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Former Harvard Law School Professor Alan Dershowitz affirms the U.S. Supreme Court’s decision in Trump v. Barbara did not eliminate all of President Donald Trump’s options – or those of Congress – to act in protecting birthright citizenship from abuse.
Appearing Friday as a guest on Newsmax’s Bianca Across the Nation, Dershowitz discussed the president’s August 6 executive order titled “Ending Birth Tourism,” in which American citizenship is hailed as “among the greatest inheritances the Nation can bestow.”
“It embodies a sacred bond between the American people and the Nation in which they live, and carries profound rights, privileges, and responsibilities reflective of the enduring allegiance of citizens to the United States and our Constitution,” the order reads, adding that citizenship “is not a commodity to be acquired through calculated exploitation and evasion of the immigration laws, such as by entering the United States on a nonimmigrant visa for the purpose of giving birth within the Nation’s borders.”
Dershowitz explained that, despite the Supreme Court’s 6-3 ruling in Trump v. Barbara, “there are a lot of things the president can do, many more things Congress can do.”
“The full text of the 14th Amendment says born in the United States and subject to its jurisdiction, and the president and Congress have the right to determine who’s subject to the jurisdiction,” he said. “They also have the right to pass laws making sure that the Constitution isn’t circumvented.”
As an example, Dershowitz noted Congress could pass a law criminalizing companies that advertise for birth tourism.
“That’s an abuse,” he asserted, adding that the idea that anyone simply born on American soil should automatically be named a citizen – even without any commitment to the country – is simply “dumb.”
The Supreme Court, Dershowitz added, “has not had the last word on this because the Constitution doesn’t just say, ‘born in the United States’; it says, ‘and subject to its jurisdiction.’”
Congress and the president, he said, have the job of ensuring “dumb constitutional provisions are construed in the narrowest possible way.”
“And the president’s doing that, and he’s doing it wisely.”
In March, a Senate Judiciary subcommittee exposed an alarming consequence of the exploitation of the United States’ automatic birthright citizenship policy that has reportedly allowed possibly one million Chinese nationals to give birth in America to babies who have returned to be raised entirely in China – yet will be able to vote in U.S. elections.
In his testimony before the subcommittee, Peter Schweizer, president of the Florida-based Government Accountability Institute (GAI) affirmed that “the scale of this exploitation is staggering, yet the U.S. federal government does not systematically track it.”
“Chinese officials have estimated 50,000 of their citizens per year engage in birth tourism,” he added. “Scholars such as Australian professor Salvatore Babones suggest the number is closer to 100,000 annually, potentially resulting in millions of new elite, American ‘citizens’ reared and acculturated in Communist China.’”
“Chinese data firms reported 150,000 arrivals for this purpose in 2018 alone,” Schweizer said.
In a second executive order, titled “Continuing to Protect the Meaning and Value of American Citizenship,” the White House observes the Supreme Court decided in Trump v. Barbara “that the Citizenship Clause of the Fourteenth Amendment to the United States Constitution extends the privilege of citizenship to children born to parents in the United States ‘for whom no extraterritorial fiction applie[s].’”
“This order identifies, non-exhaustively, and prescribes action concerning certain categories of children of aliens who do not fall within the rule of birthright citizenship as announced by the Supreme Court,” the White House points out.
Per the order, United States citizenship shall not be recognized in any person “when neither parent of that person is a citizen” and a) either parent is “an alien enemy,” such as a member of a “Foreign Terrorist Organization”; b) either parent is a foreign government employee, such as an ambassador; c) either parent is “engaged in a commercial transaction to purchase or access birthright citizenship for the person, or engaged in fraudulent activity to obtain citizenship.”
The executive orders come following Chief Justice John Roberts’ controversial majority opinion in Trump v. Barbara, which held that “[c]hildren born in the United States to parents unlawfully or temporarily present are ‘subject to the jurisdiction’ of the United States and are citizens at birth under the Fourteenth Amendment’s Citizenship Clause.”
Roberts wrote that even “aliens” have been found by the Court, in the past, to be “subject to that jurisdiction for as long as they remained here—and any children born to them were American citizens under the Fourteenth Amendment.”
Thus, he continued, “[a]rguments for limiting birthright citizenship to those domiciled in the United States fail.”
Nevertheless, the chief justice also acknowledged exceptions.
“The question is whether a person is ‘subject to the jurisdiction’ of the government of the country in which he is physically present, even if he is only there temporarily,” he noted. “He is (unless he falls under one of the familiar exceptions, such as for ambassadors).”
Both Justices Samuel Alito and Clarence Thomas observed disastrous problems with this interpretation in their dissents.
Alito wrote the decision in Trump v. Barbara was “one of the most important decisions in the history of the Court, and in my judgment, the Court has made a serious mistake.”
“As interpreted by the Court today, the Fourteenth Amendment confers citizenship on virtually everyone who happens to be born in this country, including the children of ‘birth tourists,’” he added, while Thomas asserted the majority’s decision acknowledged “a constitutional right to citizenship for the children of all foreign birth tourists and illegal aliens.”
