Sen. Jim Banks, R-Ind., is introducing legislation aimed at ending birthright citizenship for children born in the U.S. to parents who are in the country illegally or are "birth tourists." The bill, dubbed the Citizenship Act, seeks to define such individuals as "invaders" under federal law, drawing on a concurring opinion from Supreme Court Justice Brett Kavanaugh.
Banks plans to introduce the bill Monday, an effort that follows President Donald Trump's call for Senate Republicans to accelerate their legislative agenda, including measures to end birthright citizenship. Trump reportedly urged Senate Republicans to "fight harder" on such issues.
The Citizenship Act is crafted with Justice Kavanaugh's concurrence in the Trump v. Barbara case in mind. In that ruling, Kavanaugh suggested that while Trump's executive order on birthright citizenship conflicted with existing federal law, Congress could amend the statute to create new exceptions. The Supreme Court ultimately rejected Trump's order.
Banks' bill proposes to amend the Immigration and Nationality Act by declaring that children of statutory "invaders" are not entitled to birthright citizenship. The bill's summary states that any person entering the United States without authorization or for the purpose of "birth tourism" is considered an invader. This legislative move aims to codify Trump's prior declaration of an "invasion" at the southern border and use exceptions outlined in the "Barbara" ruling.
Republicans have pointed to the 1898 Supreme Court case, U.S. v. Wong Kim Ark, as a precedent that established birthright citizenship. However, Banks' bill intends to use exceptions within that same case to argue against birthright citizenship for the children of unauthorized immigrants. The Wong Kim Ark ruling itself noted exceptions for children of diplomats, "enemies within," and those in hostile occupation of U.S. territory who are not bound to obey the U.S. government.
Banks stated, "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." 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 bill also references other legal interpretations, including a separate opinion by Justice Sonia Sotomayor in U.S. v. CASA, which suggested that children born of "alien enemies in hostile occupation" do not qualify for birthright citizenship. Banks' legislative proposal also invokes Article IV of the Constitution, which mandates federal protection against invasion, and Article I, which grants Congress the power to establish a uniform rule of naturalization. The bill cites analyses from President James Madison regarding Congress's authority over naturalization.
Furthermore, the legislation touches upon geopolitical contexts, noting that some Mexican nationals perceive migration as a form of reclaiming territory lost in the 1840s. It also references reports of Chinese birth tourism being encouraged by the Chinese Communist Party, framing the debate around birthright citizenship as intertwined with national sovereignty and foreign influence.