President Donald Trump lost his Supreme Court bid to restrict birthright citizenship through executive order, but one of his own appointees may have handed Republicans a blueprint for pursuing much of the same goal through Congress.

Voting with the 6-3 majority, Justice Brett Kavanaugh agreed that Executive Order 14160, which restricts automatic citizenship to people born to U.S. citizens or permanent residents, couldn’t take effect. But in a concurring opinion, he also pointed to a different path forward. Kavanaugh argued the court should have resolved the case under federal law rather than the Constitution, laying out a potential legislative path for Congress to pursue changes to birthright citizenship.

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.

Because Congress adopted that language after the Supreme Court’s landmark 1898 decision in United States v. Wong Kim Ark, which established that most people born in the United States automatically become U.S. citizens, Kavanaugh said lawmakers effectively incorporated the court’s interpretation into federal statute.

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Kavanaugh said Trump couldn’t use an executive order to change a law Congress had already passed, but instead suggested Congress could rewrite the law to limit birthright citizenship for children born to parents who are in the country illegally or temporarily.

«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,» he wrote.

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Demonstrators rally in front of the Supreme Court in Washington, D.C., on April 1, 2026. (Mandel Ngan/AFP via Getty Images)

Kavanaugh argued that large-scale illegal immigration and modern international travel have created circumstances the Reconstruction Congress never envisioned. 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.

«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,» Kavanaugh wrote.

While the majority rejected Kavanaugh’s constitutional reasoning, Republicans quickly seized on the idea that any future effort to limit birthright citizenship would have to come through Congress rather than the White House.

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Hours after the Supreme Court’s ruling came out, House Speaker Mike Johnson, R-La., said birthright citizenship has «been abused» and suggested that Congress will have to amend the Constitution.

«It’s one of those things that was intended to serve a noble and important purpose and has been thwarted and overused and abused,» Johnson told reporters. «I’m sure that the conclusion from this decision is you have to amend the Constitution to fix that.»

Sen. Rand Paul, R-Ky., renewed his push for a constitutional amendment to end birthright citizenship, arguing that legislation alone would not be enough.

Demonstrators rally in support of birthright citizenship outside the Supreme Court in Washington, D.C., on April 1, 2026. (Mandel Ngan/Getty Images)

«I introduced a constitutional amendment months ago, actually, to fix birthright citizenship,» Paul wrote on X. «After the Supreme Court decision, that amendment matters more than ever. I’m asking my colleagues to take it seriously and help me get this passed.»

Sen. Mike Lee, R-Utah, echoed Paul’s calls to pass a constitutional amendment.

«The long fight for a constitutional amendment begins now,» Lee wrote on X. «We must explicitly exclude foreign nationals who break our laws, violate our borders, or exploit loopholes to make their families American.»

Trump argued that Congress could change birthright citizenship through legislation instead of a constitutional amendment.

«No long and unwieldy Constitutional Amendment is necessary!» Trump wrote on Truth Social. «Congress should start TODAY to work on ending expensive and unfair to our Country, Birthright Citizenship. They will have my Complete and Total Support!»

Several Republicans quickly pointed to existing legislation, including Sen. Tom Cotton’s, R-Ark., Constitutional Citizenship Clarification Act, as well as proposals from Sens. John Cornyn, R-Texas, and Rick Scott, R-Fla., aimed at cracking down on birth tourism.

Meanwhile, the Justice Department indicated it would shift tactics, announcing a crackdown on birth tourism by targeting alleged visa fraud and related criminal conduct rather than attempting to enforce Executive Order 14160.

But, Kavanaugh’s roadmap is far from a guarantee. On the constitutional question, a 5-4 majority concluded that the citizenship clause itself protects birthright citizenship, meaning any congressional effort to restrict it through ordinary legislation would likely face immediate constitutional challenges.

«Justice Thomas says in the final paragraph of his dissent that he’s not confident that the decision is going to stand the test of time, so it could well be that the court would revisit it if Congress were to take the steps that Justice Kavanaugh describes,» Notre Dame Law School professor Haley Proctor told Fox News Digital. «This is an important decision. I don’t think the court’s going to revisit it lightly, and the only sure way to get a new answer here would be to amend the Constitution.»

Kavanaugh offered a similar roadmap in a recent Trump case over tariffs. In that case, the Supreme Court ruled that a federal emergency law known as IEEPA did not give Trump the authority to impose sweeping tariffs. But Kavanaugh argued the administration had simply relied on the wrong legal authority instead of rejecting the policy outright.

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«The Court today concludes that the President checked the wrong statutory box by relying on IEEPA rather than another statute to impose these tariffs,» Kavanaugh wrote.

