SouthernWorldwide.com – President Donald Trump’s attempt to curb birthright citizenship via executive order was unsuccessful at the Supreme Court. However, a concurring opinion from Justice Brett Kavanaugh has provided a potential legislative strategy for Republicans aiming to achieve a similar outcome through Congress.
Justice Kavanaugh, in his agreement with the 6-3 majority, acknowledged that Executive Order 14160, which sought to limit automatic citizenship to children born to U.S. citizens or permanent residents, could not be implemented. Despite this, he offered an alternative pathway in a separate opinion.
Kavanaugh suggested that the case should have been decided based on federal law rather than constitutional grounds. This perspective opens up a potential legislative route for Congress to modify the rules surrounding birthright citizenship.
The language concerning birthright citizenship in the 14th Amendment was first codified into federal law by Congress in 1940. This was subsequently carried over into the Immigration and Nationality Act of 1952.
According to Kavanaugh, because Congress adopted this language after the Supreme Court’s seminal 1898 ruling in *United States v. Wong Kim Ark*—which established that most individuals born in the United States are automatically granted U.S. citizenship—lawmakers effectively integrated the Court’s interpretation into federal statutes.
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Kavanaugh stated that Trump lacked the authority to alter a law passed by Congress through an executive order. Instead, he proposed that Congress could amend the law to restrict birthright citizenship for children born to parents who are in the country unlawfully or on a temporary basis.
“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.
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Kavanaugh argued that the current landscape of large-scale illegal immigration and modern international travel presents circumstances that the Reconstruction Congress did not anticipate. In his view, this provides Congress with the latitude to establish new exceptions to birthright citizenship, similar to historical exceptions recognized under the citizenship clause.
These historical exceptions include children born to foreign diplomats and enemy forces occupying U.S. territory. Kavanaugh drew a parallel between these established exceptions and individuals who are unlawfully or temporarily present in the country.
“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 opinion did not agree with Kavanaugh’s constitutional reasoning, Republicans quickly adopted the idea that any future efforts to limit birthright citizenship should be pursued through Congress rather than the executive branch.
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Shortly after the Supreme Court’s decision was announced, House Speaker Mike Johnson, R-La., commented that birthright citizenship has been “abused.” He suggested that Congress would need to amend the Constitution to address the issue.
“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., reiterated his support for a constitutional amendment to end birthright citizenship, asserting that legislation alone would be insufficient.
“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 sentiments, calling for the passage of 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, however, argued that Congress could achieve changes to birthright citizenship through legislation, negating the need for 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 pointed to existing legislative proposals, including Sen. Tom Cotton’s, R-Ark., Constitutional Citizenship Clarification Act. Proposals from Sens. John Cornyn, R-Texas, and Rick Scott, R-Fla., which aim to address birth tourism, were also mentioned.
In response, the Justice Department indicated a shift in strategy, announcing a focus on combating birth tourism by targeting alleged visa fraud and related criminal activities, rather than enforcing Executive Order 14160.
However, Kavanaugh’s proposed legislative roadmap is not a guaranteed solution. The majority’s decision on the constitutional aspect found that the citizenship clause itself protects birthright citizenship. This implies that any congressional attempt to restrict it through ordinary legislation would likely face immediate constitutional challenges.
Kavanaugh had previously offered a similar strategic outline in a different Trump-related case concerning tariffs. In that instance, the Supreme Court ruled that a federal emergency law, the IEEPA, did not grant Trump the authority to impose broad tariffs. Kavanaugh, however, argued that the administration had simply cited the incorrect legal authority, rather than being outright rejected on the policy itself.
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“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.
Kavanaugh suggested that Trump could have utilized several existing trade laws to implement many of the same tariffs, though these laws would have required additional legal procedures.
Following this ruling, Trump publicly praised Kavanaugh, referring to him as his “new hero” in a Truth Social post that lauded the justice’s dissent in the February tariff decision.
