Harvard Law School professor emeritus Alan Dershowitz said Wednesday that both sides of the birthright citizenship debate missed the point.
The Supreme Court heard arguments Wednesday in Trump v. Barbara, a case challenging President Donald Trump’s executive order that eliminated birthright citizenship for children born to undocumented immigrants. Appearing on “The Record with Greta Van Susteren,” Dershowitz said the debate missed the most important argument.
“This is not a case where the Supreme Court gets the last word. The 14th Amendment ends with the following statement: ‘Congress shall have the power to enforce by appropriate legislation the provisions of this article.’ And so Congress has the power to decide who is subject to the jurisdiction of the United States,” Dershowitz told Greta Van Susteren.
Dershowitz said Congress holds the power to deny citizenship to birth tourists who simply passed through the United States, yet neither side made that case.
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“If Congress were to pass a law saying that people who come for birth tourism or who just passed through the United States are not subject to the jurisdiction of the country, then the 14th Amendment doesn’t grant them citizenship. Now neither side wants that result,” Dershowitz said. “Both sides want extreme results so that neither side argued sensibly for a solemn manic solution,which would divide the baby — literally the tourist baby — in half. If they lived in the United States, if they spent time here, if they were really subject to the laws of the United States, yes, then they’re citizens.”
Dershowitz said the Supreme Court will likely strike down Trump’s executive order as unconstitutional while handing the bigger question back to Congress.
“If they just passed through, then Congress can say, ‘No, they’re not.’ So the Supreme Court may not get the last word. And I suspect we may see a decision that says, ‘Look, the president doesn’t have that authority, so his executive order is not constitutional, but Congress does,’” Dershowitz added. “And then the ball is thrown back into the Court of Congress to see whether they can pass legislation deciding who is subject to the jurisdiction of the United States and who isn’t.”
The United States stands among just 30 countries that place no restrictions on birthright citizenship, a policy rooted in the post-Civil War 14th Amendment, which extended citizenship to all persons born or naturalized on American soil to protect freed slaves and their descendants. In 2023 alone, the Center for Immigration Studies estimated that between 225,000 and 250,000 children were born to undocumented immigrant parents, with an additional 70,000 born to temporary visitors.
Trump attended the Supreme Court oral arguments, becoming the first sitting president in American history to do so. He said on Truth Social that foreign countries exploit birthright citizenship for financial gain while insisting the 14th Amendment was designed solely to protect children of freed slaves, not children of undocumented immigrants.
(Featured Image Media Credit: Screenshot/Newsmax)
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