The Supreme Court has spoken on birthright citizenship. The Fourteenth Amendment protects it. Case closed, right?
Not necessarily.
Justice Brett Kavanaugh may have quietly handed Congress a playbook for changing the rules, without touching the Constitution itself.
In his opinion, Kavanaugh acknowledged something that tends to get lost in the broader debate: large-scale illegal immigration is a modern phenomenon. It simply was not part of the landscape in 1868 when the Fourteenth Amendment was ratified. The Framers could not have fully anticipated it.
His reasoning goes further. He pointed out what he called an “odd result,” that the current interpretation grants birthright citizenship to children of foreign nationals who broke U.S. immigration law, while children of those who followed the rules and waited legally in their home countries receive no such benefit. He also noted the contradiction of granting citizenship to children of unlawful immigrants while historically denying it to children of tribal American Indians.
Then came the key passage. As originally reported, Kavanaugh wrote that Congress could amend existing statute or pass new legislation establishing exceptions to birthright citizenship for children born to foreign nationals who are unlawfully or only temporarily present in the country, and that doing so would be consistent with the Fourteenth Amendment. The catch: Congress has not done so yet.
That distinction matters enormously.
Kavanaugh is not saying the Constitution requires birthright citizenship for all children born on U.S. soil in every circumstance. He is saying Congress has the power to draw different lines, and has simply chosen not to act.
Whether Congress would actually take that step is a separate question. And even if it did, the political and legal battles would not end there. Any such legislation would almost certainly face immediate court challenges. Critics would forum-shop for favorable judges, and the fight would likely return to the Supreme Court.
If that scenario plays out, the math becomes interesting. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Kavanaugh himself would likely be receptive to such a challenge. Whether Chief Justice John Roberts or Justice Amy Coney Barrett would shift their positions from the current ruling is unknown, but not impossible.
The broader picture here is one of a legal debate that may be far from settled. What looked like a definitive ruling on birthright citizenship may have opened a side door that lawmakers could walk through, if they choose to.
The road would be long and the legal fights messy. But a path exists, at least according to one member of the nation’s highest court.
That is not nothing.