Alan Dershowitz Comments That ‘Both Sides Overlooked The Main Issue’ Regarding Birthright Citizenship At Supreme Court

Alan Dershowitz, a law professor emeritus at Harvard, expressed on Wednesday that the ongoing debate over birthright citizenship is missing key perspectives.

The Supreme Court listened to arguments regarding Trump v. Barbara, which contests President Trump’s executive order that aims to revoke birthright citizenship from children born in the U.S. to undocumented immigrants. In an appearance on “On the Record with Greta Van Susteren,” Dershowitz stated that significant points were absent from the discussion.

“This isn’t solely up to the Supreme Court. The 14th Amendment concludes with ‘Congress shall have the power to enforce this provision by appropriate legislation.’ Thus, it’s Congress that decides who falls under U.S. jurisdiction,” Dershowitz mentioned during the interview.

He noted that Congress could potentially deny citizenship to individuals who merely pass through the U.S. if they give birth, but this argument hasn’t surfaced from either side.

“Even if Congress passed a law excluding birth tourists from state jurisdiction, the 14th Amendment would preclude their citizenship. Yet neither side is advocating for that right now,” he added. “Both parties lean toward extreme outcomes, so neither wants to push for extreme measures that would, in essence, separate a baby based on its tourist status. If they reside in the U.S., abide by its laws, and spend time here, then they should be categorized as citizens.”

Dershowitz believes the Supreme Court will likely deem Trump’s executive order unconstitutional but will refer the wider issue back to Congress.

“If Congress passes a bill addressing this, they could outright reject the notion. So, the Supreme Court might conclude that the executive order lacks constitutional backing since the president lacks such authority, yet Congress does possess that power,” he said, adding that this would place the decision back in the hands of Congress to establish who is under U.S. jurisdiction.

This policy traces back to the post-Civil War 14th Amendment, which aimed to extend citizenship to all born or naturalized on U.S. soil, primarily to safeguard the rights of freed slaves and their descendants. According to the Center for Migration Studies, it’s estimated that between 225,000 and 250,000 children are born to undocumented immigrant parents each year, alongside an additional 70,000 to temporary visitors.

In a historic moment, Trump became the first sitting president to attend oral arguments at the Supreme Court. He suggested that other nations exploit birthright citizenship for financial advantage, while asserting that the Fourteenth Amendment was designed exclusively to protect the offspring of freed slaves, not the offspring of undocumented immigrants.