When Donald Trump returns to the White House next year America’s democracy will not end. His power will be checked by Congress, the Supreme Court, all 50 states and civil society. David Cole, who knows more than most about excessive control of elected officials, said that in 2017 he became director of National Laws at the American Civil Liberties Union They oversee a legal department of approximately 200 people and act as consultants in all cases. that went before the Supreme Court
Now, as he returns to Georgetown University Law School. I asked him to reflect on the ACLU’s successes and failures, pressing him on some of his most controversial positions. and validated his faith in America’s ability to protect civil liberties. For Cole, the ultimate defender of the Constitution is civil society. By that he means all the institutions outside of government that we create, work for, and work with. He mentioned advocacy groups such as the ACLU and the Federalist Society, media outlets such as: atlantic ocean and Fox News; university; protest movements, professional associations, trade unions, and religious groups “If there is no civil society We would not have the rights we have today,” he told me. “I believe in its power and flexibility.” What follows is an edited version of our correspondence.
Conor Friedersdorf: Republicans will control both chambers of Congress next year. The Supreme Court currently has six justices appointed by Republican presidents. This has led some Trump critics to fear that he will not be controlled in a way that could threaten the future of democracy. What makes you think America’s checks and balances will continue to work as intended?
David Cole: Republicans controlled Congress during the first two years of Trump’s first term. and has a 5-4 majority on the court. However, Trump has been unable to enact any major legislation. Got almost all He tried and failed to repeal Obamacare. He has the worst win-loss record on the Supreme Court of any president in history. His own appointees denied his claim that he was exempt from subpoenas for his tax records. While Trump appointed about 28 percent of federal judges, Barack Obama and Joe Biden appointed about 65 percent, and the ACLU won many cases before Trump-appointed judges. In the end The court approved the establishment. Their need to follow that example demands that. They can therefore act as a check against those who wish to violate long-standing norms and principles reflected in our legal tradition.
Friedersdorf: The ACLU filed more than 400 lawsuits against the first Trump administration. What would you say to critics who fear that excessive litigation threatens democracy by disrupting elected officials?
Cole: Courts are essential to our constitutional democracy. Their role is to investigate government actions that are unconstitutional or illegal. I’m as opposed to frivolous litigation as anyone, but the ACLU only needs court relief in cases where we believe people’s rights have been violated. It does not impair democracy to stop illegal government actions. Among other achievements Plenty during the Trump administration. We have stopped the cruel policy of separating babies from their parents. (in immigration detention) void anti-illegal asylum policy Win abortion access for undocumented teens in federal custody. and thwart Trump’s efforts to take action. citizenship question in the 2020 Census and prohibits him from refusing to count immigrants in the official Census.
Friedersdorf: At the beginning of the first term Trump issues executive order suspending travel for nationals of seven countries, all of whom are mostly Muslim. His lawyers argued that terrorists from those countries could infiltrate the United States. Muslims from other countries are not affected. Why do you believe Trump’s approach is illegal?
Cole: The Constitution requires the government to maintain neutrality towards religion. Iraqis represented by the ACLU in the first lawsuit against a ban on Muslims receiving visas for working with the U.S. military. that no one thought they were terrorists but were denied entry into JFK Airport simply because they were from Iraq. Countries with a Muslim majority population Just as it would violate the Establishment Clause to bar Catholics or Jews from entering. It is a violation of the clause to exclude people simply because they come from Muslim-majority countries. And Trump has repeatedly pledged to ban Muslims from entering the country. reasoning about “Terrorism” is a rationalization after the fact.
Friedersdorf: The ACLU succeeds in temporarily halting Trump’s order. and no terrorist attacks occurred. But later the Supreme Court ruled Trump v. Hawaii That travel bans do not violate the law, the ACLU should avoid risking more than just the case. Is it to avoid what it sees as bad precedent from a Supreme Court that it often disagrees with?
Cole: Many righteous cases are lost in the Supreme Court—from Dred Scott at Plessy v. Ferguson at Korematsu– In my opinion there are no errors at all. The mistake would be to succumb to deeply offensive and illegal policies out of fear of loss.
The ACLU always considers all risks when considering a lawsuit. and will continue to do so But when the president tries to exclude Muslims because they are Muslims? The right thing to do is challenge it. We received the first, second and third versions of the Muslim ban. Our victory has resulted in far fewer people being banned from leaving the country. And the third version of the ban that the Supreme Court upheld was much narrower than the first two.
Friedersdorf: Have you ever write it down about the fear that Trump will “Prosecution of His Enemies Carrying out mass deportations further restrict access to abortion,” etc. You urge “Anti-resignation,” targeting enemies and other illegal behavior Presidential deportation is different from deporting people already in the United States. Is it illegal?
