COURTS

As a result of Trump’s impact on the makeup of the federal judiciary, and the Supreme Court’s unprincipled decision to overrule Roe v. Wade, federal litigation to protect reproductive health care is a more daunting prospect today than it was during the first Trump administration. 

The experience of the previous Trump years underlines the practical importance of legal action. Lawsuits stopped many illegal Trump administration policies, including those that:

Nonetheless, litigation remains a vital tool in our strategy to stop Trump and his extremist allies from interfering with — and banning outright — the critical reproductive health care services to which we are entitled. Indeed, were it not for litigation brought by the ACLU and others in the wake of Dobbs, abortion would be banned in another half-dozen states, and even more heavily restricted in others.

In particular, as we lay out below, Trump’s plan to weaponize the Victorian-era Comstock Act into a nationwide abortion ban is flatly unlawful. Decades of federal precedent establish that the Act simply does not apply to the distribution of abortion-related drugs and articles for use in otherwise lawful abortion care. This longstanding precedent has been ratified both by Congress and the Department of Justice. Using this settled caselaw, we will go to court to stop any effort by a Trump administration to enforce the Comstock Act to ban abortion nationwide.

We will likewise sue to block any effort by Trump to rescind FDA approval for mifepristone or otherwise attack access to medication abortion. The ACLU has a long history of going to court to protect access to medication abortion. Our prior litigation, based on robust scientific research and leading medical authorities, contributed to the removal of unlawful and medically unnecessary restrictions on mifepristone, including a restriction that forced people to travel — sometimes hundreds of miles — simply to pick up the medication. Building on that success, we are continuing litigation to remove the remaining unnecessary restrictions on this critical medication and to ensure that the FDA’s regulation of mifepristone is based on science and not anti-abortion ideology.

Finally, we will use the Administrative Procedure Act to challenge Trump’s anticipated misuse of the administrative agencies to restrict other reproductive health care, including efforts to withdraw coverage for birth control under the Affordable Care Act.

CONGRESS

Our strategy for responding to the threat Trump poses to abortion and contraception is not confined to the courtroom. 

Trump’s plans to impose nationwide restrictions on abortion and contraception are not only legally deficient; they are extraordinarily unpopular, with polls and election results consistently demonstrating strong public opposition to his plans to impose abortion bans and restrictions on contraception. It is imperative that Congress leverage all of its available tools to push back against and publicize Trump’s efforts to strip us of our right to access reproductive health care.

The ACLU, our affiliates and our allies have been working tirelessly to remedy the harms the Trump administration caused, with the ultimate goal of enacting federal legislation that would ensure access to abortion nationwide. While federal legislative victories will be out of reach under a Trump administration, congressional action can nonetheless be an important tool to frame political fights and deter abuses. To this end, the ACLU is working alongside members of Congress on legislation to prevent the misuse of the Comstock Act and to safeguard the right to contraception. We will work with lawmakers to sound the alarm on Trump’s threats to force a backdoor national abortion ban. We will shine a light on these threats through congressional hearings, and by getting abortion-opponents on the record about their stance on taking reproductive health care away.

STATES, CITIES, AND TOWNS

Additionally, we are working with state officials to enact protections against Trump’s planned attacks on people providing, seeking, or assisting with reproductive health care.

We are calling on state officials to expand their “shield laws” to prevent state employees from voluntarily assisting federal officials carrying out Trump’s assault on abortion. While state officials cannot prevent a Trump Department of Justice from misusing the Comstock Act, they can create friction by refusing to participate in improper federal enforcement efforts. To counteract Trump’s twin attacks on funding for reproductive health care and health-data privacy related to that care, states must work to ensure funding for abortion and contraception, as well as to pass state-level health care data privacy protections.

ORGANIZING AND ELECTORAL

In 2022, the ACLU led, and won, all five ballot measures involving abortion rights.

With our partners, we spearheaded the ballot measure in Michigan — the first-ever proactive reproductive freedom constitutional amendment — ultimately investing over $7.5 million total and delivering a decisive 57-43 vote in favor of enshrining the right to reproductive freedom in the state’s constitution.

Building on these victories, in 2023, we invested deeply in an affirmative reproductive freedom measure, Issue 1, in Ohio. The campaign faced a variety of obstacles, including a cynical ploy by anti-abortion Ohio legislators to raise the voting threshold for passing citizen-initiated constitutional amendments from 50 to 60 percent. However, more than 3 million Ohioans soundly defeated that measure in August, demonstrating their support for abortion rights. By November, campaign participants had knocked on thousands of doors and called thousands of voters to educate them about what was at stake. Ultimately, Issue 1 passed by over 57 percent — a resounding victory, particularly in a so-called “red” state. Our voter education pushes also made a real impact: In 2022, our mobilization had a “coattail” effect in a number of states. Many people who went to the polls to vote for abortion ballot measures also voted for abortion-protective state representatives. For example, in Michigan, these efforts helped to flip both chambers to pro-abortion rights majorities.

In 2023, the ACLU also invested more than $1 million in voter education around Virginia’s General Assembly elections. The General Assembly members who campaigned on abortion rights won sweeping victories, which will keep the Governor’s attempted 15-week abortion ban at bay. The ACLU was also one of the top spenders in Pennsylvania’s state Supreme Court race, spending over $1.8 million to educate voters about the two candidates’ positions on abortion.

The ACLU and its affiliates are actively engaged in 2024 ballot initiative efforts to enshrine abortion rights in state constitutions in states like Florida, Colorado, and Montana. Voters have made it abundantly clear that they overwhelmingly support the right to abortion and are prepared to use their voices and their votes at every opportunity to defend access to this essential health care. We will continue to fight right alongside them and use every tool available to resist the ongoing attacks on our rights by Trump and his allies.

Trump’s allies have made clear that if Trump is re-elected, he will attempt to misuse the Comstock Act to create a backdoor ban on all abortions nationwide without any need for congressional action.

What is the Comstock Act?

The Comstock Act is an 1873 anti-obscenity statute that regulates the use of the mails and common carriers concerning sending and receiving anything that is “indecent, filthy, or vile” or “intended for producing abortion …” Its namesake, Anthony Comstock, was an infamous Victorian-era anti-vice crusader who, as the Supreme Court explained, “believed that anything remotely touching upon sex was … obscene.” Comstock lobbied Congress to enact legislation that would allow the Postal Service to seize lewd or indecent items, and he became the law’s specially appointed enforcer. He took credit for arresting thousands and driving at least 15 people to suicide through his anti-vice crusades. As his biography — aptly titled “The Man Who Hated Women” — explains, Comstock’s name has become synonymous with “prudishness, control, censoriousness, and repression of thought.”

How might a Trump administration try to ban abortion with the Comstock Act?

Even though this law has long been understood not to apply to the lawful provision of health care, Trump’s anti-abortion strategists have stated that the Department of Justice in a second Trump administration would seek to enforce the Comstock Act to effectively ban abortion in every state in the country. As Jonathan Mitchell told The New York Times, “[w]e don’t need [Congress to pass] a federal ban when we have Comstock on the books.” The plan to enforce the Comstock Act to stop abortions nationwide is echoed by Project 2025’s “Mandate for Leadership,” a blueprint of “actions to be taken in the first 180 days of the new Administration.” According to the anti-abortion extremists drawing up plans for Trump’s administration, the Comstock Act can be operationalized as a national abortion ban because the medication and equipment used in abortion care has to be transported to health care providers via mail and common carrier. If it were a federal crime to send and receive the medications and supplies needed to perform abortions, then health care providers would be unable to provide abortion services. Moreover, because the Comstock Act contains no exceptions whatsoever, it could also prevent people from getting care in medical emergencies where the inability to obtain abortion care would endanger the pregnant person’s health or life.

The ACLU’s response to this existential threat to abortion will be multi-pronged.

1. Legal Action

First, we will go to court to fight any effort by a Trump administration to weaponize this antiquated law to ban abortion. Both the historical context and decades of federal precedent contravene the argument that the Comstock Act functions as a nationwide ban on sending and receiving medication and supplies used for otherwise lawful abortion care. To the contrary, beginning in the early 20th century, federal appellate courts reached a consensus that the Comstock Act only addresses sending and receiving materials to be used for otherwise unlawful abortion and contraception. The courts’ uniform conclusion was that the Act does not apply to drugs and articles sent and received for lawful abortion care. And as the Department of Justice recently explained, “[o]n several occasions, Congress reenacted and amended the Comstock Act against the backdrop of the judicial precedent in a manner that ratified the federal courts’ narrowing construction.” In short, the argument by Trump’s allies that the Comstock Act can be enforced to ban abortion nationwide flies in the face of the settled determination by courts, Congress, and the Justice Department that the law does not apply to lawful abortion care.

