GOP Uses Kavanaugh's Own Playbook To Take Another Swing At Birthright Citizenship

Last month, the Supreme Court struck down Trump's executive order attempting to end birthright citizenship. Justice Kavanaugh joined that majority in striking down the order, but he also filed a separate partial dissent, and his reasoning did Republicans a favor.

Chief Justice John Roberts wrote for the majority in Trump v. Barbara, a 5-4 decision joined by Justices Kagan, Sotomayor, Barrett, and Jackson, and leaned on the 1898 case U.S. v. Wong Kim Ark to hold that the 14th Amendment guarantees citizenship to "all children born in the United States and subject to its power."

Kavanaugh concluded Trump's order conflicted with an existing federal statute, not the Constitution or the 14th Amendment specifically. His complaint was narrower. Trump's order collided with a law Congress passed in the spirit of an amendment conservatives say was written mainly to secure citizenship for freed slaves and their children. Kavanaugh's fix was simple. Congress could rewrite the statute.

The Court today holds that the Order violates the Fourteenth Amendment to the Constitution. I respectfully disagree with the Court's constitutional holding. In my view, the Executive Order does not violate the Fourteenth Amendment. But the Order does contravene a federal statute, 8 U. S. C. §1401(a). 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. But Congress has not yet done so.

Now the GOP is seeking to end birthright citizenship for illegal immigrants via the roadmap that Kavanaugh laid out. Sen. Jim Banks (R-Ind.) filed legislation on Monday called the Citizenship Act. It would strip automatic citizenship from children born in the United States to illegal immigrants and birth tourists by classifying their parents as "invaders" under federal statute, a designation drawn from the 2025 executive order President Trump signed declaring the crisis at the southern border an invasion.

Its text states that "any person who enters the United States without authorization or for the purpose of engaging in birth tourism is considered an invader," and it strips their children of automatic citizenship on that basis.

The bill leaves the Constitution untouched. The bill also finds cover from a source Republicans rarely quote approvingly. In the 2025 case U.S. v. CASA, Justice Sonia Sotomayor, an Obama appointee, confirmed in a separate opinion that "children born of alien enemies in hostile occupation" fall outside birthright citizenship. She stopped short of calling illegal immigrants invaders. Banks' bill closes that gap for her.

Beyond the Wong Kim Ark language, the bill rests on Article IV's requirement that the federal government "protect each state against invasion," and Congress' Article I power to "establish a uniform rule of naturalization," a direct challenge to blue-state officials who have floated their own citizenship rules.

The bill's supporting material goes further than the usual border-security framing. It notes that some Mexican nationals view northward migration as a means of reclaiming territory lost in the military conflicts of the 1840s, as formalized in the 1848 Treaty of Guadalupe Hidalgo, the agreement that made Texas and the surrounding Southwest part of the United States. It also cites Chinese birth tourism operations encouraged by the Chinese Communist Party as evidence that birthright citizenship has become a vector for foreign influence rather than a settled matter of domestic law.

"The Supreme Court's birthright citizenship decision was an unprecedented assault on American sovereignty, and we must do whatever it takes to save our country," Banks told Fox News Digital. He added, "I'm leading the Citizenship Act to reverse the effects of this consequential ruling and ensure the millions of illegal aliens that invaded our country can't continue to exploit our immigration system."

The Citizenship Act faces a much steeper climb than Kavanaugh's opinion ever cleared. Any immigration bill needs 60 votes to break a filibuster, and Democrats have shown zero appetite for handing Trump a win on birthright citizenship after fighting his executive order all the way to the Supreme Court. Kavanaugh may have offered a roadmap, but the Senate remains a problem.