The current Supreme Court term is over.
But buried inside one ruling is something the headlines missed entirely.
And Brett Kavanaugh just handed Trump one secret weapon that will scare the left out of their minds.
What the Court Actually Did — and Didn’t Do
The Supreme Court ruled 6-3 in Trump v. Barbara, striking down Executive Order 14160, which Trump signed on his first day back in office in January 2025. That order would have restricted automatic citizenship to children born to at least one parent who is a U.S. citizen or permanent resident.
Five justices said the order fell afoul of the Constitution’s 14th Amendment, which has long been interpreted to bestow birthright citizenship on almost anyone born in the U.S. One justice, conservative Brett Kavanaugh, said the order violated federal law but not the Constitution.
That distinction is not a footnote. It is the whole ballgame going forward.
Kavanaugh argued the court should have resolved the case under federal law rather than the Constitution, laying out a potential legislative path for Congress to pursue changes to birthright citizenship. Congress first wrote the 14th Amendment’s birthright citizenship language into federal law in 1940, then carried it over into the Immigration and Nationality Act of 1952.
Kavanaugh said Trump couldn’t use an executive order to change a law Congress had already passed, but instead suggested Congress could rewrite the law to limit birthright citizenship for children born to parents who are in the country illegally or temporarily. “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,” he wrote.
Kavanaugh argued that large-scale illegal immigration and modern international travel have created circumstances the Reconstruction Congress never envisioned. In his view, that gives Congress room to establish new exceptions to birthright citizenship that are comparable to the historical exceptions recognized under the citizenship clause, including children born to foreign diplomats and enemy forces occupying U.S. territory.
And it gets more interesting from there.
Add Kavanaugh’s view that the Constitution permits legislative exceptions, and four sitting justices have now signaled that birthright citizenship is not constitutionally absolute. Three fully dissented. Kavanaugh agreed the Constitution does not require the current practice. That’s a meaningful number, even in defeat.
Thomas Goes to War in 91 Pages
Justice Clarence Thomas did not hold back. Thomas wrote a 91-page dissent explaining why he would have upheld the order, while also ripping the majority’s ruling.
Thomas wrote, “The Court today takes the extraordinary step of holding facially unconstitutional the President’s Order excluding from citizenship the children of foreign temporary visitors and illegal aliens. In doing so, the Court adds to the sad history of the Fourteenth Amendment, which was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support.”
That argument is worth sitting with. The 14th Amendment was written after the Civil War to guarantee that freed slaves — people who had been born on American soil their entire lives and were still denied citizenship — could never be stripped of that status again. It was written for men like Frederick Douglass. Thomas wrote, “The Citizenship Clause was enacted for people who were born in this country and called it home. It was enacted for freed slaves such as Dred Scott, who had ‘a domicil’ here and therefore were entitled to sue as citizens.”
The birth tourism industry — foreign nationals flying to the United States specifically to deliver anchor babies and then returning home — was not remotely what the Reconstruction Congress had in mind. Nobody in 1868 imagined a Chinese Communist Party member’s wife landing at LAX eight months pregnant, delivering a U.S. citizen, and flying back to Beijing two weeks later. That is a scam, not a constitutional right.
Thomas, the longest-serving conservative currently on the bench, wrote, “I am not sure that today’s opinion will stand the test of time.” Thomas concluded, “I am not sure that today’s opinion will stand the test of time. The Citizenship Clause ‘added greatly to the dignity and glory of American citizenship.’ Today’s opinion devalues that citizenship. I respectfully dissent.”
Notre Dame Law School professor Haley Proctor told Fox News Digital, “Justice Thomas says in the final paragraph of his dissent that he’s not confident that the decision is going to stand the test of time, so it could well be that the court would revisit it if Congress were to take the steps that Justice Kavanaugh describes.”
Proctor added, “This is an important decision. I don’t think the court’s going to revisit it lightly, and the only sure way to get a new answer here would be to amend the Constitution.”
Republicans Move Immediately — and Disagree on How
Trump posted on Truth Social within hours of the ruling. He wrote, “The 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!”
