We Might Have to “Shut Down the Country”

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In less than a month, Donald Trump has come through on his promise to exact retribution on his enemies and to set about overhauling the federal government. Whole agencies are potentially being tossed, to use Elon Musk’s heedless language, into “the wood chipper.” To understate matters radically, Trump has sparked many debates. One of them is how close is the United States to a constitutional crisis: Are we headed toward one, on the brink, or already there?

If there is going to be a concerted resistance to Trump’s blizzard of executive actions, it will likely play out largely in courts across the country and, ultimately, in the Supreme Court. And if the Administration spurns court orders, what happens next will conceivably determine the fate of democracy and the rule of law in our time. Chief Justice John Roberts himself said in December, as the Biden Administration began closing shop and the incoming Trump Administration made its intentions increasingly clear, that in our current politics, we now live with the “specter of open disregard for federal court rulings.” And what would such a conflict look like with MAGA loyalists like Pam Bondi leading the Justice Department, Pete Hegseth leading the Department of Defense, and Kash Patel leading the F.B.I.? Some legal scholars recommend a keep-your-powder-dry attitude for the time being. But there has arguably not been such a potentially dramatic test of the country’s constitutional order since the Civil War era.

The American Civil Liberties Union, a major player in this drama, has been quick to file lawsuits on, among other issues, birthright citizenship, which the Administration seeks to eliminate. Anthony Romero, who is fifty-nine and grew up in public housing in the Bronx and later in New Jersey, has been the executive director of the A.C.L.U. since 2001. I spoke with him recently for The New Yorker Radio Hour. His sense of resolve and confidence were all in evidence. But if things go south and Trump defies the courts, he said, “we’ve got to shut down this country.” What does that mean? Our conversation has been edited for clarity and length.

Let’s begin with the most essential question, legal and political. Are we—less than a month into the Trump Administration—on the brink of a constitutional crisis?

I think we could very well be there. We’re at the Rubicon. Whether we’ve crossed it is yet to be determined.

Well, describe what the Rubicon is.

The Rubicon is the flagrant disabuse of judicial power. If the Trump Administration decides to run the gantlet and openly defy a judicial order, in a way that is not about an appeal, it’s not about clarifying, it’s not about getting a congressional fix, but open defiance to a judicial order, then I think we’re there.

What are the issues where that’s a possibility?

Well, there are forty cases, so many of the issues could be the one that precipitates the Rubicon moment. There have been a bunch of lawsuits around the Department of Government Efficiency, and whether or not the DOGE and Elon Musk have overextended their power. There are some who say that they’re violating the Privacy Act; that they’re accessing personal identifiable information on American citizens—their Social Security numbers, their tax returns, all sorts of information that are in the government data banks. Now, whether or not they’ve actually accessed that, whether there’s harm, whether or not the individuals who are bringing cases have standing, those things are all to be determined by the judges.

Then there’s all the questions around shutting down, or the closure of grants from the federal government, from U.S.A.I.D. and other agencies. And there’s the “fork in the road” litigation.

And just to be clear, this is considered illegal by legal experts because—

Because Congress appropriates the money. It’s not in the President’s power to rewrite the appropriations from Congress.

You have the Vice-President of the United States saying that judges are not allowed to control the executive’s legitimate power. What say you, as the head of the A.C.L.U.?

“Legitimate”—that’s the word that jumped out at me. And that’s what we’re arguing about, whether it’s a legitimate use of executive-branch power. It’s not a new controversy. We’ve had these debates before. The unitary executive—remember that back in the days of George [W.] Bush? Of course, most Presidents have tried to exert a much more muscular approach to executive power than I think the courts or Congress often give them the room for.

Where do you think the Rubicon will be—on what issue and in what court?

The one I’m most worried about is birthright citizenship. That was the first executive order. That was the first case we filed, two hours after he signed it.

What does the Trump Administration want and what does the A.C.L.U. want?

They want to eliminate the right to citizenship if you are born here, which was established in the Fourteenth Amendment. It’s also in the statute. It’s how we created American citizens out of the children of slaves.

For us in the civil-rights community, this is hallowed ground. This is how we fixed that problem that we had in terms of chattel slavery, and how we made all of us citizens and so that the citizens included the children of slaves. It’s also the way that we became a nation of immigrants and levelled the playing field. It’s the great equalizer, David.