{"id":487,"date":"2026-07-02T14:38:14","date_gmt":"2026-07-02T14:38:14","guid":{"rendered":"https:\/\/americanindustryreview.com\/?p=487"},"modified":"2026-07-02T14:38:14","modified_gmt":"2026-07-02T14:38:14","slug":"trumps-dubious-claim-that-birthright-citizenship-could-still-be-overturned-with-legislation","status":"publish","type":"post","link":"https:\/\/americanindustryreview.com\/?p=487","title":{"rendered":"Trump\u2019s Dubious Claim that Birthright Citizenship Could Still Be Overturned with Legislation"},"content":{"rendered":"
\n

by Robert Farley<\/strong><\/p>\n

ANALYSIS \u2014 After the Supreme Court struck down President Donald Trump\u2019s executive order seeking to end birthright citizenship, the president called on Congress to end it through legislation, saying a \u201clong and unwieldy\u201d constitutional amendment was not necessary. But constitutional and immigration law experts disagree.<\/p>\n

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These experts say the majority opinion from the Supreme Court \u2014 which interpreted the 14th Amendment as providing citizenship to anyone born in the country, with very limited exceptions \u2014 indicated that a constitutional amendment\u00a0would<\/em>\u00a0be needed.<\/p>\n

Shortly after the Supreme Court\u2019s\u00a0\u00a0on June 30, Trump\u00a0wrote\u00a0on Truth Social, \u201cThe 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. 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!\u201d<\/p>\n

Trump is right about the significant\u00a0hurdle\u00a0constitutional amendments present. They must be supported by a two-thirds majority in both the House and Senate, and then need to be ratified by three-fourths of the states.<\/p>\n

But constitutional scholars, and even some Republican supporters of ending birthright citizenship, say that\u2019s now the path to end it.<\/p>\n

According to the\u00a014th Amendment, ratified in 1868, \u201cAll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.\u201d<\/p>\n

On the first day of his second term, Trump issued an\u00a0executive order\u00a0to deny birthright citizenship to children born to parents who are in the country unlawfully or who are in the country lawfully but only on temporary visas. It never went into effect, though, because lower federal courts\u00a0blocked\u00a0it.<\/p>\n

The case Trump v. Barbara made its way to the Supreme Court and in the\u00a0\u00a0on the case, Chief Justice John G. Roberts Jr. wrote: \u201cCitizenship, then and now, was the right to have rights \u2014 to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to \u2018every free-born person in this land.\u2019 \u2026 We keep that promise today.\u201d<\/p>\n

That includes \u201cchildren born of parents unlawfully or temporarily present in the United States,\u201d Roberts wrote for the majority. \u201cUnder the Constitution,\u201d he said, \u201cthey are citizens at birth.\u201d<\/p>\n

According to constitutional scholars we interviewed, that leaves no wiggle room for doing away with birthright citizenship through normal legislation. Legislators have been\u00a0\u00a0to end birthright citizenship for children of people in the country illegally, though no bill has ever passed. Now, many experts say, it is clear that any such legislation would be struck down by the courts.<\/p>\n

\u201cTrump is grasping at straws,\u201d\u00a0Garrett Epps, a professor of practice at the University of Oregon School of Law and a constitutional expert, told us via email. \u201cThere is no language in the majority opinion in\u00a0Barbara\u00a0<\/em>that suggests Congress could change the birthright citizenship rule of the Fourteenth Amendment by statute.\u201d<\/p>\n

While the court\u2019s 6-3 decision struck down Trump\u2019s executive order, Justice Brett M. Kavanaugh\u00a0\u00a0with the majority only in part. He wrote in a separate opinion that he disagreed that Trump\u2019s order violated the 14th Amendment. He said Congress alone has the authority to \u201cenact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country.\u201d<\/p>\n

Although three justices voted against the majority opinion, Kavanaugh\u2019s was \u201cthe only voice of the nine that raises that possibility\u201d of reversing birthright citizenship through legislative action, Epps said.<\/p>\n

\u201cNothing \u2014 nothing \u2014 in the majority opinion suggests that Congress has the power to limit or abolish\u201d birthright citizenship, Epps said. \u201cMaybe \u2014 maybe<\/em> \u2014 the three other dissenters would agree; but they do not say so in writing. Meanwhile, there\u2019s no indication from any of the five in the majority that they are basing their decision on statutory grounds. As of today, there are five votes on this court to hold that the Citizenship Clause establishes a clear constitutional rule that cannot be overturned by act of Congress, any more than the Equal Protection or Due Process Clauses could be.\u201d<\/p>\n

Muzaffar Chishti, a lawyer and senior fellow at the Migration Policy Institute, told us via email that Trump is \u201cwrong\u201d to say birthright citizenship could be reversed by legislation.<\/p>\n

\u201cHe lost this one plain and simple!\u201d Chishti, director of the MPI office at the New York University School of Law, said.<\/p>\n

\u201cUnfortunately for the President, the majority of Justices (5-4) did not support his position,\u201d Chishti said on the day of the ruling. \u201cThe majority, in an extraordinarily strong opinion by the Chief Justice, ruled that only a constitutional amendment can reinterpret the current understanding of the 14th amendment: that every child (with the minor exceptions of children born to diplomats and enemy aliens) are citizens at birth. So, the only way that can now be changed after today\u2019s decision is either a constitutional amendment or by the Supreme Court overruling today\u2019s decision.\u201d<\/p>\n

