Defending Democracy Means Defending Fundamental Constitutional Rights

“We the people…” First drafted in 1787, the U.S. Constitution begins with those three powerful words. It remains the world’s oldest written charter for a nation—a revolutionary representative democracy based on the individual rights of citizens. America’s unique constitutional form of government has faced many challenges in the nearly 240 years since it was first adopted. But it has always survived, often because private citizens and public leaders have risen in its defense during times of crisis. Today, an informal coalition of non-governmental organizations, elected officials, and prominent citizens has risen once again to defend America’s democracy. And the mission of defending democracy begins with defending the core individual protections on which our country was founded.

President Donald Trump and his administration pose the most significant threat to America’s constitutional government and the rule of law in generations. Since day one of his second administration, Trump and his loyalists have sought to undermine the founders’ carefully constructed balance of power (discussed elsewhere in this report) and the rights of citizens.

Thus far, Trump’s systematic attack on the American way of governance has failed. His administration has been met with stiff resistance in both the court of law and the court of public opinion. But the story is not yet fully written. The president has repeatedly demonstrated his contempt for the country’s constitutional processes. Following his loss in the 2020 presidential election, for example, Trump went so far as to call for the “termination of all rules, regulations, and articles, even those found in the Constitution.”

That threat remains. But so, too, does the strong resistance to Trump’s autocratic impulses.

Below, we offer a brief sketch of the ways in which the second Trump administration has sought to undermine Americans’ constitutional rights and our democratic principles. We also highlight some of the ways in which the pro-democracy coalition, including our organization, has moved to block this unprecedented assault. Plaintiffs from across American society have successfully sued to defend their rights. And their victories provide a road map for the remaining three years of the second (lame duck) Trump administration, which has lived up to our fears that it will not give up its campaign to subvert the Constitution without a fight.

Our review begins with the First Amendment’s freedom of speech and association, considered the cornerstone of individual liberty and self-governance. Despite initially portraying himself as a defender of the First Amendment, Trump has abused his power as president in a wide-ranging crackdown on the freedom of speech, targeting journalists, leading universities, students, law firms and others. They have all sued to defend their rights and have won landmark cases upholding this essential American liberty.

We then turn to the Fourth Amendment’s protection against unreasonable search and seizure and the right to due process provided by the Fifth Amendment. We explore the administration’s brazen disregard for the rights of citizens and noncitizens to these two core protections in its nationwide campaign against immigrants. The administration has routinely violated these rights as it sought to detain and deport noncitizens, turning U.S. Immigration and Customs Enforcement (ICE) into an invasive, often violent nationwide police force. The pro-democracy coalition has served as a critical check in defending these essential rights and against a part of Trump’s presidency that has been conducted with extreme cruelty.

Finally, as one of his first acts in office, Trump signed an executive order that was intended to end birthright citizenship—a constitutional right established by the Fourteenth Amendment. Democracy Defenders Fund (DDF) and other litigants successfully sued to block the executive order from being enforced. To date, no person born in the United States since January 20, 2025 has been deprived of this right—an unequivocal success. Still, this matter and others are set to come before the Supreme Court, which will rule on cases involving core constitutional issues in the coming months.

As the Trump administration enters its second year, the pro-democracy legal community and protest movements share a common purpose: defending our constitutional rights. Donald Trump does not have any respect for America’s longstanding constitutional traditions. But many Americans do. And the first year of Trump’s second term provides ample reasons to believe that this sacred tradition will endure.

Trump’s Attacks on Free Speech Have Failed So Far

Within hours of his inauguration on Jan. 20, 2025, Trump signed a chaotic flurry of executive orders. One of them, titled “Restoring Freedom of Speech and Ending Federal Censorship,” was supposedly intended to defend Americans’ First Amendment rights. Trump claimed to be protecting the First Amendment from the alleged transgressions of his predecessor, but the truth was closer to the opposite. In the months that followed, Trump oversaw an aggressive campaign that was aimed at chilling the free speech rights of his perceived ideological and political foes. His campaign targeted leading universities, law firms, students and the media, among others. One year after his inauguration, Trump’s threat to our fundamental free speech rights remains. But time and again his unconstitutional actions have been challenged in the courts, where he has either suffered setbacks or been outright defeated. “Congress shall make no law…abridging the freedom of speech, or of the press,” the First Amendment reads. And the courts have consistently found that the Trump administration does not have the right to abridge these freedoms either.

