“The use of the military is a real sea change in policy”
Five Questions to Amanda Frost
Trump signed a slew of executive orders after his inauguration, many of them intended and designed to fundamentally reshape the US’s immigration and naturalization system as we know it. These include, amongst others, a highly publicized order ending birthright citizenship for children of mothers present in the US without legal authorization or on a temporary visa; an order “suspending the entry of anyone engaging in the invasion of the US”, which bars asylum for people arriving at the southern border, and an order declaring migrant crossings along the US-Mexico border to be a national emergency. We spoke to Amanda Frost, David Lurton Massee, Jr., Professor of Law at the University of Virginia and the Director of the Immigration, Migration and Human Rights Program.
After our interview, a federal judge has blocked Trump’s order on birthright citizenship.
1. Why can the President create so much change to the US immigration and asylum system merely by executive orders?
The executive branch’s discretion in making immigration decisions was established by Supreme Court decisions dating from the 19th century. Specifically, in the field of immigration the executive branch has so-called plenary power, an extra sphere of discretion and authority. That is partly because immigration concerns foreign affairs, diplomacy, national security which are traditionally issues where courts defer to the executive branch. That said, the Supreme Court has never given the executive a blank slate to decide who can come into the country. Congress plays an important role in this regard, with the key statute being the Immigration and Nationality Act 1952. And the Courts obviously have a role when the executive issues orders that are blatantly in violation of federal law, whether it be constitutional law or statutory law. While Trump thus does have a fair degree of authority, his executive orders are thus clearly not the last word.
2. Which one of the executive orders do you think is the most significant and why?
Much of what Trump is doing looks like what he did before, but the use of the military is a real sea change in policy that is both significant and concerning. While the executive does have the power to use the military, it is not unlimited, and legal challenges are both likely and likely to be successful. A key issue for Trump that is driving his deployment of the military is that he won’t be able to undertake his deportation agenda without somehow increasing the resources available to him. But because Congress does not look interested in giving him these, he will have to divert them from other places such as the military. But this diversion of money and troops would logically take these resources away from issues that people think are more valuable, like actual national security concerns.
3. Which one of the executive orders will face the most obstacles to implementation?
The EO abolishing birthright citizenship is the most likely to fail in court. I think the Trump administration itself expects it to fail, given how broadly it is drafted. The 14th Amendment’s citizenship clause is crystal clear and there is long-standing case law upholding birthright citizenship irrespective of the parents’ citizenship status. When Trump first stated his intention a few years ago to end birthright citizenship by executive order, I thought it was inconceivable. But the way the US Supreme Court works, and the way politics work is that ideas get floated, debate gets started, and public opinion begins to shift. We have seen this with views on abortion, same-sex marriage and gun rights, which all shifted radically over the course of the last decades. It is therefore not beyond all possibility that the same will hold true for birthright citizenship. Right now, there are not the necessary 5 votes on the Supreme Court to end birthright citizenship. But Trump will likely appoint more justices which makes the prospect no longer inconceivable. I don’t think it’s likely, but it’s out there now as a more legitimate idea than it has been before.
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Aside from the unconstitutionality of this EO, abolishing birthright citizenship would also be enormously problematic from a bureaucratic perspective. It would create huge numbers of undocumented immigrants, and it would wreak havoc for non-immigrant citizens who might think this doesn’t affect them. This is because everyone, including citizens who’ve never left the country, whose parents and grandparents and great-grandparents are citizens, would now have to prove their own status before their child would get citizenship.
