On June 30, the Supreme Court ruled 6-3 that birthright citizenship is a constitutional right. Five justices held that the 14th Amendment is clear: born in the United States, subject to U.S. jurisdiction, citizen at birth. The sixth — Justice Brett Kavanaugh — struck down Trump's executive order on narrower grounds. Within ten days, Congress had a new bill, and Trump was demanding a do-over from the Court.
Kavanaugh Left Congress One Opening
Kavanaugh didn't sign onto the five-justice constitutional ruling. He ruled on statutory grounds instead — the executive order violated the Nationality Act of 1940, a federal law whose text mirrors the 14th Amendment. His concurrence said Congress could "amend" that statute to create exceptions for children born to parents in the country unlawfully or temporarily.
Rep. John McGuire (R-VA) introduced the Birthright Citizenship Clarification Act on July 9, built around that opening. The bill would amend Section 301(a) of the Immigration and Nationality Act to deny automatic citizenship to children born to undocumented mothers whose fathers are neither U.S. citizens nor lawful permanent residents. Rep. Brian Babin (R-TX) filed a parallel bill going further, attempting to redefine who is "subject to the jurisdiction" of the United States in statute. Speaker Mike Johnson (R-LA) has already said: "If there's some legislative fix, we'll advance that immediately."
Trump is pursuing a second front simultaneously. He announced he'll seek a Supreme Court rehearing, pointing to Texas hospital billboards in Mexico advertising "Birth Packages in South Texas" — natural births starting at $3,950. Gov. Greg Abbott ordered the Texas HHS Commission to investigate Mission Regional Medical Center, which ran the ads. The hospital pulled the billboards after press scrutiny. Getting rehearing is a long shot — the Court last granted one in 1965.
But Five Justices Already Closed That Door
The Kavanaugh workaround runs into a problem. The Nationality Act of 1940 uses the identical language as the 14th Amendment's Citizenship Clause. All parties in the litigation — including the Trump Justice Department — stipulated there was "no daylight" between the two texts. Critics say Kavanaugh can't draw a line between statutory and constitutional meaning when both texts say the same thing and both sides agreed they are identical.
Garrett Epps, a constitutional law professor at the University of Oregon, puts it plainly: "There is no language in the majority opinion in Barbara that suggests Congress could change the birthright citizenship rule." Muzaffar Chishti at the Migration Policy Institute says "only a constitutional amendment can reinterpret the current understanding of the 14th Amendment." Jorge Loweree of the American Immigration Council is equally direct: "Congress cannot override the Constitution by statute." Cecillia Wang, the ACLU's national legal director who argued the case, said the ruling "reaffirms a fundamental American promise — if you are born here, you are a citizen."
Even Some Republicans Think It's the Wrong Fight
Not every conservative buys the legislative route. Gov. Ron DeSantis (R-FL) says the ruling "will need either a constitutional amendment or a future court to overrule this." Sen. Mike Lee (R-UT), a constitutional originalist, is pushing for "the long fight" — a constitutional amendment — rather than a statute that he believes will be struck down immediately. Evelyn Cruz, a law professor at Arizona State University, says any legislative narrowing "stands on thin ice" legally. And even if the House passes it, the Senate math doesn't work: several Republican senators have already said they won't vote for it.
Where This Lands
McGuire's bill is a bet on one justice's reasoning against the explicit constitutional holding of five. If it passes and gets signed, the plaintiffs who won at the Supreme Court will challenge it in federal court immediately, and the five-justice majority's ruling is the controlling law. The actual path to ending birthright citizenship runs through a constitutional amendment — two-thirds of both chambers, three-quarters of states. No one in Congress has started that process.