The ACLU report stresses at the outset that the organization does not endorse, and never has endorsed, candidates for public office. The ACLU does law, not politics. The report is thus heavy with legal citations and essentially void of political analysis and gains in credibility thereby. No one will be surprised that Trump’s views on abortion, immigration, libel, and torture run afoul of law, but the ACLU does a great service by proving it, point by point by point by point.
As a justice, Ginsburg does law, not politics, but her comments about Trump were strictly political and void of legal analysis. In her most extended remarks, to CNN’s Joan Biskupic, she called Trump a “faker,” faulted him for “ego,” and accused him of “no consistency.” Only once did she touch on the issue of Trump’s lack of respect for judicial independence. “For the country, it could be four years,” she told the New York Times’s Adam Liptak. “For the court, it could be I don’t even want to contemplate that.”
The comments predictably provoked Trump, who tweeted that Ginsburg was “a disgrace to the court” and suggested that she had “lost it.” In nonpolitical vein, many in political and legal worlds argued that Ginsburg had breached the ethical rule that judges should steer clear of politics. Two liberal newspapers, theNew York Times itself and the Washington Post, editorially criticized her. The Times aptly described her remarks as “political punditry” and “time-calling.”
Some on the legal left, however, suggested that Ginsburg had the right and even the duty to speak out. Ginsburg was entitled to her surely well known opinions, they said, and it was good to unmask the fiction of judges as political ciphers. Trump’s candidacy poses a danger that demands speaking out and condemns silence. One writer, Slate’s Mark Joseph Stern argued that Ginsburg was justified because of the “menace” that Trump poses for the country.
Some continued to defend her even after the justice herself voiced her regrets. “Judges should avoid commenting on a candidate for public office,” she said. “In the future, I will be more circumspect.”
The ACLU report has no name-calling, no punditry, only legal analysis, issue by issue. It begins by noting Trump’s call for “a complete and total ban” on Muslims entering the country, as immigrants or tourists. The report infers that Trump has in mind the federal law authorizing the president to suspend entry of a “class of aliens.” But it argues that the law probably does not go that far and would violate the Constitution the Establishment Clause among other provisions if a president tried to stretch it that far.
In like vein, the report argues that Trump’s proposal for blanket surveillance and registration of Muslims in the United States would be unconstitutional, a violation of equal protection as well as the First Amendment’s free exercise and free speech clauses. Apart from the Constitution, the Muslim “database” would surely violate federal privacy statutes, the report adds.
The report notes Trump’s endorsement in May 2015, before his presidential campaign, of legislation to allow the National Security Agency to collect “bulk metadata” of telephone calls by Americans. Congress changed the law less than two weeks later to prohibit collecting Americans’ call records in bulk, but Trump appears not to have changed his views. In an interview on MSNBC in November, Trump said in regard to telephone surveillance that he would “err on the side of security.” The report repeats the ACLU’s position that such surveillance is both unconstitutional and illegal.
Trump has advocated waterboarding and other forms of torture, the report notes, seemingly reveling in the practice. He has said that he “love[s] waterboarding” and approves of the practice because “they deserve it anyway, for what they’re doing.” The Bush administration authorized waterboarding and other “enhanced interrogation techniques” under a Justice Department memorandum that was later repudiated. As the ACLU report states bluntly, torture and “other forms of cruel, inhuman, or degrading treatment” are “banned” by the U.S. Constitution, domestic law, and international law--with no “deviations” permitted.
On domestic issues, Trump has called for revising libel laws “so that we can sue [media outlets] and win money.” But there is no federal libel law nor can the president write one without Congress and any change would run into the Supreme Court’s famous New York Times v. Sullivan ruling and subsequent line of decisions.
Trump stirred controversy in March by suggesting that women need to be “punished” for abortions. He tried to walk back from the stance while still calling for punishing doctors. Whatever his position, the ACLU report correctly notes that the Constitution “squarely prohibits” either the federal or state governments from prohibiting abortion.
Unfortunately, the ACLU report got little attention in a week dominated by political events at home and terrorism abroad. Had Ginsburg given a formal speech or interview to question the legal basis of some of Trump’s proposals, it would have made a contribution worthy of and possibly within the ethical rules of a Supreme Court justice. She didn’t. Credit the ACLU for doing it instead.