Just days after the Supreme Court struck down his executive order on birthright citizenship, President Donald Trump is pivoting to a legislative strategy, citing a key opinion from Justice Brett Kavanaugh as his roadmap forward.
As Trending Politics reported, Trump signaled that Kavanaugh's concurring opinion in Trump v. Barbara effectively opens the door for Congress to pass legislation restricting birthright citizenship without needing a constitutional amendment. The president wasted no time calling on lawmakers to get moving.
Here is how the situation unfolded. On June 30, the Supreme Court ruled 6-3 that Executive Order 14160, which Trump signed on his first day back in office on January 20, 2025, was invalid. The order, titled "Protecting the Meaning and Value of American Citizenship," had directed federal agencies to deny citizenship at birth to two categories of children born on American soil.
The first category included children born to mothers unlawfully present in the United States when the father was neither a citizen nor a lawful permanent resident. The second covered children born to mothers present on temporary visas under the same paternal conditions.
Chief Justice John Roberts wrote the majority opinion, joined by Justices Sotomayor, Kagan, Barrett, and Jackson. On the constitutional question, the Court split 5-4, with the majority concluding the order violated the Citizenship Clause of the Fourteenth Amendment. They reaffirmed that children born on U.S. soil to parents who are unlawfully or temporarily present are generally "subject to the jurisdiction" of the United States and therefore citizens at birth, consistent with the 1898 precedent established in United States v. Wong Kim Ark.
But it was Kavanaugh's opinion that caught the White House's attention. While Kavanaugh agreed the executive order had to be struck down, he disagreed with the majority's constitutional reasoning. In his view, the order did not violate the Fourteenth Amendment. Instead, it ran afoul of a federal statute, specifically 8 U.S.C. § 1401(a), which codifies birthright citizenship in statutory law.
Kavanaugh wrote that Congress could, consistent with the Fourteenth Amendment, amend that statute or pass new legislation creating exceptions to birthright citizenship for children born to foreign citizens who are in the country unlawfully or temporarily. The catch? Congress simply has not done so yet.
Trump seized on this reasoning almost immediately. In a Truth Social post following the ruling, he described the outcome as "too bad for our Country" but struck an optimistic tone about the path forward. He argued that the issue could "easily" be resolved through legislation with presidential support, adding that no "long and unwieldy Constitutional Amendment" would be necessary. He called on Congress to "start TODAY."
Speaking at a rally in Medora, North Dakota the following day, Trump elaborated on his position. He argued that birthright citizenship "was not meant for rich people from other countries" or for birth tourism schemes. He framed its original purpose as tied to the post-Civil War era, specifically intended to secure citizenship for the children of freed slaves.
A White House spokesperson affirmed the administration's ongoing commitment to protecting natural-born American citizenship while continuing border security operations, deportations, and investigations into birth tourism.
So what would the legislative path actually look like? Under Kavanaugh's framework, Congress could amend the existing statute or pass entirely new legislation defining limits on birthright citizenship, carving out exceptions for the same categories of children targeted by the original executive order. Federal agencies would then update their regulations and procedures for issuing birth certificates, Social Security numbers, passports, and related documentation to reflect the new law.
This approach would shift the legal foundation from executive action, which the Court found exceeded statutory authority, to congressionally authorized rules. That is a significant distinction.
The legislative route would not require the much more difficult process of amending the Constitution. However, previous congressional proposals along these lines have never made it across the finish line, so the political path is far from guaranteed.
Legal challenges to any new statute would almost certainly follow, with courts evaluating whether such legislation aligns with the Fourteenth Amendment's text and historical context. Kavanaugh's opinion provides one interpretive framework under which congressional exceptions could survive judicial scrutiny. The current Court's narrow 5-4 split on the constitutional question also means that future changes in the Court's composition could significantly influence outcomes in subsequent cases.
Vice President JD Vance has also weighed in, calling on Republican lawmakers to take immediate action in the wake of the ruling.
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