2. Organizing and Public Opposition

Second, the ACLU is sounding the alarm on the threat of this backdoor national abortion ban and demonstrating overwhelming public opposition to such a threat. Key to Trump’s and his advisors’ plan to use the Comstock Act is keeping Americans in the dark, given the public’s strong opposition to abortion bans. Jonathan Mitchell, Trump’s lawyer before the Supreme Court, told The New York Times, “I hope [Trump] doesn’t know about the existence of Comstock, because I just don’t want him to shoot off his mouth... I think the pro-life groups should keep their mouths shut as much as possible until the election.” The ACLU is working with elected officials and stakeholders at every level to shine a light on this strategy and ensure that people in every state, including states that have sought to protect abortion access, understand the dire threat posed to reproductive freedom nationwide. We are also working alongside members of Congress to elevate the threat of Comstock in congressional hearings, getting Trump’s allies on the record about their stance on misusing Comstock as a backdoor national abortion ban, and supporting the introduction of legislation in Congress to repeal the Comstock Act to prevent it from being misused.

3. Defending Patients, Providers, and Other Targeted Groups

Third, the ACLU will support patients, health care providers, and anyone else who faces prosecution related to abortion care under a new administration, including a Trump DOJ federal prosecution under the Comstock Act. In addition to developing practice resources and litigation tools to arm public defenders and criminal defense attorneys in addressing the potential threat of abortion-related federal prosecutions, the ACLU’s Abortion Criminal Defense Initiative is expanding its criminal defense network, which currently includes attorneys in 26 hostile states, Trump’s allies have made clear that if Trump is re-elected, he will attempt to misuse the Comstock Act to create a backdoor ban on all abortions nationwide without any need for congressional action. The Comstock Act is an 1873 anti-obscenity statute that regulates the use of the mails and common carriers concerning sending and receiving anything that is “indecent, filthy, or vile” or “intended for producing abortion …” Its namesake, Anthony Comstock, was an infamous Victorian-era anti-vice crusader who, as the Supreme Court explained, “believed that anything remotely touching upon sex was … obscene.” Comstock lobbied Congress to enact legislation that would allow the Postal Service to seize lewd or indecent items, and he became the law’s specially appointed enforcer. He took credit for arresting thousands and driving at least 15 people to suicide through his anti-vice crusades. As his biography — aptly titled “The Man Who Hated Women” — explains, Comstock’s name has become synonymous with “prudishness, control, censoriousness, and repression of thought.” to amplify federal defense power. Together with our nationwide network of criminal defense attorneys, we will work to ensure a robust, zealous defense of anyone facing the threat of criminal prosecution or investigation related to abortion care. In addition to defending against criminal prosecutions, we will leverage our deep litigation expertise to hold government officials accountable when they abuse their power to criminalize pregnant people and those who support them, as we are doing in our representation of Lizelle Gonzalez, who was wrongfully jailed by Texas officials for having an abortion.

4. State-Level Protections

Fourth, we will work with state legislatures and governors to pass state laws that would prevent state employees from voluntarily assisting federal agents in unwarranted Comstock enforcement actions and would arm state employees to challenge such actions. While many states have already enacted “shield laws” aimed at minimizing legal risks for abortion providers, patients, and helpers, most of these provisions are designed to act as buffers against proceedings initiated by other states, not by a hostile federal administration. By working to pass expanded shield-law protections, we will attempt to stop a future Trump administration from forcing state officials to cooperate in its effort to weaponize the Comstock Act.

In addition to the threat of Comstock enforcement, a second Trump administration could decimate abortion care in every state in the country by responding to calls from Trump’s allies to withdraw the FDA’s approval of mifepristone, a safe and effective medication used in most abortions and miscarriage care in the U.S. today.

Revoking FDA approval would mean that mifepristone could no longer be legally provided anywhere in the U.S., including in states with affirmative protections for abortion access. Even if a Trump administration allowed mifepristone to remain on the market, it would almost certainly reinstate medically unnecessary restrictions that prevent mifepristone from being mailed to patients, forcing them to travel, often hundreds of miles, to an abortion provider for the sole purpose of picking up their medication and depriving many patients of abortion access altogether.

The FDA approved Mifepristone in 2000 and it has since been used in the U.S. by six million people to end their pregnancies safely and effectively, or for miscarriage care. Today, mifepristone is used in almost two-thirds of abortions in this country.

For that reason, and because it can be safely mailed to people seeking abortion care, Trump’s supporters consider mifepristone to be the “single greatest threat” to their vision of a nation without abortion care. That’s why anti-abortion politicians in Congress have repeatedly attempted to ban mifepristone. Trump’s allies have no intention of waiting for Congress; they are calling on a second Trump administration to revoke the drug’s FDA approval and pull it from the market in every state in the country. At a minimum, they want a Trump FDA to severely limit access to the medication by reinstating outdated restrictions that would prevent mailing it and require people to pick up their medication in person at a medical facility — restrictions that scientists at the FDA and leading medical organizations have determined are medically unnecessary and result in harmful interference with the public’s ability to access this critical medication. Trump’s allies have not been shy in trumpeting their plans for his administration to unilaterally impose such restrictions.

The ACLU has sued under multiple administrations — Democratic and Republican — to protect the public’s access to medication abortion. For example, during the height of the COVID-19 pandemic, we went all the way to the U.S. Supreme Court to fight the Trump administration’s insistence that people seeking mifepristone must appear in-person at a clinic — subjecting themselves and their families to the risk of a deadly virus — for the sole purpose of picking up a pill that could be safely used at home. Ultimately, the FDA, under the Biden administration, reviewed the evidence and determined that requiring people to pick up their pills in person was medically unnecessary, as we had advocated.

We are not finished. We are pressing forward with litigation to remove all medically unnecessary restrictions on mifepristone that are impeding the public’s access to this critical medication. And, if Trump is re-elected and attempts to remove mifepristone from the market, or otherwise further restrict access contrary to scientific evidence that overwhelmingly demonstrates the drug’s safety and efficacy, we will see him in court. We will use the Administrative Procedure Act, 5 U.S.C. § 706, to force the FDA to act within congressionally mandated parameters designed to protect the American public and foster access to safe and effective, life- and health-saving medication.

We will also fight in the court of public opinion. If Trump attempts to block access to this medication or ban people from receiving it by mail, we will mobilize public support to block his attempts. The latest polls are clear: The American public supports access to medication abortion by overwhelming margins and expects to be able to receive this medication by mail as they do with other safe drugs. We will also work with our allies to mobilize the broader medical community, patient groups, the drug industry, and other stakeholders with a vested interest in defending the scientific integrity of the drug approval processes.

While threats to abortion care received the most public attention during Trump’s presidency, the Trump administration also decimated access to birth control and family planning services for people living on low incomes.

And Trump’s allies in Congress have repeatedly threatened access to contraception, proposing legislation that would defund the nation’s family planning program (Title X), attempting to repeal the ACA and opposing legislation that would codify the right to contraception.

In addition, if Trump is re-elected, we can expect that he would attempt to take away people’s right to insurance coverage for contraception guaranteed by the ACA. The ACA requires health insurance companies to provide coverage for essential, preventive health care for women, including the “full range of contraception,” without a co-pay. According to the federal government, in 2020, “58 million women benefited from the ACA’s preventive services and birth control coverage, which has saved billions of dollars in out-of-pocket spending on contraception since the ACA was passed.”

Since its passage, the ACA’s birth control benefit has been under attack, notably from employers who objected, on religious grounds, to providing insurance plans that employees could use to cover the cost of the birth control method that was right for them. But if Trump assumes office again, we are likely to see a full-frontal attack on birth control coverage. Indeed, Project 2025 explicitly calls for certain methods of contraception to be eliminated from the coverage requirements. In light of Trump’s recent comments on attacking birth control, there is every reason to think that a new Trump administration would go much further and allow employers and insurance plans to deny people coverage for all forms of contraception. If it does, the ACLU will be ready to sue under the Administrative Procedure Act, alleging, among other things, that such action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Outside of the courtroom, we will fight back against attacks on contraception by mobilizing our supporters and raising the political cost of enacting these extreme and widely unpopular policies. Birth control is extremely popular; 91 percent of Americans support it. The ACLU will use our political power to demonstrate just how far out of step the Trump administration is with the American people. We will also use our organizing power to mobilize activists in support of protecting the right to contraception, and against any action taken to restrict access to birth control. Additionally, we will advocate for states to allocate additional resources for access to reproductive health services, like California’s Reproductive Health Equity Fund, to help mitigate the harm caused by a federal government attack on access.

Together, we will use our political power on Capitol Hill to urge members of Congress to prioritize and advance critical legislation like the Right to Contraception Act, which would codify and safeguard the right to contraception as recognized in Griswold v. Connecticut, a U.S. Supreme Court case brought by the ACLU in 1965 establishing that right.

In addition to launching direct attacks on abortion and contraception, a second Trump administration would abuse its regulatory power to target reproductive health care in numerous other ways.

Violating Patient Privacy:

A Trump administration would rescind the Department of Health and Human Services’ June 2022 rule implementing HIPAA, the Health Insurance Portability and Accountability Act, which provides important protections against the disclosure of private health information related to reproductive health care to hostile officials or individuals trying to penalize people for seeking, providing, or assisting with reproductive health care. Trump’s anti-abortion allies object to the protections that this rule affords because they want to encourage and facilitate investigations into people’s reproductive health care.

