EXPERT Q&A

Among his first actions after being sworn into office, President Trump signed an executive order that would end birthright citizenship, an effort to crackdown on immigration laws.

University of Michigan law professor Samuel Erman, whose teaching focuses on citizenship and the Constitution, said Trump’s longtime campaign plans will likely be challenged in court. Many cities are bracing for a possible mass deportation.

Describe the various ways that a person may become a citizen.

People may become citizens at birth or later in life. Those who become citizens later in life generally do so through individual naturalization. Collective naturalization is also possible, as occurred with American Indians in 1924. People may also be citizens from birth. Those born within U.S. borders and jurisdiction are made U.S. citizens by the citizenship clause of the Fourteenth Amendment. Other people are made citizens at birth by statute, often as a result of being born to U.S.-citizen parents.

What is Trump’s understanding of birthright citizenship? How does it differ from existing understandings?

The Fourteenth Amendment guarantees U.S. citizenship to anyone “born … in the United States and subject to the jurisdiction thereof.” A federal statute, 8 U.S.C. 1401, echoes this rule by requiring U.S. citizenship for anyone “born in the United States, and subject to the jurisdiction thereof.” The existing understanding of these authorities is that they require citizenship for all people born within U.S. borders owing obedience to U.S. laws. Children of ambassadors, children of soldiers in invading armies, and children of American Indians who owe primary allegiance to a Native Nation may not be required to follow all general U.S. laws and are understood to be born not subject to the jurisdiction of the United States. What is unique about the president’s understanding is his claim that “subject to the jurisdiction” of the United States excludes an entirely different group of people, people born to parents who do not have U.S. permission to remain in the United States permanently. The executive order does not provide a reason for this new exclusion.

What is Trump’s citizenship plan?

The president has issued an executive order requiring federal agencies and departments neither to issue nor to recognize documents that recognize as citizens those who would not be citizens under the president’s preferred interpretation of the citizenship clause and 8 U.S.C. 1401. While the president’s preferred interpretation applies to adults as well as newborns, his executive order is limited to people born more than 30 days after its issuance. The executive order is already being challenged in court, which will create opportunities for judges to decide whether the president’s interpretation is correct.

When you read stories about undocumented individuals, it usually involves people from Mexico. Will Trump’s efforts include people from other countries, such as the Caribbean, Europe and Canada—all with high numbers of undocumented individuals?

The executive order applies equally to U.S.-born children of nonpermanent-resident foreigners, regardless of their parents’ country of origin. While it remains to be seen how various federal agencies and officers will enforce the order, the order itself draws no lines between various parental countries of origin.

This birthright case will likely be legally challenged and sent to the U.S. Supreme Court. What will be the key factor that will impact the Justices’ ruling?

It is always hard to predict how the justices will rule and on what basis. With constitutional questions, many justices focus on text, original public meaning, and the court’s precedent. Justices can also be influenced by public opinion and by politics. Because the citizenry is constitutive of the nation, justices may contemplate what their decision will mean for U.S. democracy and the national character of the United States. The facts of cases also matter, including how sympathetic a litigant is.