Donald Trump

The ACLU Counts the Ways Trump Would Violate Civil Liberties

On immigration, surveillance, torture, and press freedom, Trump's ideas are not just bad-they're unconstitutional.

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Trump campaign

Yesterday the American Civil Liberties Union (ACLU) published a 27-page analysis of the constitutional and statutory violations entailed by some of Donald Trump's most outlandish policy proposals, including a ban on Muslims entering the United States, deportation of all illegal immigrants, heightened surveillance of Muslims and Americans generally, legalized torture, and relaxed rules for winning libel suits. Some highlights:

Muslim Ban. As Trump originally described it—"a total and complete shutdown of Muslims entering the United States," apparently including U.S. citizens and legal permanent residents—this proposal clearly would violate the Fifth Amendment's guarantees of due process and equal protection (understood to be part of due process in this context) as well as the First Amendment's guarantee of religious freedom and its prohibition of religious favoritism. Even if the Muslim ban were limited to tourists and other temporary visitors, the ACLU argues, it would still violate the First Amendment. Although the Supreme Court upheld blatantly racist immigration policies in the 19th and early 20th centuries, it says, "There can be no question that such racial exclusion laws would not pass constitutional muster today." In any case, "there has never, even during the period of racial exclusion, been an immigration ban on the basis of religion," a fact that "likely reflects the priority of religious neutrality since the nation's founding." The ACLU adds that Trump's Muslim exclusion plan would be unconstitutional even if it were disguised as a ban based on nationality, as he more recently suggested it might be, because "intent to discriminate on the basis of religion, even hidden behind pretextual religious neutrality, violates the Establishment Clause and Equal Protection."

Mass Deportation. While there is nothing inherently unconstitutional about deporting lots of people (a policy practiced by our current president, as the ACLU notes), the promise Trump has made—removing all 11 million unauthorized residents within two years—cannot be accomplished (assuming it can be accomplished at all) without massive violations of civil liberties. "Trump's mass deportation scheme would mean arresting more than 15,000 people a day on immigration charges, seven days a week, 365 days a year," the ACLU says. "There is no conceivable mechanism to accomplish the roundup that Trump has promised while respecting basic constitutional rights." Since "undocumented immigrants are not readily identifiable as such," such an undertaking would entail "tactics like suspicionless interrogations and arrests, unjustified and pretextual traffic stops, warrantless searches of workplaces and homes, and door-to-door raids in immigrant neighborhoods." If "practiced on a huge scale throughout the country, those activities would systematically violate the Fourth Amendment." The ACLU also argues that a lack of sufficient capacity in the immigration court system would make it impossible to respect the due process rights of residents who claim they are not subject to deportation. 

The Great Wall. Like mass deportation, the wall Trump has promised to build along the border with Mexico (at the Mexican government's expense) would not by itself violate the Constitution. But the ACLU argues that it would "exacerbate the current wasteful militarization of our southwest border that daily confronts border residents going to school or work with checkpoints, roving patrols, almost 20,000 heavily armed Border Patrol agents, drones, and other weapons of war." Trump's vision would mean more routine hassles, including unconstitutional searches and seizures, for citizens and legal residents who live or travel near the border.

Muslim Tracking. Trump has spoken favorably of "profiling" Muslims, surveilling mosques, increasing the police presence in Muslim neighborhoods, and establishing a national database of Muslims living in the United States. "Trump's statements suggest that as president he would implement policies and programs that would subject American Muslims to surveillance or registration based solely on their religion," the ACLU says. "Any such federal action would single out and expressly discriminate against American Muslims, violating the U.S. Constitution's guarantee of equal protection, as well as the First Amendment's clauses relating to religion and freedom of expression."