4. Why is the attempt to abolish birthright citizenship particularly pernicious in the US context?
Birthright citizenship has a distinct history in the US that makes it markedly different from the feudal principle of jus soli that exists in Europe. The US Constitution referenced citizenship, but it did not define who was a citizen when it was first drafted. It followed a period during which it was contested who was a citizen, which focused primarily on slavery, free blacks, and whether the United States was a white nation, with Black Americans pushing for recognition of their rights. This culminated in the infamous Dred Scott decision, which said that no Black person, slave or free, could be a citizen, embracing a caste-based view of America. After the Civil War, the Reconstruction Congress enshrined birthright citizenship in the Constitution with the 14th Amendment, to overrule Dred Scott and include former slaves as citizens. But it went beyond that. They debated whether the children of immigrants, including Chinese immigrants who were an unpopular group at that time, could be citizens, and they said yes. In the 1873 case of Wong Kim Ark, the Supreme Court rejected the US government’s argument that the birthright citizenship clause in the Constitution shouldn’t apply to the children whose parents weren’t citizens. That has been the law up until now. Birthright citizenship is a deep part of America’s understanding of what it means to be an American. Our country does a lot of things wrong, but one thing we have done really well is integrate the children of immigrants into our nation as a result of providing birthright citizenship. I fear we would lose that if the EO succeeded.
5. Trump ran a campaign that was centered on a mass deportation policy. What obstacles, both legal and practical, exist thereto?
There are many obstacles that will be difficult to overcome. Trump came into office last time saying he was going to deport all 11 million undocumented immigrants. But the number of deportees was almost exactly the same at the end of his term than at the start. Because his administration is more experienced now, and with more resources, they will likely succeed in removing more people but certainly not the entire population of 11 million. To the degree that they succeed, it will be interesting to see how the American public reacts because there is a misunderstanding about who exactly is in the United States without permission, what those families and people look like, and how vital they are to the economy. It is worthwhile highlighting that no one, including Trump, cracks down on the employers who hire undocumented immigrants, even though this would be a highly effective method. But if they truly deport undocumented immigrants from the food service industry, for example, Americans will pay more for groceries, and that will be very harmful to the next Republican round of elections.
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Editor’s Pick
by ISABELLA RISINI
Russia’s membership in the Council of Europe was always marked by ambivalence – and a lack of commitment. In “Russia, the Council of Europe, and the European Convention on Human Rights – A Troubled Membership and Its Legacy”, Ed Bates, Kanstantsin Dzehtsiarou, and Andrew Forde join forces to explore this complex and ultimately ill-fated relationship with its dashed hopes. Set to be released in February, three years after Russia’s invasion of Ukraine and subsequent expulsion from the Council of Europe, the book provides a much-needed analysis of Russia’s actions and the Council of Europe’s responses. Those lessons learned will prove key, given that the persistent tensions between sovereignty and compliance remain a pressing challenge for Europe.
Ed Bates/Kanstantsin Dzehtsiarou/Andrew Forde, Russia, the Council of Europe, and the European Convention on Human Rights – A Troubled Membership and Its Legacy, Bristol University Press 2025, 266 p.
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The Week on Verfassungsblog
…summarised by EVA MARIA BREDLER
Get yourself a nice cup of coffee, or maybe don’t, depending on your blood pressure five days into Trump’s presidency. Already on his first day in office, Trump used executive orders to dramatically change US policies, particularly on immigration (which in turn inspired German chancellor candidate Friedrich Merz across the Atlantic, sigh). To enact his promised mass deportation program via executive order (see interview with AMANDA FROST above), he’s relying on two rather archaic laws: the 1807 Insurrection Act and the Alien Enemies Act of 1798. HASSAN ZAHEER (EN) provides an overview of the two acts and details potential ways to limit their use.
Another – less publicized – executive order that Trump signed was the US withdrawal from the OECD project on reforming global corporate taxation. AURELIO CORENO (EN) explains why this is a major setback for the only real global chance for increasing economic fairness so far.
