Ken Blackwell
BREAKING: Justice Brett Kavanaugh just handed Congress a clear legal path to end automatic birthright citizenship for the children of illegal aliens. No constitutional amendment required.
Here is what happened. On Tuesday, the Supreme Court struck down President Trump’s executive order on birthright citizenship in a case called Trump v. Barbara. Kavanaugh voted against the administration and agreed the order could not stand. But his separate opinion may prove more valuable to this cause than a courtroom win would have been.
Kavanaugh wrote that the order did not violate the Fourteenth Amendment at all. In his view, the order failed for one reason only. It conflicted with a federal statute, Section 1401 of the immigration code, that Congress passed and Congress can change.
Then he spelled out the path. Kavanaugh wrote that Congress could amend that statute or pass new legislation. Lawmakers could create exceptions to automatic citizenship for children born to parents who are in this country unlawfully or only temporarily.
A sitting justice of the Supreme Court put the roadmap in a published opinion for the whole world to read.
Understand why the statute matters here. Congress wrote the Fourteenth Amendment’s citizenship language into federal law in 1940 and carried it into the Immigration and Nationality Act of 1952. The rule politicians call untouchable has been sitting in an ordinary statute for more than eighty years. Ordinary statutes can be rewritten by ordinary majorities.
For thirty years, the political class fed Americans a different story. They claimed birthright citizenship was locked into the Constitution and nothing short of an amendment could touch it. Amendments require two thirds of Congress and three quarters of the states, so the excuse worked. Politicians could wring their hands, mail their fundraising letters, and never cast a hard vote.
Kavanaugh demolished that excuse. He even pointed out that Congress has considered bills to change birthright citizenship for three decades and passed none of them. The barrier was never the Constitution. Congress chose the excuse over the work, year after year, while the abuse got worse.
And the abuse is real. Foreign nationals fly here on tourist visas for the sole purpose of giving birth. They collect an American passport for the child and fly home with a golden ticket. An entire birth tourism industry advertises this scheme openly, and smugglers sell illegal border crossings with citizenship for a future child as part of the pitch. Almost no other developed nation on earth hands out citizenship this way.
The Fourteenth Amendment served a specific purpose. Congress wrote it in 1868 to overturn Dred Scott and guarantee that no American could be denied citizenship because of his race. That purpose stands, and closing a modern loophole does nothing to disturb it.
The men who wrote the amendment never imagined visa overstays, birth tourism packages, or an open border used as a citizenship machine. Kavanaugh made this exact point. He argued that large scale illegal immigration and modern travel created conditions the Reconstruction Congress never envisioned, and that new exceptions can fit alongside the historical ones for diplomats and occupying enemy forces.
Now look at the math on the Court, because the press buried it. The headlines called this a 6 to 3 ruling. On the constitutional question, it was really 5 to 4. Justices Thomas, Alito, and Gorsuch dissented outright, and Kavanaugh joined them in rejecting the majority’s constitutional reasoning even though he voted to strike the order on statutory grounds.
That means four sitting justices have now signaled that automatic citizenship for the children of illegal aliens is a policy choice, and policy choices belong to Congress. When Congress passes a statute and that statute reaches the Court, the ground has already shifted. This is the strongest legal position the reform side has held in a century.
Washington got the message within hours. President Trump declared that “No long and unwieldy Constitutional Amendment is necessary!” and called on Congress to get to work. Senator Tom Cotton already has a bill, and Senators Cornyn and Scott have proposals targeting birth tourism. The Justice Department announced a crackdown on birth tourism visa fraud the same week.
Some Republicans, including Speaker Johnson and Senators Paul and Lee, still want a constitutional amendment. An amendment takes years while a statute takes months, and the Court’s own deciding vote just said a statute can do the job. Pass the bill now and let those who want an amendment pursue one on a parallel track.
So here is my message to every member of the House and Senate. The excuse is gone. Stop hiding behind a constitutional barrier that a Supreme Court justice just told you does not exist. Draft the bill, amend Section 1401 with clear exceptions, hold the hearings, and put every member on record before the American people.
Some members will vote no, and the voters deserve to see exactly who they are. Every politician who spent decades promising to fix this now has to show us whether the promise was real. There is nowhere left to hide.
American citizenship is the most valuable thing this nation confers. It should never be handed out automatically to reward lawbreaking or sold through birth tourism packages. The people’s elected representatives should set the rules, and the people should hold them accountable.
Justice Kavanaugh ruled against the White House on Tuesday and still handed Congress the pen. Our job as citizens is to make sure they pick it up.
