When I joined Todd Piro and Carley Shimkus on Fox & Friends First this week, the question on the table was not what the Supreme Court decided on June 30 — it was what happens now. In Trump v. Barbara, No. 25-365, the Court struck down President Trump’s executive order ending birthright citizenship, holding that children born on American soil to parents unlawfully or only temporarily present are citizens at birth under the Fourteenth Amendment. The same morning, in West Virginia v. B.P.J., No. 24-43, decided together with Little v. Hecox, the Court held that states may reserve girls’ and women’s sports for biological females. Each ruling closes a legal question. Each opens a political one.
Five Votes for the Constitution, Six for the Judgment
The point I pressed on air is the one most coverage has missed: the Court has five justices — not six — saying there is a constitutional right under the Fourteenth Amendment to citizenship by birth on American soil, even for children of illegal aliens or of parents here a few days on a tourist visa. Chief Justice Roberts wrote the majority, joined by Justices Barrett, Sotomayor, Kagan, and Jackson. Justice Kavanaugh concurred in the judgment on statutory grounds only, concluding the executive order violated 8 U.S.C. § 1401(a) — and writing that Congress could, consistent with the Fourteenth Amendment, amend that statute to create exceptions for children of foreign citizens unlawfully or temporarily present.
That distinction matters, because the President is already looking past the courthouse. As Carley Shimkus read on air, President Trump posted on Truth Social that “we can easily make it up in Congress through Legislation,” urging Congress to “start TODAY.” Whether Congress can deliver is another matter. But the constitutional headcount tells you why the White House thinks the door is ajar rather than bolted.
The Fight Moves to the Border — and the Ballot Box
My answer to Todd Piro’s “what happens now” question is that birthright citizenship is now, above all, a political issue — and the operative lever is enforcement. A child can only become an American citizen by birth here if the parents actually get here. Stop them at the border, deny the visa, and the question never arises. That is why border czar Tom Homan announced that the administration will “triple, quadruple down” on investigations into birth tourism.
The corollary cuts the other way. If a Democrat with an open-border policy in the mold of Joe Biden retakes the White House, the Barbara ruling becomes a force multiplier: the migrants come, and their American-citizen children come with them, by operation of the Fourteenth Amendment. Whoever controls the White House controls the aggressiveness of border enforcement, which is why this issue will loom over the midterms and loom larger still in 2028.
Women’s Sports Return to the States
The women’s-sports rulings are permissive, not mandatory — and that is the part the headlines flatten. There is no federal statute, and no constitutional command, requiring states to let transgender males compete against females. All nine justices agreed the state laws do not violate Title IX; the Equal Protection Clause holding came 6–3. Justice Kavanaugh, writing for the majority, put it directly:
“Consistent with Title IX and the Equal Protection Clause, we hold that the States may maintain women’s and girls’ sports for biological females. They may determine eligibility for women’s and girls’ sports based on biological sex.”
A state that wants to permit males to compete in female sports remains free to do so. A state that wants eligibility to turn on biological sex rather than gender identity is now free to do that too. It is a state-by-state question — as Todd Piro observed with some resignation about his home state of Connecticut, where nothing is likely to change.
Justice Thomas Said It Plainly
Piro closed our segment by quoting what he called the line of the year, from Justice Thomas’s concurrence:
“Men and boys with gender dysphoria are not women or girls, even if they believe that they are.”
That sentence encapsulates the ruling’s logic. The Court did not settle America’s disputes over citizenship or sports; it identified who gets to settle them. On both questions, the answer is the same — the people, through Congress, the states, and the ballot box. That is where these fights now belong, and where they will be won or lost.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.