If Donald Trump is elected, he’ll take office next year having learned the lessons of four years of legal battles in his first term, during which inexperienced personnel, slapdash policymaking and his own indifference to how the federal government worked made his agenda especially vulnerable to legal challenges.
The 2024 Republican nominee already has a clear idea of how he’d jumpstart a second term, with plans to immediately enact hardline immigration policies and to dismantle civil service protections for thousands of federal employees.
His allies, including the influential conservative organizations that have participated in the endeavor known as Project 2025, have crafted policy papers and vetted potential Trump-aligned staff that could swiftly be hired to the federal government, so that his vision could be quickly and effectively implemented. (Trump himself has tried to distance himself from Project 2025 but many of his policies and goals overlap.)
“Honestly, the Trump administration was often sloppy in the way they rolled out these executive orders, including the first Muslim travel ban,” Washington Attorney General Bob Ferguson told CNN, referring to the Trump ban on migrants from several Muslim-majority countries that was the target of one of nearly 100 lawsuits brought by the Evergreen State against the Trump administration.
Ferguson said his office was “building the airplane as we were flying it” at the time. Now, the Washington Democrat – who is running for governor – has spent the last year pulling together a legal playbook so that his successor will be ready to hit the ground running in the event Trump wins again.
Those kind of preparations – researching case law, writing memos, shifting around staff – are being done across the country by liberal advocacy groups, blue states and other organizations that fought Trump in court. They’re thinking through the kinds of plaintiffs they’d recruit, where in the country they’d file their lawsuits, how they’d shape their legal arguments to adjust for how the judicial landscape has changed in the last several years and bulking up on litigative staff.
“We have every reason to believe this time around that, in the same way that we learned lessons, that the officials and strategists who would make up the second Trump administration also have a more sophisticated playbook,” said Deepa Alagesan, who leads the litigation team at the International Refugee Assistance Project, a refugee advocacy group.
When Trump took office, her organization did not have any in-house lawyers. But its experience litigating the travel ban helped convince the refugee group that it needed to set up its own team, which has now grown to about 10 attorneys. Several other advocacy organizations told CNN that the number of lawyers they employ or work with has grown exponentially since the beginning of Trump’s first presidency.
“Staffing is a huge of part of being prepared,” said Elizabeth Taylor, the executive director of the National Health Law Program, which opposes rollbacks to the public health programs that are often targeted by Republicans. “It’s going to take teams to be ready to challenge things that are going to come at us fast.”
Part of the preparation has been revisiting what worked and what didn’t in the court fights of the first Trump administration. One lesson was how lawsuits could help ramp up public pressure on the administration by bringing attention to a controversial policy, which was seen with the legal challenges to the Trump immigration practice known as “family separation.”
Another lesson, according to ACLU Executive Director Anthony Romero, was that every day a Trump policy was blocked or delayed by court order, it was a win, even if a higher court ultimately reinstated it. The litigation around Trump’s travel ban, for instance, forced his White House to rewrite the ban three times before it was finally upheld by the Supreme Court.
“Litigation will be a key tool to preserve the status quo and to play for time,” Romero said, noting that cases brought against a second Trump administration will be argued before a judiciary that has been transformed by both Trump and his successor, President Joe Biden.
The Supreme Court is far more conservative now that it was when Trump was inaugurated in 2017. Following its signals, lower court judges have become less willing to grant nationwide injunctions and more skeptical of the ability of organizations – rather than individuals – to serve as plaintiffs in lawsuits. The ACLU is preparing for those shifts in the legal landscape too, Romero said, building relationships with the types of grassroots organizations around the country that can help the civil liberties group find clients for its legal challenges.
Project 2025 shapes the plans
Project 2025, the sprawling policy agenda shepherded by the conservative Heritage Foundation, is expected to play a major role in shaping a second Trump presidency, especially as its authors include several alums of the first Trump administration who could be expected to take top government roles in a second Trump term.
It’s become a flashpoint in the 2024 campaign for how its proposals have pushed the envelope beyond the typical Republican promises.
“This time around, Project 2025 provides a very thorough overview over the issues in which a leading conservative organization, like the Heritage Foundation, is likely to push the Trump administration,” Romero said.
Trump has distanced himself from Project 2025, and some policies have become such a political liability for the Republican candidate that his campaign chiefs celebrated the news this week that the project’s director, Paul Dans, was stepping down amid pushback the policy agenda was getting from Trump and his campaign.
Part of the Project 2025 effort has been to collect and vet thousands of potential staffers to serve up and down the federal bureaucracy of a future Trump administration. Key to the conservative coalition’s goals is a maneuver known as “Schedule F” that would strip tens of thousands of federal employees of their civil service protections, effectively transforming a large swath of the federal bureaucracy into political appointees and making them far easier to remove and replace. (Trump signed an executive measure putting Schedule F into effect near the end of his first term, but it was not fully implemented by the time he left office.)
Progressive legal advocacy organizations are looking at ways to assist the traditional groups that protect federal employees, such as labor unions, in the event Schedule F is implemented.
The ACLU and other groups are brainstorming how to build out the infrastructure that would connect federal employees to legal representation if they are subjected to harassment, retaliation or other types of unlawful conduct by their superiors.
Memos and matrixes
Democracy Forward, an organization that formed in 2017 and that brought more than 100 court cases during the first Trump term, has crafted a so-called “threat matrix” to chart out a variety of far-right proposals, such as ending birthright citizenship, withholding Medicaid funding from states that require insurance plans to cover abortion and limiting adoption by same-sex couples. The matrix analyzes which federal agencies would likely be tasked with implementing the policies and whether they could be enacted without action of Congress.
The group is also preparing for the possibility that a Trump Justice Department would stop defending federal policies that conservatives are currently challenging in court, such as the FDA’s regulation of the abortion pill or the minimum wage for federal contractors. It is identifying and analyzing those lawsuits to understand what could be done to intervene in those cases to defend the policies.
“We think it is imperative that people in communities have the tools to push back on unlawful and harmful extremism,” Democracy Forward President and CEO Skye Perryman told CNN. “We are working with a range of organizations that will be able to prepare people in communities to push back, including through filing litigation against those proposals.”
The National Immigration Law Center – which began its preparations after a November New York Times article that previewed the immigration restrictions the Trump team is plotting – are putting together plans that lay out both a legal response to the proposals and how the group can mobilize protestors against the expected policies.
“We really are looking at every conceivable tool that we have at our disposal,” said Kica Matos, the president of the organization.
The ACLU, meanwhile, has been rolling out a series of analyses of possible legal and legislative responses to potential Trump policies. Publishing the legal arguments that the ACLU is exploring is, in part, aimed at inviting feedback from other groups, said Romero, facilitating a “peer review, in real time, before the crisis.”
“If we have got an analysis that is a little bit off, or can be refined, better to figure it out before January,” Romero said.
The current project — spanning topics like voting rights, abortion, immigration and the criminal legal system — expands upon what was a singular, much more surface-level memo the ACLU released the summer of 2016. (In both previous elections, ACLU has also posted memos assessing the policies of Trump’s Democratic opponents),
Though the 2016 analysis of Trump’s plans was “cursory,” Romero said, it was still pivotal in his organization’s ability to file a lawsuit the day after Trump signed the 1.0 version of the Muslim ban.
“Glad we had it, but we are going much deeper this time around,” Romero said.
