President Donald Trump lost his Supreme Court bid to restrict birthright citizenship through executive order, but one of his own appointees may have handed Republicans a blueprint for pursuing much of the same goal through Congress.
Voting with the 6-3 majority, Justice Brett Kavanaugh agreed that Executive Order 14160, which restricts automatic citizenship to people born to U.S. citizens or permanent residents, couldn’t take effect. But in a concurring opinion, he also pointed to a different path forward. Kavanaugh argued the court should have resolved the case under federal law rather than the Constitution, laying out a potential legislative path for Congress to pursue changes to birthright citizenship.
Congress first wrote the 14th Amendment’s birthright citizenship language into federal law in 1940, then carried it over into the Immigration and Nationality Act of 1952.
Because Congress adopted that language after the Supreme Court’s landmark 1898 decision in United States v. Wong Kim Ark, which established that most people born in the United States automatically become U.S. citizens, Kavanaugh said lawmakers effectively incorporated the court’s interpretation into federal statute.
TRUMP SUFFERS MAJOR SUPREME COURT DEFEAT AS JUSTICES UPHOLD BIRTHRIGHT CITIZENSHIP
Kavanaugh said Trump couldn’t use an executive order to change a law Congress had already passed, but instead suggested Congress could rewrite the law to limit birthright citizenship for children born to parents who are in the country illegally or temporarily.
“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 wrote.
ALITO WARNS SUPREME COURT MADE ‘SERIOUS MISTAKE’ THAT COULD HAVE NATIONAL SECURITY CONSEQUENCES
Kavanaugh argued that large-scale illegal immigration and modern international travel have created circumstances the Reconstruction Congress never envisioned. In his view, that gives Congress room to establish new exceptions to birthright citizenship that are comparable to the historical exceptions recognized under the citizenship clause, including children born to foreign diplomats and enemy forces occupying U.S. territory.
“Those two categories of foreign citizens—namely, those unlawfully or temporarily in the country—are relevantly similar to the four categories of persons recognized as exceptions in Wong Kim Ark,” Kavanaugh wrote.
While the majority rejected Kavanaugh’s constitutional reasoning, Republicans quickly seized on the idea that any future effort to limit birthright citizenship would have to come through Congress rather than the White House.
REPUBLICAN ACCUSES SCOTUS OF BETRAYING US, PUSHES BILL RESTRICTING BIRTHRIGHT CITIZENSHIP, PREGNANT VISITORS
Hours after the Supreme Court’s ruling came out, House Speaker Mike Johnson, R-La., said birthright citizenship has “been abused” and suggested that Congress will have to amend the Constitution.
“It’s one of those things that was intended to serve a noble and important purpose and has been thwarted and overused and abused,” Johnson told reporters. “I’m sure that the conclusion from this decision is you have to amend the Constitution to fix that.”
Sen. Rand Paul, R-Ky., renewed his push for a constitutional amendment to end birthright citizenship, arguing that legislation alone would not be enough.
“I introduced a constitutional amendment months ago, actually, to fix birthright citizenship,” Paul wrote on X. “After the Supreme Court decision, that amendment matters more than ever. I’m asking my colleagues to take it seriously and help me get this passed.”
Sen. Mike Lee, R-Utah, echoed Paul’s calls to pass a constitutional amendment.
“The long fight for a constitutional amendment begins now,” Lee wrote on X. “We must explicitly exclude foreign nationals who break our laws, violate our borders, or exploit loopholes to make their families American.”
Trump argued that Congress could change birthright citizenship through legislation instead of a constitutional amendment.
“No long and unwieldy Constitutional Amendment is necessary!” Trump wrote on Truth Social. “Congress should start TODAY to work on ending expensive and unfair to our Country, Birthright Citizenship. They will have my Complete and Total Support!”
Several Republicans quickly pointed to existing legislation, including Sen. Tom Cotton’s, R-Ark., Constitutional Citizenship Clarification Act, as well as proposals from Sens. John Cornyn, R-Texas, and Rick Scott, R-Fla., aimed at cracking down on birth tourism.
Meanwhile, the Justice Department indicated it would shift tactics, announcing a crackdown on birth tourism by targeting alleged visa fraud and related criminal conduct rather than attempting to enforce Executive Order 14160.
But, Kavanaugh’s roadmap is far from a guarantee. On the constitutional question, a 5-4 majority concluded that the citizenship clause itself protects birthright citizenship, meaning any congressional effort to restrict it through ordinary legislation would likely face immediate constitutional challenges.
“Justice Thomas says in the final paragraph of his dissent that he’s not confident that the decision is going to stand the test of time, so it could well be that the court would revisit it if Congress were to take the steps that Justice Kavanaugh describes,” Notre Dame Law School professor Haley Proctor told Fox News Digital. “This is an important decision. I don’t think the court’s going to revisit it lightly, and the only sure way to get a new answer here would be to amend the Constitution.”
Kavanaugh offered a similar roadmap in a recent Trump case over tariffs. In that case, the Supreme Court ruled that a federal emergency law known as IEEPA did not give Trump the authority to impose sweeping tariffs. But Kavanaugh argued the administration had simply relied on the wrong legal authority instead of rejecting the policy outright.
SIGN UP TO GET THE POLITICS NEWSLETTER
“The Court today concludes that the President checked the wrong statutory box by relying on IEEPA rather than another statute to impose these tariffs,” Kavanaugh wrote.
Instead, Kavanaugh said Trump could rely on several existing trade laws to impose many of the same tariffs, though those laws would require additional legal steps.
Trump later called Kavanaugh his “new hero” in a Truth Social post praising the justice’s dissent in the February tariff decision.