Restricting Workers' Access to Care:

A Trump administration would also rescind the Equal Employment Opportunity Commission’s (EEOC) April 2024 rule interpreting the Pregnant Workers Fairness Act to provide protections for workers requiring time off to travel to access abortion care. In the wake of Dobbs, the number of people who must travel across state lines for abortion care has doubled to nearly one in five, and the EEOC’s rule entitles them to reasonable accommodations from employers as they do so. States hostile to abortion have already challenged these rules and the ACLU has submitted friend of the court briefs in support of the rule. A second Trump administration would attempt to take these protections off the books.

Blocking Funds to Health Care Organizations:

A Trump administration would likewise seek to block federal family planning money from going to Planned Parenthood and other organizations that refer for abortion services. Trump’s anti-abortion strategists have also drawn up plans to bar abortion providers from receiving federal Medicaid and other funds despite the fact that, even now, none of the federal dollars can be used to provide abortion care. Doing so will deprive people of access to cancer screening, contraception, and other vital health care.

The ACLU will use every tool available to oppose these and other regulatory attacks on access to reproductive health care. While the prospects for any legal challenge under the Administrative Procedure Act would largely depend on the process by which a Trump administration tries to rescind and replace these regulations and the exact terms of the new rule, the ACLU would closely monitor the administration’s actions for abuses and explore a challenge to any regulatory assault on reproductive health care access. In the meantime, we are working with pro-reproductive freedom states to adopt state-level privacy protections for personal health information and data, and to ensure adequate state funding for reproductive health care services that is insulated from attacks by a hostile Trump administration to the greatest extent possible.

The Supreme Court’s decision overturning Roe v. Wade sparked a public outcry and made abortion rights a central issue in American life. The public overwhelmingly supports abortion access and has consistently and repeatedly demonstrated that support at every opportunity.

Because of the public’s outrage over losing our reproductive rights, Trump has attempted to downplay his plans to further decimate access to ban abortion and other critical reproductive health care. Yet his unguarded statements, his allies’ public playbook, and most importantly his prior actions — including nominating Justices to the Supreme Court for the purpose of overturning Roe — make his intentions clear. We continue to see Trump’s allies in the state governments and in Congress threaten reproductive heath — from threatening people’s ability to use IVF to start a family, to the refusal to support people’s ability to get contraception — and prove just how far out of step they are with the American people.

The ACLU will continue our work to ensure that Americans know the truth and to thwart Trump’s attempts to pull the wool over the public’s eyes. Should Trump regain the presidency, we will be there every step of the way to expose his efforts, galvanize efforts to stop him, and fight him in court whenever possible.

COURTS

As we detail below — and as Trump and his advisors well understand — he simply cannot accomplish his immigration agenda without violating the Constitution and federal laws. Just as it was from 2017 to 2021, litigation will be a critical component of the response.

The experience of the previous Trump years underlines the practical importance of legal action. Lawsuits stopped many illegal Trump administration policies, including those that:

• aimed to separate families at the border, arbitrarily cut off access to asylum
• strip hundreds of thousands of people of protection under Temporary Protected Status (TPS) and Deferred Action for Childhood Arrivals (DACA)
• add a citizenship question to the Census to chill participation by immigrant and mixed-status families
• prevent abortion access for unaccompanied immigrant minors

Even in cases that did not ultimately result in a legal victory, litigation significantly mitigated harm. For example, while injunctions against the Muslim ban were ultimately reversed by the Supreme Court, challengers succeeded in forcing the administration to narrow its scope twice and setting the conditions for its later revocation.

To be sure, Trump has made a significant mark on the judiciary, and it is not difficult to find recent examples where the courts have failed to protect rights. But those facts should not be overstated: It is also true that Trump-appointed judges have found Trump policies unlawful, and time and again, courts that are sometimes assumed to be skeptical of immigrants’ rights have instead acted to protect them. Below, we outline ways in which Trump’s policies are illegal and unconstitutional, and point to prior litigation that has succeeded in pressing relevant claims.

CONGRESS

The gravity of Trump’s threats and the possibility of robust court action should not obscure the need for other leaders in our democracy to act. We anticipate that in a second term, Trump will send a draconian anti-immigrant bill to Congress, framed as needed for “border security,” but expanding the anti-asylum policies of his first term and attacking both immigrant communities and legal immigration pathways.

Instead of negotiating on these terms, Congress can and must use the power of the purse, and its oversight authorities, to constrain a second Trump administration’s anti-immigrant agenda. Members of Congress who are pro-immigrant can use the appropriations process to effectively thwart Trump’s ability to carry out mass detention and deportations. The aggressive use of oversight hearings, grilling of Trump officials, and issuing of subpoenas for information and documents will also all be critical.

Moreover, Trump’s announced assault on our nation’s immigrant communities should prompt members of Congress to make a path to citizenship for millions of long-standing U.S. residents a non-negotiable, central demand in negotiations over immigration reform legislation. These members of Congress should also go on the offense with their own package of solutions to effectively manage the border through, for example, increased capacity for screening and receiving people seeking entry. Polling shows that the public supports that approach — not the Trump campaign’s xenophobic agenda.

STATES, CITIES, & TOWNS

Likewise, at the state and local level, we need elected officials to begin coordinating and planning now to protect their communities from Trump’s attempts to ravage them.

Collective and coordinated action among committed officials will be vital to anticipating, revealing, and quickly responding to the Trump administration’s blitz of anti-immigrant actions, particularly in major cities. States can take affirmative measures to protect their residents right now by funding legal counsel and other supports that help immigrants and mixed-status families continue contributing to and thriving in American communities.

In addition, states can expand existing cooperation among themselves to provide legal representation, track and monitor a massive expansion of deportation and detention actions, and document and address abuses such as racial profiling, illegal stops, and punitive use of immigration detention. Legislatures and city councils can enact and update their protections, including by erecting a firewall between state and local resources and federal immigration enforcement.

MASS DEPORTATIONS: THE THREATS

While Trump made similar promises in his first term, he was never able to carry out deportations on that scale. That is because doing so is an enormous project that would entail restrictions on basic freedoms core to American life.

Consider the mechanics of the planned deportation effort. To deport immigrants who lack legal status on the scale Trump envisions, he would need to arrest millions of individuals; place them in removal proceedings before immigration judges; litigate those cases in the immigration courts; resolve any appeals; and then actually remove them from the United States — every year. Each stage of this process has its own requirements and procedures under the Constitution and the immigration statutes — and no part of it has ever operated at anything approaching the scale and speed that Trump’s plan requires. There can be no doubt that Trump would attempt to defy constitutional and other legal protections in service of his draconian goal.

Trump has also mischaracterized any decision not to detain an individual as a “catch and release” policy, and he will almost certainly seek to detain everyone he arrests through all of the stages of the removal process, in part to coerce them into giving up their rights to fight deportation. The federal deportation system is already massive; the Department of Homeland Security oversees more than 66,000 federal law enforcement officers, by far the largest of any single federal agency and half of all federal law enforcement officers across the country. Trump’s threats will require a vast expansion of this massive police force and huge sums of taxpayer money.

But even if significantly enlarged, the existing removal system will not even begin to approach the scale that Trump and his advisors will require. Instead, making America into a deportation nation will require extraordinary, unprecedented, and often illegal steps.

For example, mass deportations will require far more agents than Immigration and Customs Enforcement (ICE) has or could rapidly hire. So, Trump and his associates plan to build a new deportation force out of the military, federal agents, and state and local police. Trump and his advisor, Stephen Miller, have described plans to federalize state National Guard personnel and deploy them for immigration enforcement — arresting people in their homes and workplaces in communities across the nation and deploying National Guard troops, in some cases against the will of local officials and communities: “[i]f you’re going to go in an unfriendly state like Maryland, well, there would just be Virginia doing the arrest in Maryland.” Trump has also indicated that state and local police would also be deputized to make arrests and to identify targets — and granted “immunity” for any civil rights violations they commit. These officers would not only arrest specific, identified targets, but would “carry[] out workplace raids and other sweeps in public places aimed at arresting scores of unauthorized immigrants at once.”

It is tempting to regard these threats as overblown and calculated merely for political campaign purposes. But in recent months, Trump has repeatedly sought to rationalize his plans for mass deportation, blending military and national security rhetoric with xenophobia. When asked about the legality of using the military against civilians, Trump retorted that, in his view, “these aren’t civilians.”

Trump’s deportation dystopia, if realized despite all of the legal, practical, and moral barriers, would fundamentally reshape American life. People across the country would experience armed military personnel, federal agents of all stripes, state and local police, and potentially even police from other states conducting raids and sweeps in their neighborhoods and at their workplaces. People of all immigration statuses, including U.S. citizens and lawful permanent residents, could be investigated, questioned, and even arrested by these agents if they are at a location that the deportation force decides to “hit.”

And that is only the first stage of the process — arrest. Actually processing and deciding all of the resulting cases is an administrative and judicial process that cannot practically be farmed out to other agencies. Carrying it out on Trump’s scale will require bloating the removal system beyond all reason.

The Trump team is therefore looking for any excuse, no matter how improbable, to avoid the legally required procedures for determining whether an individual can be removed. For example, Trump’s advisors have suggested that they might implement an extremist theory, invoking the Alien Enemies Act — an obscure law that has rarely been used since it was enacted in 1789 — to override these procedures. Trump will also likely seek to massively expand the use of a fast-track deportation procedure called “expedited removal,” even though applying that procedure in the interior would violate constitutional guarantees. And he could encourage or pressure states to create their own independent arrest and deportation systems separate from the federal one, as Texas has attempted with SB 4.

