The VICE Guide to the 2016 Election

The ACLU Will Go to War with Trump if He Becomes President

On Thursday, the ACLU released a collection of memos spelling out exactly why they think so many of Donald Trump's statements are unconstitutional.

by Mike Pearl
Jul 14 2016, 6:20pm

Image by Frances Smith

On Thursday, the ACLU, America's most prominent civil liberties organization, made it clear that while they're nonpartisan, they would definitely, definitely battle the policies of a hypothetical Donald Trump presidency.

A collection of legal memos spells out that in a bit more detail, challenging several of the Republican nominee's policy proposals. They cite numerous conflicts with the Constitution, as well as other legal objections, and make it clear that ACLU lawyers would wrap many of Trump policies in legal red tape if they were ever enacted.

Issues that the ACLU would challenge a hypothetical President Trump on include the "temporary" ban on Muslim immigration and the surveillance of Muslim communities, the deportation of 11 million or more undocumented immigrants, the reinstatement of torture, and the redefinition of libel laws to allow for more lawsuits against journalists.

"This is an invitation—in fact and exhortation—for Mr. Trump to look at the constitutional implications of his policies," said the ACLU's executive director Anthony D. Romero in a conference call with journalists on Wednesday.

Trump's policies, Romero claimed, would violate the First, Fourth, Fifth, and Eighth amendments. However, Romero pointed out that the ACLU had largely analyzed "statements made by Mr. Trump over the course of the campaign," rather than formal proposals, because many of the alleged billionaire's positions remain ill-defined, and he sometimes contradicts previous statements. That vagueness required the ACLU to extrapolate measures for enacting Trump policies, many of which it says would be unconstitutional.

For instance, in order to deport the number of immigrants Trump has said he wants to, the ACLU assumes that measures like unjustified traffic stops, door-to-door raids, and racial profiling would be necessary—which would violate the Fourth Amendment's protection against unreasonable search and seizure. "We think that individuals on US soil have certain rights," Romero said. "Those positions stand in stark contrast to Mr. Trump's policies along the border." Such policies, implemented in the past, have led, according to the memos, to "the filing of numerous administrative complaints and lawsuits."

As for the ban on Muslim immigration—again, an administrative matter—"it's not a slam dunk that Trump would be able to implement this without a major legal challenge on his hands," Romero said. Legal scholars like John Inazu have argued that the Supreme Court's 1944 decision Korematsu v. United States—which found that national security threats were more important than the civil rights of Japanese Americans interred in camps during World War II—does provide a possible legal basis for a ban. But according the ACLU, enacting such a policy would violate the establishment clause of the First Amendment, since that clause "bars the government from enacting a law or policy that either favors religion generally."

The ban, along with Trump's proposed surveillance programs targeting Muslim communities and mosques, "would be a constitutional battle that would roil for years," Romero said during the conference call. (The NYPD's blanket surveillance of Muslims was challenged by the ACLU, a lawsuit that resulted in a settlement that changed police policy.)

Romero also expressed concern about Trump's "enthusiasm for waterboarding," noting that torture violates the Eighth Amendment, which protects against cruel and unusual punishment, as well as the Detainee Treatment Act of 2009. As for Trump's mostly off-the-cuff promises to make it easier to sue the media for libel, Romero said that they came along "during times of national election, precisely the time when vigorous debate from both sides need to be valued."

Such policies "would engender a legal and constitutional battle that would be unprecedented," Romero added.

According to Romero, a similar report on the constitutionality of Hillary Clinton is "more than halfway done." Although he gave no specifics, Romero said the ACLU is "deeply troubled" by several of Clinton's proposals, including some of her immigration policies.

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