeat, and only after his entire legal team resigned over his direction to find a way to reinstitute the question did he admit defeat and abandon the effort.

Trump vowed to expand the detention of enemy combatants at Guantanamo Bay, although he has not yet dared do so. His administration did lock up a U.S. citizen as an “enemy combatant” in secret in Iraq, without access to a lawyer, without a hearing, and without any criminal charges. The ACLU sued and won. We first obtained an order requiring the administration to give him access to our attorneys. Then, we challenged the legal basis for detaining a U.S. citizen indefinitely without charges, and the government gave in and released him. The Trump administration has not held a U.S. citizen as an “enemy combatant” since.

Trump has also declared war on the LGBTQ community. Here, too, we’ve challenged him every step of the way. He barred transgender people from serving in the military, despite the military’s finding that there was no basis for excluding them. We obtained an injunction against the ban, and forced Trump to water it down, allowing currently enlisted transgender soldiers to remain. But the revised ban still bars entry to new transgender enlistees. That, too, was blocked, but the lower court’s injunction was temporarily stayed by the Supreme Court pending the government’s appeals, which continue.

The Trump administration also reversed the federal government’s position on whether LGBTQ individuals are protected by federal civil rights law from being fired or otherwise discriminated against because of who they are. We won victories in the federal appeals courts, which ruled that firing someone for being gay or transgender is a form of sex discrimination forbidden by federal law. In October, we argued before the Supreme Court on behalf of a gay man and a transgender woman who had been fired because of who they are. The Trump administration argued the other side.

In many of these cases, the courts have served their intended purpose: Protecting the vulnerable from abuses directed at them by the president, upholding the rule of law, and stopping arbitrary and cruel treatment of hundreds of thousands of people. We are proud to have led the legal resistance, with full participation of many of our allies in the immigrants’ rights, reproductive rights, and civil rights communities.

But we have not limited our response to the courts. We are committed to defending liberty through all available means, and in a democracy, the political process must also be an essential part of that defense. In the wake of President Trump’s election, our membership soared from 400,000 to 1.8 million, and many of our supporters said they wanted not only to join and donate, but also to take action. The ACLU launched People Power, a nationwide mobilization platform that empowers ACLU volunteers to fight for liberty at the local level. Over half a million people have since taken action with us as People Power volunteers — visiting a legislator or town council, participating in a demonstration, or gathering signatures and getting out the vote for ballot initiatives furthering civil liberties, among others. They have encouraged local sheriffs and police chiefs to adopt immigrant-friendly law enforcement policies; advocated for the expansion of voting rights; gathered over 150,000 signatures for Amendment 4 in Florida, which paved the way to re-enfranchise over 1.4 million previously incarcerated people; and showed up at demonstrations at the border and in many cities to protest anti-immigrant policies. Today, People Power volunteers are pressing presidential candidates of all parties to endorse critical civil liberties initiatives, including reducing mass incarceration. Judge Learned Hand, one of the great federal judges of all time, once said that “liberty lies in the hearts of men and women.” We are deploying People Power to nurture that spirit and spread it through direct action.

We also engaged in the 2018 midterms in ways that were not possible before. We spent more than $5 million and devoted thousands of hours of volunteer and staff time to the fight in Florida for Amendment 4. We supported similar voter access reform measures in Nevada and Michigan, both of which passed. We supported a successful referendum to end non-unanimous jury verdicts in Louisiana, a Reconstruction era practice that was designed to nullify the votes of Black jurors. And we helped to defeat a transphobic ballot measure in Massachusetts. In key elections, we also did substantial voter education and outreach to ensure that citizens were aware of the civil rights and civil liberties stakes, reminding voters to “Vote like your rights depend on it.”

Most of these legal fights are ongoing, and we will almost certainly have to mount new legal challenges to other unlawful, unconstitutional, or un-American policies. For nearly 100 years, the ACLU has steadfastly fought battles large and small, to secure freedoms and advance equality, no matter who occupies the Oval Office. Great challenges may lie ahead, but rest assured that, with your help, we stand ready to fight for a more perfect union.