The Supreme Court heard oral arguments Wednesday in the high-stakes case of Trump v. Barbara, a legal challenge to President Donald Trump’s executive order ending birthright citizenship for children of undocumented immigrants.
While legal scholars and activists have focused on the interpretation of the 14th Amendment, Harvard Law School professor emeritus Alan Dershowitz argues that the entire debate is missing the most critical constitutional detail.
Appearing on “The Record with Greta Van Susteren,” Dershowitz stated that the Supreme Court might not actually have the final say on the matter. He pointed to the closing text of the 14th Amendment, which grants Congress the power to enforce the article through legislation.
“This is not a case where the Supreme Court gets the last word,” Dershowitz told Van Susteren. “Congress has the power to decide who is subject to the jurisdiction of the United States.”
Dershowitz suggested that the current legal battle has ignored a middle-ground solution regarding “birth tourists”—individuals who travel to the U.S. briefly specifically to give birth. He argued that while those living in and subject to the laws of the U.S. should be considered citizens, Congress has the authority to deny citizenship to those just passing through.
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“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,” Dershowitz said. “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.”
He predicted the Court would likely strike down the president’s executive order as unconstitutional, but would ultimately toss the responsibility back to lawmakers. “I suspect we may see a decision that says, ‘Look, the president doesn’t have that authority… but Congress does,’” he added.
The United States is currently one of only 30 countries with unrestricted birthright citizenship, a policy that originated after the Civil War to protect the rights of formerly enslaved people. Data from the Center for Immigration Studies estimates that in 2023, between 225,000 and 250,000 children were born to undocumented parents, with another 70,000 born to temporary visitors.
President Trump made history by attending the oral arguments in person. On Truth Social, he argued that the 14th Amendment was never intended to cover children of undocumented immigrants and claimed foreign countries are “exploiting” the policy for financial gain.
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