Under the executive order, citizenship would have been denied to children born to mothers who were in the country illegally if the father was neither a U.S. citizen nor a lawful permanent resident. It also applied to children whose mothers were legally present only on a temporary basis—such as through student, tourist, or work visas—when the father likewise lacked U.S. citizenship or permanent resident status. Federal agencies, including the Departments of Homeland Security and State, were instructed to revise their policies to reflect the new standards.
The Supreme Court ultimately rejected the order in a 6-3 decision. Chief Justice John Roberts authored the majority opinion, joined by Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson. By a separate 5-4 constitutional analysis, the Court concluded that Trump’s executive order conflicted with the Citizenship Clause of the Fourteenth Amendment.
The majority reaffirmed decades of legal precedent, holding that children born within the United States to parents who are either unlawfully present or temporarily residing in the country generally remain “subject to the jurisdiction” of the United States and therefore qualify as American citizens at birth. The Court relied heavily on longstanding precedent, including the landmark 1898 decision in United States v. Wong Kim Ark.
Despite the ruling against the administration, conservatives quickly focused on a separate opinion authored by Justice Brett Kavanaugh that offered what many see as a potential roadmap for future action.
While Kavanaugh agreed that Trump’s executive order could not stand, he argued that the problem was not the Constitution itself. Instead, he concluded that the order conflicted with existing federal law—specifically 8 U.S.C. § 1401(a), which governs birthright citizenship.
Importantly, Kavanaugh suggested Congress possesses the authority to change that statute.
“Congress could—consistent with the Fourteenth Amendment—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. But Congress has not yet done so.”
That passage immediately caught President Trump’s attention.
Following the Court’s decision, Trump responded on Truth Social, expressing disappointment with the outcome while insisting that lawmakers now have a clear legislative option.
“Too bad for our Country.”
Trump went on to write:
“We can easily make it up in Congress through Legislation, with the support of the President, that has now been determined during this process. 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!”
The president expanded on those remarks during a rally in Medora, North Dakota, where he argued that birthright citizenship was never intended to encourage birth tourism or provide automatic citizenship for the children of foreign nationals temporarily visiting the United States.
Trump contended that the Fourteenth Amendment was adopted in the aftermath of the Civil War to secure citizenship for the children of formerly enslaved Americans—not to address modern immigration issues.
Meanwhile, the White House emphasized that the administration remains committed to strengthening border security, carrying out deportations of individuals unlawfully present in the country, combating birth tourism operations, and preserving what it describes as the value of American citizenship.
If Congress were to follow the approach outlined by Kavanaugh, lawmakers could amend 8 U.S.C. § 1401(a) or pass entirely new legislation creating statutory exceptions similar to those contained in Trump’s original executive order. Rather than relying on presidential authority alone, the changes would be backed directly by congressional action.
Should such legislation become law, federal agencies would then revise procedures involving passports, birth certificates, Social Security numbers, and other government documents to comply with the new statutory framework.
Supporters argue this route avoids the far more difficult process of amending the Constitution, though similar legislative proposals have repeatedly stalled in Congress over the years.
Even if Congress ultimately approves such a measure, another round of courtroom battles would almost certainly follow. Federal judges would once again be asked to determine whether any statutory changes comply with the Fourteenth Amendment.
With the Supreme Court narrowly divided on the constitutional question, future appointments to the Court could prove decisive if Congress sends another birthright citizenship challenge back before the nation’s highest judicial body. For the Trump administration and its supporters, Kavanaugh’s opinion has transformed what appeared to be a legal defeat into what they believe could become the blueprint for the next phase of the fight.
