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Column: Civil Rights and Liberties in the Age of Trump (New York Law Journal)

Statue of Liberty

by Christopher Dunn

The election of Donald J. Trump as President of the United States poses a dramatic threat to civil liberties and civil rights around the country and in New York. Trump’s campaign was fueled by an animosity towards progressive values of dignity and respect, and his Presidency threatens not only to unwind important reforms of the last fifty years but also raises the prospect of repressive measures that recall some of the darkest times of our country: the crackdown on dissent during World War I, the internment of Japanese-Americans during World War II, and the McCarthy-era witch hunts of the 1950s. To be sure, these are strong words, Trump has not served a single day of his Presidency, and he has no civil rights or civil liberties record to speak of. But his campaign rhetoric and post-election actions to date give every reason to be deeply worried about the state of civil rights and civil liberties in the coming years. With this in mind, it is worth examining the various ways in which the new President will be able to affect civil rights on the federal and local level. Before turning to those topics, however, it is important to consider the civil rights philosophy that Trump brings to the Presidency.

Civil Rights Philosophy

The starting point for an assessment of a President’s influence on civil rights and civil liberties is the President himself and the values he embraces and espouses. Separate and apart from appointments they can make or laws they can sign, Presidents by their own words and deeds wield enormous influence over the attitudes and actions of Americans, be they government officials or members of the public. Simply put, the personal philosophy of the President is a key element of the civil rights and civil liberties landscape of the country. Underlying progressive civil rights and civil liberties is a general philosophy that values the dignity of individuals without regard to differences that historically have been touchstones of discrimination, including race, religion, gender, ethnicity, national origin, and sexual orientation. Closely related to this dignity principle is one that respects – indeed values – a diversity of viewpoints, be they political, philosophical, artistic, or otherwise. Together, these dignity and tolerance principles are enshrined in our Constitution and increasingly in the laws and customs of the United States. During his tenure, President Obama – whose civil liberties record has far too many blemishes – has demonstrated a deep and personal commitment to these principles of dignity and tolerance, which is particularly noteworthy given that he has been the target of disturbing racial venom. To my knowledge, Trump has never articulated a formal position about these principles, and of course he has no record of public service that might have revealed that position. His actions and statements during the campaign and before, however, prompt troubling concerns about his commitment to the principles of tolerance and dignity. Specifically, his aggressive attacks on institutions and individuals who criticize him; his disparaging comments about and disrespectful actions towards women, racial minorities, immigrants, and the disabled; and his coziness with figures long associated with white supremacist ideology are alarming indicators of values that are the antithesis of those at the core of progressive civil liberties and civil rights. To the extent Trump as President resembles Trump as private citizen when it comes to tolerance and dignity, the unstated but powerful civil rights philosophy coming from our national leader will be dramatically different from the one of the last eight years. Should that come to pass, it will be a true test of our county’s commitment to civil rights to see whether this new philosophy emboldens forces working to restrict progressive civil rights and liberties or prompts a widespread backlash in support of civil liberties and civil rights.