Though Justice Brett Kavanaugh concurred in the judgment in the case, he dissented in part, explaining that he “respectfully disagree[s] with the Court’s constitutional holding.”
Trump’s 2025 executive order “does not violate the Fourteenth Amendment,” Kavanaugh wrote. “But the Order does contravene a federal statute, 8 U. S. C. §1401(a),” which can be viewed here.
“Congress could—consistent with the Fourteenth Amendment—amend §1401(a) or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country,” he explained, noting, however, that “Congress has not yet done so.”
Trump’s 2025 order, Kavanaugh continued, “sought to add two new exceptions to birthright citizenship for children born to foreign citizens who are either illegally or temporarily in the United States.”
“In doing so, the Executive Order goes beyond what §1401(a) authorizes,” he wrote. “For the Executive Order to be lawful, therefore, Congress would need to amend §1401(a) or otherwise enact new legislation to encompass those two new exceptions.”
Officials in Democrat-led states are weighing their response to Trump’s new executive orders and anticipating another victory for their side.
The Hill reported Sunday that Cody Wolfsy, deputy director of the American Civil Liberties Union’s (ACLU) Immigrants’ Rights Project, said that any new effort by the Trump administration to “rewrite” birthright citizenship would “meet the same fate as the last one.”
“The Supreme Court already decided this issue: Birthright citizenship is guaranteed by the Constitution,” Wolfsy said. “No additional executive order can change the meaning of the Constitution.”
Nevada Attorney General Aaron Ford also threatened that “if these executive orders run afoul of the law, we will see the president in court and, just like last time, we will win.”
“While President Trump believes he can dismantle the Constitution with a wave of his hand, our nation’s founders established the rule of law,” Ford added. “We will teach him that lesson as many times as he needs to learn it.”
In Connecticut, incumbent Gov. Ned Lamont (D) – who is in a third-term primary race with State Rep. Josh Elliott (D-Hamden) – said Trump’s executive order challenging birth tourism is an attack on what is inscribed on the Statue of Liberty.
According to CTNewsJunkie, Lamont cited Emma Lazarus’ poem referring to the Statue of Liberty as the “’Mother of Exiles,’ guiding the poor and displaced to safety.”
Lamont said the president and his colleagues “are trying to replace that open door with a velvet rope, welcoming only those who fit his vision of ‘desirable’ Americans: people who look and speak a certain way, or who can pay the right price. That is not who we are as a country, and it is not something we will accept as a state.”
Lamont’s challenger Elliott claimed Trump’s orders are not aimed at “making America stronger,” but “are about creating fear, dividing people, and distracting from the real challenges facing working families.”
“This administration continues to target immigrant communities, sowing fear and ripping families apart,” he said.
Connecticut Attorney General William Tong said that the Fourteenth Amendment “means what it says, and Trump cannot rewrite it or manufacture new exemptions because the Court rejected his blatantly unconstitutional efforts.”
“We are reviewing these actions and considering all appropriate options,” Tong vowed.
In his statement announcing Connecticut’s participation in the lawsuit challenging Trump’s 2025 order, Tong accused Trump of having “zero respect for our Constitution” and waging “a war on American families.”
“The 14th Amendment says what it means, and it means what it says—if you are born on American soil, you are an American. Period. Full stop,” Tong said. “There is no legitimate legal debate on this question. But the fact that Trump is dead wrong will not prevent him from inflicting serious harm right now on American families like my own.”
“My life would not be possible without birthright citizenship,” the attorney general added a personal note, stating that he himself is “a citizen by right of my birth here in Hartford, Connecticut” after his “parents and grandparents ran for their lives” to the state “so that I could become the first American born in my family.”
Nevertheless, during an interview with Greta Van Susteren The Record on Newsmax, Dershowitz directly responded to the host’s question: “Can the president sign executive orders saying that if you’re just here for birth tourism, then you are not a citizen, even though you’ve been born on American soil?”
“Absolutely,” Dershowitz responded. “The Constitution says that the president has the role to see that the laws be faithfully executed, and the Constitution never intended a business to come up to people to come here, spend two weeks, have a baby and have that person have lifetime citizenship with all the benefits and none of the duties.”
“It’s an absolute circumvention of the Constitution, and it’s part of our separation of powers,” the retired Harvard law professor asserted. “The president has the authority to see that the laws be faithfully executed, and he’s doing that. He’s absolutely right.”
“Why would anybody give citizenship to anybody born in the country?” Dershowitz asked. “I can see that they did it to the children of slaves, and they could have limited that way. But it’s drafted so, so badly.”
“Nobody should be able to be a citizen of a country just because of the accident at birth, and certainly not if it’s not an accident, if they’re part of a business to give them an American passport for the rest of their life – it makes no sense at all. And the president’s doing the sensible and the right thing.”
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