Mass Surveillance. Trump supports the National Security Agency's routine collection of Americans' phone records, a practice that is now prohibited by federal law. Even if Congress changed the law, the ACLU argues, such suspicionless data collection would violate the Fourth Amendment. The ACLU rightly rejects the "third party doctrine" as a justification for seizing every piece of personal information that businesses store, no matter how sensitive or revealing. But Trump ventures beyond that pernicious principle, endorsing warrantless wiretaps of telephone conversations. In an MSNBC interview last November, the ACLU notes, "Trump stated that he assumes 'people are listening' every time he picks up a phone, and although he '[doesn't] like it,' he 'would really much err on the side of security.'" While the constitutionality of the NSA's phone record database remains controversial, there is no question that the Stasi-style eavesdropping Trump describes would violate the Fourth Amendment's ban on unreasonable searches.

Torture. Although torture is unconstitutional as well as illegal, Trump promises to use interrogation/punishment methods "a hell of a lot worse than waterboarding." Defenders of waterboarding generally argue that it is not really torture, but Trump is untroubled by such niceties, since "they deserve it anyway, for what they're doing." The ACLU notes that "the Fifth Amendment's Due Process Clause bars treatment that 'shocks the conscience,' including interrogation by torture," while "the infliction of torture as punishment violates the Eighth Amendment's prohibition of 'cruel and unusual punishment.'"

Looser Libel Laws. If elected, Trump says, he will "open up our libel laws" so that "we can sue [news outlets] and win money instead of having no chance of winning because they're totally protected." By that he means that "if a paper writes something wrong" and "they don't do a retraction," they should have to pay up. One problem with this promise, the ACLU notes, is that the president of the United States has no power to change libel law, because people sue for libel under state law, and "there is no federal libel law." Even assuming that Trump had the power to rewrite libel standards, he would be constrained by the First Amendment, which according to the Supreme Court requires proof of "actual malice"—that is, proof that the defendant published a defamatory statement knowing that it was false or with "reckless disregard" for its accuracy—in cases involving public figures. "The primary reason for such robust protection in cases involving public officials or public figures," the ACLU notes, "is a longstanding recognition that in the context of public discourse, which is often heated, punishing all false statements 'may lead to intolerable self-censorship' by those who fear punishment for making an honest factual mistake." Trump, as a widely reviled public figure, dislikes the "actual malice" requirement for obvious reasons. But the standard he suggests—mere wrongness, presumably as perceived by him—would never pass constitutional muster, so there is "no chance that Trump would be able to 'open up our libel laws' in the manner that he has proposed."

Surprisingly, the ACLU does not discuss Trump's misguided, ahistorical attack on birthright citizenship. Less surprisingly, the memo does not mention Trump's alarming enthusiasm for eminent domain either. Like libel law, that's an area where Trump's narrow self-interest blinds him to the value of broad protections for civil liberties—the same sort of blindness that afflicts Hillary Clinton when she calls for censorship of her critics.

Speaking of which, the ACLU says "an analysis of Hillary Clinton's proposed policies and their civil liberties implications is forthcoming." I would suggest starting with the First Amendment, then moving on to the Second. But I have a feeling the ACLU will skip straight from the First (assuming it covers that) to the Fourth.

Damon Root has more on Trump and the Constitution.

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  1. The ACLU Counts the Ways Trump Would Violate Civil Liberties

    But Hillary skates. Fuck the ACLU.

    1. No, no. It’s “forthcoming”.

      1. “Hillary Clinton is a champion of the constitutional Right to Choose, but she wouldn’t fully enforce some of the other, lesser rights.”

        /the ACLU’s balanced assessment

      2. It’s “forthcoming”.

        Riiiiight. I’m sure it will be hard-hitting and incisive.

        1. Look, we can’t all be outsiders, fighting against the system. If we were, there’d be no system to fight against.

          Ever think of that, Mr. Renegade? Hmmm?

      3. I wonder if they will address the murder droning of American citizens without due process and the wars unauthorized by congress while she was Secretary of State?

        1. I don’t.

    2. But Hillary skates. Fuck the ACLU.

      This guy ^^ knows the rules.