In anticipation of the massive scale of arrest and detention these plans will require, Trump’s advisors are already trying to get Americans used to the idea that the landscape will be dotted with “vast” immigrant detention camps. Trump could again attempt to divert funds from other purposes in order to build these camps, just as he did when building his wall.

RESPONDING TO MASS DEPORTATIONS: LEGAL ANALYSIS & LITIGATION RESPONSE

Trump’s plan would require his administration to trample on numerous fundamental protections set out in the Constitution and laws passed by Congress. It would therefore be vulnerable to legal challenge from multiple angles.

The Fourth Amendment

The Fourth Amendment prohibits unreasonable searches and seizures, including arrests and detentions without individualized suspicion. And the Fifth and Fourteenth Amendments guarantee the equal protection of the laws, including freedom from racial discrimination by law enforcement. There is no exception for immigration enforcement. Whether officers belong to ICE, Customs and Border Protection (CBP), military, police, or other agencies, they are required to abide by these basic rules.

Yet, experience from previous, more localized efforts at draconian, “zero-tolerance” interior immigration enforcement shows that these programs result in racial profiling, suspicionless interrogations and arrests, unjustified and pretextual traffic stops, and warrantless searches of workplaces and homes — all of which violate the Constitution. These kinds of violations are rampant in dragnet-style operations because there is no inherent mark that separates citizens and people with authorization to remain in the United States from undocumented people: not language, not place of birth, not even the manner of their entry into the United States. Accordingly, officers frequently resort to stereotypes or intuition in lieu of the factual basis that the law requires.

Perhaps the best-known recent example is Sheriff Joe Arpaio’s reign of terror in Maricopa County, Arizona. In the 2000s, Sheriff Arpaio launched an “operation … to go after illegals” and began to conduct “saturation patrols” to stop people, investigate their immigration status, and arrest them if officers suspected them of being undocumented. As litigation by the ACLU and its partners established, Arpaio’s immigration-enforcement sweeps racially profiled Latine residents of Maricopa County, in violation of the Fourth and Fourteenth Amendments. The Trump immigration plan promises to replicate this unconstitutional conduct on a massive scale.

The Fifth Amendment

The Fifth Amendment guarantees due process of law, and the Constitution’s Suspension Clause safeguards access to the writ of habeas corpus — a key protection against unlawful government action. The Trump deportation machine would violate these guarantees in at least two fundamental ways.

First, an across-the-board policy refusing to release anyone swept up by the machine pending their removal would violate Fifth Amendment protections against arbitrary or punitive civil detention. The ACLU has brought many cases asserting the rights of immigration detainees. And the Supreme Court has recognized that even noncitizens who have no “legal right to live at large in this country” have a liberty interest in “freedom from imprisonment.” While the Supreme Court has on occasion allowed “narrow detention polic[ies]” affecting discrete categories of noncitizens to stand, the broad Trump detain-everyone rule would go much further and could not be squared with fundamental constitutional protections.

Second, trying to sidestep the procedural protections embedded in the removal process would violate the Fifth Amendment and the Suspension Clause. The Trump administration took one step in this direction in 2019, issuing a rule that attempted to expand fast-track “expedited removal” procedures — which drastically curtail the ability of immigrants to defend against deportation — from the border into the interior of the country. As a result of litigation by the ACLU and its partners, the expanded authority went almost entirely unused, and the rule was later revoked by the Biden administration. Renewed efforts to end-run deportation procedures, whether through the expedited removal authority or otherwise, will meet renewed resistance.

There are even more legal barriers the deportation machine would have to overcome. Efforts to have states spin up their own deportation systems would violate 150 years of Supreme Court precedent establishing that only the federal government has that power — as courts have recently re-affirmed in litigation by the ACLU and partners that has blocked Texas’s SB 4 law.

Attempting to deploy the Alien Enemies Act in service of a mass deportation effort would run headlong into the limits built into the statute itself, which gives the President only limited authority to detain and deport “enemy aliens” during a “declared war” or an “invasion or predatory incursion” involving a “foreign nation or government.” And diverting funds to build detention camps could violate funding statutes, as did Trump’s 2019 diversion of funds to build a border wall.

Posse Comitatus Act

Finally, federalizing the National Guard and deploying military personnel for immigration enforcement would raise grave legal concerns. Since the founding of our nation, American institutions have carefully guarded against military involvement in domestic affairs. In addition to the Constitution itself, the Posse Comitatus Act generally forbids the use of federal military personnel for civilian law enforcement unless authorized by Congress. Congress strengthened the Act in 2022 and 2023 in response to the Trump administration’s use of active-duty military to respond to protests against police violence.

Trump’s team has suggested that they may try to circumvent these strong legal protections and norms by invoking the extraordinary authority in another law, the Insurrection Act. But that Act has never been used for a deportation machine like this before, and allowing this maneuver would essentially erase the critically important line between military and civilian affairs, with effects that could reach far beyond the deportation context.

In short, Trump’s threatened actions on immigration run counter to protections in the Constitution and statutes enacted by Congress. And we will make him answer for his lawlessness in the courts.

RESPONDING TO MASS DEPORTATIONS: CONGRESSIONAL ACTION ON TRUMP'S DEPORTATION FORCE AND MASS DETENTION

Trump’s aggressive plans are impossible without a massive funding increase. And despite the recent congressional acquiescence to expanded detention and unfair, ineffective enforcement policies, what we saw from congressional leaders during the first Trump administration gives us reason to believe advocacy can produce resistance in Congress during a second Trump term.

Trump’s vicious anti-immigrant rhetoric, coupled with his threats of raids on major cities, catalyzed serious political opposition in Congress — including members of Congress demanding access to immigrant detention sites, pressing for action on individual deportation cases, and calling out Trump’s anti-immigrant policies on social media and in press conferences. History suggests that congressional Democrats are more likely to stand against anti-immigrant policies when a Republican is in the White House and that the more Trump pursues his extremist agenda, which threatens longstanding U.S. residents and mixed-status families, the more likely members of Congress will be to assert their powers to thwart his ability to create a deportation police state.

Even in a divided Congress, pro-immigrant justice legislators can use Congress’ appropriations powers to deny ICE the operational resources necessary to launch the indiscriminate mass raids Trump surrogates have threatened. Congress can aggressively limit ICE Enforcement and Removal Operations’ budget through the annual congressional appropriations bill and deny supplemental funding requests that have historically led to waste and misuse of funds. Congress can prohibit the use of funds to detain families and either limit or completely defund the kinds of mass detention camps the Trump campaign has touted. Congress can also prevent the Trump administration from rapidly expanding ICE and CBP detention sites by requiring congressional notification and review as a condition of detention funding. Likewise, Congress can condition appropriations on members’ access to conduct regular, unannounced detention site visits, which will enable them to uncover and bring to light the abuses suffered by people trapped in detention. Finally, Congress can prevent the improper diversion of other appropriated funds, especially defense appropriations, by placing limitations on the reprogramming or transfer of federal funds.

The ACLU will work with coalition partners to leverage the appropriations process to resist the deportation machine.

In addition, we will seek aggressive congressional oversight of ICE’s tactics and actions on American streets — including through hearings, investigations, and subpoenas — to detect abuse.

As further discussed below, we expect Trump to send a bill to Congress on immigration and the border early in a second term. In any negotiation over comprehensive immigration reform, we will lobby Congress to expand funding and ensure meaningful access to legal representation for immigrants, who currently have no right to government-provided counsel in immigration court even though they have a constitutional right to due process and the right to counsel. We have cause for optimism: The Senate’s major bill on the border and asylum, a “bipartisan” compromise with Republican support when it was voted on in early May, would have codified the right to counsel for certain applicants for asylum for the first time and required the government to provide counsel to unaccompanied children under 13. This is a crucial due process safeguard: Studies show that detained immigrants with counsel are far more likely to win their immigration cases and secure release from detention.

If the Trump administration seeks to expand expedited removal to the interior, we will work with our partners to bring impacted families and community members to Capitol Hill to demand congressional action and spur a congressional backlash. Congress enacted expedited removal through the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. Short of a full repeal of expedited removal across the board, we will urge Congress to use its appropriations powers to prevent ICE from conducting expedited removal against long-standing residents.

RESPONDING TO MASS DEPORTATIONS: CONGRESSIONAL ACTION ON CUSTOMS & BORDER PATROL (CBP)

Trump is likely to employ some of his harshest tactics at the border. Historically, Congress has done little to constrain Customs and Border Protection’s expansive policing or to create meaningful accountability for agents who abuse their authority, and Trump has suggested he will build on this legacy of impunity, expanding CBP’s operations through the use of the National Guard. Congress has acceded to ever more bloated budget requests, to the tune now of $19 billion in FY 24, making CBP by far the largest law enforcement agency in the United States.

