Constitutional lawyer Alan Dershowitz said Saturday that Congress could seek to limit birthright citizenship through legislation, arguing that lawmakers have authority to define who is "subject to the jurisdiction" of the United States under the 14th Amendment.
Appearing on Newsmax TV's "Saturday Report," Dershowitz said he believes congressional action would stand a stronger chance of surviving judicial review than executive action by President Donald Trump.
"Speaker [Mike] Johnson got it exactly right," Dershowitz said. "There is something Congress can do."
Johnson has argued Congress could play a role in addressing birthright citizenship following recent legal challenges to Trump's executive order seeking to restrict the practice.
A divided Supreme Court on Tuesday upheld a broad conception of birthright citizenship, rejecting President Donald Trump’s executive order declaring that children born to people who are in the United States illegally or temporarily are not American citizens.
By a 6-3 vote, the court struck down Trump’s order.
A bare majority of five justices, in an opinion written by Chief Justice John Roberts, held that the long-settled understanding of the 14th Amendment, adopted after the Civil War, makes a citizen of anyone born in the country, with very limited exceptions.
Dershowitz argued that the Constitution's Citizenship Clause, which grants citizenship to people born in the United States and "subject to the jurisdiction thereof," leaves room for Congress to specify categories of people who would not meet that standard.
"All Congress has to do is pass a statute saying the following people are not subject to the jurisdiction of the United States," he said.
He pointed to existing exceptions, including children born in the United States to foreign diplomats, who generally are not granted automatic U.S. citizenship. He also cited other limited categories that he said Congress could use as a model for legislation.
Dershowitz suggested lawmakers could draft a narrowly tailored statute addressing people who travel to the United States solely to give birth and have no continuing ties to the country.
He said such legislation could ultimately persuade some Supreme Court justices who might reject a unilateral executive action but uphold a law enacted by Congress.
"I would bet you anything that if that happened, if it happened through legislation, rather than through the executive act of the president, it might peel off at least one, maybe two of the 5-to-4 majority," Dershowitz said.
He added that he would be willing to assist lawmakers in drafting such legislation.
"I'm happy to help Congress draft such a statute and would be willing to work with Speaker Johnson and others," Dershowitz said.
The Citizenship Clause of the 14th Amendment, ratified in 1868, states that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof," are U.S. citizens.
For more than a century, it has generally been understood to confer citizenship on nearly everyone born on U.S. soil, with limited exceptions such as children of foreign diplomats. The constitutionality of Trump's effort to narrow birthright citizenship remains the subject of ongoing litigation.
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