Sen. Jim Banks plans to introduce legislation Monday that would end birthright citizenship for children of illegal immigrants and birth tourists, a direct legislative response to the Supreme Court's recent decision striking down President Trump's executive order on the same issue. The Indiana Republican's bill, called the Citizenship Act, takes its cue from a concurring opinion by Justice Brett Kavanaugh that suggested Congress has the power to amend federal statute and create new exceptions to birthright citizenship, even if the president cannot do so unilaterally.
The move marks the fastest congressional answer yet to a ruling that dealt Trump a significant setback on one of his signature immigration priorities. And it rests on a legal argument that borrows language from the very precedents the Court's majority relied upon, turning the exceptions carved out in an 1898 ruling into the foundation for a new category of exclusion.
Banks told Fox News Digital he would introduce the bill as soon as the Senate opens for business Monday afternoon. The bill would amend the Immigration and Nationality Act to declare that "any person who enters the United States without authorization or for the purpose of engaging in birth tourism is considered an invader", and that children born to such persons are not entitled to automatic citizenship.
The Citizenship Act is built explicitly on the framework Justice Kavanaugh laid out in his concurrence in Trump v. Barbara. In that case, decided last month, Chief Justice John Roberts, a George W. Bush appointee, relied on the 1898 precedent U.S. v. Wong Kim Ark to rule against Trump's executive order and guarantee citizenship to all children born in the United States and subject to its power.
Kavanaugh concurred in the judgment but dissented in part. He found that Trump's order did not violate the 14th Amendment itself but did conflict with a federal statute on birthright citizenship passed in the spirit of that amendment. The critical distinction: Kavanaugh indicated Congress could amend that statute to create new exceptions, a door the executive branch alone could not open.
That distinction is the entire basis for Banks' bill. As we noted when the ruling came down, Kavanaugh's concurrence handed Republicans a legislative roadmap that bypasses the constitutional amendment process entirely.
Banks' legislation does something legally audacious: it takes the exceptions that Justice Horace Gray, an appointee of Republican President Chester Arthur, identified in Wong Kim Ark and uses them as the basis for a new statutory category. Gray's 1898 ruling acknowledged that birthright citizenship did not extend to diplomats' children, "enemies within," or those engaged in hostile occupation of U.S. territories who are not "bound to render obedience to the sovereign whose domains are being invaded."
The Citizenship Act argues that illegal immigrants and birth tourists fit within the spirit of those exceptions. It codifies Trump's January 2025 executive order declaring illegal immigration across the southern border an "invasion", and uses the constitutional text itself to justify the classification. The bill cites Article IV's requirement that the federal government "protect each state against invasion" and Congress's Article I power to "establish a uniform rule of naturalization."
It also invokes James Madison's 1788 analysis that the Constitution vested Congress, not the states, with authority over naturalization through a uniform national rule.
Even Obama-appointed Justice Sonia Sotomayor, in the separate U.S. v. CASA ruling, confirmed that "children born of alien enemies in hostile occupation" do not qualify for birthright citizenship. She did not take the additional step of classifying illegal immigrants as such "invaders", but the acknowledgment of the category's existence is precisely the opening Banks is driving through.
The bill arrives amid direct pressure from the White House. In a June 30 interview with Human Events, Banks recalled that Trump told Senate Republicans they were "not fighting hard enough" on his legislative agenda, including ending birthright citizenship. Trump has made clear he views the Supreme Court's ruling as a setback but not a dead end.
Newsmax reported that Trump posted on Truth Social backing the legislative approach directly:
"Congress should start TODAY to work on ending expensive and unfair to our Country, Birthright Citizenship. They will have my Complete and Total Support!"
That public endorsement gives Banks significant political cover. It also puts other Senate Republicans on notice. Trump has framed the birthright citizenship setback as one piece of a broader legal landscape, and he clearly expects Congress to pick up where his executive order left off.
Just The News reported that Trump has also called for the Supreme Court to rehear the birthright citizenship case, though rehearings are extremely rare. The legislative path, then, is the more realistic route, and Banks is the first senator to walk through the door Kavanaugh opened.
The Citizenship Act goes beyond the immediate legal framework to make broader arguments about sovereignty and foreign influence. The bill lays out that some Mexican nationals view migration northward as a means of reconquering territory the United States won during 1840s military hostilities finalized in the Treaty of Guadalupe Hidalgo in 1848. It also points to Chinese birth tourism being encouraged directly by the Chinese Communist Party.
These examples, the bill argues, demonstrate that birthright citizenship has become intertwined with broader questions of national sovereignty and foreign influence, a framing designed to strengthen the "invasion" classification against inevitable legal challenges.
Speaker Johnson has already said Congress must address birthright citizenship after the Court struck down Trump's executive order. Whether the House would take up Banks' bill, or a companion version, remains an open question. But the political alignment between the White House, Senate conservatives, and House leadership is clearer now than at any point since the ruling.
No one should pretend this bill will sail through unchallenged. The constitutional questions are enormous. The 14th Amendment's Citizenship Clause, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States", has been read broadly for more than a century. Roberts' majority opinion in Trump v. Barbara leaned heavily on that reading.
But Kavanaugh's concurrence cracked the door by distinguishing between constitutional limits and statutory construction. If Congress amends the Immigration and Nationality Act to define a new category of persons whose children are excluded from birthright citizenship, the legal fight shifts from the 14th Amendment itself to whether Congress has the power to make that statutory change.
Banks is betting the answer is yes. His bill cites the constitutional text, the Founders' intent, and the Court's own precedents, including language from justices on both sides of the ideological divide. Whether five justices would ultimately agree is unknowable. But the argument is more textured than critics will likely admit.
The broader Court has shown willingness to back the Trump administration on immigration enforcement in other contexts, including a recent 6-3 ruling on green card enforcement. The question is whether that willingness extends to redefining who qualifies as a citizen at birth.
Several questions hang over the Citizenship Act. No co-sponsors have been publicly announced. The specific bill number has not been released. And the political math in the Senate, where 60 votes are typically needed to advance legislation past a filibuster, remains daunting for any immigration measure this ambitious.
Banks, for his part, is not hedging. He told Fox News Digital:
"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. 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."
That language, "whatever it takes", signals that Banks views this as a fight worth having even if the odds are long. The bill may not pass this Congress. It may not survive its first legal challenge. But it reframes the debate in terms the right has long sought: not whether illegal immigrants deserve sympathy, but whether their children are entitled to the full rights of citizenship simply by being born on American soil.
The Supreme Court said the president can't answer that question alone. Banks is asking whether Congress can. That question, sooner or later, will land right back in front of the justices, and this time, the argument will be harder to dismiss.