We will lobby Congress to put meaningful constraints on CBP by limiting where border patrol forces can operate and restricting which law enforcement units can participate in these operations. We will also lobby for restrictions and reporting on racial profiling and unlawful detentions of residents within the 100-mile zone, and for mandatory reporting on the location of any new soft-side, temporary, or open-air detention facilities utilized by CBP to round up and hold people along the U.S. border. We will urge Congress to require CBP to report on checkpoints and roving patrols, including the number of U.S. citizens stopped and families separated at checkpoints or by these patrols.

RESPONDING TO MASS DEPORTATIONS: STATE & LOCAL GOVERNMENTS CAN PROTECT COMMUNITIES FROM MASS DEPORTATION DRIVE

The Trump administration will have difficulty executing its mass deportation plans without the acquiescence and participation of states and localities, and the ACLU is already identifying ways pro-civil liberties jurisdictions can ensure they are not complicit in tearing apart their communities.

We expect that in a second term, Trump will once again seek to expand ICE’s capacity through the 287(g) program, which taps law enforcement agencies across the country to identify and locate immigrants. Trump continues to spread lies about immigrants, touting a “new category of crime…called migrant crime” and blaming “Democratic-run cities.” In fact, numerous studies show that immigrants commit fewer crimes than U.S.-born people. Immigrants are less likely to be incarcerated for criminal offenses, and increases in immigration rates are related to a decrease in crime rates.

We are also concerned that Trump will solicit volunteers from law enforcement agencies in anti-immigrant jurisdictions to join in federal immigration enforcement operations and even participate in raids on so-called “sanctuary” cities, stoking animosity and partisan division along the way.

As part of a comprehensive strategic engagement with blue state governments, we will urge state governments to deny the federal government access to their law enforcement agencies and other state-held resources for purposes of immigrant detention and deportation — governors can act through executive orders, state attorneys general can issue guidance to law enforcement agencies, and legislatures can enact new measures or update existing law.

We know that many law enforcement leaders, concerned that open collaboration with ICE will diminish community trust and deter people from coming forward to report serious crimes, will decide not to collaborate in anti-immigrant enforcement measures. Short of prohibiting anti-immigrant collaboration altogether, states can enact measures requiring that prior to entering into an agreement to assist in immigration enforcement, state and local law enforcement agencies seek advance permission from the governor or other state officials, and that they notify the public and provide an opportunity for public comment.

On the other hand, Trump’s anti-immigrant rhetoric is likely to embolden racist and abusive local law enforcement officers, who will effectively act as badge-wearing vigilantes intent on assisting in the mass deportation drive. Many will engage in pretextual policing — using traffic stops and arrests for minor offenses to book people into local custody and funnel them into deportation, decreasing community-law enforcement trust and resulting in civil rights violations. State attorneys general and other elected officials can respond by robustly enforcing state laws against racial profiling, and launching their own civil rights investigations into state and local law agencies that show a pattern of traffic stops and arrests disproportionately targeting Black and Brown residents.

We will also urge governors, other state officials, and legislatures to act decisively to protect people from Trump’s mass deportation drive:

• Governors can issue pardons to immigrants for state criminal convictions that make them deportable, in consideration of their record of rehabilitation, contributions, and roots in the state.
• State legislatures can pass legislation that allows people to obtain a driver’s license without regard to their citizenship — ensuring they are not arrested and convicted of the offense of driving without a valid license, which would put them at higher risk for deportation.
• States can increase visa certifications for victims of certain crimes and human trafficking and, using the new deferred action process, for exploited workers. State legislatures can also pass so-called 364-day bills, which reduce people’s vulnerability to deportation by redefining the maximum penalty for a misdemeanor under state law — thereby avoiding a trigger for mandatory deportation under a draconian provision of federal law.
• State attorneys general can issue guidance to local prosecutors on considering the immigration consequences of the charges they are bringing to avoid inadvertently triggering deportation.
• States can also fund legal representation for immigrants facing deportation, and coordinate with community organizations and legal aid groups to ensure support for communities facing mass deportation raids.

We will also urge states and municipalities to refuse to take part in new mass detentions of immigrants. We will work in legislatures to pass measures prohibiting government contracts with ICE for detention. We will also support local movements against new detention sites and the leasing of county jail space to ICE.

Unfortunately, we know that governors of populous states like Texas, Florida, and Georgia — home to at least 2.9 million people who are undocumented — are eager to participate in arrests, deportations, and detention. And we expect the Trump administration will once again seek to punish so-called “sanctuary” cities for partisan reasons and to stoke fear in immigrant communities. We also expect a Trump administration to go after legal services and humanitarian services organizations that provide assistance to immigrants, further chilling advocacy and adding practical and financial barriers for nonprofit groups that normally provide representation and basic services to noncitizens. We will work with city officials to coordinate across state lines and provide support to residents and mixed-status families before and after deportation raids occur. It will be vital for local governments to help ensure that families can find their loved ones when arrested; community and faith groups can come together to deliver assistance in the form of childcare and food to families torn apart; and lawyers are on the ground and properly resourced to support impacted people. We will urge cities to band together to fund and coordinate deportation defense and assistance for people — even as they are torn from their community and shipped across state lines to ICE detention sites in other states.

RESPONDING TO MASS DEPORTATIONS: RECLAIMING THE NARRATIVE ON AMERICAN SUPPORT FOR FAIR AND HUMANE IMMIGRATION POLICIES

Finally, we recognize that winning policy fights requires winning the narrative battle over how America should think about immigrants and immigration, and the ACLU has been building a narrative shift campaign to that end. We will continue to use detailed new public opinion research and organizing tactics around major news events — which a Trump administration will create with some frequency — to create a strong counter-narrative to the Trump administration’s xenophobia and racism.

We will urge members of Congress, other elected officials, and influencers to play offense and reclaim the narrative on immigration in our country. They must debunk and forcefully reject the premises of Trump’s deportation drive while calling out the xenophobia and white supremacy underlying his policy proposals. The way that Trump is proposing we treat our neighbors and loved ones who are immigrants is completely out of step with our values and who we aspire to be as a nation. Congress should instead plan a series of hearings on the vast contributions of immigrants, including how they have helped strengthen our economy and American communities, and why immigrants deserve a fair process to become citizens.

Polls show that voters do not support cruel enforcement-only measures that betray core American values and put vulnerable people in danger. Proposals to ban asylum and separate families at the border are widely rejected by voters. A March 2024 Immigration Hub / GSG poll shows that 66 percent of voters in battleground states reject banning asylum, and 79 percent oppose reinstating family separation. Recent research conducted by the ACLU also showed that when candidates, regardless of party affiliation, adopt a balanced, solutions-focused approach to immigration that includes both managing the border and providing a road to citizenship for long-term residents, they outperform their opponents’ fear-based messages.

Instead of negotiating with the Trump administration on a so-called “border security” bill, we will push members of Congress to embrace the better policy and politics of putting forward their own vision for immigration reform. Sixty-eight percent of voters want a balanced approach to immigration that includes both border management — adequately staffing ports of entry and increasing processing capacity of people seeking protection — and pathways to citizenship for Dreamers and other longtime residents.

Trump has said he will issue an executive order instructing federal agencies to stop recognizing birthright citizenship, a bedrock American civil right.

This would reportedly involve, among other things, ordering agencies to stop issuing Social Security cards and passports to the U.S.-born children of undocumented parents. Members of Congress have also introduced legislation parroting Trump’s rhetoric and purporting to limit citizenship to children born in the United States to parents who are U.S. citizens and certain legal immigrants. If successful, the impact would be massive; almost 4 million school-aged children live with at least one undocumented parent, according to a 2016 study.

Protecting Birthright Citizenship: The Fourteenth Amendment

More than 150 years ago, as a fundamental part of rebuilding the nation after the Civil War and the end of slavery, the Fourteenth Amendment guaranteed citizenship to people born in the United States, without regard to parentage, skin color, or ethnicity. That guarantee ensures that we will never again consign certain groups of people, generation after generation, to a legal underclass. The Supreme Court confirmed, more than 100 years ago, that the citizenship guarantee applies fully to U.S.-born children whose parents have no right to citizenship. Moreover, history and tradition — including English common-law rules and early American jurisprudence — strongly support the standard, broad understanding of the Fourteenth Amendment guarantee. Originalists, textualists, and living constitutionalists should all agree on this result.

Theories that attempt to carve children out of this guarantee based on the immigration status of their parents are legally wrong, morally repugnant, and dangerous attacks on a core civil right. But, of course, those facts alone will not stop Trump from moving forward with his pledge. If he does, he will be challenged in court.

In 1982, the U.S. Supreme Court held in Plyler v. Doe that the Constitution guarantees all children, regardless of immigration status, equal access to a basic public education. This principle is directly in the cross hairs of a second Trump administration, as it seeks to make life in the United States unbearable for undocumented and mixed-status families in the hopes they will “self-deport.”

At issue in Plyler was a 1975 Texas law withholding funds to educate kids who were not “legally admitted” into the United States and allowing school districts to deny them enrollment. Some school districts took up the invitation to kick their students out of school, while others — like the district in Tyler, Texas — decided to charge them tuition (in Tyler’s case, a fee of $1,000 per year). The fallout was immediate, as students who were poor, Latine, and English language learners were driven from the classroom.

