(Rep. Nancy Mace) – There has been a lot of information and misinformation going around about the Supreme Court’s ruling on birthright citizenship in Trump v. Barbara. Here are the facts.
The majority (Justices Roberts, Sotomayor, Kagan, Barrett, and Jackson), in an outrageous ruling, ruled the 14th Amendment guarantees citizenship to essentially everyone (with narrow historical exceptions) born on American soil.
Under the majority opinion of the Supreme Court, only a constitutional amendment or a subsequent ruling by the Court overruling this opinion could end birthright citizenship for the children of illegal aliens or foreigners.
Justice Kavanaugh agreed with the conclusion of upholding birthright citizenship, but on statutory grounds, not constitutional grounds.
It’s important to remember what was being litigated was an Executive Order, not a law, and Justice Kavanaugh viewed them as fundamentally different in this case. He concurred with the result, but dissented in part, outlining if Congress changed the law (8 U.S.C. 1401) to provide the children of illegal aliens are not citizens of the United States by being born on American soil, rather than this being done by Executive Order, he would have upheld restrictions to birthright citizenship for the children of illegal aliens and foreigners.
Justices Thomas, Gorsuch, and Alito wrote a number of dissents using different allegiance and domicile tests, essentially ruling the 14th Amendment does not guarantee birthright citizenship to the children of foreigners.
Under these theories, the Executive Order would have stood and some explicitly wrote Congress could also act on the issue, similar to Justice Kavanaugh.
While the dissents are encouraging, this does not change the fact the current majority upheld birthright citizenship on constitutional grounds.
This means given the current makeup of the Court, a law cannot fix the issue. Only a constitutional amendment or a subsequent court overturning this ruling can fix it.
This is why a month ago we introduced a constitutional amendment to clarify the term “subject to the jurisdiction thereof”, the term used in the 14th Amendment, means only citizens, nationals, and legal permanent residents of the United States. This is the only possible pathway to permanently fix this issue.
In the meantime, Congress can and should strengthen existing immigration law to ensure pregnant women cannot come to the United States to give birth (commonly known as birth tourism) and deport every single illegal alien to ensure they cannot give birth to a child, which the Court has ruled will be a citizen.
The opinions expressed by contributors are their own and do not necessarily represent the views of Nevada News & Views. This article was originally published via X.com on 7/1/2026.
