Best of Stanford Legal: Inside the ACLU’s Docket with Anthony Romero

0:00Birthright citizenship for me is like, it's like, it's like a holy book for civil rights and civil liberties.

0:11Anthony Romero:This is Stanford Legal, where we look at the cases, questions, conflicts and legal stories that affect us all every day. I'm Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way you'll have access to all our new episodes as soon as they're available. Today, I'm going to be talking with Stanford alum, and that's like the least of his many qualifications, Anthony Romero. Anthony has been the executive director of the American Civil Liberties Union since the week before the 9-11 attacks on the World Trade Center. And Anthony, I sort of feel like in talking about the ACLU right now, the thing that it reminds me of the most is the name of that movie from about three years ago, Everything, Everywhere, All at Once, because it is just astonishing the range of stuff that you are working on at the ACLU.

1:09Anthony Romero:And I thought maybe you could just start by telling me a little bit about just the huge range of stuff that the ACLU is now facing. I mean, we always had a full plate. Hi, Pam. It's great to be with you. It's great to be with Stanford Legal. It's great to be part of the Stanford community. I'm just delighted to be a part of this. To be clear, the day before Donald Trump became president, we had a full plate. We had a lot going on. We had a burgeoning docket. We had agendas and clients. We needed to move. And so it's not like we were lacking for work or for the direction of where we wanted our work to go.

1:53And yet with the election of Donald Trump and with the kind of advent of Trump into the Oval Office, oh, my God, that workload has just more than burgeoned on us. I mean, we have now 239 different legal actions. that's about over 130 of that are full-on federal class action lawsuits. And they are across the range of civil liberties and civil rights issues. Some of them are cases on behalf of individuals. Some of them are cases on behalf of large groups of individuals in class actions. Some of them are at the highest levels of government. Some of them are just dealing with some of the injustices that we see playing out on the ground.

2:35And this is a real challenging moment. You mentioned that I started the week before 9-11. And the war on terror, I thought was going to be the toughest time in my tenure. Those were hard eight years. I don't want to undersell the impact on civil liberties and civil rights from that moment. And yet the impact we're now experiencing is so much greater. It's so much more significant across many civil liberties and civil rights issues.

3:07Anthony Romero:Yeah. I mean, one of the things just, I think, you know, for some of our listeners who think of the ACLU primarily as about free speech, I think one of the things is the ACLU has expanded into so many different areas. So you have an immigrants rights project, you have a LGBTQ project, there's reproductive justice. A voting rights project. There's voting rights. Yes, we must never forget my favorite, the voting rights project. Exactly, exactly. And then you have just a huge number of different projects right now. And I wanted to ask you one question before we get into a couple of cases, which is over its years, the ACLU both has a national organization, it has state and local affiliate or state affiliate organizations.

3:51Anthony Romero:And then it also relies a lot on volunteer attorneys who work with the ACLU in cases. And one of the things I've been hearing is that a lot of the law firms that traditionally have been involved have pulled back or scaled back on their work out of fear that the Trump administration will challenge them too. Is that causing problems across the board or just in particular areas? I think it's playing out in real time. And so I'm still hopeful. I am assiduous, as you know me, in my advocacy. I don't give up the ghost easily. But we are definitely seeing a retrenchment among some law firms. We're seeing some law firms who won't take on certain types of cases.

4:39Some of the most challenging high-profile cases that might be either at the federal level or against the Trump administration. We see some law firms who are reluctant to put their names onto documents. And that may be okay if we're working on an appellate brief. It doesn't really help you much when you're at trial because you can't really share any of the attorney-client information with parties who are not part of the case, right? It's not like you can just kibitz with a lawyer on the street and say, hey, can you help a guy out with this lawsuit, right? So if they're not willing to join officially in this litigation, it makes it very hard to partner with them.

5:19We're tracking it pretty closely. I mean, we monitor the engagement of law firms across issues and across different levels. We monetize it. We published that in our 990s, donated legal services. I haven't seen a massive fall off yet in donated legal services, but I haven't seen the numbers for the full year of the Trump administration. That will become apparent in my next tax return. That will be the full year of the Trump administration. And we're just wrapping up the fiscal year. So I'll have a much better sense of that in coming weeks. But there are definitely anecdotes where I've been disappointed.

5:56And then there are firms who've stepped in.

