Column: Here We Go Again: Trump and the Coming Civil Rights Storm

Eight years ago, we knew Donald Trump would shortly assume the presidency and that his campaign had featured loud threats to civil rights. But in December 2016 it was unclear how much of his demagogic rhetoric was political posturing as opposed to blueprint, with many who care about civil rights hoping it was mostly campaign talk. But as the country learned over Trump’s first term, starting with the Muslim ban he issued shortly after his inauguration, the talk was real.

In the most recent campaign, Trump’s rhetoric was even angrier and uglier. Given this, it is neither alarmist nor premature to be contemplating a civil-rights siege starting with Trump’s second inauguration, and I focus here on immigration, animus-based executive action, and the courts in New York. But before turning to those issues, a note that this will be my last Civil Rights and Civil Liberties column, which I have penned since 2004. After over 40 years in the ACLU family, I am stepping down as the legal director of the New York Civil Liberties Union at the end of this year (a decision I made well before the election). I will be pursuing a longtime interest in urban planning, an area rich with civil-rights controversies and one I often have discussed in my columns over the years. And starting in March 2025 I will author a new Law Journal column about civil rights and the urban landscape.

Day 1: Immigration Attack

Attacks on immigrants were central to Trump’s recent campaign, and his vows of mass arrests, detentions, and deportations are likely to be “Day 1” actions because immigration is an area where the President can proceed unilaterally by executive action. But significant legal and practical barriers may blunt Trump’s efforts.

Starting with mass arrests, the federal government does have considerable authority to arrest those who lack legal status (a category that does not include many recent noncitizen arrivals Trump has demonized but who in fact have legal authority to be in the country while pursuing asylum). But any street-level mass-arrest operation – for instance, in public areas or workplaces — would require an enormous commitment of law-enforcement personnel, and the U.S. Department of Homeland Security agencies with domestic immigration-enforcement authority – Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) – do not have the staffing to take on mass arrests.

Recognizing this, Trump has raised the prospect of using the federal military or state national guards to effect immigration arrests, but this is complicated. While Trump briefly deployed military personnel in October 2018 for immigration enforcement at the southwest border, that was not comparable to sending troops into New York City to hunt down noncitizens lacking legal status, a civil offense. Though the Supreme Court has never decided the limits on presidential authority to deploy the military domestically, constitutional and statutory provisions restrict that authority, and these provisions assure legal challenges to any Trump effort. As for state national guards, cooperation from governors would be pivotal given their control over their national guards, and governors in places with large numbers of noncitizens who might be targeted for arrests — such as New York and California — are unlikely to cooperate. Whether the President has authority to mobilize national guards without the cooperation of a governor is an open question, but any effort by Trump to do so would prompt legal challenges.

A final source of arrest personnel would be local law-enforcement agencies, such as municipal police departments or detention agencies (prisons and jails), but this path also encounters obstacles. In the past, a primary way the federal government has been able to arrest noncitizens was by issuing requests to local detention agencies to hold noncitizens already in their custody beyond their scheduled releases until ICE could take them into federal custody. But this strategy runs squarely into federal and state constitutional guarantees against unlawful seizure, and local agencies in New York are barred from honoring these requests – known as “detainers” – as the result of a 2018 ruling in an NYCLU case (People ex. Rel. Wells v. DeMarco). As for conventional street arrests, any effort by local law-enforcement agencies to participate in federal immigration enforcement to arrest people suspected of mere civil offenses – the situation presented by nearly all noncitizens lacking legal status — would run into limits on their formal authority, expose them to legal challenges and financial liability, and raise fundamental policy questions about the relationship between local police agencies and the communities they serve.

As for detention, the federal government has broad discretion to detain those properly charged with immigration offenses, and the Immigration and Nationality Act even mandates detention for noncitizens with certain criminal histories. Trump presumably will attempt to detain as many people as possible, which will force resolution of the major constitutional issue looming over immigration detention: At what point does the Due Process Clause require that detained noncitizens be given court hearings at which immigration judges can determine whether they are entitled to release because they pose neither a danger nor flight risk? The Supreme Court repeatedly has refused to decide this issue, but a new circuit split is likely to bring the issue back to the Court early in Trump’s new term. In an NYCLU case (Black v. Decker), the Second Circuit earlier this year recognized broad due process rights of noncitizen detainees to custody hearings, and just two weeks ago the government asked the full court to review the case with a filing that almost certainly is a prelude to a petition to the Supreme Court. Meanwhile, in September the Eighth Circuit issued a decision (Banyee v. Garland) at the other end of the due-process spectrum, holding that indefinite detention without any court hearing was permissible because, according to the court, the noncitizen was always free to end his detention by cooperating with his removal. A Supreme Court decision recognizing even modest due process rights for those jailed for civil immigration offenses could substantially limit Trump’s plan for a vast detention regime.

