President Donald Trump is pointing to a new roadmap for restricting birthright citizenship, this time through Congress rather than an executive order. The pivot comes after the Supreme Court struck down his administration’s earlier attempt to limit the century-old practice of granting citizenship to nearly anyone born on U.S. soil.
On June 30, the Supreme Court issued its decision in Trump v. Barbara, invalidating Executive Order 14160, which Trump had signed on his first day back in office. The order, titled “Protecting the Meaning and Value of American Citizenship,” directed federal agencies to deny birthright citizenship to two categories of newborns: children born to mothers unlawfully present in the U.S. where the father held no legal status, and children born to mothers on temporary visas in the same circumstances.
The Court ruled 6-3 that the order was invalid. Chief Justice John Roberts authored the majority opinion. On the core constitutional question, a 5-4 majority concluded the order violated the Citizenship Clause of the Fourteenth Amendment, reaffirming that children born in the U.S. to parents unlawfully or temporarily present are generally citizens at birth, consistent with the 1898 precedent in United States v. Wong Kim Ark.
Justice Brett Kavanaugh concurred in striking down the order but disagreed with the majority’s constitutional reasoning. According to a detailed report on the ruling, Kavanaugh concluded the executive order failed not on constitutional grounds but because it conflicted with an existing federal statute, 8 U.S.C. Section 1401(a), which codifies birthright citizenship law.
Crucially, Kavanaugh left a door open. “Congress could, consistent with the Fourteenth Amendment, amend Section 1401(a) or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country,” he wrote. “But Congress has not yet done so.”
That’s exactly where Trump is now focusing his attention.
In a Truth Social post following the ruling, Trump called the outcome “too bad for our Country” but said the issue could be resolved legislatively. “We can easily make it up in Congress through Legislation,” he wrote, adding that no constitutional amendment would be necessary. He urged Congress to “start TODAY” and pledged his “Complete and Total Support.”
Speaking at a rally in Medora, North Dakota the following day, Trump argued that birthright citizenship was never intended for what he described as birth tourism, calling it a practice exploited by wealthy foreign nationals. He framed the original intent of the Fourteenth Amendment as applying to the children of freed slaves in the post-Civil War era.
A White House spokesperson said the administration remains committed to protecting the value of American citizenship while pressing forward on border security and deportation efforts.
The legislative path Kavanaugh outlined would involve Congress amending or replacing the existing statute to carve out exceptions for the categories covered in the original executive order. If passed and signed into law, federal agencies could then update documentation processes accordingly, without needing a constitutional amendment.
Any new statute would almost certainly face legal challenges. Kavanaugh’s opinion offers one interpretive framework for courts to consider, but the 5-4 split on the constitutional question signals that future court composition could shape outcomes significantly.