      1. Do you know who else advocated for his dictatorial rules?

        1. ABRAHAM LINCOLN?!

    3. No. Fuck Jacob. This is his article. I stopped reading at “.While there is nothing inherently unconstitutional about”

      I get it Reason. You are part of the elite. The contempt you fucks have for anyone who would consider voting for Trump is obvious. And somehow a Trump presidency is going to upset your applecart.

      An as for Johnson. Good luck breaking 1% of the vote which GayJay coudln’t even manage to do last time.

      1. The contempt you fucks have for anyone who would consider voting for Trump is obvious.

        Is there any particular reason that people shouldn’t be ridiculed for voting for Republicrats?

    4. I was wondering how long it would take somebody to make that comment.

    5. I’m curious as to what you think Hillary’s email activities have to do with civil liberties.

      Hillary is corrupt, probably a felon, but that has about zilch to do with whether she would violate civil liberties as President, at least not to a greater extent than now.

      1. Equal treatment under the law isn’t a part of civil liberties now?

      2. I’m pretty sure (although I can’t read minds, obviously) that “Hillary skates” is in direct reference to the quoted headline of “ACLU counts the ways Trump would violate civil liberties”.

        Or do you know of an article put out by the ACLU that counts the ways she would (and already has) violated civil liberties?

      3. You mean other than running on a platform calling from the DOJ to open a RICO criminal investigation into those who dissent from the Democrats’ orthodoxy on Global Warming/Climate Change/Climate Justice/Climate Whateever? Doesn’t that touch a little bit on civil liberties?

      4. Well, she seems hellbent on gutting the first and second amendments. Those of which affect me more personally than whatever Trump wants to do.

  2. Was the 1927 Immigration Act which banned Arab immigrants ever declared Unconstitutional? Were earlier bans on Communist immigration? The position now is to use political support for Sharia Law as the test.

    The ACLU is arguing politics, not civil rights on the wall and the immigration stuff. They need to re-adjust their masks.

    1. Was the 1927 Immigration Act which banned Arab immigrants ever declared Unconstitutional?

      I can’t see how it would be. Stupid? Sure. But unconstitutional? I’m not seeing that at all.

      1. The periods in American history when there weren’t immigration restrictions and bans on people from certain origins are much shorter than the periods when there were.

      2. Which section of the Constitution grants the legislative power to regulate immigration?

        Can legislation be constitutional if it is trying to use a power not explicitly granted by the Constitution?

    2. Who cares if it is unconsitutional if it is morally wrong.

      1. Then don’t say its unconstitutional.

  3. “””””racial exclusion laws would not pass constitutional muster today.” “”””

    Muslims are not a race.

    1. Uncontrolled entry into the US is not a constitutional right. It may not be a good idea to exclude immigrants based on certain generalizations, but it’s not unconstitutional.

      1. Muslim is a belief, we ban communists from getting a visa because of their beliefs.

        “””(D) Immigrant membership in totalitarian party.-

        (i) In general.-Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.”””

        http://tinyurl.com/gp2dqu3

        1. In general.-Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.

          So no Republicans or Democrats.

        2. Muslim is a belief, we ban communists from getting a visa because of their beliefs.

          Ah, but Islam is a *religion*. Mohammed *was* prophetic, eh?

          1. It’s a religion AND a political system.

            1. I would say it’s a political system first then a religion.

        3. So heartless! I can’t see how a mass migration of communists wouldn’t be a complete and total gain for the economy, the culture and society in general.

      2. Ok, so Trump proposed policies would be immoral but not unconsititional. Whoop-te-doo.

  4. Hitlary is bad – Der Drumpf is way worse.

    1. dude your so right how did I not see it before?

    2. Did you ever pay up? Or are you doing a Trump and making him come after you and settle for 50 cents on the dollar?

      1. I’ve put Palin’s Buttplug in Chapter 13. Take it to the judge.

        1. So you’re not just stupid and mendacious, you’re also dishonest. Not that this is any surprise whatsoever, but it’s nice to see you admit it without a shred of embarrassment.

