Dershowitz Argues Both Sides Wrong in SCOTUS Birthright Citizenship Battle

Harvard professor says Congress, not Supreme Court, has final say on who is subject to U.S. jurisdiction.

Apr. 2, 2026 at 2:36am

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Harvard Law School professor emeritus Alan Dershowitz argued that the Supreme Court debate over President Trump's executive order ending birthright citizenship for children of undocumented immigrants is missing a key constitutional detail. Dershowitz stated that the 14th Amendment grants Congress the power to enforce the article through legislation, suggesting the Supreme Court may not have the final say on the matter.

Why it matters

The Supreme Court case of Trump v. Barbara challenges the longstanding policy of birthright citizenship in the U.S., which has been in place since the Civil War to protect the rights of formerly enslaved people. Dershowitz's argument that Congress, not the courts, has the ultimate authority on this issue could significantly impact the outcome and future of birthright citizenship.

The details

Dershowitz appeared on 'The Record with Greta Van Susteren' and stated that while legal scholars and activists have focused on interpreting the 14th Amendment, the key detail they are missing is that the amendment grants Congress the power to enforce it through legislation. He suggested a middle-ground solution regarding 'birth tourists' - individuals who travel to the U.S. briefly to give birth - arguing that while those living in and subject to U.S. laws should be considered citizens, Congress has the authority to deny citizenship to those just passing through.

  • The Supreme Court heard oral arguments in the case of Trump v. Barbara on Wednesday.

The players

Alan Dershowitz

A Harvard Law School professor emeritus who argued that the Supreme Court debate over birthright citizenship is missing a key constitutional detail.

Donald Trump

The former president who issued an executive order ending birthright citizenship for children of undocumented immigrants, which is being challenged in the Supreme Court case of Trump v. Barbara.

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What they’re saying

“This is not a case where the Supreme Court gets the last word. Congress has the power to decide who is subject to the jurisdiction of the United States.”

— Alan Dershowitz, Harvard Law School professor emeritus

“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.”

— Alan Dershowitz, Harvard Law School professor emeritus

What’s next

The Supreme Court is expected to rule on the Trump v. Barbara case in the coming months, with Dershowitz predicting the Court will likely strike down the president's executive order as unconstitutional but ultimately toss the responsibility back to Congress to decide the issue of birthright citizenship.

The takeaway

Dershowitz's argument that Congress, not the Supreme Court, has the final say on who is subject to U.S. jurisdiction under the 14th Amendment could significantly impact the outcome of the high-stakes Trump v. Barbara case and the future of birthright citizenship in the United States.