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.