Barreling Toward Constitutional Tumult

With 2024 upon us, we are confronted with a presidential election that carries historic import for American democracy, its constitutional values, and the rule of law. Between the whitewashing of the January 6 insurrection, the violent targeting of election and judicial systems and those working in them, and burgeoning misinformation campaigns and their receptive audiences, we appear to be approaching a precipice.

Leading this unrest is Donald Trump, the presumptive Republican nominee whose supporters are deeply committed to him, many with little regard for democratic norms or the social compact. His path to election is strewn with consequential constitutional challenges, including his sweeping claims of presidential immunity to legal liability for his involvement in the January 6 insurrection and others’ efforts to disqualify him from office by virtue of the Insurrection Clause of Section 3 of the Fourteenth Amendment. Both issues are before the Supreme Court and likely will be decided shortly.

Nonetheless, it is not too soon to look beyond the election cycle to the prospect of a second Trump administration. And as tumultuous as his first term was, Trump’s current rhetoric and the changed American landscape signal an even more ominous second term when it comes to civil rights and civil liberties.

Racial and Ethnic Animus

Racial and ethnic animus are central to Donald Trump’s rhetoric and, seemingly for so many, his appeal. His hateful comments range from ones targeting entire groups – for example, his December claim that immigrants are “poisoning the blood of our country,” a charge that closely tracks one made by Adolph Hitler – to ad hominem attacks on individuals – such his dog-whistle use of Nikki Haley’s Indian first name.

Given constitutional protections against racial and ethnic discrimination, Trump’s statements present courts with the issue of how to assess campaign rhetoric when adjudicating discrimination claims challenging subsequent action by subsequently elected officials. In a signature decision from Trump’s first term, the Supreme Court has ruled that the courts should essentially ignore such rhetoric and did so in a case that arose from the first days of the first Trump administration.

During the 2016 campaign, Trump repeatedly demonized Muslims and promised to bar them from entering the United States. Unsurprisingly, one of his first acts upon becoming President was to issue an executive order closing the American border to residents of a number of predominantly Muslim countries, an order that went into effect immediately and prompted chaotic situations at international airports, including New York’s JFK. The ACLU and others rushed to challenge the order, leading ultimately to a June 2018 Supreme Court decision in which the conservative members of the Court attempted the extraordinary feat of validating Trump’s Muslim travel ban while simultaneously attempting to absolve the Court of its World War II endorsement of the race-based Japanese internment.

In Trump v. Hawaii, 138 S.Ct. 2392 (2018), the Court upheld what by that point was the third iteration of the travel ban, the Trump administration having twice tweaked the original executive order as part of an effort to insulate it from judicial challenge. In sustaining the ban, the Court emphasized the extreme deference due the President with respect to the admission of foreign nationals to the United States; held that, given such deference, exclusion orders were subject only to the most minimal “rational basis” scrutiny if neutral on their face; and held that, notwithstanding Trump’s numerous public statements, the proclamation announcing the ban suggested an “independent justification” for the ban.

Looming over the Court was its disgraceful rulings about the Japanese internment, which involved herding over 70,000 American citizens and another 50,000 law-abiding immigrants of Japanese descent into camps. In a caustic dissent, Justices Sotomayor and Ginsberg likened the Court’s upholding of the Trump travel ban to the Court’s ruling in Korematsu v. United States, 323 U.S. 214 (1944). In response Chief Justice Roberts wrote for the five-Justice majority:

Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. . . .

The Court’s insistence on characterizing the Muslim travel ban as involving a “facially neutral” policy, in supposed contrast to the race-based Japanese internment regime, is deeply troubling in the face of a possible second Trump administration. In Trump the Court chose to disregard the reality that the Muslim 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. To turn away from these realities is a dangerous abdication of the judiciary’s critical role in our constitutional scheme.

Immigration Detention

Trump’s “poisoning the blood” charge about immigrants calls to mind a central feature of his first administration: large-scale arrests and detentions of noncitizens. Limitations on involuntary government detention lie at the core of our constitutional scheme, with the Supreme Court long having recognized that the Due Process Clauses of the Fifth and of the Fourteenth Amendments impose fundamental substantive and procedural protections against unjustified detention. Yet, almost 250 years after the adoption of the Bill of Rights, in a country peopled by immigrants, these most basic of constitutional protections remain unresolved for one group: noncitizens detained on suspicion of civil offenses involving U.S. immigration law.

