Supreme Court blocks Trump birthright citizenship order, Kavanaugh suggests congressional route
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The Court rejected President Trump's executive order limiting birthright citizenship, while Justice Brett Kavanaugh outlined a legislative approach for Congress to modify the rule.
The Supreme Court voted 6-3 to reject Executive Order 14160, which sought to limit automatic citizenship to children born to U.S. citizens or permanent residents. Justice Brett Kavanaugh, concurring in the judgment, said the case should have been decided under federal law rather than the Constitution and offered a potential path for Congress to amend the Immigration and Nationality Act.
Kavanaugh wrote that Congress could amend section 1401(a) of the act or enact new legislation creating exceptions for children born to foreign nationals who are in the United States unlawfully or temporarily. He noted that the 14th Amendment’s citizenship clause was incorporated into federal law in 1940 and again in the 1952 Immigration and Nationality Act, effectively codifying the Court’s earlier interpretation.
"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.
Republican leaders responded by calling for legislative or constitutional action. House Speaker Mike Johnson said birthright citizenship has been “abused” and suggested a constitutional amendment may be needed. Senators Rand Paul, Mike Lee and others reiterated support for an amendment, while President Trump urged Congress to act without a constitutional amendment.
The Justice Department indicated it would shift its strategy, focusing on alleged visa fraud and birth-tourism schemes rather than enforcing the blocked order. Legal scholars warned that any congressional amendment to the citizenship rule could face immediate constitutional challenges, given the Court’s majority opinion that the citizenship clause itself protects birthright citizenship.