Attorney Alan Dershowitz, a Harvard University law professor emeritus, expressed skepticism Tuesday about the legality of President Donald Trump’s executive order aimed at restricting birthright citizenship. He predicted that the order might face significant hurdles in court.
Trump issued the executive action Monday, shortly after his inauguration, tightening the conditions under which citizenship is granted to those born in the United States. Dershowitz criticized the concept of birthright citizenship as “a dumb idea” but argued that Trump likely lacks the authority to alter it through executive action.
“He said he was gonna end birthright citizenship. I think birthright citizenship was a dumb idea. If I were writing a constitution, I don’t think I would put birthright citizenship in the constitution,” Dershowitz stated. However, he cited the 14th Amendment to highlight its explicit language: “Let me read to you what the Constitution says and then you can make your decision as to whether it applies. 14th Amendment, Section One: All persons born, born, there’s no ambiguity about that word, or naturalized… and subject to the jurisdiction thereof are citizens of the United States.”
Dershowitz elaborated on cases often cited in the debate, such as children born in the U.S. to foreign tourists: “If you get what are invidiously called anchor babies… babies born in the United States to parents with no connection to the United States… Should that person be a citizen? Of course not!”
The American Civil Liberties Union filed a lawsuit Monday, arguing the order violates the 14th Amendment. Trump had previously floated the idea of ending birthright citizenship during his first term but never issued an executive order on the matter until now.
Dershowitz explained that the phrase “subject to the jurisdiction thereof” in the 14th Amendment was intended to address issues after the Civil War, including overturning the Supreme Court’s 1857 Dred Scott v. Sanford decision. He suggested Congress would need to act to redefine what constitutes being “subject to the jurisdiction” of the United States.
“I think Congress can pass that law because the Constitution doesn’t define what it means to be subject to the jurisdiction of the United States,” Dershowitz said. “I don’t think the president could do that. The courts will ultimately decide that, but my best view, as somebody who studied the Constitution for a long time, is that at very least it would take congressional legislation to make a person born in the United States a non-citizen.”
Dershowitz also expressed doubt about the order’s viability, even with creative legal strategies. “I’m a pretty clever lawyer… I’d have to call back and say, ‘Sorry, Mr. President, I can’t figure out a way around this one.’”
The White House has not yet responded to requests for comment.
