Constitutional law expert Alan Dershowitz told Newsmax on Wednesday that a key constitutional provision is being ignored in the current fight over birthright citizenship.
Speaking on "Bianca Across the Nation" as the Supreme Court heard oral arguments in a closely watched case on the issue, Dershowitz said the 14th Amendment itself points to Congress as the ultimate authority.
Referring to the government's case, he said, "I think it's winnable," but added, "I think they're leaving out one very important argument, which the justices are leaving out, too."
"They're leaving out Article V of the 14th Amendment, which says the following: 'The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article,'" Dershowitz said.
The Harvard Law professor emeritus argued that language is decisive in determining how birthright citizenship should be applied.
"It seems to me it's up to Congress to decide who is subject to the jurisdiction of the United States," he said. "So, the amendment itself says anybody born or naturalized and subject to its jurisdiction thereof, but it's Congress who decides who's subject to the jurisdiction."
The Supreme Court case centers on the Citizenship Clause, which grants citizenship to those born in the U.S. and "subject to the jurisdiction thereof," a phrase Dershowitz said has not been fully examined.
He offered a hypothetical scenario to illustrate how Congress could act.
"Congress could pass a law saying if a pregnant woman passes through Chicago on the way to China and gets birth pains ... and gives birth and then goes on to China, and the child never touches the United States again, according to the ACLU, that person is a citizen of the United States," Dershowitz said. "Congress could easily say that person is not subject to the jurisdiction of the United States."
Both sides in the case have reasons to avoid shifting the issue to federal lawmakers, he said.
"I think neither side wants this to go to Congress," Dershowitz said. "I think the Trump administration wants the Supreme Court to hold that there's an absolute rule that says you can't be a citizen just because you're born in the United States and the ACLU wants a rule that doesn't allow Congress to in any way interfere with birthright citizenship."
Still, he emphasized that the Constitution itself gives Congress the final say.
"But it has to be — the amendment itself gives to Congress the right to implement this amendment, and it can do it in a way that makes sense," Dershowitz said.
He added that birthright citizenship should reflect a real connection to the United States.
"Look, birthright citizenship makes no sense at all if it's applied to people who have no connection to this country," Dershowitz said. "What makes sense is a connection to the country, and then Congress can require that."
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Nicole Weatherholtz ✉
Nicole Weatherholtz, a Newsmax general assignment reporter covers news, politics, and culture. She is a National Newspaper Association award-winning journalist.
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