Attorney Alan Dershowitz predicted Tuesday that President Donald Trump’s executive action on birthright citizenship might not survive legal challenges.
Trump issued an executive order tightening the grounds on which citizenship would be granted to those born in the United States Monday, shortly after being sworn into office. Dershowitz said that while he felt birthright citizenship was “a dumb idea,” he believed Trump couldn’t 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, an outspoken critic of the efforts to prosecute Trump at the state and federal levels, said. “But 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. We’re talking about those that were born, born or naturalized in the United States, and here’s the critical clause, and, not or, and subject to the jurisdiction thereof are citizens of the United States.”
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“OK, so, if you get what are invidiously called anchor babies. I don’t like that term, but babies who were born in the United States, to parents who have no connection to the United States: Tourists coming in to ski, and the woman goes into labor early and has a baby,” Dershowitz said. “The baby never spends more than a week in the United States, goes back to wherever, France or anywhere else, lives life as a French citizen, but then at age 60 decides, ‘Maybe I’d like to move to the United States. I’m a citizen.’ Should that person be a citizen? Of course not!”
The American Civil Liberties Union sued over Trump’s order Monday, arguing it violated the 14th Amendment. Trump considered ending birthright citizenship during his first term, but he never issued an order.
Dershowitz went into more detail about what “subject to the jurisdiction thereof” in the 14th Amendment means. That was passed after the Civil War to overturn the Supreme Court’s 1857 ruling in Dred Scott v. Sanford.
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Dershowitz delivered his opinion on the order’s chances in the courts. He said that it would likely take congressional action to define when someone was “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. I don’t think the president could do that. I don’t think a president can declare that a person who was born in the United States is no longer subject to its jurisdiction,” Dershowitz said. “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 by making that person not subject to the jurisdiction of the United States.”
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“Without a congressional resolution to that effect, a law to that effect. I just don’t see… I’m a pretty clever lawyer and you know, I made, I won a lot of cases interpreting the Constitution and often interpreting it in ways that are not obvious, and, you know, I would put my brain to it if President Trump called and asked me to,” Dershowitz said. “I think I’d have to call back and say ‘Sorry, Mr. President, I can’t figure out a way around this one.’”
The White House did not immediately respond to a request for comment from the Daily Caller News Foundation.
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