The Supreme Court ruled against Trump’s birthright citizenship executive order last month. It was a setback. It was not a surrender. And Senator Jim Banks just proved it.
Banks introduced the Citizenship Act Monday — legislation that would define illegal aliens and birth tourists as “invaders” under federal law, stripping their American-born children of automatic citizenship. The legal hook he’s using is elegant and comes straight from the pen of Justice Brett Kavanaugh himself.
Here’s how it works. When the Court ruled 6-3 in Trump v. Barbara that birthright citizenship is protected by the 14th Amendment, five justices held that the Amendment itself guarantees citizenship to children born here to parents who are unlawfully present. Kavanaugh supplied the sixth vote — but on narrower statutory grounds. Crucially, Kavanaugh’s concurrence explicitly suggested that Congress could amend federal law to create additional exceptions to birthright citizenship beyond those currently recognized. He didn’t close the door. He left it open, described its dimensions, and essentially drew a map to it.
Banks read that concurrence carefully. The result is legislation that would codify Trump’s invasion declaration into statute and amend the Immigration and Nationality Act to exclude children of “invaders” from automatic citizenship — drawing directly on the historical exception that even the Court’s majority acknowledged existed for children of enemy combatants and hostile forces. Wong Kim Ark, the foundational 1898 case establishing birthright citizenship, carved out exactly this exception. Congress never needed to invoke it before. Banks is invoking it now.
Let’s be direct about what this bill actually does and doesn’t do. It is not a clean end-run around the Court’s ruling. The five-justice majority held that the 14th Amendment itself — not just federal statute — protects birthright citizenship for children born here to illegal aliens. Banks’ bill would therefore set up a direct constitutional confrontation rather than neatly sidestep what the Court decided. If it passes and is challenged, the question of whether Congress can define illegal entry as “invasion” sufficient to trigger the carve-out goes right back to the Supreme Court.
That fight is worth having. The alternative — accepting that the 14th Amendment permanently and irrevocably grants automatic citizenship to every child born on American soil regardless of their parents’ legal status or national allegiance — is a reading of the Constitution that the Founders could not possibly have intended and that no other serious democracy on earth has adopted.
While the legislative battle plays out, the DOJ’s crackdown on birth tourism operations is already underway. Billboards advertising American citizenship for $4,000 are coming down. Criminal enterprises profiting from the scheme are being prosecuted. The Court ruling was a setback on one front. The war has multiple fronts.
Banks just opened another one. It’s the right move — legally serious, constitutionally grounded, and directly responsive to what the Court actually said.
The door Kavanaugh left open is worth walking through.