In a watershed decision, the Supreme Court struck down the law as violating the Equal Protection Clause of the Fourteenth Amendment. As the court recognized, education was crucial to preventing a permanent underclass of undocumented immigrants in the United States and ensuring immigrants’ future membership in society. Citing Brown v. Board of Education, the court recognized that “denying these children a basic education” would “deny them the ability to live within the structure of our civic institutions and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.”

While he was president, Trump reportedly made multiple attempts to undermine Plyler and equal access to education. Miller, his aide, reportedly ordered the Department of Education to cut off school funding to states that allowed undocumented students to enroll in public schools. Trump’s former Education Department chief of staff has described the idea to undermine Plyler as a “cockroach that wouldn’t die” and predicts that in a second Trump term, the decision would be “ignored.” Obviously, that would be illegal and inappropriate — and profoundly harmful to U.S. national interests. In fact, even governors and legislators who have targeted immigrant families in other ways have not forcefully pushed to undo Plyler, presumably because they recognize the tremendous practical harm that would cause to their own states.

If Trump goes after Plyler, we have the tools to fight back. In addition to the Fourteenth Amendment, Titles IV and VI of the Civil Rights Act of 1964 also prohibit discrimination. Alongside our partners, we will work to defend Plyler itself in the courts. We will also work with Congress to demand that the Department of Justice Civil Rights Division and Department of Education Office for Civil Rights continue their work to ensure that the law is followed in schools across the nation. The Department of Justice must continue to emphasize, as it does now, that K-12 public schools must be open to all students, regardless of their immigration status or that of their parents, guardians, or sponsors: “It is a violation of federal law for districts to prohibit or discourage children from enrolling in public schools because the children or their parents or guardians are not U.S. citizens or do not have immigration documentation.”

Moreover, many states have laws prohibiting discriminatory actions in schools and guaranteeing equal access to education — and other states could pass such measures. Officials in these states will have ample alternate grounds to defend undocumented students’ access to public schools even if Plyler comes under attack. We will work with state attorneys general to advise school districts of their legal obligations and ensure they are prepared for the Trump administration’s assaults on students — especially federal requests for information that federal agents could use to identify and track students and their parents. We will advise schools to prevent the abuse of their data by not collecting it in the first place, where it is not necessary for student services or accountability; and we will work with state legislatures to empower schools to protect student data.

We will also work with schools to limit invasive surveillance technologies that subject students to around-the-clock monitoring, and which could be weaponized by an anti-immigrant administration. If schools are targeted, we will work with partners to ensure school leaders and other education officials know they can refuse to assist immigration agents in locating students and can limit their access to campuses without a specific and valid judicial warrant.

After years of litigation, the ACLU last year settled its landmark Ms. L v. ICE case, which challenged the Trump administration’s policy of separating children from their families at the border.

While work continues to find and reunite separated families, and to address the trauma suffered by thousands of families torn apart during the first Trump administration, Trump has, shockingly, defended and praised it during the current campaign and has refused to rule out reinstituting the policy. An attempt to reinstate the policy would not only be morally repugnant; critically, it would also violate the legally binding, court-ordered settlement agreement that has been entered in successful litigation brought by the ACLU. If Trump endeavors to reinstitute his failed and flawed family separation policy, we would immediately bring the issue to court.

In addition, we believe a return to family separation will backfire on Trump and galvanize public opinion against the entire Trump immigration agenda. The practice of tearing apart families prompted a bipartisan, and even worldwide, outcry, and we will lay the foundations for a national campaign to mobilize public sentiment once again if this immoral practice is resurrected.

Trump made the demonization of people seeking asylum at the southern border a key element of his campaign this year.

We expect his administration to renew and expand attempts to destroy our nation’s system of protection for people seeking safety from violence and persecution — a system born of the horrors of World War II and the Holocaust, and which is enshrined in both international and U.S. law. In particular, we anticipate Trump will attack the right of people to request asylum when they arrive at the border — both through executive action and legislation.

Trump is reportedly planning to kick off his second term with a major bill on “border security and immigration.” In addition to limiting or effectively ending access to asylum, it could eliminate other pathways for humanitarian protection that have proven vital to our nation’s response to unfolding wars and crises, including in Ukraine, Cuba, Haiti, Nicaragua, and Venezuela.

We also expect that in a second Trump term, the border will become a more dangerous place for residents and newcomers alike. Trump will recommit to expansion of the border wall and attempt to militarize the border. Trump has wanted to treat the border as a war zone, and reportedly sought to emulate Israel and South Korea, citing the latter’s barbed wire and landmines.

Trump has outlined plans for massive policing and patrolling of the entire border region. In the final year of the Trump administration, the president’s team reportedly asked to deploy 250,000 troops to the border. We expect Trump to renew that request — even though military deployments at the border have proven damaging to military servicemembers, resulting in “rampant drug and alcohol abuse” and poor living conditions. At least five people died by suicide and three died in separate alcohol-related accidents in just 13 months between September 2021 and October 2022.

Finally, a second Trump administration will likely embolden vigilantism. Former DHS Chief of Staff Miles Taylor reports that “President Trump was eager to permit roaming bands of armed citizens” to engage in immigration enforcement. He will have willing participants – particularly in states like Texas – where vigilantes have already been operating, illegally detain and then deliver migrants to CBP. Vigilante groups have already targeted migrant shelter staff, and this is likely to increase if the federal government is supporting them.

PROTECTING ASYLUM & HUMAN RIGHTS: LEGAL RESPONSE

Attempts to shut down the asylum system face a number of serious legal problems, starting with the asylum law itself, which provides that “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section.” Our immigration system also provides other humanitarian protections, such as withholding of removal; additional safeguards for unaccompanied children; and the requirement that, even in expedited removal, individuals are screened for protection claims. What’s more, the Administrative Procedure Act sets forth procedural requirements for agency rulemaking and prohibits agencies from adopting arbitrary and capricious rules.

The ACLU and its partners challenged numerous Trump anti-asylum policies, pressing these legal claims and more. Courts held many of the policies illegal, and some were suspended or never went into effect. Further attempts to eviscerate the asylum system will also be vulnerable to legal challenge.

Abusive border patrol tactics also run afoul of the law, including the Fourth Amendment’s search and seizure protections and its prohibition on the excessive use of force. Here too, the ACLU has repeatedly sought and obtained accountability for unlawful conduct by Customs and Border Protection, and we will expand that work, if necessary, to encompass the acts of border vigilantes as well.

PROTECTING ASYLUM & HUMAN RIGHTS: CONGRESSIONAL ACTION

If Trump sends a bill to Congress that effectively ends asylum, we will fight to make sure it does not become law — mobilizing our supporters across the nation and amplifying the credible voices of experts who have explained why Trump’s solutions would actually “break the border” and are “counter-productive.”

Although congressional Democrats and others have been willing to authorize counter-productive and anti-asylum measures at the border under the false rubric of “national security” and drug interdiction, the politics will be different in a second Trump administration. For one thing, the realities of partisan politics mean Democrats in Congress are more likely to vocally oppose policies pursued by a Republican president than a Democrat. Moreover, a further militarization of the 100-mile zone will force border residents — including U.S. citizens and mixed-status families — to live in a de facto war zone.

We will work with members of Congress to push for hearings, investigations, and oversight of this aggressive policing and militarization, and to expose and limit CBP and the military’s activities. We will also work to prevent any legislation or related appropriations that would expand the role of the military in policing or surveilling border communities, and/or collaborating with state programs (like Governor Abbott’s new military base for migrant detention) that encourage collusion between state and federal actors to detain asylum seekers, border residents, and immigrants in the name of border security.

Although short-term legislative advances will be nearly impossible with Trump in the White House, there is both a political imperative and opportunity to push a different vision in Congress. To continue toward our long-term goal of achieving meaningful immigration reform, we will urge immigrant justice-minded members of Congress to counter the Trump agenda with a proposal for balanced legislation that will actually help manage the border — investments in processing capacity at ports of entry, processing options in other countries, and immigration courts and legal representation — and for resources for receiving communities, particularly in border areas where the brunt of Trump’s militarization will be most acutely felt. We will also continue to work with congressional allies to document how people with strong asylum claims are being deported to their deaths, and how our anti-asylum policies, like a “cap,” are being reproduced and cited to justify equally or more harmful measures around the world. This work may not achieve short-term legislative success, but revulsion at Trump administration excesses will create openings where policymakers are looking for other answers. Advocacy around a proactive vision even as we fight off extremist policies is necessary to ensure that we can reclaim our humanitarian protection system under a future administration and do not continue to cede ground on core human rights.

We will also lobby Congress not to appropriate more funds to an expanded border force (run by DHS, the Defense Department, or any other entity) or to allow CBP to further reduce the criteria for hiring of Border Patrol agents. We will also lobby for more oversight and accountability for individual agents, and transparency and congressional hearings regarding the location and nature of CBP policing efforts.

During the Trump presidency, immigrants and their loved ones, advocates, state and local officials, and ordinary Americans from all walks of life roundly rejected Trump’s demagoguery, as demonstrated by the massive show of support at U.S. airports in response to the Muslim ban, and the many court orders blocking it and other Trump policies.

