Justice Kavanaugh May Have Handed the United States a Roadmap to Fix Birthright Citizenshi

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Justice Brett Kavanaugh joined the majority in striking down President Trump's executive order but wrote separately in partial dissent. He concluded the order conflicted with existing federal law, not that it was unconstitutional. In his opinion, he also outlined a framework for addressing concerns surrounding birthright citizenship through legislation, making clear that any path to lasting change would likely require an act of Congress.

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"Significant illegal immigration into the United States is a new circumstance that was largely unknown as of 1868 and that the Framers of the Fourteenth Amendment could not have fully anticipated," Justice Kavanaugh wrote. "And the Framers likely would not have anticipated (and presumably would not have intended) the odd result of granting a substantial birthright citizenship benefit to (i) those foreign citizens who violate U. S. immigration law and illegally enter or overstay and then have children in the United States over (ii) those foreign citizens who follow U. S. immigration law and have children in their home countries while seeking to lawfully immigrate to the United States. Nor presumably would they have wanted to grant constitutional birthright citizenship to children of foreign citizens unlawfully in the country while simultaneously denying constitutional birthright citizenship to children of tribal American Indians."

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"Consistent with the Fourteenth Amendment, Congress could 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," he added. "But Congress has not yet done so."

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