Banks uses Wong Kim Ark exceptions to deny birthright citizenship to birth tourists and children of illegal immigrants
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EXCLUSIVE: 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 Trump’s executive order on the issue.
Trump recently urged Senate Republicans to move faster on his legislative agenda, 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 plans to introduce the Citizenship Act as soon as the Senate opens for business Monday afternoon – crafting it with a nod to Trump-appointed Justice Brett Kavanaugh’s concurrence in last month’s Trump v. Barbara case.
Kavanaugh, concurring in the judgment and dissenting in part, said Trump’s order conflicted with federal birthright citizenship law but suggested Congress could amend that statute to create new exceptions.
The Citizenship Act would declare that children of statutory “invaders” are not entitled to birthright citizenship under the law and codify a 2025 executive order that cites the term.
In its summary, Banks’ bill 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.”
Banks’ key use of “invaders” cites Trump’s executive order declaring illegal immigration across the southern border an “invasion,” while the bill notes the “Barbara” decision leaves that avenue open for Congress to crack down on.
Without touching the constitutional amendment process or attempting to overturn any court ruling, the Citizenship Act will codify Trump’s declaration of “invasion” and amend federal law to revoke birthright citizenship from children of illegal immigrants under exceptions listed in the same case the “Barbara” ruling’s majority used as its precedent.
Kavanaugh found that Trump’s order didn’t violate the Fourteenth Amendment but did conflict with a federal statute on birthright citizenship passed in the spirit of the amendment conservatives said was intended mainly for freed slaves and their children.
Bush-appointed Justice John Roberts relied on the landmark 1898 U.S. v. Wong Kim Ark case to rule against Trump in “Barbara” and “guarantee citizenship to all children born in the United States and subject to its power” – but Banks’ bill would use that same case as precedent to secure an end to birthright citizenship for progeny of illegal immigrants and birth tourists.
Then-Justice Horace Gray – an appointee of Republican President Chester Arthur – ruled in Wong Kim Ark that those exceptions include diplomats’ kids, “enemies within” and those engaged in hostile occupation of U.S. territories who are not “bound to render obedience to the sovereign [U.S. government] whose domains are being invaded.”
By Roberts reaffirming Wong Kim Ark’s precedent with its exceptions, Banks’ bill would essentially use it against itself.
“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.
“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.”
In U.S. v. CASA, a similar 2025 case that went against Trump, Obama-appointed Justice Sonia Sotomayor separately confirmed “children born of alien enemies in hostile occupation” do not qualify for birthright citizenship, while not taking the extra step to classify illegal immigrants as such “invaders” mentioned in the original ruling.
Banks also makes a textual Constitutional argument in his bill, writing that Article IV requires the feds to “protect each [state] against invasion” while Congress’ Article I power includes “establish[ing] a uniform rule of naturalization.”
He also cited President James Madison’s 1788 analysis that the Constitution vested Congress—not the states—with authority over naturalization through a uniform national rule.
The Citizenship Act lays out that some Mexican nationals view migration northward as a means of re-conquering territory the U.S. won during 1840s military hostilities finalized in the Treaty of Guadalupe Hidalgo in 1848 that established Texas and beyond as part of the U.S.
It also points to Chinese birth tourism being encouraged directly by the CCP – which brings the birthright citizenship debate over what defines an invasion by a hostile government full circle.
Banks’ bill argues those examples demonstrate that birthright citizenship has become intertwined with broader questions of national sovereignty and foreign influence.
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