Justice Brett Kavanaugh sided with the Supreme Court majority on June 30, 2026, in striking down President Trump’s executive order seeking to end birthright citizenship, but his reasoning left the door open for Congress to restrict the practice through new legislation.
In the 6-3 decision in Trump v. Barbara, Chief Justice John Roberts wrote for the majority that the 14th Amendment’s Citizenship Clause guarantees citizenship to nearly all children born in the United States, regardless of their parents’ immigration status. But Kavanaugh, while agreeing the executive order was invalid, disagreed with the constitutional reasoning.
Kavanaugh argued Trump’s order violated a federal statute, not the Constitution itself. Under current law, children born in the United States and subject to its jurisdiction are automatically citizens. According to Kavanaugh’s opinion, Congress “could amend” that statute “or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country. But,” he noted, “Congress has not yet done so.”
Roberts emphasized the deep historical roots of birthright citizenship in American law. He traced the principle to early English common law, where children born in Britain automatically became British subjects, a view that crossed the Atlantic with the colonists. The 14th Amendment, adopted in 1868, was designed to repudiate the Supreme Court’s 1857 Dred Scott decision, which denied citizenship to enslaved Black people and their descendants.
The Court reaffirmed a principle established in 1898 in Wong Kim Ark, which held that a child born in San Francisco to parents of Chinese descent was a U.S. citizen. Roberts stressed that in the 128 years since that ruling, the Court has “repeatedly understood the rule” to guarantee citizenship to all children born in the United States and subject to its jurisdiction. “Citizenship, then and now,” Roberts concluded, “was the right to have rights—to freely participate in our political community.”
Trump issued the executive order on January 20, 2025, shortly after taking office for a second term. It provided that babies born in the United States to parents who were in the country illegally or temporarily would not automatically receive citizenship. Federal judges across the country blocked enforcement while legal challenges proceeded.
Kavanaugh’s separate opinion drew attention because it suggested a potential legislative path forward for those seeking to restrict birthright citizenship. The opinion identified the 1401(a) statute as the legal mechanism Congress could modify, offering what some observers called a roadmap for future legislative action on the issue.
Sources
- SCOTUSblog — Detailed analysis of the Supreme Court’s decision and Kavanaugh’s concurring opinion
- The National Constitution Center — Explanation of Kavanaugh’s statutory approach versus the majority’s constitutional reasoning
- WTTW — Coverage of Kavanaugh’s position and the federal statute he referenced
- The Hill — Reporting on Kavanaugh’s opinion and Congress’s potential path to restrict birthright citizenship
- Fox News — Analysis of Kavanaugh’s legislative blueprint for birthright citizenship limits
