On June 30, the Supreme Court decided Trump v. Barbara and struck down Executive Order 14160. The vote was 6–3. Chief Justice Roberts wrote for the Court, joined by Justices Sotomayor, Kagan, Barrett and Jackson. The holding: children born in the United States to parents unlawfully or temporarily present are citizens at birth under the Citizenship Clause of the Fourteenth Amendment.
Missouri Senator Eric Schmitt calls that a ridiculous interpretation. Two weeks later he introduced the American Citizenship Act. He points to Justice Kavanaugh, who he says laid out a statutory fix — clarify that the Fourteenth Amendment’s language means not subject to a foreign power. Schmitt calls it a technical issue.
It is not a technical issue. It is the whole case, and it lost.
Why the fix cannot work
Kavanaugh concurred in the judgment and dissented in part. He agreed the order was unlawful. His route there was statutory rather than constitutional, and that route commanded no majority.
The distinction is not lawyerly hairsplitting. It decides whether Congress can do anything at all. If the executive order failed only because it conflicted with the Immigration and Nationality Act, then Congress can amend the statute and the problem dissolves. That is the world Schmitt is legislating for. Six justices said we do not live in it. They held that the Citizenship Clause itself guarantees the citizenship, which means the statute is not the floor — the Constitution is, and no bill reaches below it.
Congress can pass the American Citizenship Act. A court will strike it down by citing a decision that is barely a month old.
The strongest case for Schmitt
Three justices dissented. Thomas, Alito and Gorsuch think the original meaning supports the order. That is not a fringe reading — a third of the Court holds it, and Schmitt is entitled to think they are right and the majority is wrong.
Legislating toward a position the Court has rejected is also legitimate. It is how Congress signals, builds a record, and eventually forces a revisit or an amendment. The Fourteenth Amendment exists because someone did exactly that.
My objection is not that he lost and should be quiet. It is the word technical. Calling this a drafting cleanup tells voters that a constitutional holding can be reversed by ordinary legislation, and they will believe it, and when the bill dies in court they will conclude the courts are rigged rather than that they were told something untrue.
What honest would sound like
The Court ruled against us on constitutional grounds. We think it is wrong. Reversing it requires a constitutional amendment, which requires two-thirds of both chambers and thirty-eight states, and here is why it is worth attempting anyway.
That is a harder speech. It is also true, and it does not set up the people who trust him for a disappointment he can already see coming.
Add your perspective
Left: this is not a good-faith legal disagreement but an attempt to relitigate settled citizenship through procedural theater, and the human cost falls on children. Right: the Court has reversed itself before, three justices already agree, and building a legislative record is how a bad precedent eventually falls. Center if the substance is arguable but the framing is not, and Schmitt owes his voters the word amendment instead of the word technical.