5:58Anthony Romero:Yeah. It's just the Trump administration, I think for those of us who are lawyers, like you and me, the law turns out to be very slow at responding to what is on a kind of across the board, let's just break it and see whether anybody will come after us. Right, right. And that's the thing. And to fix any of these unlawful actions will take us years, often on appeal. Yeah. And I remember when I was at the Justice Department that we did several cases in which we were co-counseling with the ACLU, the North Carolina omnibus attack on North Carolina omnibus voting rights bill. Right. I remember that one.

6:39Anthony Romero:And so now it's so frustrating to see that you can't rely on the Justice Department, that big law may be backing off a little bit. Because I know in the first Trump administration, they stepped up quite a bit. And in the war on terror, they stepped up really quite across the board. They stepped into the Guantanamo litigation. You remember that? Yeah, yeah. And I think what's also disconcerting is also the financing of public interest law. You find, I mean, the ACLU, our membership is robust. They're devoted. We probably have a fewer number of members that we have this time around than we had at the end of the Trump administration.

7:25So that for me means that some people are tuning out. I hear that all the time. I just can't bear to watch. I can't bear to pay attention. And so that I think is reflected in the overall membership numbers. Contributions, it's complicated because there's so much that's under that one rubric. But there were many Silicon Valley philanthropists who in Trump 1.0 were falling over themselves to write large checks to the ACLU and other groups. And I can name six. I won't name because that's not that's not a good trait in a lawyer's to get to tell. But there are at least there are at least six or seven who were contributors of the ACLU.

8:09These are big names writing large checks who are not who are MIA today. And so that also shows you that some of them, I mean, some of the more frank ones say, well, this is not a bear I want to poke. And that's really unfortunate, the lack of of of courage in institutions. So it's not just law firms sometimes shirking their responsibility. It's also individuals. Yeah.

8:37Anthony Romero:And of course, the ACLU has been kind of in the forefront of poking the bear, if you will, back to the palmer raids. The bear needs to be caged. That's right. We've been born out of the palmer raids. This is something we were born for. Does this time remind you of the palmer raids era? Yeah, very much. I mean, look, the ACLU found out of the Palmer Raids, you know, a burgeoning immigration community that was very immigrant community that was very controversial in national politics. It was even more extreme at that point. You had a lot more violence. You had, remember, the 33 bombs that went off across the country, the one at the doorstep of the Attorney General Mitchell Palmer.

9:16That's why he unleashed the Justice Department, the Palmer Raids. We don't see quite that level of violence, of anarchy, if you will. But I think that the undoing of a system of checks and balances, of the violation of due process, of a government targeting individuals because they see them as the enemy within is very reminiscent. And, you know, that's why in many, many respects, an institution of 106 years who understands its history and make sure that its current staff live and understand the history has the muscle memory built in of the Palmer raids or or HUAC or the time when we stood up against Japanese American internment.

10:01You just do the right thing because it's necessary, not because it's popular or easy.

10:05Anthony Romero:Speaking of immigrants, one of the things that is an ACLU case is going to be argued at the Supreme Court in the – it's going to be argued actually on April 1st, which seems like I'm kind of – I'm sure I'll see you there. Yes, I'm not sure exactly what to make of that. But it's a case that involves the Trump administration executive order that is trying to deprive people born in the United States to parents who are not themselves either citizens or legal permanent residents, deny those babies born in the United States, United States citizenship, which they have had really since the ratification of the 14th Amendment.

10:47Anthony Romero:And one thing just I think our listeners should know about this is that this would deny citizenship, not just to babies born in the United States to undocumented parents, but it would also deny citizenship to babies born in the United States. You know, I think about this on the Stanford campus to all of those graduate students who are here on student visas, all of the engineers who are here on work visas and the like. And, you know, and the Trump administration just announced, we don't think birthright citizenship still exists. Can you tell us a little bit about kind of how the ACLU has been working on that case?

11:23Yeah, we've been working on it from before Trump became president. This was one of the cases that we had developed right after the election. We had mapped out this strategy around birthright citizenship because this has been not a secret that they've been trying to go after birthright citizenship. We've heard it even from the first Trump administration. It was part of Project 2025. And then in the lead up to the election, we kind of mapped out what are the different legal theories, what are the types of clients, where would you file, what would be the proper venues. And all of that was largely worked through.

11:59And then when he was elected in November, we just went into action mode. So part of what we had to do, and you know this better than I, You teach this in your class. I learn it from people like you. But when the executive order first came down two hours after he signed, after he became president, we filed our first challenge to birthright citizenship. which was on behalf of an Indonesian immigrants group that we had identified in New Hampshire, whose members included pregnant women whose kids would be born and who would be subject to the executive order and whose citizenship would be denied. So we had to work through where do you want to file in the First Circuit?

