In Donald Trump’s first term in office, the American Civil Liberties Union filed four hundred and thirty-four lawsuits against the Administration. Since Trump’s second Inauguration, the A.C.L.U. has filed cases to block executive orders ending birthright citizenship, defunding gender-affirming health care, and more. If the Administration defies a judge’s order to fully reinstate government funds frozen by executive order, Anthony Romero, the A.C.L.U.’s executive director, says, we will have arrived at a constitutional crisis. “We’re at the Rubicon,” Romero says. “Whether we’ve crossed it remains to be seen.” Romero has held the job since 2001—he started just days before September 11, 2001—and has done the job under four Presidents. He tells David Remnick that it’s nothing new for Presidents to chafe at judicial obstacles to implement their agendas; Romero mentions Bill Clinton’s attempts to strip courts of certain powers as notably aggressive. But, “if Trump decides to flagrantly defy a judicial order, then I think . . . we’ve got to take to the streets in a different way. We’ve got to shut down this country.”
Chapter 1: What lawsuits did the ACLU file during Trump's first term?
The executive director of the ACLU is Anthony Romero. Romero has held the job since 2001, September 2001 to be exact. He started in the role just a few days before the September 11th attack. Romero has done the job under four presidents.
Since Donald Trump's second inauguration, the ACLU has filed suits to block executive orders ending birthright citizenship, defunding gender-affirming health care, and much more. I spoke with Anthony Romero last week. Let's begin with the most essential question, legal and political.
Are we less than a month into the Trump administration, the second Trump administration, on the brink of a constitutional crisis?
I think we could very well be there. We're at the Rubicon. Whether we've crossed it is yet to be determined. Well, describe what the Rubicon is.
What is the Rubicon?
The Rubicon is the flagrant abuse of judicial power. If the Trump administration decides to run the gauntlet and openly defy a judicial order in a way that is not about an appeal, it's not about clarifying, it's not about getting a congressional fix, but an open defiance to a judicial order, then I think we're there.
What are the issues where that's a possibility?
Well, there are 40 cases, David. There have been a bunch of lawsuits around the Doge and whether or not the Doge and Elon Musk have overextended their power.
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Chapter 2: What is the significance of the Rubicon in this context?
This is the Department of Government Efficiency led by Elon Musk.
Exactly. There are some who say that they're violating the Privacy Act, that they're accessing personal identifiable information. on American citizens, their social security numbers, their tax returns, all sorts of information that are in the government data banks.
Now, whether or not they've actually accessed that, whether there's harm, whether or not the individuals who are bringing cases have standing, those are all to be determined by the judges. But there are about four cases, I think, that have been filed there thus far.
Then there's all the questions around shutting down or the closure of grants from the federal government, from USAID and other agencies. This is considered illegal by legal experts because Congress appropriates the money.
Right.
It's not the president's power to rewrite the appropriations from Congress.
Now, you have the vice president of the United States saying the following. Judges are not allowed to control the executive's legitimate property. power, right? What say you as the head of the ACLU?
Legitimate. That's the word that jumped at me. And that's what we're arguing about, whether it's a legitimate use of the executive branch power. And it's not a new controversy. I mean, we've had these debates before. The unitary executive, remember that back in the days of George Bush. And of course, most presidents have tried to exert a much more muscular approach to executive power
than I think the courts or Congress often give them the room for.
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Chapter 3: What are the potential repercussions of repealing birthright citizenship?
There would be hundreds of thousands. We have clients already in our litigation who are pregnant women whose children would be born after the date of the executive order, whose citizenship would be called into question.
So siblings would be potentially rent apart and parents and children would be rent apart as well.
And you would have this, you would create a legal vehicle for intergenerational stigma and discrimination. I mean, it's like any of us who travel to places like Germany or Japan. These countries still struggle with what it means to be a German citizen or a Japanese citizen. You see the discrimination against Koreans in Japan. That's generations.
That's because they haven't had a concept like birthright citizenship like the way we do.
What court is your suit filed in?
It's in the First Circuit. It's in federal court.
And describe the First Circuit and the potential fate of this case.