Civil Rights at the Federal Level

Moving beyond personal philosophy, Trump as President will have enormous power to shape civil rights and civil liberties at the federal level. Though public debate has focused on Supreme Court appointments, a wide range of other actions will allow him to transform civil liberties and rights in a more immediate and sweeping way. For starters, there are executive branch appointments, the most important of which is the Attorney General, with Trump’s selection of Alabama Senator Jeff Sessions sending a strong signal of what is to come. Assuming he is confirmed, Sessions is certain to install a very different leadership team with a very different set of civil rights priorities. Under President Obama, the Justice Department has featured a diverse leadership – including two African-American Attorney Generals and a South Asian female head of the Civil Rights Division — and has focused on discrimination, voting rights, criminal justice reform, and police accountability. Under Trump and Sessions, the Justice Department likely will be dominated by white male conservatives and highlight law-and-order initiatives, religious exemptions to anti-discrimination laws, and protection of gun rights. A second area of immediate impact Trump will have on civil rights will be with executive directives that set federal policy or dictate actions to be taken on a local level. While Trump’s commitment to reverse immediately every “unconstitutional” executive order issued by President Obama has been widely reported, little attention has been paid to the fate of less conspicuous federal administrative actions that nonetheless profoundly affect civil rights. A good example of this type of initiative is the May 2016 “Dear Colleague” letter that the Civil Rights Division of the Justice Department and the Department of Education sent to local school authorities around the country providing them guidance about how to construe Title IX of the Education Amendments of 1972, the country’s most significant school anti-discrimination law. In that letter, the federal government instructed local school districts that Title IX’s prohibition against discrimination on the basis of “sex” required them to permit transgender students to access services and facilities (including bathrooms) consistent with their chosen gender identity. This unilateral directive transformed the school landscape for transgender students but spawned an immediate legal challenge that is now pending in the Supreme Court. Under the Trump Administration, this directive and many others like it are sure to be withdrawn. Looking further down the road, a President Trump will be able to make unilateral changes — albeit only after the time-consuming notice-and-comment process — to the myriad agency regulations that flesh out federal civil rights statutes and that are critically important because they often go beyond the statutes themselves and provide important details about day-to-day compliance with the statutes. And even more significantly, Trump can become the catalyst for and ultimate signer of legislative initiatives from the Republican Congress. In light of his campaign statements, we can expect legislation restricting abortion, enhancing gun rights, limiting voting rights, and perhaps expanding liability for allegedly false or damaging speech. And then there is the Supreme Court. While Trump has stated he plans to nominate someone immediately to fill the vacancy created by the death of Justice Scalia, Trump’s possible impact on civil rights through the Court is far more complicated. Whenever that person is confirmed, he or she will be replacing one of the Court’s most conservative members and will not change the ideological balance of a Court that has rejected a recent effort to overturn Roe v. Wade, 410 U.S. 113 (1973), rebuffed efforts to curtail affirmative action in education, curbed the use of the death penalty, and held that electronic tracking by law enforcement implicates the Fourth Amendment (albeit with Justice Scalia in the majority). Rather, the real question about the Supreme Court concerns future vacancies, with a particular focus on Justice Ruth Bader Ginsburg, but it is impossible to predict the timing and specifics of those vacancies.

Civil Rights at the Local Level

In addition to being able to shape civil rights and civil liberties at the federal level, the President also can affect civil rights at the state and local level. In light of the fact that New York is home to one of the country’s largest immigrant populations, has the country’s largest police department, and features a nearly 450-mile international border and a major international airport in JFK, there is every reason to believe that the Trump Administration will focus its attention here. To begin, the new administration will be able to appoint replacements for all 94 United States Attorneys, including the four in New York. Though prosecutors are not generally viewed as agents of civil rights reform, local U.S. Attorneys can be enormously important to efforts to reform the criminal justice system by virtue of their central role in criminal prosecutions. They also are important because they are the ones who can prosecute government officials – particularly law-enforcement officers — for federal civil rights violations. (On this latter point, the change of administration almost certainly means an end to the federal investigation being overseen by the U.S Attorney for the Eastern District of New York of the NYPD officer whose chokehold killed Staten Island resident Eric Garner.) Finally, many of these offices have civil rights sections that, though small, can do important civil work promoting civil rights locally. Less directly, the President can influence the work of state and local agencies, particularly police departments, through direct dealings between federal agencies like the FBI and their local counterparts or by attempting to coerce state and local agencies through the attachment of conditions to federal funding. For example, during the campaign Trump strongly supported stop-and-frisk, and one can readily envision his administration pushing police department across the country, including the NYPD, to be much more aggressive with this tactic. Even more likely may be efforts by the Trump Administration to conscript local police departments to participate in immigration enforcement – which may include intelligence gathering, home and workplace raids, and large detention facilities — and to conduct broader surveillance of Muslim communities the administration may consider to be a terroristic threat.

Looking Forward

Seven weeks from now, we will have a new Presidential administration, and that administration will have enormous power over civil rights and civil liberties across the country, at the federal, state, and local level. The campaign waged by Donald Trump and the public sentiments it tapped into strongly suggest that civil rights and civil liberties will be deeply contested over the next four years.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union. He can be reached at

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