12:50So therefore, you're up in the Northeast, New Hampshire. you had to file find an organization and individuals so you had to find individuals who would have standing pregnant women whose kids would be born afterwards and then the case went up you for you remember first in the supreme court on the kind of more procedural issue on the universal injunction issue and and then when that came down saying that you couldn't just grant a nationwide injunction, we had to regroup and then file a class case, which we did. That's largely with the same groups of individuals and some of the same theories, but a different approach, you know, filing for a class certification.

13:30And so, you know, I am confident. I'm almost afraid to say that because I don't have a heart anymore, but it could be broken again. You know, I believe, though, nonetheless, we will win seven to two is what I predict. The real lawyers of the place, I just keep my law degree above my desk here and I keep my bar license paid for, but I let the real lawyers argue these cases. I'll be in the well of the court, not arguing in the well of the court, but being in the audience. But I think that it's almost inconceivable to me. I was there for the birthright citizenship procedural argument. It's almost hard for me to imagine that we don't win seven to two.

14:09I think they all, they feel to me that they're all aligning. Kavanaugh, Amy Coney Barrett, I think the chief, I don't know, I'd be interested in your thoughts. I think only Alito and Thomas will probably be in the minority. But it's a really important case because, as you say, it's not just the kids of undocumented immigrants. Like you said, it was anyone whose father was not a U.S. citizen or lawful permanent resident. So it could be the mother, but the father, the paternity issues are complicating. And then if they were lawful but temporary, like you said, the graduate students, and that could undo all of the way in which we have thought about citizenship.

14:50And if you just take a step back for a second and think about birthright, birthright citizenship for me is like a holy book for civil rights and civil liberties. And you have, you know, I want to be careful, you have the two texts, if you will. You have the 14th Amendment text that allowed, that's what turned the children of slaves, of enslaved people into full citizens only after a bloody civil war. It is what corrected America's original sin. And that's why that's the first text. The second text is, in a nation of immigrants, the only way that you ensure that we are all equal under the law is if you grant that citizenship at birth.

15:36Because if you don't grant it at birth, you will create different tiers of citizenship or involvement in the body politic, and we won't be equal. So a nation of immigrants, out of many, one only happens with birthright citizenship. Otherwise, you're in a place like Germany, where Turkish families can live there for generations and they're never German citizens, or in Japan, where Korean families for generations are never Japanese. So these are the two holy texts around 14th Amendment and a nation of immigrants out of many one that they're trying to undo.

16:16Anthony Romero:Can I ask you a question about this, which is, you know, when I read the executive order, the executive order just says from this day forward, I'm ordering that government not provide these people with documents. But I don't understand in some sense how it is that it doesn't also apply retrospectively. I don't either. I asked my class this last year when I was teaching the 14th Amendment, which is I said to students, how many of you can prove you're a U.S. citizen? A number of them raised their hands and they say, well, I have a passport. I said, well, but can you prove that your parents were U.S.

16:59Anthony Romero:citizens when you were born? Because if the Trump administration is right, don't we all have to go and find some ancestors' naturalization papers to turn us into citizens? And think about the chaos. Who actually registers us, right? I don't have kids, but I have two God kids who I've been very close to at the day they were born. What I remember is at NYU Hospital up down the street, it was the nurses who came in and registered the birth of my God kids. Okay, who's the father? That's the guy. Who's the mother? She's the one on the bed. Where were they born? Manhattan. Done. Right? What are you going to do when all of a sudden you have an executive order that says they have to check on the paternity of the guy in the corner who's the father or the citizenship of the mother?

17:44It's just going to be completely chaos. And part of what we're anticipating, I think we win this case. I think we win this case. But I don't only plan for winning cases. I'm kind of a neurotic type A lawyer. We're planning for what if we lose. And part of what we're organizing is to think about, okay, how do we organize the hospital workers to resist any effort to enact birthright citizenship? How do blue states enact firewalls from being forced to implement birthright citizenship?

18:17Anthony Romero:I mean, I would think there'd be a fair amount of what will turn out to be commandeering and 10th Amendment issues if they start telling states, you have to determine the citizenship of the parents of any child that's born in your state. The unfunded mandates. Remember those words from the Oregon era? It's just all of this. And of course, you know Nina Perales at MALDEF really well. Her husband, who does a lot of immigration work, talks about just how difficult it is to deal with getting birth certificates or proof that people were born in the United States who were born at home in Latino communities along the border.

