We shouldn’t underestimate the threats Trump poses, but we shouldn’t underestimate the headwinds he could face if people oppose his initiatives. Remember, autocracy takes time. It’s hard work. Trump is not doing very well. Let’s be realistic about our goal: we can probably limit the damage; we can set the stage for future victories. But how much can we limit the damage? Really, no one knows, and the only way to find out is to try. We know that the framers of the Constitution did much to try to prevent one-man rule by creating the famous checks and balances, including the courts as a check on the president.
But most of our friends believe that this Supreme Court will not stop Trump. We’re joined by David Cole, Legal Correspondent Nation. Cole recently resigned as the ACLU’s national legal director to return to teaching law at Georgetown. He writes for The New York Times, The Washington Postand New York Review of Books.
John Wiener: You were the national legal director of the ACLU for eight years. What did this experience teach you about the courts?
David Cole: The last time the courts were an incredibly important checking force. We stopped him from introducing the first Muslim ban. We stopped him from introducing a second Muslim ban. We stopped him from putting in place a third Muslim ban until it got to the Supreme Court where they upheld it by one vote, but at that point it was a much less broad and sweeping ban.
We ended the separation of families and reunited thousands of families through a court victory before a Republican judge. We supported most of his anti-asylum policies. We defended the rights of undocumented teenage women in detention to access abortions when they needed them. We stopped him from asking a citizenship question on the census, which was designed to weaken the immigrant response and thus ultimately reduce the electoral power of Democrats. And the court refused him to remove protection from Dreamers.
JW: But what about the Supreme Court now?
DC: Many cases never reach the Supreme Court. This Supreme Court is a six-to-three court, but it is not a Trump court. The court ruled against him based on his claims of immunity from subpoenas when he tried to refuse to turn over his tax records to a New York grand jury and a congressional investigation. Trump has had the worst win-loss record of any president on the Supreme Court, and I don’t think he’ll do much better this time around if he tries to get some of the more extreme measures he’s been pushing for—to take away birthright citizenship, for example. This is a constitutional right. You can’t take that away and I think we would have won that one.
In general, the courts are quite prescriptive in their view. This makes them not always the best place to promote progressive causes, but they aren’t always a good place to promote reactionary causes either. They tend to be more mainstream. And while this court is much more conservative than it has been in a long time, it does not have five reactionary and radical members. There can be three of them, but no more than three fit under this number. So I think the Supreme Court is going to seriously push back if he tries to bend the rules the way he’s done before. And now, it seems, he will go even further.
JW: Trump has vowed to begin deporting undocumented immigrants as part of his dictatorship from day one. What does it take to deport someone who is in the United States illegally? I know that illegal entry is a misdemeanor and that being in the United States without proper authorization is a civil violation, which means that the Department of Homeland Security can place a person in deportation proceedings. What happens then?
DC: Most importantly, you have the right to due process. Even if you are not a citizen, even if you are allegedly here illegally. If you’re in the United States, the Supreme Court has held for over 100 years that people facing deportation face serious harm, essentially being deprived of their home, and therefore should have a substantial opportunity to be heard, to present evidence , answer. Then there are appeals both through the immigration process and after that in the courts. And all this requires time and resources.
Now the immigration courts are so overcrowded that we have a backlog of five to six years to even get a hearing with an immigration judge. If Trump is going to increase the number of people being deported, he will have to increase the number of immigration judges. He has opposed hiring more immigration judges in the past. But you just can’t do that unless you have more immigration judges. Then you have to train them, find places for them to work and stuff like that. It’s just not that easy to do.
JW: He says he can deport people by invoking the Alien Enemy Act.
DC: Here’s another one, I think he’ll soon learn that the Constitution and the laws don’t support him. The Alien Enemy Act was passed in the early years of our country’s existence, and it authorizes the government – in a declared war – to detain those who are citizens of a country with which we are at war. So during World War II it was used to shut down the Italians, the Germans, and of course the Japanese. There has not been a declared war since World War II. At the moment we are not in a declared war. The Enemy Alien Act may sound good to Trump because he’s never found an immigrant he doesn’t consider an enemy alien, but it only applies to those who are citizens of countries we’re at war with.
JW: He also says he will use the military to catch undocumented people.
DC: There, too, we have a long history of opposing the use of the military for domestic purposes. There is a statute called the “Act of Posse Comitatus” that generally prohibits such things. We used the military to respond to emergencies, to provide relief, and things like that. It’s not an absolute ban, but it’s not an easy one to invoke, and I think there’s a strong cultural norm against using the military to enforce laws. Even if they just stand there and protect us at the airport or subway station, even that makes many people anxious. But it’s another matter if they start raiding people’s homes or workplaces. I think there will be a real cultural response if he seeks to do this and if he is able to overturn the ban in the Posse Comitatus Act.
JW: Madison called the constitutional checks Trump would face “barriers of parchment.” You kind of agree with that — you say that the ultimate check on Trump is not the Constitution. what is this
DC: This is us. We have 200 years of implementation of this Constitution and we have a strong civil society. And for me, ultimately, that’s where civil society is held back, by which I mean all the institutions, groups and associations that people join that are not part of the government and can therefore be a source of opposition to and government inspection. This includes the press, very obviously; it includes the non-profit sector; it includes the academy; it includes professional associations; it includes religious groups. These are all places where people gather. They have norms and values to which they are committed, and they provide institutional resources for people to fight back when someone seeks to violate those norms and values.
When autocrats come to power in other countries, they first target these very institutions—the press, the nonprofit sector, academia, religious institutions to the extent they oppose them. It would be very difficult to do that in this country because we have a very strong civil society.
But again, it depends. It depends on whether we speak up, whether we fight, whether we engage with these institutions of civil society and fight back. Because if we sit back and say, “Oh my God, there’s nothing we can do,” it becomes a self-fulfilling prophecy.
So it depends on civil society. This means that in the end it is all up to us.
