The Supreme Courts recent ruling on birthright citizenship may have stalled Donald Trumps executive order, but it has also opened a new front in the legal and legislative battle over who qualifies as an American citizen at birth.
At the end of June, the Court held that so-called birthright citizenship is embedded in the 14th Amendment and that children born in the United States to parents who are unlawfully or temporarily present are citizens at birth under that provision. According to RedState, the justices rejected Trumps executive order attempting to end the practice by a 6-3 vote, though only five justices concluded that the order violated the Constitution, with Justice Brett Kavanaugh providing the sixth vote on narrower statutory grounds.
The ruling was a clear setback for Trumps effort to rein in one of the Lefts most powerful tools for reshaping the electorate through lax immigration enforcement and expansive interpretations of citizenship. Yet even as the Court struck down the order, Kavanaughs separate opinion signaled that Congress, not the executive branch, may still have room to act.
The Department of Justice had already begun cracking down on birth tourism, in which foreign nationals sneak into the country or overstay visas to ensure their children are born on U.S. soil and thereby receive automatic citizenship. That enforcement push underscored a longstanding conservative concern: that Americas generosity is being gamed by those who treat citizenship as a prize to be claimed rather than a responsibility to be earned.
Now Sen. Jim Banks (R-IN) is moving to test the limits of congressional authority in this area, explicitly drawing on Kavanaughs reasoning. Banks is introducing legislation that seeks to capitalize on the justices separate and noncontrolling view that Congress may create additional exceptions to birthright citizenship by statute.
Sen. Jim Banks will introduce legislation Monday aimed at ending birthright citizenship for children of illegal immigrants and birth tourists by defining them as children of invaders under federal law after a Supreme Court ruling last month dealt a setback to President Donald Trumps executive order on the issue. Trump, never shy about pressing his party to act, recently urged Senate Republicans to accelerate his legislative priorities, including ending birthright citizenship, telling them they were not fighting hard enough, Banks, R-Ind., recalled in a June 30 interview with Human Events.
Banks told Fox News Digital he intends to introduce the Citizenship Act as soon as the Senate opens for business Monday afternoon, crafting it with a deliberate nod to Trump-appointed Justice Brett Kavanaughs concurrence in last months Trump v. Barbara case. That concurrence, while not adopted by the majority, offered a roadmap for lawmakers who believe the Constitution does not require the United States to reward illegal entry with automatic citizenship for the next generation.
Commentators on the right quickly noticed how swiftly Banks moved to translate Kavanaughs theory into legislative text. That was fast. @SenatorBanks read Justice Kavanaugh's concurrence in the Birthright Citizenship case closely. The Supreme Court's Wong Kim Ark said 3 categories of people don't get citizenship. One is children of invaders. So he's introducing a law labeling illegals invaders, one post observed, highlighting the senators strategy.
Banks had already previewed his intentions in a social media post outlining his priorities, which include tightening election integrity and restoring meaningful immigration enforcement. Last week's Supreme Court decision on birthright citizenship highlights the need for 4 important next steps: 1 Deport every illegal alien out of America 2 Maintain the Supreme Court majority 3 Pass the SAVE America Act 4 Pass a bill to ban birthright citizenship he wrote, tying the citizenship debate directly to border security and the rule of law.
Kavanaugh, who joined the majority in striking down Trumps executive order but dissented on the constitutional question, effectively handed Congress a potential tool. While he agreed that the order conflicted with existing federal birthright citizenship law, he suggested that Congress could amend that statute to create new exceptions, even as the five-justice majority insisted that the 14th Amendment itself guarantees citizenship to children born here to parents who are unlawfully or temporarily present.
Banks bill, therefore, does not attempt to finesse the Courts ruling so much as to provoke a new constitutional confrontation over the meaning of subject to the jurisdiction in the 14th Amendment. In its summary, the legislation declares any person who enters the United States without authorization or for the purpose of engaging in birth tourism is considered an invader... and amends the Immigration and Nationality Act to exclude children of such invaders.
The senators key use of the term invaders is not accidental; it directly invokes Trumps earlier executive order declaring illegal immigration across the southern border an invasion. The bill notes that the Barbara decision leaves that avenue open for Congress, suggesting that if lawmakers formally recognize mass unlawful entry as an invasion, they may lawfully deny automatic citizenship to the children of those who participate in it.
If enacted, the law would codify Trumps declaration of invasion and could prevent birthright citizenship from being automatically conferred on the children of illegal immigrants and birth tourists. That prospect alarms progressives who have long relied on expansive birthright citizenship to blunt the political consequences of open-border policies, but it energizes conservatives who see the current system as an incentive for lawbreaking and a distortion of the original constitutional design.
The Supreme Courts decision was undeniably a blow to Trumps immediate agenda, yet it did not close the door on reform. Thanks to Kavanaughs concurrence and Banks willingness to test it, a potential solution to what many on the Right view as one of the Lefts most cynical manipulations of immigration law may be emerging, though whether this legislation becomes a durable fix or simply the next case on the Courts docket will depend on both Congresss resolve and the judiciarys willingness to revisit the scope of the 14th Amendment.
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