18:56Anthony Romero:And I, you know, I mean, I don't know how you deal with all of this. And birthright citizenship is such a clean, direct way. And fraternity. Yeah. Fraternity. If you're just born here, you know, you can leave the father blank. But, you know, all sorts of stuff. Well, this will open up a whole conundrum. I was on a stage at Aspen Institute with the governor of Georgia, and I was tweaking him a little bit because he's like, how are you going to pay for this? How are you going to implement this? What does this mean for kind of the ability for your registrars, for your city halls? They had not thought it through.

19:35They're all kind of championing this change in policy. I'm like, careful what you wish for, governor, because this could be a complete debacle for your folks.

19:45Anthony Romero:Yeah. Not to mention for the spirit and heart of the American democratic experiment. Yeah. I mean, I'm just, and I'm kind of staggered that they went as far in the executive order as they did. And now they're making these arguments that, you know, Wong Kim Ark was wrongly decided. I know. Crazy. I mean, what was, what was saying to me is that the week before the election, the week before the inauguration, I was in touch with someone in that orbit who I have a relationship with. And it was clear from that conversation that they were going to run this play. I didn't think so. I mean, we got ready for birthright citizenship because we must.

20:25But I put the phone down and I'm like, wow. I went back to the office and I called Lee Gelearn and Cecilia Wong, who are two of my colleagues, and Omar John, who will all do immigrants' rights work. I'm like, we've got to get birthright citizenship ready from day one. And none of us really believe that they would play that play in the first few hours of their administration. This is clearly something that is central to their mission of undoing the strong history and contributions of immigrants. And that's why I think there's probably no more consequential case we'll argue this term.

21:04Anthony Romero:Yeah, I mean, it's certainly, and I do, I share your optimism that the court is going to recognize both that the 14th Amendment does this and that the 1941 Immigration Act does this as well. You're wearing belts and suspenders. It's in the Constitution and it's in the statute. You bet. Yeah. And I don't see any prospect of Congress passing a statute that eliminates birthright citizenship. Yeah. I think it's also got to be a rallying point because I think we have to demonstrate that they have fought this all the way out to the Supreme Court twice. This will be the second time. This one on the merits, the first one on procedural grounds.

21:49But to demonstrate to the American people just how serious and how damaging is this line of advocacy from the Trump administration, that it really strikes at the heart. So that's why we're going to use it, hopefully, as a moment to rally the American people. We're planning, you know, big efforts around organizing, around public education, celebrities, kind of ordinary people, immigrant stories, you know, tapping into the best of what is the American experiment from all walks of life. And I think that will become easier for us, given the horror and the atrocities that we've witnessed in Minneapolis recently.

22:34Yeah.

22:35Anthony Romero:So I want to turn to that aspect of the ACLU's work, which is, you know, you're not just trying to defend birthright citizenship, but you're trying to defend huge numbers of people in the United States right now who are being swept up in a variety of ways. And I wonder if you might talk a little bit about just kind of, I mean, the range of stuff the ACLU is doing there from challenges to police practice, you know, ICE and CPB practices to dealing with the people who are actually being locked up and trying to get them out. I mean. Habeas. We have dozens of habeas cases that we have filed. Yeah.

23:12Anthony Romero:And you've kind of been forced into habeas because you've kind of been forced into the habeas business because of the courts getting rid of nationwide injunctions. And because it's a way then to challenge the underlying constitutionality of the actual statute. That's how many of the habeas cases are how we've gone after the Alien Enemies Act case. So if I make it easier for us, I mean, although your viewership is super smart, I think about three buckets of work for the ACLU. One is the targeting of institutions, individuals who disagree with the government. So it's kind of like the modern day McCarthy moment, the stuff around our clients like Mahmood Khalil or the targeting of the law firms of Jenner Block or Wilmer Hale or the targeting of Harvard.

23:57They're kind of like the idea that I'll go after my enemies and shut them down. And that's kind of core central mission, central work for the ACLU. It's the freedom of speech, freedom association bucket. The second is this kind of targeting of politically weak groups to score cheap political points with the MAGA base. And I put the immigrants' rights work and I put some of the transgender rights work into that. And the immigrants' rights work is burgeoning because of that. And then the third is this question around defending the rule of law in a system of checks and balances, the idea that they shouldn't be able to just skirt the rules of the road to judicial contempt litigation.