It's a good, we picked the First Circuit. You know, we're good lawyers. So we think about the clients. I mean, there are four different lawsuits that I keep track of. Ours was the first, two hours after he signed. That means that we were working up this lawsuit. For months. Months. Identifying the clients, identifying the theories, identifying the venues, honing the pleadings.
So as soon as we could see the executive order, we could fill it in and file, literally on a federal holiday, Martin Luther King Day.
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Chapter 4: How can the ACLU respond to a constitutional crisis?
Where else could you locate a constitutional crisis that's now happening or in the process of happening?
I think these other suits around congressional appropriation of funds that are now being disregarded by the executive branch. Those very well could be the precipitating factor for a constitutional crisis.
What happens when and if there is a constitutional crisis? What happens if a White House refuses to obey a court order? A federal judge called out the Trump administration for blatantly ignoring an order to resume federal funding for the Office of Management and Budget. Yeah.
that have been frozen, what can you do if Trump simply ignores the judges and doesn't want to listen to anybody and just directs his people to keep doing what they're doing? What possible authority or power does anyone have in this, much less the ACLU?
Chapter 5: What happens if the Trump administration defies judicial orders?
I think you keep running the gauntlet. I mean, that judge, Judge McConnell, that's the Rhode Island judge I think you're referencing. That's right. Basically, the Trump administration is arguing not that we don't have to heed you, They argue in their response to the judge, no, we are heeding you. We think your order was more limited.
The judge then clarified on Monday earlier in the week saying that, no, he had meant for them to reinstate all the grants writ large. And so this will continue to move up the food chain. The crisis moment comes when the Supreme Court rules, let's say, with Judge McConnell and says the Trump administration has fragrantly disregarded a clear judicial order and thou must comply.
And if they don't comply, then we're in a different moment. So we have to exhaust all the remedies. We have to get fines. We have to ask for incarceration of individuals who flagrantly disregard judicial orders. And that includes? That includes the federal agency heads.
And it also includes the President of the United States?
If he himself or the Vice President, sure. Sure, no one's above the law. Right? Right.
Anthony Romero is the director of the American Civil Liberties Union and will continue our conversation in a moment. This is the New Yorker Radio Hour.
On Radiolab, a story about how the country's most brilliant doctors did exactly what they were supposed to do.
And wound up killing 20, 30,000 people or so before it was over with.
The question we'll ask is, how did this happen?
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Chapter 6: What strategies could be used to mobilize people against executive overreach?
Totally agree. Totally agree. And we've got to take it one step at a time.
And when you say shut the country down and take to the streets... Who's doing that? What does that mean?
I think you have to call on, for instance, corporate leaders. We'll have to yank them into the pool with us. If they believe that part of what is going to protect good corporate interests or the workings of the economy is rule of law, there's got to be a moment when people are saying, can you countenance this?
I mean, President Biden had a number of instances where he also bristled at judicial oversight and judicial review. I mean, he hated the effort to shut down the student loan program. It's one of his signature programs. Never got it through because the courts got in his way.
But it's really quite another matter when there's a final order of the highest court of the land and the president just says, doesn't bother me. Don't have to heed you or hear you. That is a moment when I think we'll be able to harvest the opinions of people and get people engaged in a very different way. It won't matter the content. It will matter whether or not.
We will allow an executive branch to assume such extreme power.
Haven't the courts, though, changed in recent years? I mean, Donald Trump had a healthy long time to install a lot of— 28% of the federal judges are Trump appointees. And have you sensed that difference in your cases? Sure, sure.
And they're on the bench, and sometimes they watch his back, and sometimes they rule in ways that are kind of— head-scratching in terms of how far they will go to protect the person who put them on the bench. Also true, 65% of the judges have been appointed by Obama and Biden. So there's a larger number of them. That will change as they start to move judicial appointments.
I mean, what's in front of us, I mean, let's talk a little bit what else might be in front of us, right? Yep. That's not just the onslaught of the executive orders. Now, this is where I'm going to curl or uncurl your listener's hair. I have no hair. But for instance, we have yet not seen the mass deportations that I think are on the horizon. When they start revving up that machinery,
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