When the Supreme Court decided Trump v. Barbara on June 30, 2026, opponents of birthplace-citizenship reform declared the fight over. But that disappointing decision was not the end of attempts to reform the system. It was merely the “end of the beginning.” Sen. Jim Banks read Barbara as a legislative map. His new Citizenship Act follows the road Wong Kim Ark charted.
Barbara held that President Trump’s executive order was unconstitutional by locking in birthplace citizenship’s definition from a much older case. That 1898 case, United States v. Wong Kim Ark, laid out three categories of people whose children are not automatically citizens even if born on American soil. Barbara held the executive order was unconstitutional for going outside those three categories. But within those three categories, any needed fix need only be by statute. That means Congress can pass a fix.
Banks could have taken the easy way out, either reading Barbara as a loss or arguing any fix must be constitutional — and thus impossible in today’s polarized age. Instead, he took the harder path: legislating within the four corners of precedent. If the Supreme Court says birthplace citizenship is governed by Wong Kim Ark, then Wong Kim Ark’s own exceptions are fair game.
Justice Brett Kavanaugh wrote a separate opinion explaining that while he agreed with the majority’s result, it would not require a constitutional amendment to change the law to deny birthplace citizenship to more people than just the three categories flagged in Wong Kim Ark. This law fits within Kavanaugh’s conception — and may be enough to pull another justice from the majority, too.
Understanding why requires understanding what Wong Kim Ark held. The case is remembered as a basis for today’s broad understanding of birthright citizenship. But the opinion did not extend the 14th Amendment to everyone born on American soil. It outlined at least three widely accepted categories of people born here who are not “subject to the jurisdiction” of the United States and thus not birthright citizens. Those three categories are the children of: diplomats, members of Indian tribes, and “children … of enemies within and during a hostile occupation” of American territory.
Even Justice Sonia Sotomayor, no ally of the administration, acknowledged in last year’s Trump v. CASA, Inc. win for President Trump, that “children born of alien enemies in hostile occupation” fall outside the guarantee. No serious thinker questions that, even under Wong Kim Ark, children “born of alien enemies” may be excluded from birthplace citizenship.
Of course, critics will say, the question is one of scope. Skeptics insist the invading-army exception reaches only a uniformed force whose occupation has so displaced American authority that the government “cannot exercise its jurisdiction” over the territory. On that view, the exception requires a foreign flag over the courthouse before children become ineligible for foreign citizenship. Where the United States still governs, everyone born here is a citizen. That argument sounds intuitive. But it does not survive contact with the Supreme Court’s own war-powers jurisprudence.
Consider Ex parte Quirin, the 1942 case of eight Nazi saboteurs who came ashore from U-boats in Long Island and Florida carrying explosives to attack American infrastructure. They were not an army, abandoned any uniform, and occupied no territory.
They arrived as individuals, in secret, disguised as civilians — precisely the profile the skeptics say the invasion exception cannot reach. Yet a unanimous Supreme Court had no difficulty classifying them as enemy belligerents subject to the law of war, and it upheld their trial by military commission. One of them even claimed American citizenship. The court held it made no difference: A citizen who joined the enemy’s hostile incursion was an enemy belligerent soldier.
What if one of the Quirin invaders fathered a child during his covert mission on American soil? Would anyone seriously contend that the newborn was a citizen of the United States? The 14th Amendment does not mandate such an absurd result. Such a child falls squarely within Wong Kim Ark’s exception for the children of enemies engaged in hostile incursion.
The United States never lost criminal jurisdiction to prosecute the Nazi infiltrators. We found them, tried them, and executed them. If “subject to the jurisdiction” meant only the physical power to catch and punish, the Nazis and their hypothetical children would have been as “subject” as anyone in the country. But invaders with allegiance to a foreign enemy are not “subject” to American jurisdiction in the 14th Amendment sense. The citizenship test was never solely about territorial control. After all, it required a statute to make American Indians birthright citizens — even though they could be prosecuted if they committed crimes on American soil.
That is the insight animating the Citizenship Act. The line that matters under Wong Kim Ark is a recognition of an invader or invading force. A Nazi spy owes no more obedience to the United States, whose domain he has invaded, than an army division does. Wong Kim Ark fixes the citizenship guarantee’s boundary on the nature of the entrant. So for those categories, Congress holds the authority to define citizenship’s scope.
Sen. Banks’ bill grounds that authority in the Constitution. The Constitution obliges the federal government to protect the states “against Invasion,” and tasks Congress exclusively with the power to “establish an uniform Rule of Naturalization.” The Citizenship Act uses that authority, declaring that those who enter unlawfully or for the purpose of birth tourism enter as invaders under the law, and that their children accordingly fall within Wong Kim Ark’s invader exception. It legislates in the open space Trump v. Barbara expressly left open.
Another benefit of the Citizenship Act is that judicial review is constrained in the context of what the Supreme Court has called political questions. And designating an invasion — especially when that designation is made by the political branches in concert, is an apex political question and thus should be unreviewable.
Courts lack the constitutional authority to second-guess that judgment at all. In United States v. Abbott, Judge James Ho explained that whether a surge of illegal entry amounts to an “invasion” is a political question, not a legal one. There are no judicially manageable standards for deciding when an influx of unlawful migrants becomes an invasion; that determination belongs to the political branches, not to judges.
Judge Ho defended a governor’s declaration under Article IV. His point applies with even greater force to Congress, which holds the exclusive naturalization power and shares the duty to repel invasion. If a governor’s invasion finding lies beyond judicial scrutiny, a congressional finding that is reasonable on its face and grounded in the record of mass unlawful entry is stronger. The act is ultimately a judgment the Constitution assigns to Congress.
The alternative view contorts the Constitution to its breaking point. An interpretation that extends citizenship to the child of a Nazi saboteur departs from Wong Kim Ark’s holding. So too with properly designated invaders that come across America’s southern border.
Sen. Banks has offered a text-and-precedent-bound response to a decision his opponents assumed had ended the debate. The Supreme Court reaffirmed its reading of Wong Kim Ark. Reasonable people can try to reverse that decision — and they should. But until then, Barbara wrote a map, and Sen. Banks is sitting in the driver’s seat ready to hit the road.