In the initial days of the Trump administration, DDF and its coalition partners sued the administration to prevent it from shuttering the U.S. Agency for Global Media (USAGM), a congressionally established agency that oversees Voice of America (VOA), which was originally founded to combat Nazi propaganda. In more recent years, VOA had continued to provide accurate news inside countries ruled by anti-American authoritarian regimes where freedom of the press had been curtailed. As a result, the court granted a preliminary injunction preventing USAGM and its media arms, including VOA, from being completely dismantled. However, the administration still seeks to effectively shutter VOA—and DDF continues to oppose this move in the courts.

In addition, DDF recently filed a motion alongside the ACLU of Pennsylvania and others to intervene in Equal Employment Opportunity Commission (EEOC) v. The University of Pennsylvania after the administration sought a list of Jewish students, professors and staffers. DDF and its partners represent Jewish faculty and student employees who “oppose the non-consensual release of organizational membership rosters and members’ personal information based on the First Amendment right to associate confidentially, which directly impacts the freedoms of speech, association, privacy, and religious liberty.” Consider the additional examples below.

A federal judge in Massachusetts found that the administration’s decision to withhold funds from Harvard University violated the First Amendment, as well as other statutes.

Although the administration claimed that it was withholding the funds to combat antisemitism, U.S. District Court Judge Allison D. Burroughs found that Trump and his administration had sought to undermine the university for their own ideological and viewpoint-based reasons. In a Sept. 3 opinion partially granting Harvard’s summary judgment, Judge Burroughs found it “difficult to conclude anything other than that Defendants [the Trump administration] used antisemitism as a smokescreen for a targeted, ideologically-motivated assault on this country’s premier universities, and did so in a way that runs afoul of the [Administrative Procedures Act], the First Amendment and Title VI.” Burroughs warned: “The First Amendment is important and the right to free speech must be zealously guarded. Free speech has always been the hallmark of our democracy.” She added: “If speech can be curtailed in the name of the Jewish people today, then just as easily the speech of the Jews (and anyone else) can be curtailed when the political winds change direction.”

Another federal judge in Massachusetts found that the administration’s policy of detaining and deporting pro-Palestinian students and faculty members on college campuses violated their free speech rights.

“This case—perhaps the most important ever to fall within the jurisdiction of this district court—squarely presents the issue of whether non-citizens lawfully present here in [the] United States actually have the same free speech rights as the rest of us,” Judge William G. Young of the U.S. District Court for the District of Massachusetts wrote in a Sept. 30, 2025 opinion. Judge Young continued: “The Court answers this Constitutional question unequivocally ‘yes, they do.’ ‘No law’ means ‘no law.’ The First Amendment does not draw President Trump’s invidious distinction and it is not to be found in our history or jurisprudence.”

Trump’s executive orders targeting law firms have been blocked by the courts on First Amendment grounds.

Early in his administration, Trump issued a series of executive orders targeting law firms that had opposed his policies or that he had otherwise deemed his political foes. While some of the firms capitulated to Trump’s bullying, several others challenged his brazen abuse of power in the courts—and won. Prominent firms such as Perkins Coie, Jenner & Block, WilmerHale and Susman Godfrey all successfully sued to block the administration’s enforcement of his executive orders. “This case arises from one of a series of executive orders targeting law firms that, in one way or another, did not bow to the current presidential administration’s political orthodoxy,” U.S. District Judge John Bates (an appointee of President George W. Bush in the District of Columbia) wrote in his opinion blocking the executive order targeting Jenner & Block. He continued by pointing out that the Trump administration “makes no bones about why it chose its target: it picked Jenner because of the causes Jenner champions, the clients Jenner represents, and a lawyer Jenner once employed.” Judge Bates concluded:

“Going after law firms in this way is doubly violative of the Constitution. Most obviously, retaliating against firms for the views embodied in their legal work—and thereby seeking to muzzle them going forward—violates the First Amendment’s central command that government may not ‘use the power of the State to punish or suppress disfavored expression.’”