Most Americans see immigrants — our neighbors, loved ones, co-workers, and caregivers — as contributors to American communities and the economy. Americans want practical border management solutions that include adequate staffing to screen and welcome people who are seeking entry, and we want an immigration system with clear rules and a fair process for people to immigrate and seek safety. The ACLU will stand among this American majority to stop Trump’s hate-based plans and achieve our vision for a fair, sensible, secure, and welcoming U.S. immigration system.

COURTS

As detailed below, many of the planned anti-LGBTQ policies of a second Trump administration would violate the Constitution and federal law, such that litigation would be a significant part of our response.

The ACLU has extensive experience litigating against the first Trump administration’s egregious anti-LGBTQ policies, such as its exclusion of transgender people from military service and its interpretation of the Constitution and federal sex discrimination laws as carving out LGBTQ people from protection. Should a second Trump administration take office, we are ready to get courts to confirm that LGBTQ people are protected from discrimination under federal law, to invalidate policies mandating discrimination across the federal government, and to shut down Trump’s expected efforts to weaponize the Constitution and federal laws to require discrimination against LGBTQ people by state and local governments and private entities. The ACLU has prevailed on these fronts in the past, and we will continue to fight.

We are clear-eyed about the challenging road we face in turning to the federal courts to stop these planned attacks on the LGBTQ community. Four years of the first Trump presidency had an enormous impact on the courts, including the Supreme Court. Getting courts to understand the experience of transgender people and the impact of discriminatory policies on their lives was difficult even before Trump reshaped the judiciary. It is that much harder now.

That doesn’t mean that we can’t make an important impact with litigation. We have seen some Trump-appointed judges rule in favor of LGBTQ rights in the lower courts. And it was a Trump appointee — Justice Neil Gorsuch — who authored Bostock v. Clayton County, 590 U.S. 644 (2020), our clients’ case establishing that Title VII, a federal law prohibiting sex discrimination in employment, protects against discrimination based on sexual orientation and gender identity.

But even when we don’t prevail in the courts, filing cases allows us to publicly call out unconstitutional and illegal policies and build political and grassroots support that will ultimately result in more just policies over time. Accepting the illegal and unconstitutional assaults on the LGBTQ community promised by a second Trump administration without a legal fight is not an option.

Below we discuss how the planned policies of a second Trump administration are illegal and unconstitutional under any proper reading of precedent.

CONGRESS

Given the gravity of Trump’s threats to the health and dignity of transgender people, and the fact we cannot count on litigation to stop all these planned attacks, it is imperative that the elected leaders in our democracy act. 

We anticipate that, in a second term, Trump will attempt to carry out much of his sweeping, anti-LGBTQ policy agenda through executive actions. But this in no way eliminates the role for Congress to play in challenging these assaults.

Congress can and must use the power of the purse, and its oversight and investigative authorities, to constrain a second Trump administration’s anti-LGBTQ agenda. If a pro-equality opposition controls either or both chambers of Congress in a second Trump administration, members of Congress who support the transgender community can use the appropriations process to hinder Trump’s ability to mandate anti-trans discrimination and weaponize federal law against LGBTQ rights. Moreover, Trump’s announced “day one” elimination of protections for transgender students in our nation’s schools should prompt pro-equality members of Congress to go on the offensive by prioritizing passage of comprehensive nondiscrimination protections for LGBTQ people across the country in the form of the Equality Act. We understand that comprehensive nondiscrimination legislation will not become law under a Trump presidency, however, it is important to demonstrate a stark contrast to the ugly discrimination of this administration, making clear that Trump’s values are not those of most Americans. Polling consistently shows that the public supports strong nondiscrimination protections for LGBTQ people — not the Trump campaign’s extreme anti-trans agenda.

STATES, CITIES, AND TOWNS

Likewise, at the state and local level, we need elected officials to begin coordinating and planning now to protect transgender people from Trump’s attempts to implement sweeping discrimination against them, including criminalizing gender nonconformity. Collective and coordinated action among committed pro-equality officials will be vital to anticipating, revealing, and quickly responding to the Trump administration’s blitz of anti-trans actions.

ORGANIZING

The ACLU is also committed to fighting for LGBTQ rights in the court of public opinion. Legal and policy battles — even those that are unsuccessful in the short run — can serve to frame and focus fights over values in ways that are politically resonant in the long term.

Banning books and bullying children are not popular actions outside of the MAGA base, and as advocates we will organize with our allies around specific moments that highlight the extremism and unpopularity of Trump’s attacks on transgender people. The goal will be for the Trump administration’s plans or actions to generate a public backlash that helps raise the political cost of discriminatory policies. Mobilizing public support on behalf of vulnerable children and youth — as the ACLU did in the context of family separation — will help deter further draconian policies and can help reshape the political narrative around transgender justice.

Trump plans to remove federal non-discrimination protections by rescinding regulations and interpreting federal laws to eliminate such protections.

This would strip LGBTQ people of nondiscrimination guarantees across a vast swath of federal government programs including Social Security, Medicare, and housing programs, as well as federal government employment. Rescinding regulations that interpret federal civil rights laws to apply to anti-LGBTQ discrimination — and likely promulgating new regulations taking the position that they don’t — would convey the message to school districts, landlords, employers, health care providers, and others that discrimination against LGBTQ people is lawful and, thus, embolden more discrimination.

Transgender people, in particular, already face discrimination across nearly every aspect of their lives. The 2022 U.S. Transgender Survey found they faced higher rates of poverty and homelessness than their cisgender peers, and data from the Human Rights Campaign found a persistent wage gap between transgender and cisgender people. The U.S. Census Bureau found that transgender people report higher rates of hunger. Numerous studies also found that they face higher rates of disability, long-term health risks — including HIV — and substance-use disorders, all of which contribute to a mortality risk twice that of their cisgender peers. Legal protections are but one pillar of addressing these systemic and widespread inequities, and the rollback of those protections would make matters worse.

In 2020, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act, which bars sex discrimination in the workplace, also covers anti-LGBTQ discrimination, rejecting arguments from the Trump administration. Since then, both federal courts and federal agencies have interpreted other federal statutory bans on sex discrimination to bar anti-LGBTQ discrimination as well, including in the contexts of health care, education, and housing.

While a second Trump administration would likely announce its view that these federal civil rights statutes do not protect LGBTQ people, the courts ultimately will decide this question. When they decide, Justice Gorsuch’s reasoning in the Bostock case that “… homosexuality and transgender status are inextricably bound up with sex” should prevail. The ACLU is already litigating the scope of federal nondiscrimination coverage for LGBTQ people in the courts, and we will continue to sue to protect the broad scope of these federal civil rights laws if a new Trump administration tries to narrow it.

In addition, should a new Trump administration cause the federal government itself to discriminate against LGBTQ people (such as interfering with LGBTQ people’s participation in federal programs or discriminating against LGBTQ federal employees), that would violate the Constitution’s Equal Protection Clause, as well as federal statutes. Such discrimination should be subjected to heightened equal protection scrutiny, since the Supreme Court has recognized in Bostock that discrimination based on sexual orientation or gender identity is discrimination based on sex, which is unconstitutional unless the government can prove that the discrimination is substantially related to an important government interest. Bostock specifically involved employment discrimination prohibited by Title VII, but its reasoning — that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex” — applies equally to equal protection claims involving sex discrimination, as some courts have already recognized. Therefore, excluding LGBTQ people from government programs or employment, or subjecting them to discriminatory conditions because of their sexual orientation or gender identity, would violate the Constitution. The ACLU will continue to advocate this position as these issues eventually work their way up to the Supreme Court.

In addition to rescinding nondiscrimination protections for LGBTQ people, a second Trump administration would permit faith-based, taxpayer-funded contractors that carry out vital federal government programs (e.g. disaster assistance and care for unaccompanied refugee minors, among many others) to use religious eligibility criteria to exclude LGBTQ people from participating in those programs. If such discrimination were to occur, it would violate not only the Equal Protection Clause for the reasons discussed above, but also the Establishment Clause, which the Supreme Court has recognized prohibits religious criteria to be used in carrying out government programs, whether those programs are carried out by government employees or government contractors. We will continue to challenge efforts to allow the use of religion to discriminate in government programs wherever possible, recognizing that the current Supreme Court has been hostile to our arguments.

A second Trump administration would ban gender-affirming medical care for transgender people in federal health care programs, including Veterans’ Administration health care and Medicare.

This would result in the disruption of medically necessary care for transgender people across the country who depend on it, and the implications would be catastrophic. Gender dysphoria is a serious medical condition that, if left untreated, can result in significant distress, depression, anxiety, self-harm, and suicidality.

Categorically denying such health care would violate the Constitution and section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of sex in health care programs. This has been recognized by several courts, while others have disagreed. The ACLU will continue to litigate this issue as it works its way up the courts, likely reaching the Supreme Court.

In addition, borrowing from lessons learned from the struggle to maintain access to abortion care, we will advocate for states to create reliable, permanent funding streams to ensure that those who would otherwise be cut off from gender-affirming medical care due to the exclusion of such care from federal programs are still able to access care under state programs. For example, in September 2022, California established a Reproductive Health Equity Fund within its Department of Health Care Access and Information. In April 2022, Maryland created an Abortion Clinical Training Program and allocated a $10.6 million training grant over three years. In April 2024, the Illinois Department of Public Health awarded $2 million in grants for abortion training. These programs — and similar ones at a much larger scale — exemplify the kind of support for and investment in the health of transgender people that will become necessary at the state level in a second Trump administration.

