The Supreme Court just delivered its ruling on birthright citizenship under the Fourteenth Amendment, and on the surface it looks like a clear win for the status quo. But as USA Journal noted, one conservative justice may have quietly cracked open a door that many assumed was permanently sealed shut.
Justice Brett Kavanaugh joined the majority in striking down President Trump's executive order targeting birthright citizenship. However, he wrote separately in a partial dissent, and what he said in that opinion has conservatives buzzing. Kavanaugh concluded that the executive order conflicted with existing federal law, not that it was unconstitutional on its face. More importantly, he laid out a framework suggesting that Congress could legislatively create exceptions to birthright citizenship without running afoul of the Constitution.
His reasoning was pointed. Kavanaugh wrote that "significant illegal immigration into the United States is a new circumstance that was largely unknown as of 1868 and that the Framers of the Fourteenth Amendment could not have fully anticipated." He argued that the amendment's authors would likely never have intended to reward foreign citizens who break immigration law with a birthright citizenship benefit for their children born on U.S. soil, while foreign citizens who follow the legal process and have children abroad while waiting to immigrate lawfully receive no such advantage.
Kavanaugh also highlighted what he called an absurd inconsistency: granting constitutional birthright citizenship to children of foreign nationals here unlawfully while historically denying it to children of tribal American Indians.
Then came the sentence that has legal observers paying close attention. "Consistent with the Fourteenth Amendment, Congress could 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. "But Congress has not yet done so."
That is, by any reading, an open invitation to lawmakers.
Of course, even if Congress took up this challenge, the legal fight would be far from over. Opponents would almost certainly file suit, the case would wind through lower courts, and it would eventually land back at the Supreme Court. The question then becomes whether the current bench would hold.
Justices Alito, Thomas, Gorsuch, and Kavanaugh would likely be on board. The real question marks are Chief Justice Roberts and Justice Barrett, both of whom sided with the majority this time around. Could they be persuaded to shift? It is not impossible.
Conservative attorney and columnist Kurt Schlichter offered some perspective on why this ruling, despite being a loss on the surface, is actually promising for those seeking change. Writing at Townhall, Schlichter pointed out that this was a 5 to 4 decision on the constitutional question, which is far closer than many expected.
"I expected a 7 to 2 ruling with Justice Alito and Justice Thomas in dissent," Schlichter wrote. "What we got was Justice Kavanaugh and Justice Gorsuch both stepping in and accepting, at least to some extent, the new thinking on the 14th Amendment citizenship clause. This is huge, people."
Schlichter drew a comparison to the evolution of Second Amendment jurisprudence. For roughly a century, courts allowed virtually any gun regulation deemed "reasonable." Then the Heller decision completely upended that understanding, driven largely by new legal scholarship. He argued that the same process is now underway with birthright citizenship.
On Roberts and Barrett specifically, Schlichter said their votes were entirely predictable to anyone who understands how courts operate. They adhere to established precedent, and the existing interpretation of the Fourteenth Amendment has been in place for a long time. "It's just that their principle is wrong, reflecting the old and established view of the 14th Amendment that we are currently challenging with new scholarship," he wrote. "Lots of people are wrong, and it doesn't make them the antichrist."
The three liberal justices, in Schlichter's blunt assessment, voted exactly as expected and would have ruled differently only if the political calculus favored their side.
So where does this leave the debate? The ruling is certainly not the final word that many on the left are celebrating it as. Kavanaugh essentially told Congress that it has the constitutional authority to act. Whether lawmakers have the political will to do so is another matter entirely.
For those who want to see changes to how birthright citizenship works in practice, this was not a defeat so much as a starting gun. And regardless of where one stands on the issue, it is worth acknowledging that President Trump's Day 1 executive order is what forced the legal system to grapple with this question in the first place. The conversation has shifted, the court is closer to divided than unified, and a roadmap now exists in black and white, courtesy of a sitting Supreme Court justice.
Read more conservative news commentary at: USA Journal News
