I read it @Luis Gonzalez and fail to understand how you, or Justice Kavanaugh, can believe that there is any legislative path short of another amendment to the constitution that would correct what the majority has held in this case i.e. that the constitution itself (14th amendment) confers citizenship on anyone who happens to be born on U. S. soil regardless of circumstance.
I sincerely want to be wrong but my brain says no.
The article I posted here yesterday is a very good primer on the subject.
Your reading is actually closer to Chief Justice Roberts’ majority opinion than mine. The majority’s position is that the Fourteenth Amendment itself resolves the question and that the Citizenship Clause protects children born here regardless of their parents’ immigration status. Under that interpretation, Congress would face a very steep constitutional barrier short of amendment.
Where I differ is in how I read Justice Kavanaugh’s concurrence. I do not understand him to be saying Congress can simply ignore the Fourteenth Amendment or overrule the Court. His argument is narrower.
The majority held that the President could not create a new exception by executive order because Congress has already enacted 8 U.S.C. §1401(a), which codifies citizenship at birth. That was the legal basis for rejecting the executive action.
Kavanaugh’s separate point was that the constitutional question and the statutory question are not necessarily identical. He specifically wrote that “Congress could, consistent with the Fourteenth Amendment, amend §1401(a) or otherwise enact new legislation establishing exceptions to birthright citizenship.”
That does not mean Congress would automatically prevail in a future case. The Court could reject such legislation. It means the next case would present a different constitutional question.
This case asked whether the President could alter citizenship law through executive action. A future case would ask whether Congress has authority to revise the statutory framework it created.
The majority criticized Kavanaugh’s reasoning, but it did not expressly hold that Congress lacks any legislative authority in this area. That distinction is why I believe the debate moves from the executive branch to Congress.
The amendment question may ultimately become part of the argument. But Kavanaugh’s opinion suggests the Court has not yet declared that an amendment is the only possible path.
That unresolved question is the opening I believe the opinion left behind.