Just as the Trump administration did in 2017, a second Trump administration would reverse policies allowing transgender people to serve openly in the military.

This would push out many active-duty transgender servicemembers who have served with distinction and would bar new transgender recruits from enlisting. Such a discriminatory policy would also violate the Equal Protection Clause because it should be subjected to heightened equal protection scrutiny, and there is no justification for excluding transgender people from service. In fact, a RAND report from 2016 stated the effects of trans-inclusive “foreign military policies indicate little or no impact on unit cohesion, operational effectiveness, or readiness. Commanders noted that the policies had benefits for all service members by creating a more inclusive and diverse force.” Should Trump have a second term, the ACLU will work with allies to elevate the contributions of transgender servicemembers to raise the political costs on the Trump administration of reinstituting the ban on service, as well as explore all legal avenues to preventing its reinstatement. We know from our prior litigation on behalf of both transgender and gay and lesbian servicemembers that their stories of service and sacrifice can help move public opinion and make Trump’s expected anti-trans policy deeply unpopular with the country.

If they are successful in these efforts, even strong, state-level nondiscrimination protections could be overridden. However, states can and should lay down clear markers that their own laws and constitutions require protection of transgender people both to provide practical protections at least for a time and to create the opportunity for political organizing and mobilization when and if the Trump administration tries to override those state protections.

We would also argue that states should have the freedom to create greater civil rights protections for groups they believe face discrimination — such as transgender youth and adults — and that federal civil rights laws should not be interpreted to overrule those state protections. If a second Trump administration allows abortion rights to be decided on a state-by-state basis — a scenario we doubt and will explore in a subsequent memo related to reproductive freedom — we would make the same states’ rights argument in the transgender rights context to preserve extant state protections.

EDUCATION

A second Trump administration could take action to stop school districts across the country from maintaining trans-inclusive policies and practices. Specifically, it would target school districts — by bringing civil rights enforcement actions against them and/or withholding federal funding — if school officials affirm transgender students’ gender identity by allowing them to use restrooms that accord with their gender identity or by allowing transgender girls to play on sports teams with other girls, or acknowledging the existence of transgender people in the school.

Such actions would coerce school districts to discriminate against transgender students and erase the existence of transgender people in the curriculum, causing substantial harm to students in every state. As the Centers for Disease Control & Prevention found in its Youth Risk Behavioral Surveillance System survey, transgender youth are already significantly more likely to report feeling unsafe going to or attending school, to cite instances of physical or sexual violence, to indicate harassment at school and online, and to indicate mental health distress including suicide attempts.

A second Trump administration would likely attempt to justify these harmful actions by saying that trans-inclusive restroom or sports policies violate the rights of cisgender students under Title IX and their constitutional right to privacy. The ACLU has convinced courts to reject such claims in the past, and we will continue to fight against them should a new Trump administration try these arguments again.

Given the gravity of the threat and the uncertain legal landscape, as part of the ACLU’s strategy for state-based resistance to assaults on civil rights, we will advocate for states and school boards to act wherever they can to ensure the highest possible level of protections for LGBTQ students. Such protections would include policy guidance regarding updating student names and pronouns, inclusive rules on gender-based activities, and best practices for school records. They would also include state policies that, in accordance with student privacy laws, direct school districts not to share information regarding transgender and non-binary students with a federal government intent on discriminating against these students except when legally required.

While these actions may not ultimately block the harm of a Trump administration’s anti-LGBTQ assault on Title IX, they will provide students with important protections that could take a second Trump administration time to override. Moreover, the federal government overturning policies enacted by local and state officials can create a clear narrative for the media about a MAGA government ramming through unpopular and extreme policies around which to build political resistance.

HEALTH CARE

A second Trump administration would attempt to halt gender-affirming medical care for adolescents nationwide by threatening to deny Medicaid funding for hospitals that provide that care, asserting — against the recommendations of all major medical associations — that it does not meet federal health and safety standards. This could coerce hospitals to discontinue care, making it difficult, if not impossible, for youth with gender dysphoria to access the treatment they need.

In the last three years, 24 states have categorically banned gender-affirming medical care for transgender youth, effectively ending health care access for more than 100,000 transgender youth. Weaponizing federal law to target transgender health care in the remaining states would create a dire situation for transgender youth across the country, effectively ending access to care nationwide. The ACLU has already brought multiple cases challenging state-law bans on gender-affirming medical care for minors and would continue to litigate this issue in courts across the country should a second Trump administration further restrict this care for adolescents.

Where politically feasible, the ACLU will be encouraging states to pass their own laws or state constitutional provisions protecting access to gender-affirming health care and even, as noted above, ensuring access to consistent state funding for the care. Although the coercive power of federal funding cannot be underestimated, a coordinated effort by multiple states could force a showdown between medical ethics and state law and a punitive and overreaching federal government. The ACLU is laying groundwork to amplify and capitalize on such moments to create political backlash that forces the administration to reconsider.

The ACLU is also urging states to strengthen data privacy policies. Many states have enacted shield laws that prevent state officials from being complicit in other states’ efforts to target transgender individuals or providers of gender-affirming medical care, among others. Although the Constitution’s Supremacy Clause means that states must obey federal law, shield laws can be strengthened to limit cooperation with federal authorities unless compelled.

WORKPLACE 

A second Trump administration would take the position that employers may discriminate against LGBTQ employees based on the employer’s religious beliefs notwithstanding applicable state or federal nondiscrimination laws. This could be implemented as an executive order from the president or issued as a regulation. The administration might also intervene in litigation to try to prevent state and local governments from enforcing nondiscrimination requirements where the defendant asserts a religious motivation for the discrimination.

This position would likely be based on the Trump administration’s extreme interpretation of the First Amendment as establishing a free exercise right to refuse to follow nondiscrimination requirements that conflict with one’s religious beliefs, even though there is no Supreme Court precedent supporting that view. To the contrary, the court has rejected such claims in the past, although it is not clear how the Supreme Court would rule on this issue now.

By enacting policies supporting a religious right to be exempt from workplace nondiscrimination laws, a second Trump administration could create uncertainty about the enforceability of nondiscrimination laws against those who have religious objections to LGBTQ people. The ACLU has litigated against claims that the First Amendment entitles businesses that are open to the public to discriminate against LGBTQ people, and would similarly oppose such arguments asserted by employers.

One of the most extreme positions included in Project 2025 is the use of criminal laws to punish gender nonconformity in public life:

Pornography, manifested today in the omnipresent propagation of transgender ideology … has no claim to First Amendment protection … Pornography should be outlawed. The people who produce and distribute it should be imprisoned. Educators and public librarians who purvey it should be classed as registered sex offenders. And telecommunications and technology firms that facilitate its spread should be shuttered.

A second Trump administration would not be able to implement such a policy without Congress, making it likely that fair-minded people could prevent such a horror. If Congress were to create such a federal criminal provision, it could result in school officials and librarians facing potential felony criminal penalties for including books or lessons discussing transgender people in schools or libraries. And transgender people could face these criminal penalties for merely being themselves in public. This would not only threaten the freedom of countless transgender and cisgender people across the country; it would also send a damaging and stigmatizing message about what it means to be transgender, with significant implications for how transgender people are treated in all aspects of their lives. Such criminal laws would clearly violate well-established First Amendment law, and the ACLU would sue to stop them.

As part of the ACLU’s playbook for states, we will urge governors, state attorneys general, and state legislatures to act now to prohibit the use of state resources to support any criminal prosecutions or other enforcement measures by the federal government unless compelled by federal law. While the end result of this approach may be to merely slow down the enforcement of federal criminal provisions, such as those Project 2025 is advocating for, it could be incredibly significant for the daily lives and futures of transgender people across the country.

The ACLU will urge states to offer an alternative, positive vision that welcomes transgender people to be full participants in society. For example, states should ensure that gender, whenever its disclosure is required, is always self-reported in the state, with no medical documentation requirements, and bar state and local officials from questioning or investigating sex or gender designations. Such a policy would prevent state and local officials from being complicit in the Trump administration’s efforts to attack the legitimacy of transgender people and demonstrate that the state respects the dignity of transgender people and supports the community.

States have adopted laws criminalizing their health care, attempting to ban them from public life, and even threatening to remove transgender youth from families that love and affirm them.

Throughout this political onslaught, the ACLU, our nationwide affiliate network, and our millions of members have remained stalwart in defense of the basic principle that all people deserve the freedom to be themselves and every state should be a safe place to raise every family.

Donald Trump’s promises to take these discriminatory policies nationwide should be unthinkable, but it is nonetheless a future we’re prepared for. Transgender people are no strangers to government persecution, political slander, or the criminalization of gender nonconformity. They know how to build safety, community, and care among one another, and the ACLU has a century-long history of representing, supporting, and advocating for the powerless, the silenced, the marginalized, and the unapologetically queer against the kinds of attacks outlined in this report. We would zealously and unflinchingly defend LGBTQ families, LGBTQ rights, and LGBTQ health care against Donald Trump or anyone else who tries to extinguish LGBTQ freedom.