Following the Supreme Court's 6-3 decision that rejected former President Donald Trump's executive order on birthright citizenship, Justice Brett Kavanaugh's concurring opinion has provided a potential legislative roadmap for Congress to pursue similar restrictions.
Kavanaugh agreed with the majority that Executive Order 14160, which sought to restrict automatic citizenship for children born to parents who are not U.S. citizens or legal permanent residents, could not be enacted. However, he argued that the case should have been decided on federal law rather than the Constitution, thereby suggesting that Congress could amend existing statutes.
The Fourteenth Amendment's birthright citizenship clause was codified into federal law in 1940 and subsequently carried over into the Immigration and Nationality Act of 1952. Kavanaugh noted that because Congress adopted this language after the Supreme Court's 1898 ruling in United States v. Wong Kim Ark, which established birthright citizenship for most individuals born in the U.S., lawmakers effectively incorporated the Court's interpretation into federal law.
"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," Kavanaugh wrote. He posited that modern immigration and travel circumstances present a different landscape than those envisioned by the Reconstruction Congress, allowing for new exceptions similar to those historically recognized for children of foreign diplomats or enemy forces on U.S. territory.
Republicans have seized on Kavanaugh's suggestion, with some advocating for congressional action while others propose a constitutional amendment. House Speaker Mike Johnson stated that birthright citizenship "has been abused" and that "the conclusion from this decision is you have to amend the Constitution to fix that." Senator Rand Paul, R-Ky., renewed his push for a constitutional amendment, arguing legislation alone would be insufficient.
Conversely, former President Trump indicated on social media that a constitutional amendment is unnecessary and urged Congress to "start TODAY to work on ending expensive and unfair to our Country, Birthright Citizenship." Several Republicans pointed to existing legislative proposals, such as Senator Tom Cotton's Constitutional Citizenship Clarification Act, and others aimed at curbing "birth tourism."
The Justice Department, shifting its strategy, announced it would target alleged visa fraud and related criminal conduct associated with birth tourism rather than attempting to enforce the blocked executive order.
However, Kavanaugh's legislative path is not without obstacles. The majority's constitutional interpretation suggests that ordinary legislation to restrict birthright citizenship would likely face immediate legal challenges. Notre Dame Law School professor Haley Proctor told Fox News Digital that while the court might revisit the issue if Congress acted, "the only sure way to get a new answer here would be to amend the Constitution."