Jorge Loweree\u00a0of the American Immigration Council agreed.<\/p>\n

\u201cThe Supreme Court did not say Congress can end birthright citizenship through legislation,\u201d Loweree told us via email. \u201cThe majority held that the Citizenship Clause of the Fourteenth Amendment protects citizenship for nearly everyone born in the United States, relying on more than a century of precedent. While several dissenting Justices argued that the Clause should be interpreted more narrowly, those views did not prevail.\u201d<\/p>\n

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\u201cIf Congress enacted a statute that conflicted with the Court\u2019s interpretation of the Fourteenth Amendment, it would face immediate constitutional challenges,\u201d Loweree added. \u201cUnless the Supreme Court changes its interpretation in a future case, Congress cannot override the Constitution by statute.\u201d<\/p>\n

At least two prominent Republicans, both lawyers who oppose birthright citizenship, also agree it would now take a constitutional amendent.<\/p>\n

\u201cThis was not a decision on procedural grounds (ie, POTUS can\u2019t do this through executive order but Congress could legislate it); it is a substantive decision that says the 14th amendment requires citizenship for those born to, among others, birth tourists or those unlawfully present in the country,\u201d Florida Gov. Ron DeSantis\u00a0wrote\u00a0on X. \u201cWill need either a constitutional amendment or a future court to overrule this.\u201d<\/p>\n

Sen. Mike Lee of Utah also saw the decision as a call to pursue \u201cthe long fight\u201d for a constitutional amendment.<\/p>\n

\u201cNeither the Founding Fathers, nor the authors of the 14th Amendment, nor the millions of Americans who fought and died for their country through the ages intended to establish a nation whose citizenship could so easily be purchased, whether through birth tourism of China\u2019s communist party members or a vast border invasion enabled by faithless presidents,\u201d\u00a0Lee wrote on X. \u201cThis is the cheap and cheated citizenship the Supreme Court upholds today. The long fight for a constitutional amendment begins now. We must explicitly exclude foreign nationals who break our laws, violate our borders, or exploit loopholes to make their families American citizens.\u201d<\/p>\n

Birth tourism refers to pregnant women coming to the U.S. on tourism visas in order to obtain birthright U.S. citizenship for their newborn children.<\/p>\n

Andrew Arthur, a resident fellow in law and policy at the Center for Immigration Studies, an organization that favors low immigration, told us there are \u201cany number of actions that Congress could take that would address the issues that the president is raising.\u201d<\/p>\n

For example, he said, the government could restrict the nonimmigrant entry of pregnant women, crack down on birth tourism, or limit the ability of birthright citizens to petition for family members to be admitted to the U.S.<\/p>\n

\u201cNot to say that any of those are good or bad ideas (except for cracking down on birthright tourism, which most agree with) \u2014 but they are steps Congress could take,\u201d Arthur said.<\/p>\n

As\u00a0we have written, there is no direct government data on the scope of birth tourism in the U.S., though the Center for Immigration Studies estimates it could be over 20,000 births per year. And it is against the law for those who purposely enable it. There have been some high-profile\u00a0arrests\u00a0of people\u00a0accused\u00a0of running birth tourism operations.<\/p>\n

\u201cThere are means, short of tampering with the Constitution, to tackle what is without doubt immigration fraud and a misuse of the immigration system,\u201d Michelle Mittelstadt, director of communications for the Migration Policy Institute, told us, referring to\u00a0cracking down\u00a0on birth tourism. In fact, she said, the Trump administration has already taken some steps.<\/p>\n

Arthur, of the Center for Immigration Studies, also believes it may still be possible for Congress to narrow the definition of who would be eligible for birthright citizenship.<\/p>\n

But\u00a0Samuel Breidbart, counsel in the Democracy Program at the Brennan Center for Justice, said any such narrowing of who would qualify for birthright citizenship would not stand unless a future Supreme Court reversed its opinion.<\/p>\n

\u201cThere are five votes that said firmly, unequivocally that birthright citizenship is part of the Constitution, and that\u2019s the law,\u201d Breidbart said. \u201cNow, is it true that a 5-4 outcome might be an invitation to the conservative legal movement to keep trying? I\u2019m sure that\u2019s how they\u2019re thinking about this. I\u2019m sure that they\u2019re thinking that they can pursue future litigation. \u2026 But right now the law is as it has always been, that there\u2019s birthright citizenship for all who are born here, and we require a constitutional amendment to change that. What the court did yesterday did not open the door to Congress legislating.\u201d<\/p>\n

Evelyn Cruz, a professor and director of the immigration clinic at Arizona State University\u2019s law school, told us via email that Kavanaugh\u2019s suggestion that Congress could amend who is eligible for birthright citizenship \u201cstands on thin ice.\u201d<\/p>\n

But there may be political gain to such an effort, she said.<\/p>\n

\u201cWhether Justice Kavanaugh\u2019s suggestion is legally sound or not, the fact that he has opened the door to a potential way for Congress to delineate access to birthright citizenship, even if the legislation is later ruled unconstitutional, leaves the birthright citizenship issue viable for political purposes,\u201d despite the court\u2019s unequivocal decision, Cruz said.<\/p>\n

Read more Syringe services in limbo under Trump, risking hepatitis C progress<\/a><\/p>\n

Lori Robertson and Justine Weng contributed to this article.<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

by Robert Farley ANALYSIS \u2014 After the Supreme Court struck down President Donald Trump\u2019s executive order seeking to end birthright citizenship, the president called on Congress to end it through legislation, saying a \u201clong and unwieldy\u201d constitutional amendment was not necessary. But constitutional and immigration law experts disagree. 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