Finally, Trump’s vow to rapidly deport large numbers of noncitizens is the threat he is least likely to be able to carry out because noncitizens in removal proceedings have extensive procedural protections that greatly slow down the process. Immigration authorities already face an enormous backlog of deportation cases, and even if Trump goes on a hiring spree of immigration judges and prosecutors, the removal process will remain plodding. While that raises the prospect of a burgeoning detention population in an era of increased arrests, it will thwart efforts by the incoming Trump administration to rush large numbers of noncitizens out of the country.

A Presidency of Grievance and Animus

Beyond a Day 1 immigration assault, one can expect a wide range of actions stemming from Trump’s intense and oft-stated sense of personal grievance and open hostility to pretty much every group other than white, straight men. This animus could drive executive orders, funding decisions, and even criminal prosecutions.

The federal Constitution and many federal statutes ostensibly prohibit executive action, including by the President, motivated by discriminatory intentions, including actions targeting people because of race, sex, national origin, religion, age, and speech. Given the visceral animus driving Trump, these protections will take on outsized importance in the coming Trump regime. However, complementing the Supreme Court decision from earlier this year immunizing Trump from most criminal liability, two decisions from the Court during Trump’s first term threaten to shield him from animus-based, civil-rights lawsuits.

In June 2018, in Trump v. Hawaii, the Court upheld the Trump executive order banning citizens of a group of predominantly Muslim countries from entering the United States, a ban instituted in conjunction with a long series of public statements by candidate and then President Trump declaring his intention to keep Muslims out of the country. Alarmingly, the Court’s insisted on characterizing the Muslim travel ban as involving a “facially neutral” policy. In doing so, the Court chose to disregard the reality that the travel ban was the product of Trump’s hostility to Muslims, as evidenced by his many declarations that he intended to single out Muslims for discriminatory treatment and even a statement by one of his close advisors that Trump had directed him to craft a Muslim ban that would appear on the surface to be neutral so as to survive judicial scrutiny. Complicated as it may be to delve into personal motives behind executive action, our courts will need to confront the fact that we will have a President harboring deep personal grievances and discriminatory impulses.

One year later, in Department of Commerce v. New York, the Court addressed an Administrative Procedure Act challenge brought in the Southern District of New York to the Trump administration’s effort to add to the 2020 census a question about citizenship in an effort to discourage noncitizens from participating in the census, a goal Trump had given voice to. But the administrative record the government produced in the case claimed the Commerce Department had sought to add the question only because the Justice Department had requested it to help enforce the Voting Rights Act. That this explanation was purely pretextual – to put it more bluntly, a lie — came out only because Southern District Judge Jesse Furman allowed plaintiffs’ counsel (who included the ACLU and NYCLU) to conduct discovery outside the administrative record, including a deposition of Commerce Secretary Wilbur Ross. On the basis of the expanded record, the Supreme Court affirmed Judge Furman’s striking of the citizenship question, but in doing so the Court stated he had acted prematurely in allowing extra-record discovery and narrowed the circumstances in which such discovery is permissible. With the APA having been the vehicle for many successful challenges during Trump’s first term, this ruling threatens to hamper efforts to uncover unlawful motives behind executive action during his second term.

Courts in New York

One source of comfort for civil-rights litigators bracing for the coming Trump administration is the federal courts in New York. Buttressed by Biden appointees, the Southern and Eastern Districts continue to be civil-rights friendly, and the Northern and Western Districts are more receptive than they have been in a long time. More importantly, President Biden was able to appoint six judges to the Second Circuit, offsetting the five Trump appointed during his first term and creating a liberal majority of the Circuit’s thirteen active judges. To be sure, the Supreme Court is a constant threat, and one still can draw a challenging panel in the Second Circuit, but New York is a good place to bring federal civil-rights litigation.

We also have a New York Court of Appeals that is the most open-minded in years. While getting a case through the lower courts can be maddening and state courts have limited authority over federal initiatives, the Court of Appeals can play a key role in efforts to curb civil-rights excesses of the coming Trump administration. Most immediately, the administration undoubtedly will seek to involve local and state officials as a way to expand its efforts, with mass immigration arrests being but one example. But any such involvement will raise myriad state-law issues that the Court of Appeals will have the ultimate authority to resolve. In addition, as a Supreme Court heavily influenced by Trump appointees continues to shrink federal constitutional rights, the New York Court of Appeals has an important opportunity to expand the independent guarantees of the New York State Constitution, starting perhaps with the Equal Rights Amendment voters overwhelmingly adopted in November.

Looking Forward

If past is prologue, the next four years will place enormous stress on civil rights and the courts. While Trump inflicted enormous damage during his first term, lawsuits slowed him down and in some instances stopped him entirely. Whether that line of defense holds during Trump’s second term will be a true test of the rule of law in the United States.

This piece was originally published in New York Law Journal.