Bring the fight to the courts

March 30, 2021

Jesse Merriam

Washington Fellow

President Trump’s America First agenda was derailed not merely by political pressure, but also by the federal courts, facilitated by liberal public interest legal organizations such as the American Civil Liberties Union (ACLU).

In January 2017, President Trump issued the first travel ban, in keeping with his campaign promise to get Islamic terrorism under control. The momentum behind the rollout of his agenda quickly died, however, as the ACLU used the travel ban as a fundraising scheme, generating more than $24 million in online donations within two days of the executive order. To put this fundraising feat in perspective, that’s nearly seven times as much money as the organization raised online in all of 2015.    

Over the next year, the ACLU quadrupled its roster of paying members and accumulated $120 million in donations—roughly 30 to 40 times more than the donations received in previous years. There are few organizations that have prospered under Trump more than the ACLU, which now has an annual budget of over $300 million. And with this newfound wealth, the ACLU managed to stop almost every program aligned with Trump’s America First agenda.  

The ACLU won several cases relating to the travel ban, resulting in various iterations of the ban, with each iteration bearing less of a relationship to immigration from countries associated with Islamic extremism. Though the Supreme Court upheld a version of the order, it is hard to call the diluted travel ban a victory for the MAGA movement.   

Next on the ACLU agenda was to challenge the Administration’s effort to enforce federal immigration law in “sanctuary cities.” The ACLU won several federal injunctions, thereby ensuring that sanctuary cities could continue to flout federal law.   

Likewise, the ACLU litigated every Trump effort to narrow or limit the Obama Deferred Action on Childhood Arrivals (DACA) executive order. After several lower court cases invalidated these efforts, the Supreme Court held that President Trump acted unlawfully in seeking to “wind down” the program.  

The ACLU was also active in cases involving the 2020 census. In 2019, the ACLU filed lawsuits seeking to block President Trump from including a citizenship question on the 2020 census, a critical question for determining the number of illegal aliens in the country. After winning the citizenship case in the U.S Supreme Court, the ACLU initiated a new line of census cases, addressing whether the Trump administration must count illegal aliens as persons in the 2020 census for purposes of congressional representation. The ACLU recently won this case in a New York federal court, thereby giving sanctuary states like California disproportionate representation in the House.

After President Trump failed to get congressional authorization to build a wall on the border with Mexico, he sought to use already-allocated military funding instead. The ACLU put an end to that by getting the Ninth Circuit to find the use of this military funding unlawful. 

On almost every issue relating to Trump’s immigration agenda—the wall, the travel ban, DACA, sanctuary cities, the Census—the ACLU was able to use federal courts to stifle Trump. That’s not to say that the Trump Administration accomplished nothing. Indeed, the Administration’s foreign affairs, tax, and deregulation policies were left intact. As Ann Coulter quipped, “[we] voted for a Muslim ban and a wall and all [we] got was this lousy tax cut.” In other words, we voted for the Trump Republican Party, but the ACLU and federal courts made sure that we got the old one.  

Liberalism and conservatism operate asymmetrically in American law and politics. The right is weak partly because the left’s vast cultural power—particularly in entertainment, media, and education—empowers it to shape the terms of debate. The left uses its power to define certain conservative policies—such as defined borders, religious liberty, equality before the law, and the traditional family—as beyond the bounds of acceptable discourse. The right, by contrast, has no power to shape the left.   

Contrast the ACLU’s response to Trump with how conservative legal organizations responded to the Obama Administration. The Affordable Care Act was subject to many legal challenges, several of which were initiated by leading members of the Federalist Society, but the Obama Administration’s transformation of our social order was mostly ignored.

In 2012, for example, when Obama issued DACA, changing the immigration status of nearly one million people, no conservative organizations or Federalist Society figures mounted legal challenges.    

The same was the case when the Obama Administration issued the Affirmatively Furthering Fair Housing regulation, which placed every community in the nation under the thumb of HUD’s diversity agenda. There were complaints in National Review and elsewhere that AFFH threatened free markets, but there was not a single legal challenge.   

When the Obama Administration threatened federal lawsuits against public schools that disproportionately disciplined black and Hispanic students, there was more grumbling among conservative lawyers, but no legal action.  

There are, of course, right-leaning legal organizations that do good work, such as the Pacific Legal Foundation and Institute for Justice, but they tend to be libertarian as opposed to conservative in ideological orientation. The Institute for Justice, for example, has had some success in its 30-plus year libertarian crusade against excessive regulation of occupational licensing. But using the Fourteenth Amendment to defend shoe-shining and hair-braiding rights does little to combat the ACLU’s assault on our social order.

The result of having a legal left devoted to transformation, and a legal right that does little to stop it, is that President Trump’s four years came and went, providing not a “populist uprising” but rather a mere blip in the trajectory of American law and politics, a short respite from the federal government’s open borders and racial equity policies. Following the 2020 election, it is back to business as usual. Only the ACLU now has a lot more money to advance this agenda, and there is no organization prepared to fight it. Conservative legal scholars and thinkers must activate themselves to become just as aggressive in the defense of the American constitutional tradition and ordered liberty as the left is in attacking it.

And the emergence of this energized right better happen soon, for there will soon be nothing left of the American tradition to defend.

Originally published by The American Mind.