WASHINGTON (AP) — The American Civil Liberties Union took legal action against former President Donald Trump’s administration more than 400 times during his time in the White House, helping to halt a range of policies including separating immigrant children from their parents.
The ACLU is not conceding that Trump will defeat President Joe Biden this year. But it is releasing a blueprint on how it plans to respond to a second Trump term, given his promises to go much further on immigration, with calls for mass raids and the largest deportation operation in US history.
Advocacy groups are making contingency plans to try to enshrine Trump’s priorities in court or through the workings of government. Trump’s allies, aware of the resistance he faced in the White House and anticipating the opportunity to overhaul large parts of the government, have drawn up their own policy books and personnel plans, including an initiative known as “Project 2025′.
The ACLU shared a memo outlining possible responses to the immigration policy with The Associated Press ahead of its formal release on Thursday.
“This is really kind of a continuation of the previous work we’ve done to combat Trump’s worst abuses,” said Anthony Romero, the group’s president.
Here’s a look at the ACLU’s strategy and how it could play out.
What is Trump planning?
Immigration is a central part of the former president’s campaign to win back the White House.
Trump, with the help of the National Guard, has authorized major arrest operations against people in the country illegally. He talks about opening vast detention camps and accelerated deportations.
He has also talked about ending automatic citizenship for anyone born in this country, a guarantee in the 14th Amendment that some conservatives say should not apply to the children of people living in the U.S. illegally. Trump could also revive some of his first-term policies, such as banning people from some majority-Muslim countries from entering the US or separating immigrant families again.
Karoline Leavitt, a campaign spokeswoman for the former president, said Trump “will act to secure the southern border and reimplement his previously effective policies to protect our homeland, no matter what challenges are thrown his way or how long it takes.”
How will the ACLU respond?
With lawsuits. Probably a lot.
Trump has suggested he can streamline arrests and deportations by invoking the Alien Enemies Act of 1789, which could allow him to unilaterally detain and deport some noncitizens. The ACLU counters that the law gives the president only limited use of such powers during a “declared war” or an “invasion or predatory incursion” involving a foreign nation or government.
It further argues that implementing Trump’s plans will violate constitutional protections against unreasonable searches and seizures, including arrests and detentions without a specific reason to detain a particular individual.
In addition, Trump has pointed to the Insurrection Act, which gives the president authority to use the military as a domestic police force, and has suggested that troops could help handle the complicated logistics of his immigration plans. But the ACLU says the Posse Comitatus Act, which dates to 1878 and which Congress has recently tried to strengthen, prohibits the use of the military in civilian law enforcement.
The memo says that Trump’s promises to end birthright citizenship, meanwhile, contradict constitutional guarantees of citizenship for people born in the United States without regard to their ancestry, and that the Supreme Court has confirmed that those guarantees applied to US-born children – even if their parents did not. have no citizenship rights.
Regarding the potential separation of immigrant families, the ACLU last year reached a settlement with the federal government in a case it filed against the Trump administration in 2018, opposing the separation of a Congolese woman held in a detention center was held in California, from her then 7-year-old daughter, who was in a facility in Chicago. Any attempt by a new Trump administration to restart the policy would contradict the court-ordered settlement agreement, the ACLU argues, and give it grounds for new legal challenges.
How might Trump respond?
The conservative Heritage Foundation helped create a more than 1,000-page “Project 2025” manual. It includes numerous proposed actions on immigration and could leave a new Trump White House better prepared to overcome lawsuits on the issue than the first.
“The second Trump administration, if there is one, will be better prepared,” said Stephen Yale-Loehr, a professor of immigration law practice at Cornell University.
He noted that the first Trump administration often saw its policies halted by regulatory and procedural flaws that it was able to fix this time — using past legal decisions to find solutions.
“Both sides have seen the lawsuits and seen how the courts have ruled,” Yale-Loehr said.
Did lawsuits work during Trump’s first term?
Yes, to some extent.
Legal challenges helped stop the Trump administration from separating immigrant families at the border and reducing immigration protections provided under the Temporary Protected Status and the Deferred Action for Childhood Arrivals program, whose recipients are commonly referred to as “Dreamers.”
The group notes that when the challenges were ultimately unsuccessful — such as when the Supreme Court reversed injunctions against the Trump administration’s ban on travelers from several Muslim countries — they still forced officials to reverse their intentions.
Lucas Guttentag, a law professor at Stanford University and founder of the ACLU’s Immigrants’ Rights Project, said that while the Supreme Court now has a six-to-three conservative majority, the Supreme Court and lower appeals courts may remain skeptical about the constitutionality of some of Trump’s top plans.
But he also said this is no guarantee that others will not be allowed to remain standing.
“The only foolproof mechanism is to defeat him at the ballot box,” Guttentag said.
What about the ACLU’s plans beyond lawsuits?
The group will urge state and local leaders to help protect against mass deportations by funding legal counsel for immigrants. It also wants them to work better together to track large-scale arrests and document racial profiling.
It plans to urge Democratic-led legislatures and city councils to limit the federal government’s access to their resources for mass detention and deportation efforts.
Romero said the ACLU “identifies real, clear guardrails, real barriers — at the very least they are speed bumps — that the Trump administration must get over.”
“Litigation takes time,” he said, “so if you can maintain the status quo for the longest period of time, we think that’s success.”
What about Trump’s plans beyond immigration?
The ACLU will release seven subsequent policy memos in response to Trump’s campaign promises on key issues. That includes plans to curb potential abuses of executive power and better protect issues like LGBTQ rights, reproductive freedom, voting rights and diversity, equality and inclusion protections.
Each plan is scheduled to be released weekly leading up to the Republican National Convention, which opens July 15 in Milwaukee.
What about Biden?
President Joe Biden announced plans Tuesday to significantly limit the number of immigrants seeking asylum at the U.S.-Mexico border. Romero said the ACLU is likely preparing legal challenges to that order. His group has repeatedly sued the Biden and Obama administrations over immigration policies in the past — though not at the pace of challenges to the Trump White House.
The ACLU also plans to release six upcoming issuance memos for Biden’s reelection bid ahead of the Democratic National Convention in Chicago in August.
“There is a stark contrast between Biden and Trump,” Romero said, “but there is still an unfinished agenda with Team Biden.”
