The Supreme Court's recent ruling against President Donald Trump's bid to restrict birthright citizenship through executive order has left some uncertainty in its wake, but one of Trump's own appointees may have handed Republicans a blueprint for pursuing much of the same goal through Congress.
Justice Brett Kavanaugh agreed with the 6-3 majority that Executive Order 14160, which restricts automatic citizenship to people born to U.S. citizens or permanent residents, couldn't take effect. However, in a concurring opinion, he laid out a potential legislative path for Congress to pursue changes to birthright citizenship.
Kavanaugh argued that Congress could rewrite the law to limit birthright citizenship for children born to parents who are in the country illegally or temporarily. He pointed to a federal law passed in 1940, which was carried over into the Immigration and Nationality Act of 1952, and suggested that lawmakers could establish new exceptions to birthright citizenship comparable to those recognized under the citizenship clause.
Kavanaugh's roadmap has quickly seized the attention of Republicans, who see it as a way to limit birthright citizenship without a constitutional amendment. House Speaker Mike Johnson has suggested that Congress will have to amend the Constitution, while Sen. Rand Paul has renewed his push for a constitutional amendment to end birthright citizenship.
Sen. Mike Lee echoed Paul's calls to pass a constitutional amendment, while Trump himself argued that Congress could change birthright citizenship through legislation instead of a constitutional amendment. Several Republicans have pointed to existing legislation aimed at cracking down on birth tourism, including Sen. Tom Cotton's Constitutional Citizenship Clarification Act.
However, Kavanaugh's roadmap is far from a guarantee. 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.
Notre Dame Law School professor Haley Proctor noted that the decision is not a certainty and could be revisited if Congress were to take the steps described by Justice Kavanaugh. "This is an important decision," Proctor said. "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."
The Justice Department has 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, in the end, the path forward for Republicans remains uncertain.