The judges’ rulings in each of the other cases similarly pointed out how Trump’s executive orders violated basic protections under the First Amendment.

A comprehensive effort to undermine free speech.

The cases above are just some examples of the ways in which Trump’s efforts to chill speech failed during his first year. There are many more. For example, the Associated Press won a partial victory in court after Trump tried to force the news service to use “Gulf of America,” his renaming of the “Gulf of Mexico.” While the AP remains banned from certain “private” administration workspaces, it has steadfastly refused to bow to Trump’s demands. Other media companies have resisted the administration’s attempts at coercion as well.

The president’s disdain for, and willingness to violate, the First Amendment remains evident. And his relentless attacks on the media are unlikely to cease. Trump has shown his willingness to use the Federal Communications Commission (FCC) as a partisan tool in ways that clearly undermine free speech, including holding up mergers and launching specious investigations to coerce media companies into compliance with his administration’s favored policies and speech. There are other problematic issues, too, including the increasing consolidation of traditional media (and social media) in the hands of the super wealthy, including Trump’s allies. All of which means that truly independent media outlets are more important now than ever. But as the examples above demonstrate, the courts can and do still provide relief to those affected by Trump’s attempts to subvert the First Amendment.

The Trump Administration’s Violations of the Fourth and Fifth Amendments

On the campaign trail, Trump promised to oversee the “largest deportation operation in the history of our country.” To execute this campaign, Trump has ramped up the operations of ICE, turning it into an aggressive nationwide police force that has drawn widespread criticism for its heavy-handed practices. The president has also deployed the National Guard to cities—whether or not the cities want or need the deployment—around the nation in an attempt to buttress ICE’s operations. Trump’s anti-immigrant policies have become increasingly unpopular among Americans. Even though Trump rode anti-immigrant sentiment into power, his administration is losing in the court of public opinion with respect to his signature issue. The administration has also suffered many losses in the court of law, with judges around the country finding that the administration’s immigration and policing policies violate the U.S. Constitution.

As reported by Politico’s Kyle Cheney, more than 300 federal judges have “rejected” the administration’s “mandatory detention” policy as either “illegal or unconstitutional.” That policy involves locking up all persons awaiting deportation proceedings—that is, before their cases have even been decided. As a result, judges “have ordered immigrants’ release or the opportunity for bond hearings in more than 1,600 cases,” providing a measure of relief to those affected by the administration’s “draconian” practices.

Our core constitutional rights under the Fourth and Fifth Amendments are at stake. The Fourth Amendment of the Constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The government must demonstrate “probable cause,” based on valid warrants, before seizing persons or property. The Fifth Amendment guarantees that “[n]o person” shall be “deprived of life, liberty, or property, without due process of law.”

Taken together, both Amendments are intended to ensure that the U.S. government does not arbitrarily detain people without the guarantee of basic rights under the law. The courts have routinely found that the Trump administration is guilty of violating these basic constitutional protections.

Beginning in mid-March 2025, the Trump administration detained more than 280 migrants and sent them to the notorious CECOT torture facility in El Salvador. Many of these men are Venezuelans who were deported under the 1798 Alien Enemies Act (AEA). President Trump invoked the AEA, claiming that many of these migrants were members of Tren de Aragua (TdA), a notorious gang, and that their presence on American soil constitutes a foreign invasion. Many of the administration’s claims about the men quickly fell apart upon scrutiny. For example, most of them did not have criminal records.

Although the Supreme Court often rules in the Trump administration’s favor, it intervened to reaffirm that, under the AEA, detained migrants have a right to due process. The Court also reaffirmed that this right extends to so-called “aliens” (non-citizens). The justices added that “AEA detainees must receive notice…that they are subject to removal under the Act” and “must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” The Trump administration did not give the Venezuelans or any of the other men sent to CECOT such notice. Nor were they afforded the opportunity to seek habeas relief (another core constitutional right) before being deported.

Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson offered a clear-eyed rejection of the administration’s practices, writing that the “deportations violated the Due Process Clause’s most fundamental protections.” They explained that the administration had “engaged in a covert operation to deport dozens of immigrants without notice or an opportunity for hearings” and that the Department of Homeland Security (DHS) had engaged in a “covert preparation to skirt both the requirements of the Act [AEA] and the Constitution’s guarantee of due process” by relocating “Venezuelan migrants from Immigration and Customs Enforcement detention centers across the country to the El Valle Detention Facility in South Texas before the President had even signed the Proclamation” invoking the AEA on Mar. 14, 2025.

That is, the three Supreme Court Justices found that the administration deliberately engaged in a “covert” scheme to violate the due process rights of migrants and, therefore, the U.S. Constitution.

Other courts have found that the administration violated the due process rights of the men sent to CECOT as well. For instance, Circuit Judge J. Harvie Wilkinson III, of the U.S. Court of Appeals for the Fourth Circuit, was shocked after learning the facts of Kilmar Abrego Garcia’s case. The administration alleged that Garcia was a member of another gang, MS-13, detaining and deporting him without affording Garcia the opportunity to challenge his detention in any way. Judge Wilkinson, a longtime conservative jurist, explained that even if the administration’s allegations about Garcia’s gang activities were true, the government had still violated the Constitution’s due process clause:

It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order…This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.

Judge Wilkinson also warned that the constitutional violations committed in Garcia’s case could easily extend to American citizens. The judge wrote:

If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?

Garcia, a native of El Salvador, was eventually returned to the United States to face federal criminal charges—an example of how the courts successfully checked the administration’s unconstitutional actions, albeit only after his constitutional rights were violated. More than 250 Venezuelans were also released from CECOT and sent back to their native country as part of a “prisoner swap.” However, they still have not been given the opportunity to contest their detention and deportation. Some of these men, including gay makeup artist Andry José Hernández Romero, were in the United States legally and clearly not a member of any criminal gang.

To date, it is unclear how many people have had their Fourth and Fifth Amendments rights violated by the Trump administration. And while the pro-democracy coalition has fought back and had some key successes defending these rights in the courts, the victims of these abuses of power have not been made whole. Even worse: the Supreme Court has muddied the constitutional waters surrounding the Fourth Amendment.

Consider the legal challenges to Trump’s anti-immigration raids in the city Los Angeles. On July 11, 2025, U.S. District Judge Maame Ewusi-Mensah Frimpong in the Central District of California issued a temporary restraining order (TRO) that prohibited ICE from conducting indiscriminate raids. “Most of the questions before this Court are fairly simple and non-controversial, and both sides in this agree on the answers,” Judge Frimpong wrote.

One of those questions was: “Do all individuals—regardless of immigration status—share in the rights guaranteed by the Fourth and Fifth Amendments?” The judge supplied the answer: “Yes, they do.”

Another question: “Is it illegal to conduct roving patrols which identify people based upon race alone, aggressively question them, and then detain them without a warrant, without their consent, and without reasonable suspicion that they are without status?” Judge Frimpong again answered: “Yes, it is.”

Ruling in the plaintiffs’ favor, she concluded: “As required by the Fourth Amendment of the United States Constitution, Defendants [the Trump administration] shall be enjoined from conducting detentive stops in this District unless the agent or officer has reasonable suspicion that the person to be stopped is within the United States in violation of U.S. immigration law.” The judge made it clear that race and ethnicity, speaking Spanish or with an accent, presence at a “particular location,” or the “type of work one does” were not a sufficient basis “alone or in combination” to justify “reasonable suspicion for a detentive stop.”

