The Supreme Court ruled 6-3 Tuesday to block President Trump’s executive order restricting birthright citizenship, but Justice Brett Kavanaugh’s concurring opinion immediately handed Republicans a potential path forward through Congress.
The court affirmed a lower court ruling striking down Executive Order 14160, which sought to limit automatic citizenship to children born to U.S. citizens or lawful permanent residents. Chief Justice John Roberts and Justice Amy Coney Barrett joined the court’s three liberal justices in the majority. Kavanaugh concurred in the judgment but on different grounds.
“Children born in the United States to parents unlawfully or temporarily present are ‘subject to the jurisdiction’ of the United States and are citizens at birth under the Fourteenth Amendment’s Citizenship Clause,” the majority wrote.
Kavanaugh agreed the executive order could not stand but argued the court should have decided the case on statutory grounds rather than constitutional ones. He said Trump’s order conflicted with existing federal law, specifically the Immigration and Nationality Act of 1952, which Congress had written to incorporate the court’s 1898 ruling in United States v. Wong Kim Ark. That ruling established that most people born on U.S. soil automatically become citizens.
Because Congress wrote that interpretation into statute after 1898, Kavanaugh said the president could not override it by executive order. But he went further: he wrote that Congress could rewrite the law to limit birthright citizenship for children born to parents who are unlawfully or temporarily in the United States.
“Congress could, consistent with the Fourteenth Amendment, amend or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country,” Kavanaugh wrote. “But Congress has not yet done so.”
Trump called the ruling “too bad for our Country” and immediately called on Congress to act. “Congress can easily make it up,” he posted on Truth Social. “No long and unwieldy Constitutional Amendment is necessary. Congress should start TODAY.”
House Speaker Mike Johnson said birthright citizenship has “been abused” and indicated that a constitutional amendment may ultimately be required. “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 shortly after the ruling.
Sen. Rand Paul (R-KY) renewed his push for a constitutional amendment, arguing that legislation alone would fall short. Paul has long contended that an act of Congress would face the same 14th Amendment challenges that sank the executive order.
Justice Clarence Thomas, joined by Justice Neil Gorsuch, filed a 91-page dissent arguing the majority misread the 14th Amendment. Thomas wrote that the 1898 Wong Kim Ark ruling had addressed only children of parents lawfully and permanently domiciled in the United States, not parents present illegally or temporarily. Justice Samuel Alito filed a separate dissent, calling the ruling a “serious mistake” and warning of national security consequences, including the prospect of foreign adversaries exploiting birthright citizenship for their children.
The ruling comes as Congress is weighing legislative action. Republicans reacted quickly to Kavanaugh’s concurrence, with at least one member introducing a bill to restrict birthright citizenship for children born to parents who entered the country illegally or on temporary visas.