      2. So Weigel is now trolling us under like three different screen names?

        I guess it’s just another obvious sign of his mental illness, which he openly admitted a while back.

    3. ZOMG You toats just made fun of Trump by repeating a TVjoke about how his family immigrated to the US generations ago and mocking his foreign-sounding name in a totally not-racist way@!!!! You a laugh riot brah!!!!

  5. Trump’s opinions would be irrelevant were it not for the “Imperial Presidency” that was established by George Bush and expanded by Barack Obama.

    1. Whatever happened to “In America, anyone can be President. Fucking *anyone*.”?

      1. “Whatever happened to “In America, anyone can be President.”

        Oh, I would say it’s alive and well!

        When you imagine that Bernie Madoff and Alger Hiss could have female child, complete with cankles, dress her up in Mao pantsuits, and get her elected president, I would say ANYONE can be president.

        At this rate, in another election cycle or two, we’ll have the head of the Gambino crime family running. Just wait and see. (He will probably be more honest too, and less of a war-monger.)

      2. Yes, literally, let’s elect an autistic child. Fucking ANYONE can be president. Let’s prove it.

      3. Yes, literally, let’s elect an autistic child. Fucking ANYONE can be president. Let’s prove it.

    2. Great, I guess when we elect Trump all of that will magically disappear and Trump will go back to being a figure head just like the Founding Fathers intended. Magically.

      1. What part of kinnath’s statement seemed like a Trump endorsement to you?

        1. The part where he deflects attention from the actual subject to talk about his shitty those other guys are.

          1. How is basically saying that Trump wouldn’t even be able to do those shitty things if it wasn’t for the expansion of presidential power under Bush and Obama an endorsement?

            I mean seriously, it’s not even deflection, it’s straight out saying A + B = C.

  6. The ACLU Counts the Ways Trump Would Violate Civil Liberties

    And not surprisingly, 4 of their 6 points are progressive shibboleths and not civil liberties at all.

    1. Nice. In one line you smashed their entire argument while most folks play the left’s game defensively, bogged down in non sequitur weeds.

      That’s always been their obvious strategy, by the way. Ain’t just about the constitution either. Pick your issue du jour.

    2. Great, Muslim registries for everyone! Bring on the liberty!

  7. TL;DR

    I’m guessing “gun rights” is never breathed about in the discussion of “Theoretical Civil Liberties Violations of a Hypothetical Future Administration”

    1. Neither is the right to not bake cakes for gay weddings – clearly the second most important civil liberty.
      Unless you’re a Muslim, in which case gay cake is an important protection of liberal Democracy against the islamic Menace.

  8. Has anyone at reason linked to this yet?

    Crooked Hillary, No!

  9. Having a President Trump would strengthen our civil liberties. Congressmen and Senators on both sides of the aisle would discover the Constitution and the separation of powers. Vote Trump to rein in the imperial presidency.

    Given congress’s power of the purse, there’s no reason a Speaker of the House (with balls) couldn’t be “the most powerful man in Washington”.

    1. Isn’t this like burning the village in order to save it?

      1. Maybe it would be more like a burning village on an island, sinking into the ocean.

  10. Like mass deportation, the wall Trump has promised to build along the border with Mexico (at the Mexican government’s expense) would not by itself violate the Constitution. But the ACLU argues that it would “exacerbate the current wasteful militarization of our southwest border that daily confronts border residents going to school or work with checkpoints, roving patrols, almost 20,000 heavily armed Border Patrol agents, drones, and other weapons of war.”