Even those well-versed in constitutional law may be surprised to learn that it is an open question whether such noncitizens can be jailed for years without any hearing while their immigration cases move through the clogged immigration courts. And other key issues remain similarly unresolved: For those noncitizens granted a hearing, does the government or the noncitizen bear the burden of proving or disproving a justification for detention during the pendency of the immigration proceedings? When an immigration judge concludes that a noncitizen can be released on bail, does the judge have to consider the noncitizen’s ability to pay in setting the amount of bail to avoid detention merely because of indigency? Finally, given that many noncitizens may not be able to afford bail, must an immigration judge consider alternatives to bail (such as regular check-ins) when considering conditions of release?

The due process rights of those in immigration detention were before the Supreme Court in 2018, but the Court chose to decide Jennings v. Rodriguez, 138 S.Ct. 830 (2018), solely on statutory grounds, sending the constitutional issues back to the lower courts. Prior to Jennings, the lower courts had struggled with these issues, and that struggle continues to this day. In a case argued by the NYCLU in January 2023, the Second Circuit once again has been presented with these core constitutional issues, and we expect a decision soon. Whether in this case or another, the Supreme Court must decide these issues, and it may be confronting them dramatically during a second Trump administration.

Culture Wars

The “culture wars” are a defining feature of the Trump phenomenon. Targeting virtually every group of people who are not straight white men, they present a host of constitutional issues unresolved by the Supreme Court and undoubtedly headed to the Court in the next four years.

One hot-button topic is government efforts to regulate the struggles young people face with their gender identities, with bans on “conversion therapy” being an example recently before the Court. As explained in the case that came to the Court, conversion therapy encompasses therapeutic practices and psychological interventions that seek to change a person’s sexual orientation or gender identity. The goal is to change an individual’s sexual orientation from gay to heterosexual or to change an individual’s gender identity from transgender to cisgender. Conservative legal groups fighting bans on conversion therapy contend they violate the First Amendment rights of health-care providers (an ironic position given support on the right for state laws requiring health-care providers to provide information to women seeking abortions as a strategy from deterring them from pursuing abortion).

The case before the Supreme Court involved a challenge to a Washington State statute that barred licensed health-care providers from engaging in conversion therapy. In Tingley v. Ferguson, 47 F.4th 1055 (9th Cir. 2022), the Ninth Circuit was able to uphold the Washington statute without getting into the difficult legal and policy issues conversion-therapy bans raise because of Ninth Circuit precedent upholding a similar ban enacted by California. But as with most culture-war challenges, the challengers’ goal was to get the issue to the Supreme Court, which of course now has three Trump-appointed justices.

In December, however, the Court refused to hear the case. But Justices Kavanaugh, Thomas, and Alito dissented, with Justice Thomas’s opinion being a harbinger of things to come:

There is a fierce public debate over how best to help minors with gender dysphoria. The petitioner, Brian Tingley, stands on one side of the divide. He believes that a person’s sex is “a gift from God, integral to our very being.” As a licensed marriage and family counselor, Tingley seeks to assist minors who suffer from gender dysphoria but “want to become comfortable with their biological sex.” Tingley does so through “talk therapy”—i.e., therapy conducted solely through speech. The State of Washington is on the other side of the divide. Its view is that the State should “protec[t] its minors against exposure to serious harms caused by” counseling to change a minor’s gender identity and, as a result, that counselors should only affirm a minor’s chosen gender identity.

Despite the Court’s denial of certiorari in Tingley, Justice Thomas observed he had “no doubt” conversion-therapy bans would come back to the Court, and we can expect that should there be a second Trump term. We also can expect a host of other culture-war issues, including sex-defined school bathrooms, sex-segregated sports, and “woke” curricular materials and library books, not to mention culture-war staples such as abortion rights and religion-justified discrimination.

Looking Forward

The first Trump administration posed ongoing constitutional crises that went beyond the normal debates about government policy and tested the bounds of judicial review and the rule of law. That all culminated with the ultimate constitutional crisis: the January 6 insurrection, which reverberates to this day, politically and judicially. Should Trump be re-elected, everything about his recent actions and statements suggests a second term may be even more tumultuous.

This piece was originally published in the The New York Law Journal