Can Civil Rights and Civil Liberties Survive a Second Trump Term?

It’s a proposition better left untested.

This essay is part of a package imagining the policy consequences of a second Trump term. Read the rest of the essays here. And, if you enjoy what you’re reading, please consider making a donation—we’re a nonprofit media organization and rely on the support of our readers. In return for a contribution of $50 or more, you’ll receive a complimentary one-year subscription to our print edition.

Can civil rights and civil liberties withstand a second term of President Donald Trump? They have already taken a major hit. Playing to his base, Trump has unremittingly targeted the most vulnerable among us. His anti-immigrant measures began with the Muslim ban, which he recently expanded to bar immigrants from three more predominantly Muslim countries and three countries with large Muslim minorities. He has separated families, detained individuals who posed no threat to others or risk of flight, sought to deny asylum on grounds that were directly contrary to statute, and attempted to rescind protected status for the Dreamers.

On reproductive freedom, he promised to overturn Roe v. Wade, and has appointed judges with that goal in mind. He barred federally funded Title X family planning clinics from advising pregnant women about their rights to abortion, blocked undocumented teens in federal custody from accessing abortion, and gave a green light for employers to deny insurance coverage for contraception to their female employees.

He has sought to reverse nearly every advance that the LGBTQ community made under President Obama. He barred transgender individuals from serving in the military. He rescinded guidance requiring schools that receive federal funding to allow transgender students to use facilities that correspond to their gender identity. And his administration argued in the Supreme Court that a bakery had a First Amendment right to discriminate against a gay couple who sought to purchase a wedding cake, and that federal law does not bar employers from firing their workers for being gay or transgender.

He praised white supremacists in Charlottesville as “very fine people,” and referred to African countries as “shitholes.” His Justice Department sought to back off from consent decrees requiring police to treat their citizens with equal respect and dignity. And he reversed a rule requiring local governments to avoid housing plans that have a disparate impact on minority communities.

At the same time, he has appointed an unprecedented number of federal judges, most of them handpicked by the Federalist Society for their conservative ideological commitments.

You get the point.

But there’s hope. With the exception of his judicial appointments, most of what Trump has done can be undone. All of his initiatives targeting immigrants, restricting reproductive freedom, and countering racial and LGBTQ equality were accomplished through unilateral executive action. As a result, they can all be reversed through unilateral executive action. This doesn’t diminish the harms these actions have already inflicted on hundreds of thousands of people, but it does mean that the damage can be cut short. If he is defeated.

But if Trump manages to win, then what? The next president will almost certainly have the opportunity to appoint one or more Supreme Court justices. The Court is already more conservative than it has been in nearly a century. If Trump gets to replace a liberal justice and create a 6–3 conservative-liberal split, the number of 5–4 decisions splitting in a liberal way, already relatively rare, will likely be erased altogether. We would then need not one but two “swing” justices to swing in the progressive direction for the liberal view to prevail.

Roe v. Wade could be overturned, affirmative action ended, and progress on LGBTQ rights ground to a halt. The Court would be even more solidly pro-business, anti-labor, and anti-consumer than it currently is.

What might this mean? Roe v. Wade overturned, the end of affirmative action, and very little chance that
LGBTQ equality could be advanced through the courts. The Court would be even more solidly pro-business,
anti-labor, and anti-consumer than it currently is. And we would likely see a radical expansion of gun rights, property rights, and religious rights—including the right to invoke religion to discriminate against others. Criminal defendants and immigrants, who haven’t fared well in the Court for decades, would do even worse, and government officials would be given a green light to further strip them of meaningful constitutional protections.

The Justice Department’s Civil Rights Division would remain moribund for another four years, further enabling voter suppression and police abuse across the country. An AWOL Civil Rights Division would have political repercussions far beyond 2024. The 2020 census results will kick off nationwide redistricting, and without a vigilant Justice Department overseeing the process and intervening where appropriate, the Republicans will seek to build in ten-year advantages in the district maps they draw.

More generally, if Trump wins reelection he’s likely to believe that xenophobia worked, and that will then prompt him to try to implement even more virulent and aggressive measures against immigrants, especially those of color. Particularly if there is a terrorist attack that implicates ISIS or al-Qaeda, the Trump administration’s response will likely make George W. Bush’s brutal “war on terror” tactics look humane.

So what can be done?

If Trump wins, it will become all the more essential that “we the people” exercise our First Amendment rights to resist. Trump acts in many ways like a populist autocrat. But unlike some of his counterparts in eastern Europe, he has to operate in an environment with a robust civil society and a strong free speech tradition. The First Amendment empowers citizens to check their government by protecting the right to criticize their leaders; the right to associate with like-minded others to amplify their concerns; the right of the press to report on government abuse; and the right of the citizenry to assemble and to petition their government for change. This is why autocrats in other countries often target the press, the nonprofit sector, and the academy—that’s where resistance to autocracy resides. Suppressing or silencing civil society is a lot harder to get away with in the United States.

Our system of divided government also facilitates resistance. Federalism means that blue states will continue to be able to push back against federal policies that hurt their citizens, as many states have already done by suing Trump in his first term. State courts, legislatures, and town councils can provide protections to their residents that the federal government takes away, including protections for LGBTQ individuals, immigrants, and the poor.

If the House remains in Democratic control, it will be able to play a checking role, through oversight, appropriations, and refusing to pass laws that erode our rights. And even though Trump has appointed nearly 200 judges, the federal courts will remain an important backstop. The courts’ legitimacy rests on the rule of law, a principle and norm that Trump routinely flouts. This is why he has lost more legal challenges than perhaps any prior president, before judges appointed by Democratic and Republican presidents alike. Even his own appointees have ruled against him, as when D.C. District Judge Timothy Kelly ordered the White House to restore press privileges to CNN’s Jim Acosta after the president revoked them.

That may change if he wins reelection and appoints another major portion of the federal judiciary. But this possibility only underscores why we must hold the courts to their most solemn responsibility—of protecting those whose interests the majoritarian process sacrifices. Checks and balances do not run of their own accord. We the people are the ultimate guardians of our liberties.

But if you believe that a second Trump term would create a civil liberties dystopia, the single best thing to do is stop it from happening. In the words of the ACLU’s 2018 midterm campaign, “Vote like your rights depend on it.” (The ACLU is nonpartisan, and does not endorse or oppose candidates, but we educate voters and urge them to make their votes count.) It’s not enough to vote; you need to amplify your voice by encouraging others to vote like their rights depend on it, too. After all, Trump won in 2016 not because he earned a larger share of the vote than Mitt Romney did in 2012. His share was, in fact, smaller. The reason Trump won is that Hillary Clinton’s vote share was less than Barack Obama’s. It was low Democratic turnout that made the difference. If that changes because people vote for civil rights, Donald Trump will lose. It’s as simple as that.

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David Cole

David Cole is the national legal director of the American Civil Liberties Union. The views expressed here are his own.