    If it saves just one job…

  11. 1. Muslim ban. Wouldn’t happen under Trump so moot. That was just free PR tactics at the start of the Primaries.
    2. Mass deportations. Not unconstitutional if it is enforcing immigration law.
    “removing all 11 million unauthorized residents within two years?cannot be accomplished (assuming it can be accomplished at all) without massive violations of civil liberties.”
    False. Also, the majority of deportations would be ‘self-deportation’ once the ball gets rolling.
    3. Great Wall. Not unconstitutional.
    4. Muslim tracking. Not unconstitutional if it is narrowed to monitoring “suspect” terrorists. It’s already happening.
    5. Mass Surveillance. Already happening for decades. Now the ACLU is concerned?
    6. Torture. Crime. As are many of Obama’s assissination drone strikes. Will the ACLU take action on crimes which have actually occurred or just cry about hypothetical future crimes based on the speeches of a blowhard?
    7. Looser Libel Laws. As mentioned, completely outside Trumps control. Moot.

    All told, the article doesn’t live up to the hype of the headline.

    1. All told, the article doesn’t live up to the hype of the headline.

      Forget it, Tom, it’s Clickbait Town.

    2. Its interesting how so many “libertarians” are so eager to figure out how it’s constitutional to violate the liberties of groups of people they dislike. Particularly if those other groups of people look different and have a different religion.

      1. Um, the Constitution gives Congress control over immigration and charges the president to faithfully execute the law. Not deporting illegal immigrants is more unconstitutional than deporting them. And there is no constitutional right to visit the US, otherwise instead of granting Congress immigration powers, the Constitution would say that Congress shall pass no law restricting immigration, the way it does for other liberties.

  12. I’m shocked so many of Trump’s proposals are actually ceded as Constitutional here.

    1. That’s probably because folks around here have been actually studying the Constitution and following court cases, so we have a clue what is and isn’t Constitutional. We don’t take people’s assertions about Constitutionality at face value.

  13. Doesn’t take long for the TEAM RED blowhards to start orangenosing Mr. Donald J. Trump on here.

    1. I see some people arguing the constitution and kicking the ACLU in the nuts.
      Are you at the wrong site?

      1. All of the parts of the Constitution that Trump has pledged to violate, you waved your hand and said that “well, he doesn’t really mean it!”
        And the ACLU leaves out a number of other constitutional violations, e.g eminent domain.

        1. Eminent domain not only isn’t unconstitutional, it’s referenced specifically in 5A. Nothing Trump has proposed regarding eminent domain was unconstitutional even pre-Kelo, and certainly not post-Kelo.

      2. You’re arguing how the constitution lets the government commit all sorts of acts of violence against disfavored groups. I’m fascinated how you think that’s “libertarian”.

        1. Yeah, it’s almost like “constitutional” and “libertarian” mean different things and some people are bright enough to comprehend the difference in an article specifically discussing constitutionality.

    2. YOU TELL THEM!! UGH SO UGH AM I RITE?

      1. It’s like, I can’t even. smh smdh

      2. UGH I KNOWRITE!

    3. Wait, what?

    4. It doesn’t take a Trumpkin to recognize that the ACLU is a partisan hack orginzation.

  14. Speaking of which, the ACLU says “an analysis of Hillary Clinton’s proposed policies and their civil liberties implications is forthcoming.” I would suggest starting with the First Amendment, then moving on to the Second. But I have a feeling the ACLU will skip straight from the First (assuming it covers that) to the Fourth.

    Fucking Cosmotarian Sullum remains uncritical on Hillary’s stance on the Third Amendment. Typical cocktail party East Coast elitism.

    1. Transgender bathroom laws violate the Third Amendment. They’re quartering progressive soldiers in our bathrooms!

      1. The third most important liberty after guns and not baking gay wedding cake – not going to the bathroom in the same room as a person of the opposite biological sex.

        Derps got his priorities straight is all.

        1. You may want to check your sarcasm meter.

  15. So, the Constitution only applies to US citizens unless I missed something very, very important. That’s why we can’t, you know, impeach the King of Saudi Arabia for violating the 1st Amendment rights of his subjects. By definition, an immigrant is not yet a citizen.

    Also, where has the ACLU been for the past eight years when an actual, sitting US president has been violating or threatening to violate Americans’ civil rights? And in an election cycle when we have one candidate who has been part of the political establishment for decades and has been an actual, honest-to-god politician for several years, and has actually been in a position to violate the civil liberties of American citizens, why did the ACLU begin by concentrating on the candidate who has never held a political office in his life?