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Instead, Kavanaugh said Trump could rely on several existing trade laws to impose many of the same tariffs, though those laws would require additional legal steps.

Trump later called Kavanaugh his «new hero» in a Truth Social post praising the justice’s dissent in the February tariff decision.

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FIRST ON FOX: Records obtained by a conservative legal group show Fairfax County, Virginia, declined to transfer 615 illegal immigrants to ICE over the past 16 months, while turning over just 11.

Fairfax County, whose board includes one Republican supervisor for what is the most populous jurisdiction in the Old Dominion, formally designated itself a sanctuary jurisdiction in 2021 after passing the Public Trust and Confidentiality Policy or «Trust Policy.»

America First Legal filed a Freedom of Information Act request with the county seeking records from the office of Fairfax County Sheriff Stacey Ann Kincaid, who testified at a contentious House hearing earlier this spring on Fairfax’s reluctance to cooperate with federal law enforcement.

The data, obtained directly from a Fairfax County Sheriff’s Office document, showed that for the entirety of 2025, Kincaid’s office refused to transfer 448 illegal immigrants to the Department of Homeland Security for processing and instead only turned over a total of nine to ICE. During the first four months of 2026, Fairfax declined to transfer another 167 illegal immigrants, while turning over only two.

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Since then, county policy has barred law enforcement from honoring ICE civil detainers or otherwise assisting with federal immigration enforcement.

America First Legal (AFL), which first obtained the data, placed much of the blame on Fairfax County Commonwealth’s Attorney Stephen Descano, who sat beside Kincaid at the recent hearing and faced sharp questioning from Republicans over his prosecutorial discretion in cases involving illegal immigrants arrested in the county.

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AFL said in a statement obtained by Fox News Digital that Fairfax’s overall framework encourages recidivism by illegal immigrant offenders and has directly led to several gruesome cases, including the murder of Fredericksburg, Virginia, woman Stephanie Minter, whose alleged killer is an illegal immigrant from West Africa with a lengthy criminal record in Fairfax County.

AFL noted that Descano is under investigation by the Justice Department’s Civil Rights Division over claims U.S. citizens are effectively discriminated against because of the prosecutor’s stated preferential policies, which appeared on his campaign pages and elsewhere and were highlighted by Subcommittee Chairman Tom McClintock, R-Calif., and others during the hearing.

The group pointed to fatal stabbings; the alleged assault of a woman on the Washington & Old Dominion Trail, a popular rail trail spanning from Washington, D.C., to Purcellville that has long been considered safe; and other crimes allegedly committed by illegal immigrants who, it said, received light sentences or had charges dropped.

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Descano has long defended his prosecutorial discretion as evidence-based and handled on a case-by-case basis.

A Descano spokesperson told Fox News Digital in a statement Thursday that the DOJ’s probe is politically motivated and has «distort[ed] the office’s policy.» The spokesperson also said the notice appeared to arrive intentionally just before Descano testified before McClintock.

«Our office’s policies are fair, legal and reflect the values of Fairfax County, and we will not be distracted from our mission of keeping this community safe and holding individuals accountable when they commit crimes,» the spokesperson said.

Fox News Digital also reached out to Kincaid’s office for comment.

Fairfax County Commonwealth’s Attorney Steve Descano, left, and Fairfax County Sheriff Stacey Ann Kincaid, right, testify before Congress. (Tom Williams/Getty Images)

AFL counsel Will Scolinos rejected the county’s defense, telling Fox News Digital that tragic cases such as Minter’s murder are the product of the Trust Policy and the shielding of «hundreds of illegal aliens … from federal law enforcement.»

«This deliberate obstruction by county officials protects illegal alien lawbreakers and endangers every family in Northern Virginia,» Scolinos said. «For too many families, it is already too late. But to protect other Virginians from future crimes at the hands of illegal aliens with prior arrests, Fairfax County must reverse this reckless, anti-American governance immediately.»

In the most recent month recorded, April 2026, 32 illegal immigrants were listed as being in the sheriff’s office’s custody, with none released to ICE. All 32 were subject to an «informed detainer,» and three were listed as convicted.

AFL also noted that Santa Clara County, California — home to the San Francisco 49ers’ new stadium — informed the group that it received 529 ICE detainer requests in 2025 and honored none.

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«If each detainer represents a unique illegal alien, an average of 1.34 arrested illegal aliens were released into Santa Clara every day,» AFL said in April.

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The numbers reflect a pattern that is expected to continue drawing scrutiny from the Trump administration and groups such as AFL, which has also sought data from sanctuary jurisdictions nationwide.

Fox News Digital reached out to DHS for comment.