Speaker Mike Johnson was not quite as confident about the legislative route. Johnson told reporters, “It’s one of those things that was intended to serve a noble and important purpose and has been thwarted and overused and abused. I’m sure that the conclusion from this decision is you have to amend the Constitution to fix that.”
Senator Rand Paul (R-KY) had already seen this coming. He introduced a constitutional amendment in April before the ruling ever dropped. Paul wrote on X, “I introduced a constitutional amendment months ago, actually, to fix birthright citizenship. After the Supreme Court decision, that amendment matters more than ever. I’m asking my colleagues to take it seriously and help me get this passed.”
Senator Mike Lee (R-UT) echoed Paul’s calls to pass a constitutional amendment. “The long fight for a constitutional amendment begins now,” Lee wrote on X. “We must explicitly exclude foreign nationals who break our laws, violate our borders, or exploit loopholes to make their families American.”
Senator Rick Scott (R-FL) said, “The Supreme Court has made its decision, now Congress needs to respond. We need to be voting on these EVERY WEEK until we provide the American people with an answer for this question.”
Senator Eric Schmitt (R-MO) took both lanes at once. Schmitt said the majority’s ruling “MAY have left Congress a door,” adding, “I’m filing legislation to walk through it. And I’ll keep working on a constitutional amendment to restore American citizenship.”
The constitutional amendment route is steep. A constitutional amendment requires two-thirds of both chambers and ratification by three-fourths of state legislatures, a process so demanding it has succeeded only 27 times in American history. A statutory fix requires a simple majority in both chambers and a presidential signature. That gap explains why Trump is pushing the legislative path and why some senators are skeptical it will hold up in court.
The DOJ Doesn’t Wait for Congress
While Republicans in Congress debate the right vehicle, the Justice Department did not sit on its hands. The same day the Supreme Court upheld birthright citizenship, President Trump’s Department of Justice told its staffers that it will “prioritize the investigation and prosecution of birth tourism schemes.”
Deputy Attorney General Todd Blanche argued that birth tourism has become a “booming industry” and said the DOJ will work alongside federal law enforcement agencies to crack down on individuals who allegedly misuse tourist visas to give birth in the United States. “From a Department of Justice standpoint, it’s obviously focusing our prosecutors and our law enforcement partners on birthing tourism, and it’s a booming industry, and it will continue. It will continue given the Supreme Court’s decision yesterday,” Blanche said.
The memo notes that many of these schemes begin with lies on visa applications about the true purpose and length of stay — conduct that has always been illegal. Past prosecutions focused heavily on visa fraud, but the directive makes clear prosecutors should pursue the full range of criminal statutes when the evidence supports it.
Birth tourism is exactly what it sounds like. Foreign nationals, often from China, pay tens of thousands of dollars to networks that coach them on how to lie to consular officers, obtain tourist visas under false pretenses, fly to the United States late in pregnancy, deliver an anchor baby on American soil, and return home. State Department spokesperson Tommy Pigott wrote that “illicit ‘birth tourism’ networks charge tens of thousands of dollars and coach individuals to commit visa fraud by lying to our consular officers.” That is not immigration. That is fraud, and the DOJ is now treating it as such.
Kavanaugh offered a similar roadmap in a recent Trump case over tariffs. In that case, the Supreme Court ruled that a federal emergency law known as IEEPA did not give Trump the authority to impose sweeping tariffs. Kavanaugh concurred in that ruling too but wrote separately to explain how the administration could reach similar results through different statutory channels. The pattern is consistent: he votes against the specific mechanism while leaving the door open on the underlying goal.
The 14th Amendment was ratified in 1868 to make sure the government could never again tell a man born on American soil that he was not an American. That was the promise. What has grown up around it over the past several decades — birth tourism operations, anchor baby chains, entire extended families using a single U.S.-born child to eventually import themselves through chain migration — is a perversion of that promise, not an expression of it. Thomas said so plainly. Kavanaugh said so implicitly. And now Congress has been handed the tools to do something about it.
Whether Republicans have the votes and the will to use those tools is the only question left worth asking.
Sources: Fox News Digital; CBS News; The Hill; Washington Examiner; Axios; Time; Washington Times; Center for Immigration Studies; Legal Insurrection