Apart from executive orders, Trump will also reign through his tech oligarchs – above all Elon Musk, the richest man on earth and owner of everything from cyber space (X) to actual space (SpaceX). Our current symposium on “Musk, Power, and the EU: Can EU Law Tackle the Challenges of Unchecked Plutocracy?” (EN) explores what it is exactly that makes Musk’s conduct problematic under EU law, and how the EU could tame Musk’s seemingly unlimited power. JACOB VAN DE KERKHOF (EN) situates Musk’s position within the EU debate on freedom of expression, centring on Musk’s changes to X’s content moderation process and his use of X to push certain political candidates. This mirrors a broader trend within the “techbrocracy”, with Meta and Google potentially following in Musk’s footsteps. JUDIT BAYER (EN) unravels Mark Zuckerberg’s strategy and shows that his announcement to adopt content moderation similar to the one on X might go beyond just that. Entanglements of political and economic power are not new, but usually they happen behind the stage. DIETER ZINNBAUER (EN) shows how plutocracy 2025 hits different, namely as a “full-frontal brash attack right on the public stage”. Okay, Trump is a show man, but the question remains: How can he pull it all off? How can he convince enough US voters despite their disagreement with many of his policies? WILLIAM E. SCHEUERMAN (EN) turns to a neglected book for answers. In “Folklore of Capitalism” (1937), legal scholar Thurman Arnold identifies the most important symbol within that folklore: the “American Businessman”. Well, that does not only perfectly capture Trump himself, but also his significant other businessmen bros who are joining forces with him (not merely symbolically). There might be an antidote, though. Competition law is a traditional tool of anti-domination. The pieces by VIKTORIA H.S.E. ROBERTSON (EN) and TODD DAVIES and SPENCER COHEN (EN) reflect on the potential of competition law to address the anti-democratic use of market power by Big Tech. Stay tuned for more symposium pieces next week.
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On a related note: Musk keeps interfering in German election campaigns. His conversation with Alice Weidel – ridden with false statements – and his stream of the AfD party congress have together generated around 100 million views so far. SIMON WANNAGAT (GER) examines if Musk’s actions could be considered a party donation to the AfD, and what Germany’s new party donation laws mean for dealing with influencers.
Another piece nicely complements the symposium: MELANIE FINK (EN) explains that the EU AI Act triggers the application of the EU Charter of Fundamental Rights, embedding principles of procedural justice into national administrative law and thus driving its Europeanisation.
Trump’s announcement to massively increase tariffs on Canada, Mexico, and China raises the question whether there are proportionality limits under international law, and if so, whether they could apply in this context. ANDREAS TH. MÜLLER (GER) provides answers (and a new metaphor for proportionality that we truly hope will catch on).
In the context of current wars, the right to self-defence is becoming the decisive benchmark for containing military force – although this (decentralized) right was meant to be the exception within the (centralized) UN security system, not the rule. HEIKE KRIEGER (GER) analyses if the vague principle of proportionality can have any regulatory power in a decentralized legal system.
Armenia recently entered a legal system that is decentralized by design: the ICC. Although it’s been a year since Armenia acceded to the Rome Statute, it hasn’t been able to pursue justice for the crimes committed during the 2020 Nagorno-Karabakh war. GURGEN PETROSSIAN (EN) on why peace requires justice.
Justice won in Sri Lanka, where the Supreme Court had to deal with the Constitutional Council’s refusal to approve the president’s nomination of a judge to the Supreme Court. The Court affirms the council’s role in safeguarding judicial independence and thus strengthens the culture of inter-branch accountability, as SANJIT DIAS (EN) argues.
Meanwhile, the Constitutional Court in Indonesia rendered a rather peculiar decision: it banned AI-designed campaign portraits. ABDURRACHMAN SATRIO (EN) explores the cultural context behind this, focusing on how it is shaped by Indonesia’s communal values and emphasis on outward appearance.
Two hundred years after gaining independence, Peru finds itself in a state of political instability, largely due to a persistent power struggle between the legislative and executive branches. RODRIGO MARUY (EN) on why the ongoing turmoil reflects a constitutional crisis.
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That’s all for this week. Maybe it’s best to opt for herbal tea, after all.
Take care and all the best!
Yours,
the Verfassungsblog Team
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