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After the U.S. Supreme Court ruled against President Donald Trump’s attempt to redefine birthright citizenship through executive order on Tuesday, Trump demanded that Congress pass a law rescinding birthright citizenship rights instead.
The birthright citizenship clause of the 14th Amendment of the U.S. Constitution reads, in part, that:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
Trump’s executive order, issued on the first day of his second term in office, sought to define “subject to the jurisdiction thereof” as meaning that children born in the country to non-citizen parents were not technically subject to U.S. jurisdiction. On Tuesday, five justices of the Supreme Court rejected that argument.
Chief Justice John Roberts, who penned the majority opinion, dismissed arguments by Trump and his allies that the 14th Amendment was written solely to address the issue of freed Black Americans following the Civil War.
The “goal” of the amendment, Roberts wrote, including the birthright citizenship clause, was “to put the ‘great question of citizenship’ ‘beyond the legislative power’ altogether, to settle the issue once and for all.”
The framers of the amendment “extended [the promise of citizenship] to ‘every free-born person in this land,’” Roberts added. “We keep that promise today.”
Justice Ketanji Brown Jackson wrote a concurring opinion that similarly rejected Trump’s arguments.
“This alternative account pitches Black Americans against immigrants when the advocates who promoted the Fourteenth Amendment did no such thing,” Jackson wrote.
In addition to Jackson, Roberts’s opinion was joined by Justices Elena Kagan, Sonia Sotomayor, and Amy Coney Barrett. Justice Brett Kavanaugh authored a concurring opinion, agreeing with the overall outcome but disagreeing that the 14th Amendment prevented a reinterpretation of the birthright citizenship clause.
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Instead, Kavanaugh argued that federal law relating to birthright citizenship blocked an executive order from reinterpreting it. A new law could challenge the current standard, he argued.
“Congress could…enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country. But Congress has not yet done so,” Kavanaugh wrote.
Around the time that the ruling was rendered, Trump appeared to endorse that idea, sharing a link in a Truth Social post to a right-wing news source that suggested a law could be passed ending birthright citizenship. Later, he called on Congress to pass such a law.
“The Supreme Court upheld Birthright Citizenship, which is too bad for our Country, but we can easily make it up in Congress through Legislation, with the support of the President, that has now been determined during this process,” Trump wrote.
He added:
No long and unwieldy Constitutional Amendment is necessary! Congress should start TODAY to work on ending expensive and unfair to our Country, Birthright Citizenship. They will have my Complete and Total Support!
Trump’s assertion seemingly only references Kavanaugh’s opinion, ignoring the opinion of the majority. With five justices agreeing with Roberts’s opinion today, there’s a high probability that the Supreme Court would side with challengers to such a law, just as they did in the case regarding Trump’s executive order.
The likelihood that such a law could pass both houses of Congress is very low, as Democrats could use the Senate filibuster to block its passage. Still, political observers have warned that Kavanaugh’s ruling means the issue could be revived in the future.
“With this ruling, the birthright issue is not going away,” The Nation’s Elie Mystal wrote in a Bluesky post. “The right hasn’t really begun *organizing* around getting rid of the citizenship clause. Like Roe, this will be their fight for a generation. And if the Democrats just say ‘we won’ and ignore it, like Roe, the Republicans will eventually win.”
New polling demonstrates that most Americans oppose efforts to change the current standards around birthright citizenship. , 69 percent of voters said they wanted the Supreme Court to uphold the 129-year precedent preserving the birthright citizenship clause. Only 27 percent said the standard should be reversed.
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