Birthright citizenship loss still leaves Trump’s immigration agenda largely intact

The Supreme Court’s rejection of President Donald Trump’s executive order ending birthright citizenship has not closed off Republican efforts to restrict it as a concurring opinion and other rulings offer new openings.

Last week, we reported that six justices agreed that Trump’s Jan. 20, 2025, executive order was unlawful. However, Justice Brett Kavanaugh broke from the majority’s constitutional reasoning, arguing that Congress could change the citizenship law instead of amending the Constitution. “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,” Kavanaugh wrote.

Republicans moved quickly to build on that opening. In a Fox News interview Sunday, House Speaker Mike Johnson said birthright tourism has “devalued” citizenship, calling it a national security concern. Meanwhile, Sen. Eric Schmitt (R-Mo.) announced he is pursuing a constitutional amendment, though Trump insisted that Congress does not need one to act.

The birthright citizenship loss came amid a mostly successful run for the administration’s immigration agenda at the high court, including rulings that let officials end Temporary Protected Status (TPS) unilaterally and deport immigrants to third countries with no connection to them. Last September, the court also approved racial profiling, allowing agents to stop people suspected of being undocumented based on race, ethnicity or language.

Still, it’s important to note that even Republican critics of birthright citizenship, including Florida Gov. Ron DeSantis, have conceded that undoing the ruling would require amending the Constitution or a reversal by the Supreme Court itself.

Renewed attention to birth tourism could bring enforcement action against Asian immigrant families without new legislation. Sen. Tim Scott, who announced plans to introduce a bill against the controversial “industry,” said it is used by wealthy foreign nationals including from China to obtain citizenship for newborns. Meanwhile, the Justice Department said it will pursue related visa fraud cases rather than enforce the order.

The stakes extend further. As we previously reported, a Penn State study found that Asian Americans would be hit hardest among racial groups if Trump’s order had taken effect. Stop AAPI Hate also noted that hundreds of thousands of Asian children would have been denied citizenship, voting rights and public benefits by 2050.