Senator moves to end birthright citizenship, taking cues from Supreme Court ruling

Sen. Jim Banks, R-Ind., is introducing legislation that would deny automatic U.S. citizenship to children born to illegal immigrants and foreign nationals who enter the country for so-called “birth tourism,” advancing a congressional response to the Supreme Court’s recent rejection of President Donald Trump’s birthright citizenship order.

The proposed Citizenship Act would amend the Immigration and Nationality Act by defining a person who enters the U.S. without authorization – or for the express purpose of giving birth and securing American citizenship for a child – as an “invader.” Children born to people covered by that definition would not receive automatic citizenship under federal law.

CatholicVote Vice President of Advocacy Joshua Mercer praised the legislation in remarks to Zeale News, arguing that the current interpretation diminishes citizenship and misapplies a constitutional amendment adopted after the Civil War.

“Last month’s Supreme Court decision was a major mistake,” Mercer said. “Allowing the children of illegal trespassers or Chinese birth tourists to have automatic U.S. citizenship is completely reckless and cheapens what it means to be a citizen of this great country.”

Citing an argument originally made by Justice Clarence Thomas in his dissent against the ruling last month, Mercer said the decision went “completely against the intent of the authors of the 14th Amendment, who wanted to ensure that the children of slaves would be citizens of the United States.”

Mercer added that the Supreme Court’s ruling does not relieve the other branches of government of their constitutional responsibilities.

“Thankfully the Supreme Court isn’t the last and final word. Members of Congress and our President have also sworn to uphold and defend our Constitution,” Mercer pointed out. “Senator Jim Banks has answered the call with sound legislation that would ensure that automatic citizenship would not be granted to people exploiting our loopholes or invading our country.”

Banks follows path identified by Kavanaugh

Banks’ legislative strategy draws from Justice Brett Kavanaugh’s separate opinion in the June 30 case Trump v. Barbara.

The Court ruled 5-4 that children born in the U.S. to parents who are in the country illegally or temporarily are citizens under the Fourteenth Amendment. Chief Justice John Roberts wrote the majority opinion, joined by Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson.

Kavanaugh agreed that Trump’s executive order could not take effect, but rejected the majority’s constitutional reasoning. He concluded that the order conflicted with the existing federal citizenship statute, 8 U.S.C. §1401, while arguing that the Constitution itself permits additional exceptions to birthright citizenship.

“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,” Kavanaugh wrote. “But Congress has not yet done so.”

Banks’ bill is intended to supply that missing legislation.

Rather than pursuing the significantly more difficult process of amending the Constitution, this measure would simply amend federal law and seek to place illegal entrants and birth tourists within an exception for children born to enemies or “invaders.”

The proposal relies in part on the Trump administration’s declaration that unlawful migration across the southern border constitutes an invasion. Its summary states that anyone entering without authorization or for birth tourism would be treated as an invader for citizenship purposes.

Banks is not the first Republican senator to pursue legislative or constitutional changes to birthright citizenship.

As Zeale News previously reported, Sen. Rand Paul, R-Ky., proposed a constitutional amendment limiting automatic citizenship to children with at least one parent who is a citizen, lawful permanent resident, or active-duty service member.

Missouri Republican Sen. Eric Schmitt, a Catholic, similarly argued in a Supreme Court brief that citizenship should require a “permanent and lawful bond to the United States.” Zeale News reported that Schmitt accused courts of interpreting the Fourteenth Amendment far beyond the intent of its drafters.

The United States Conference of Catholic Bishops has taken an opposing position, arguing in an amicus brief that Trump’s order was unconstitutional and inconsistent with Catholic teaching on human dignity and the treatment of immigrant families.

Banks has nevertheless described ending unrestricted birthright citizenship as fundamental to preserving national sovereignty.

After the Court’s ruling, he called it one of the worst decisions in recent memory and argued that Congress must demonstrate to voters that it is willing to fight on immigration, border security, and citizenship.

“Banning birthright citizenship, passing voter ID laws—those are fundamental to keeping this country great,” Banks said.

His Citizenship Act now moves that fight from an executive order rejected by the Court to the legislative branch – and potentially back before the justices.