Dershowitz: Congress Holds Key to Limiting U.S. Birthright Citizenship

Constitutional lawyer Alan Dershowitz has argued that Congress possesses the authority to enact legislation limiting birthright citizenship, claiming lawmakers can define who falls under the 14th Amendment’s jurisdiction.

In a recent interview, Dershowitz stated that congressional action would likely survive judicial review better than executive actions by President Donald Trump.

“Speaker Mike Johnson got it exactly right,” Dershowitz said. “There is something Congress can do.”

Johnson has previously argued that Congress could address birthright citizenship following legal challenges to President Trump’s executive order seeking to restrict the practice.

A divided Supreme Court recently upheld a broad conception of birthright citizenship, rejecting President Trump’s executive order that claimed children born to individuals present in the U.S. illegally or temporarily are not American citizens. The court struck down Trump’s order by a 6-3 vote. A bare majority of five justices, writing an opinion under Chief Justice John Roberts, held that the long-settled understanding of the 14th Amendment—adopted after the Civil War—confers citizenship on 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 U.S. and “subject to the jurisdiction thereof,” allows Congress to specify categories of individuals not meeting 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 U.S. to foreign diplomats, who typically do not receive automatic citizenship. Dershowitz also cited other limited categories that could serve as models for legislation.

Dershowitz suggested lawmakers draft a narrowly tailored statute targeting individuals who travel solely to give birth and have no continuing ties to the country.

He expressed confidence such legislation could persuade some Supreme Court justices who might reject an executive action but uphold congressional law.

“I would bet you anything that if that happened, if it happened through legislation rather than through the president’s executive action, it might peel off at least one, maybe two of the 5-to-4 majority,” Dershowitz said.

He added he would be willing to assist lawmakers in drafting such a statute.

“I’m happy to help Congress draft such a statute and would be willing to work with Speaker Johnson and others,” Dershowitz stated.

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 over 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 President Trump’s efforts to narrow birthright citizenship remains under ongoing litigation.