    Of course, those were rhetorical questions. I think the answer’s pretty obvious.

    1. Team Red shill!!!!1!

    2. So, the Constitution only applies to US citizens unless I missed something very, very important.

      You missed something very, very important, then. Phrases like “make no law” and “in all criminal prosecutions,” to name but a couple, make no distinction between citizens and non-citizens.

      1. I suppose I should clarify a bit. The Constitution is a limit on what our government has the authority to do. In the case of the First Amendment, for example, it prohibits Congress from establishing a religion, prohibiting the free exercise thereof, or from making laws that violate the freedom of speech (among other things). The right to freedom of speech isn’t something granted by the First Amendment of the Constitution. It’s something that pre-exists that document and, (in the view of some at least), is inherent in ourselves as men and women. The First Amendment exists to categorically state that Congress can’t interfere with it.

        1. Well said.

          In response to OP, does the state have the right to jail a non-citizen resident of the US for unpopular speech in your view of the constitution?

    3. Actually, constitutional rights apply to more than just citizens. See, for example, the 14th Amendment.

    4. Another fascinating comment from a libertarian explaining why it’s ok to aggress against certain people that said libertarian dislikes.

      1. Beyond that, he’s just flat out wrong on the legal issues involved.

    5. So, the Constitution only applies to US citizens unless I missed something very, very important.

      You did.

      It applies to the US government, not to US citizens.

  16. The American (selective) Civil Liberties (for some) Union is not to be taken seriously. When the ACLU starts defending the Second Amendment and ALL clauses in the First Amendment then maybe they can be considered anything other than a Leftist front.

    1. Also gay cake. We can’t leave out any of the important liberties.

  17. WHAT BUGS ME IS ALL THE RACISTS AND THE HOMOPHOBES IN HERE. TYPICAL

    1. Sad!, really.

    2. BECAUSE CRITICIZING TRUMP AUTOMATICALLY MAKES YOU A CLINTON SUPPORTER, A BLM SUPPORTER, AND AN SJW!
      🙂

    3. You forgot xenophobic, transphobic, and misogynist.

  18. “Trump’s atrocious policy positions are Hillary’s and Obama’s fault.”

    –This entire comments board

    1. ZOMG, that’s soooo us!!! Clever Tony at it agains!!!! 😉 😉

    2. Nope, they are entirely his own fault.

    3. Trumps policy positions are his own. Hillary’s and Obama’s are obviously Bush’s fault.

      1. Good catch. Booosh iz evul!

    4. It’s depressing that Tony is the most libertarian commenter in the thread, so far.

      1. Like I said in another post, TEAM RED came out strong in this thread.

        1. Second most libertarian commenter, after Johnathan Crane.

      2. But perfectly expected that you’re the second most retarded cunt in the thread.

  19. Am I missing something? I didn’t see a single post saying that Trump’s policies were because of Hillary or Obama. Not even allusions to that.

    What I did see was a bunch of sarcasm and a couple people laying out why certain policies weren’t unconstitutional (you know, the subject of the ACLU paper). Oh, and pointing out that Obama has been pretty shitty on some of those things too.

    The comenatriat is cranky and cantankorous and you can find a fair bit of Hit N Runpublicans in it, but I’m really not seeing it in this thread.

    (Disclaimer: I wouldn’t vote for Trump or Hillary if I was forced to vote at gunpoint so please don’t try to smear me with that crap.)

  20. My buddy’s step-mother makes $96 an hour on this PC. She has been fired for 9 months but last month her payment was $9600 just working on the PC for a few hours. Check It out what she do..

    ====== http://www.CareerPlus90.com

  21. Obama violated Civil Liberties of all U.S. legal citizens by opening our borders and allowing anyone to come in and do harm as they saw fit, and that’s a fact.

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