Brett Kavanaugh

Supreme Court Justice Brett Kavanaugh joined the majority in determining that President Donald Trump’s Executive Order 14160, which determined that the U.S. should be like most other nations on earth and not grant citizenship to the newborns of illegal aliens, could not take effect.

But in his concurrence he also outlined a roadmap for the president’s agenda to move forward, through Congress.

Kavanaugh, in his concurrence, said the case should have been resolved under federal law, not the Constitution.

And he diagrammed a possible legislative path for that to happen.

A report at Fox News explains 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.

But that was after the Supreme Court’s landmark 1898 decision in United States v. Wong Kim Ark, which said most people born in the United States are U.S. citizens automatically, and Kavanaugh said lawmakers effectively incorporated the court’s interpretation into federal statute.

That means Congress can rewrite the law to limit birthright citizenship for the newborns of illegal aliens and others.

Of course, getting a change through Congress where Democrats, even though in the minority now, are dedicated to opening America’s borders and inviting in aliens, legal and illegal, would be a chore.

Kavanaugh said, “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.”

His assessment was that large-scale illegal immigration – turned literally into a national agenda under Joe Biden – along with modern travel, have worked to create issues Congress following the Civil War never considered.

“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,” the report said.

“Those two categories of foreign citizens—namely, those unlawfully or temporarily in the country—are relevantly similar to the four categories of persons recognized as exceptions in Wong Kim Ark,” he confirmed.

House Speaker Mike Johnson, R-La., already has suggested a constitutional amendment may be necessary and that agenda already is being pursued.

Sen. Rand Paul, R-Ky., already has proposed that very amendment. And Sen. Mike Lee, R-Utah, said that fight already has begun.

Trump’s opinion was that Congress can make the necessary changes.

“Congress should start TODAY to work on ending expensive and unfair to our Country, Birthright Citizenship. They will have my Complete and Total Support!” he said.

For the interim, the Department of Justice already has begun a crackdown on birth tourism by targeting those operations that may involve visa fraud and more. Social media is demanding Immigration and Customs Enforcement focus on pregnant illegal aliens and deport them promptly.

Legal experts note that it’s not unlikely that the Supreme Court will be back on the issue again.

The majority, in this week’s ruling, did not agree that pursue statutory changes would work, but the change of a single justice over the next year or two could result in a different outcome.

Bob Unruh

Bob Unruh joined WND in 2006 after nearly three decades with the Associated Press, as well as several Upper Midwest newspapers, where he covered everything from legislative battles and sports to tornadoes and homicidal survivalists. He is currently a news editor for the WND News Center, and also a photographer whose scenic work has been used commercially. Read more of Bob Unruh's articles here.