The judge’s ruling was straightforward but it quickly provoked a rageful response from White House Deputy Chief of Staff Stephen Miller, a chief architect of Trump’s anti-immigration campaign. “A communist judge in LA has ordered ICE to report directly to her and radical left NGOs — not the president,” Miller falsely alleged on X (formerly Twitter) “This is another act of insurrection against the United States and its sovereign people.” The administration quickly appealed the ruling to the Supreme Court.

On Sept. 8, in a 6-3 ruling, the Supreme Court granted the administration’s request for a stay of Frimpong’s TRO. In a solo concurrence, Justice Brett Kavanaugh wrote that while race alone couldn’t be used as a basis for detention, it would be permissible to consider race alongside factors like the “high number and percentage” of migrants living in the region in violation of immigration law; that they “tend to gather in certain locations” to look for work; and that they “do not speak much English,” ushering in an era of race-based so-called “Kavanaugh stops” and helping throw open the door to more indiscriminate raids by ICE. Justice Kavanaugh claimed, without citing any evidence, the detention of “individuals who are legally in the country” for “questioning…is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are US citizens or otherwise legally in the United States.”

Seemingly recognizing the problems his concurrence caused, Justice Kavanaugh slipped a footnote into a concurrence in a separate case, making it clear that racial profiling was not constitutional. “The Fourth Amendment requires that immigration stops must be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force,” Justice Kavanaugh wrote. “Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity.” Justice Kavanaugh’s clarification is consistent with Judge Frimpong’s initial reasoning.

In addition, contrary to Justice Kavanaugh’s initial concurrence, ICE detentions for “questioning” are only infrequently “brief.” ProPublica, an essential, independent news source, found that more than 170 U.S. citizens had been held by immigration agents during the first nine months of the second Trump administration. These Americans were often beaten and held for days. One of them, an American combat veteran named George Retes, was detained for three days without being granted access to his lawyer—a clear violation of his constitutional rights.

Other ICE operations, including a highly militarized raid on a Chicago apartment building, dragging families from their homes in the middle of the night, are similarly being scrutinized for their possible constitutional violations under the Fourth and Fifth Amendments. Trump’s hostility toward immigrants and desire to deport as many as he can means that his administration is unlikely to put a stop to such aggressive and unconstitutional tactics without even more victories in the court of law. Fortunately, the constitutional basis for challenging the administration’s deportation regime is strong. And there is coordination on fighting back in the courts.

Trump’s Failed Attempt to End Birthright Citizenship

The Fourteenth Amendment to the U.S. Constitution was adopted in the aftermath of the Civil War to undo a great racial injustice and overturn the Supreme Court’s denial of birthright citizenship to slaves and their descendants in Dred Scott vs. Sandford. The Fourteenth Amendment reads: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Since then, the courts have repeatedly upheld the plain meaning of the amendment’s text. Very few people born on U.S. soil—namely, the children of foreign diplomats—do not have the right to birthright citizenship.

On the first day of his second administration, Trump tried to overturn nearly 160 years of history and jurisprudence when he signed an executive order that was intended to end birthright citizenship. The executive order quickly provoked lawsuits across the country, including a suit (Barbara, et al. v. Donald J. Trump) filed by Democracy Defenders Fund and its coalition partners in the ACLU, Legal Defense Fund, and the Asian Law Caucus. As a result, the administration was preliminarily enjoined from enforcing it. The court found that the plaintiffs were likely to succeed in their challenge to the executive order because it “contradicts the text of the Fourteenth Amendment and the century-old untouched precedent that interprets it.”

In December 2025, the Supreme Court agreed to hear an appeal in the case, meaning it will rule on the issue in the months to come. But as a result of litigation efforts, no babies born on U.S. soil have been stripped of their citizenship so far.

The Constitutional Stakes

The review above is not intended to be exhaustive. It will take a generation, or longer, for historians to write a full account of the many ways in which the second Trump administration has already violated constitutionally protected rights. In the meantime, a pro-democracy coalition has formed—not rooted in partisanship or political views, but in a deep respect for upholding the integrity of our core constitutional freedoms—that will continue to hold the line when these rights are threatened. Defending America’s democracy begins with defending the Constitution and the rights afforded by it. And that defense has only just begun.