Jim Banks Just Found the Legal Door Kavanaugh Left Open On Birthright — and He’s Walking Straight Through It

Banks read that concurrence carefully. The result is legislation that would codify Trump’s invasion declaration into statute and amend the Immigration and Nationality Act to exclude children of “invaders” from automatic citizenship — drawing directly on the historical exception that even the Court’s majority acknowledged existed for children of enemy combatants and hostile forces. Wong Kim Ark, the foundational 1898 case establishing birthright citizenship, carved out exactly this exception. Congress never needed to invoke it before. Banks is invoking it now.

Let’s be direct about what this bill actually does and doesn’t do. It is not a clean end-run around the Court’s ruling. The five-justice majority held that the 14th Amendment itself — not just federal statute — protects birthright citizenship for children born here to illegal aliens. Banks’ bill would therefore set up a direct constitutional confrontation rather than neatly sidestep what the Court decided. If it passes and is challenged, the question of whether Congress can define illegal entry as “invasion” sufficient to trigger the carve-out goes right back to the Supreme Court.