Senator Jim Banks just introduced a piece of legislation that basically amounts to reading a Supreme Court concurrence and saying "don't mind if I do." As USA Journal reported, Banks dropped the Citizenship Act on Monday, a bill that would define illegal aliens and birth tourists as "invaders" under federal law and strip automatic citizenship from their American-born children. The legal foundation? A concurrence written by Justice Brett Kavanaugh himself.
Here is the backstory. Last month the Supreme Court ruled 6-3 in Trump v. Barbara that birthright citizenship is protected by the 14th Amendment. Five justices said the Amendment itself guarantees citizenship to children born here to parents who are unlawfully present. Kavanaugh was the sixth vote, but he got there on narrower statutory grounds. More importantly, his concurrence explicitly suggested that Congress could amend federal law to create additional exceptions to birthright citizenship beyond those currently on the books. He basically wrote a memo titled "Here Is How You Could Theoretically Do This" and then acted surprised when someone picked it up off the desk.
Banks picked it up off the desk.
The bill would codify Trump's invasion declaration into statute and amend the Immigration and Nationality Act to exclude children of so-called invaders from automatic citizenship. Banks is drawing on the historical exception acknowledged even by the Court's majority, one that goes all the way back to Wong Kim Ark, the foundational 1898 case. That case carved out an exception for children of enemy combatants and hostile forces. Congress just never invoked it. Banks is invoking it now, which is one way to make history.
Now, let us not pretend this is some clean legal layup. It is not. The five-justice majority held that the 14th Amendment itself protects birthright citizenship for children born here to illegal aliens. That is the Constitution talking, not just a statute. Banks' bill would set up a direct constitutional confrontation rather than neatly sidestep what the Court already decided. If it passes and someone challenges it (and someone will challenge it before the ink is dry), the question of whether Congress can define illegal entry as an "invasion" sufficient to trigger the carve-out goes right back to the same Supreme Court that just ruled on this topic. That is going to be one awkward oral argument for everybody involved.
Meanwhile, the DOJ is apparently not sitting around waiting for the legislative process. Their crackdown on birth tourism operations is already in motion. Billboards advertising American citizenship for $4,000 are reportedly coming down, and criminal enterprises profiting from the scheme are being prosecuted. Four thousand dollars for citizenship. You cannot even get a decent used car for that.
Whether Banks' bill survives a court challenge is genuinely an open question. But reading a Supreme Court justice's own concurrence and using it as a legislative blueprint is, at minimum, a power move. Kavanaugh left a door open. Banks walked through it. Now we get to watch nine justices figure out whether they meant to leave that door unlocked or not.
Read more conservative news commentary at: USA Journal News