Cole: Trump can deport immigrants (who are) here illegally. But he cannot deport people without due process. Hundreds of thousands of deportation cases are pending. We lack enough immigration judges to process them. Trump opposes hiring more if he attempts “mass deportations” by denying immigrants their constitutional right to one day go to court. The ACLU will challenge that.
Friedersdorf: You note that “another constitutional restraint on presidential power is federalism.” Do you expect states to What are some ways to challenge the Trump administration’s agenda?
Cole: Red state attorneys sue Biden over what they consider to be his illegal initiatives. The attorneys general of blue states would do the same with Trump. Moreover, federalism means that many aspects of our lives Including education, criminal law, and police, most are under state control. For example, states can refuse to enforce federal immigration laws. and can resist attempts to censor school curricula. States must not fall below the minimum level of rights guaranteed by the United States Constitution. can It provides more protection—and often does.
Friedersdorf– Some observers are worried. that the ACLU has moved away from protecting free speech Is that correct?
Cole: For decades, some critics have accused the ACLU of being less committed to the First Amendment than it once was. But no critic can point to a single instance in which we refused to protect First Amendment rights. We have always protected everyone’s right to free speech. For the most recent example, we have protected the free speech rights of conservatives. fundamentalist Trump supporter racist Anti-Semites and others, please see my blog post. –Protect words we hate– This year we represented the NRA in a First Amendment case. So it’s not right that the ACLU has stopped defending free speech.
Friedersdorf: After the 2024 election, Democrat and former Senate staffer Adam Jentleson wrote, “When Kamala Harris ran for the Democratic nomination in 2019, the ACLU pushed Push her to take a stand on surgery for transgender prisoners. There is no need to raise unclear issues. Entered into public debate as a test of purity. This is despite current law allowing prisoners access to gender-affirming care. This has become a key line of attack for Mr. Trump… now that the GOP has risen to power, Transgender Americans will undoubtedly be worse off.” What do you make of his criticism?
Cole: The ACLU is a nonpartisan organization that protects the civil liberties and civil rights of all people. We believe, and many courts have held, that it is gender discrimination to deny prisoners medical treatment for gender dysphoria. The government is obliged to provide all necessary medical care. Protecting our unpopular rights may not be politically beneficial to any particular candidate. But our obligation is to the Bill of Rights. Not a candidate or any political party
Friedersdorf: I’m glad the ACLU will protect the legal rights of transgender people regardless of public opinion. And it is working on long-standing principles when fighting discrimination in the workplace or insisting that medical choices should be made by doctors and patients.
But many civil libertarians want sports to be separated based on biological sex. and did not see that it was a violation of rights They do not understand that it is discrimination on the basis of gender. Instead, it’s seen as gender-neutral: You can play sports no matter what gender you are. As much as you can play no matter what race you are. As long as you join a team of the same gender… What happened to having a biologically male or female sports team? Instead teams are identified as male or female. Do sexual physiological differences have more to do with physical competition than with an internal sense of self or gender?
Cole: Consider Lindsay Hecox, a transgender student at Boise State. She wanted to run cross country on the women’s team in order to participate without denying her gender identity. This is a right that every female student will receive. She’s not particularly fast. When she got the chance to try out, she didn’t make the team. So she chose to play club football instead. But Idaho strictly prohibits transgender girls from participating in girls’ sports. Even club sports Even if no one objects.
Sports federations around the world recognize that transgender girls and women can participate in women’s sports without compromising on competitive fairness. that they are treated to counter whatever advantage their sex assigned at birth might otherwise provide. The state laws we challenged would prohibit their participation. Even if they have no competitive advantage.
That’s wrong. You can achieve the goal of fair competition without excluding girls and transgender women. As long as everyone is on a level playing field. What is the reason for the separation of transgender women from women’s football clubs? No one can deny who they are in their participation in school sports.
Friedersdorf: Are there any issues related to civil liberties that you think Trump or the Trump administration got right? Or is criticizing Trump done in a way that violates his civil liberties?
Cole: We stand up for Trump when we believe his own rights have been violated. We object when Twitter and Facebook single out Trump because we believe social media platforms should err on the side of amplifying speech. Instead of muting the speaker We spoke up in our defense when the judge ruled that he may have incited a protest. We filed an amicus brief challenging the gag order against Trump. This is related to the Jan. 6 lawsuit filed in D.C., and we support aspects of the Trump Administration’s Title IX regulations. We are not acting against Trump. but for the purpose of protecting civil liberties.
