Attorney Alan Dershowitz said Monday that one question can help the U.S. Supreme Court avoid striking down President Donald Trump’s executive order on birthright citizenship.
Trump, shortly after being sworn into office last week, issued an executive order tightening the rules on citizenship granted to those born in the United States. That act prompted legal challenges from the ACLU and multiple states that former vice president Kamala Harris won in the Nov. 5 presidential election. Dershowitz said one legal principle could trip up the lawsuits against Trump’s executive order. (RELATED: ‘Sorry, Mr. President’: Alan Dershowitz Says One Of Trump’s Executive Actions May Be Halted In Court)
Dershowitz spoke of the 14th Amendment to the U.S. Constitution, which granted citizenship to freed slaves after the Civil War.
“The amendment is badly written, and it gives rise to debate. The debate often takes on a partisan edge, but both parts of the amendment have to be considered,” Dershowitz said during Monday’s episode of “The Dershow.”
“You can’t just consider the words in the amendment and eliminate half of them, even if they become anachronistic. That’s the same thing about the 14th Amendment and the provision about [being] subject to the jurisdiction of the United States. So there’s going to be debates. The president issued an order, an executive order. Executive orders only last as long as the presidency lasts and can be revoked upon the next presidency, but we’ll see what happens.”
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Dershowitz said there are challenges from the states that led to at least one district judge to block Trump’s Jan. 20 executive order on birthright citizenship.
“It’s already been challenged in court, I think in two courts and they both said, ‘No, it’s unconstitutional,’” Dershowitz said. “One of the issues, of course, in the case is standing. Who has standing to challenge a statement by the president that says birthright citizenship is not gonna be allowed? Anybody who’s been denied citizenship who was born here would have standing clearly, but do attorney generals of states have standing? Well that’s, a question that the Supreme Court will probably eventually have to decide.”
The term “standing” in a legal case means that the party filing litigation has “sufficient connection to and harm from the law or action being challenged,” according to Cornell University’s Legal Information Institute.
Dershowitz also said that Congress could act to define which people were “subject to the jurisdiction of the United States” under the 14th Amendment.
“Right now, it comes to the courts with not a particularly strong record on behalf of the presidency, because the words of the Constitution stand, and there’s been no congressional legislation,” Dershowitz said. “But what if Congress passed a law saying the following people are not subject to the jurisdiction of the United States, the following people are not subject to the jurisdiction? The 14th Amendment doesn’t define who was subject to the jurisdiction. The United States just says subject to the jurisdiction?” (RELATED: Dem Rep Distraught That Immigrants Who Already Broke Law By Crossing Border Could Be Detained Under Laken Riley Act)
“What if they pass a law saying people born to non-legally present people in the United States are not subject to the jurisdiction of the United States? They are subject to the jurisdiction of the countries of their parents, but if there were such or work, they’re not subject to the jurisdiction until they’re 18 or they’re not subject to the jurisdiction, if they leave the country for five years or a range of other issues?” Dershowitz said. “Some such laws have been passed.”
Dershowitz said that children of diplomats assigned to the United States are not automatically American citizens, even though they are born in the United States.
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