Federalist Society: Congress Can End Birthright Citizenship

The Federalist Society’s recent webinar made one thing plain: the fight over birthright citizenship didn’t end with the Supreme Court’s decision in Trump v. Barbara. Legal heavyweights told a live audience that Congress still has tools to push back, and they named the likely routes. That matters because if lawmakers don’t act, the status quo that rewards “birth tourism” will keep rolling along — much to the frustration of millions of Americans who want clear, sensible rules about who becomes a citizen at birth.

Federalist Society panel: Congress has the power to respond

On the webinar, Gene P. Hamilton blasted the Court’s ruling as “outcome‑oriented,” saying it ignored the original meaning of the Fourteenth Amendment. U.S. Court of Appeals Judge Steven J. Menashi disagreed with some of Hamilton’s history lessons but agreed on the practical point: Congress can pass laws to limit or clarify who gets automatic citizenship. That’s the news here — top conservative lawyers and jurists openly urging Congress to use its power to force the issue back into the courts or change the law outright.

Kavanaugh’s concurrence and the legislative pathway

Justice Brett Kavanaugh’s separate opinion in Trump v. Barbara is the roadmap they cited. Kavanaugh said Congress could amend the federal statute that recognizes birthright citizenship — 8 U.S.C. §1401(a) — without running afoul of the Court’s constitutional holding. Lawmakers already have a clear vehicle: bills like the Birthright Citizenship Act (H.R. 569) would rewrite the statute to exclude certain classes of noncitizen parents. That means the debate can move from constitutional hair-splitting into plain, messy politics — where it belongs.

White House actions and the inevitable legal clash

The White House didn’t wait. The President issued executive actions in August aimed at curbing “birth tourism” and carving out categories the administration says shouldn’t produce automatic citizenship. Predictably, those orders are being challenged in court. Panelists at the Federalist Society were frank: any serious change — whether legislative or executive — will trigger lawsuits and eventually bring the issue back before the Supreme Court. That’s not a bug; it’s the plan. Use the law to create a case, then let the courts sort it out.

Why Congress should stop watching and start legislating

Here’s the blunt takeaway: if you’re tired of the legal limbo and the policy games, you should want Congress to act. The Supreme Court’s majority stuck with a territorial reading of the Fourteenth Amendment. Kavanaugh and others handed lawmakers a statutory fix they can pursue. Republicans who campaigned on border control and rule of law should move H.R. 569 or a similar bill to the floor, hold hearings, and force a clear choice. If the Court won’t deliver the result conservatives want, then Congress must do its job — even if that means sparking another courtroom showdown. After all, democracy was designed to have several checks, not just one nine-person panel deciding everything.

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