A Constitutional Response to the Supreme Court

Earlier this month, I wrote that the Supreme Court’s decision in Trump v. Barbara wouldn’t stand the test of time. Justice Thomas said as much in his dissent. The majority took the Citizenship Clause of the Fourteenth Amendment, stripped it of its original meaning, and turned it into something approaching an automatic territorial grant—the very thing the Reconstruction framers never intended. The dissents from Thomas, Alito, and Gorsuch laid bare the flaws. Justice Kavanaugh, while joining the judgment against the Executive Order, quietly left the door open for Congress.

That door is now being walked through.

Rep. Brandon Gill (R-TX) and Sen. Jim Banks (R-IN) have introduced the Citizenship Act of 2026. It is the most direct and carefully crafted legislative response yet to Barbara. It does precisely what Kavanaugh invited: amend 8 U.S.C. § 1401(a)—the statutory codification of the Citizenship Clause—to carve out exceptions for children born to parents who are unlawfully present or here for birth tourism.

Kavanaugh’s Invitation

In his concurrence, Kavanaugh was explicit:

“The Executive Order does not violate the Fourteenth Amendment. But the Order does contravene a federal statute, 8 U.S.C. §1401(a). 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. But Congress has not yet done so.”

The Citizenship Act of 2026 is that legislation.

It does not attempt a constitutional amendment. It does not pretend the Court was silent. Instead, it accepts the current majority opinion as the law of the land and works squarely within the one exception the majority itself reaffirmed: the long-recognized rule, rooted in Wong Kim Ark and echoed in Barbara, that children born in territory under hostile occupation fall outside birthright citizenship.

How the Bill Works

The bill opens with congressional findings. It recalls the constitutional duty of the United States to protect each State against invasion (Article IV, Section 4). It records the declarations by President Trump and multiple governors that the mass unlawful movement of persons across our borders constitutes an invasion—a determination courts have long treated as political and nonjusticiable.

From there, it does two concrete things.

First, it defines “invaders” for purposes of the citizenship statute: any person not lawfully admitted, any person otherwise unlawfully present, and any person seeking admission or adjustment of status for the purpose of giving birth in the United States. It also reaches nationals of certain covered nations who enter commercial surrogacy contracts designed to produce a U.S.-born child.

Second, it amends section 301(a) of the Immigration and Nationality Act. Under the revised language, a person born in the United States is not “subject to the jurisdiction thereof” if born to an invader under the specified conditions—most critically, when the mother was neither lawfully admitted nor otherwise lawfully present, and the father was neither a U.S. citizen nor a lawful permanent resident at the time of birth.

The bill is tightly cabined. It applies only prospectively to children born after enactment. It preserves full criminal and civil jurisdiction over the parents. It expressly disclaims any authorization of military force under the War Powers Resolution. And it includes a robust severability clause.

The Strategic Logic

This is not messaging for the evening news. It is a serious, lawyerly effort to operate inside the majority’s own reasoning.

The Barbara majority held that children of unlawfully or temporarily present parents are subject to U.S. jurisdiction. Yet it also reaffirmed Wong Kim Ark’s recognition that children born amid hostile occupation are not. By defining the relevant parents as invaders and codifying the presidential and gubernatorial declarations of invasion, the bill places those children into the one category the Court itself acknowledged remains outside automatic birthright citizenship.

Whether this recharacterization ultimately holds is for the courts to decide. The political-question doctrine around invasion determinations carries weight. So does the historical understanding—emphasized by Thomas and Alito—that the Citizenship Clause never extended to the children of invaders. The bill is drafted to force the next constitutional fight onto the strongest available ground.

The Republican Path

This is exactly how a constitutional republic should function. The Court has spoken. The political branches now respond. Kavanaugh extended the invitation. Thomas, Alito, and Gorsuch supplied the constitutional reasoning. The Citizenship Act of 2026 accepts both.

It requires no constitutional amendment. It does not demand the Court overrule itself tomorrow. It simply asks Congress to exercise the authority Article I and Section 5 of the Fourteenth Amendment already grant: to establish a uniform rule of naturalization and to enforce the Citizenship Clause according to its original public meaning.

The Barbara majority constitutionalized a maximalist reading. The dissents kept the original understanding alive. This bill is the first serious effort to translate that original meaning into enforceable statute.

Congress should pass it. After nearly thirty years watching institutions strain under pressure—from cybersecurity battles in Fortune 10 boardrooms to the quieter fights over sovereignty—I’ve learned that clear lines matter. The country deserves a Citizenship Clause that still means what the Reconstruction framers understood it to mean: membership in the political community, not an automatic territorial grant indifferent to allegiance, domicile, or the sovereign’s right to define its own borders.

The Court left the door open. The Citizenship Act of 2026 walks through it.