I respectfully disagree! The majority did much more than that and, IMHO, you are grasping at straws.
Right back at ya! Quoting General Cornwallis at Yorktown, "You dream sir! You dream!"
From the majority opinion:
The fact that Kavanaugh dissented from their reasoning in getting there is of zero consequence IMO. @Luis Gonzalez
You better read the opinions.
Much of the commentary surrounding Justice Kavanaugh’s concurrence misses what he actually wrote.
Kavanaugh did not disagree with the result in Trump v. Barbara. He agreed the President lacked authority to alter birthright citizenship by executive order. On that point, he agreed the executive action failed.
His concurrence was about something entirely different.
He focused on who possesses constitutional authority to raise the question.
The majority addressed the Fourteenth Amendment directly. Kavanaugh approached the issue institutionally. His opinion distinguishes executive action from congressional legislation.
The sentence that has received surprisingly little attention is this:
“Congress could, consistent with the Fourteenth Amendment, amend §1401(a) or otherwise enact new legislation establishing exceptions to birthright citizenship…”Notice what he did not say.
He did not say Congress would prevail.
He did not say such legislation would survive judicial review.
He did not say the Fourteenth Amendment can be ignored.
He simply identified Congress as the constitutionally proper branch to present that question to the judiciary.
That distinction matters because it is how constitutional law has developed throughout our history.
Take the First Amendment.
It guarantees freedom of speech, yet no serious lawyer believes every form of speech is absolutely protected. Libel, slander, fraud, perjury, true threats, and incitement may all carry legal consequences under constitutional standards developed by the courts.
Does that mean the First Amendment has been repealed?
Of course not.
It means constitutional rights have boundaries that are defined through legislation and judicial review.
Congress enacts laws.
The courts determine whether those laws remain within constitutional limits.
Kavanaugh’s concurrence reflects that same institutional process.
The question is not whether Congress may violate the Fourteenth Amendment. It cannot.
The question is whether Congress has constitutional authority to legislate in this area and present a constitutional issue the Supreme Court has not yet addressed in the context of an Act of Congress.
That is a very different proposition.
Interestingly, even organizations that oppose restricting birthright citizenship acknowledge this procedural point. The Brennan Center describes Kavanaugh’s concurrence as providing a “road map” for Congress, although it argues such legislation would ultimately fail. The American Immigration Council likewise characterizes his opinion as an invitation for Congress to legislate, while contending any resulting statute would be unconstitutional. The National Constitution Center similarly notes that Kavanaugh separated the question of executive authority from the question of congressional authority.
In other words, even many of Kavanaugh’s critics recognize what he was doing procedurally.
They simply disagree with where they believe that path would ultimately lead.
That is why so much of the media coverage has been incomplete. The headlines focused on the outcome of the case. Kavanaugh’s concurrence focused on the constitutional process.
He did not announce the answer.
He identified the institution authorized to ask the question.
Whether Congress would succeed remains for another day, another statute, and ultimately another decision by the Supreme Court.
