The Supreme Court’s ruling in Trump v. Barbara struck down President Trump’s executive order denying automatic citizenship to children born to parents unlawfully or temporarily present in the United States.
Chief Justice John Roberts and the majority found a constitutional violation where none exists.
The court has ruled. Now Congress must answer.
Justice Brett Kavanaugh’s separate opinion points to the path forward. He agreed that the executive order conflicts with the law’s current language, but he rejected the majority’s interpretation of the 14th Amendment.
“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,” Kavanaugh wrote.
Congress now has both the authority and the responsibility to act.
Justice Clarence Thomas’ exhaustive dissent recovered the original public meaning of “subject to the jurisdiction thereof.” That phrase required more than physical presence. It contemplated complete political allegiance and permanent domicile.
The Civil Rights Act of 1866 and the debates surrounding the 14th Amendment distinguished permanent members of the American political community from temporary visitors and people who remained subject to foreign powers.
Justice Samuel Alito also warned of the consequences of the majority’s interpretation. Automatic citizenship for the children of illegal entrants and birth tourists creates opportunities for foreign exploitation and weakens the nation’s control over membership in its political community.
This was not a close call.
The majority conflated temporary subjection to American law with the solemn allegiance, duties, and privileges of citizenship in a constitutional republic.
The American Revolution rejected the relationship between monarch and subject. The United States instead recognizes sovereign citizens with God-given rights who consent to government through a shared political compact.
By erasing the distinction between a person temporarily subject to American law and a citizen belonging permanently to the American political community, the court cheapened citizenship and created a serious vulnerability.
The judiciary has failed. Congress must now correct that failure.
Unfortunately, the current Republican Congress has squandered much of the mandate voters delivered. Election-integrity legislation remains unfinished, while promised efforts to restrain activist courts and restore constitutional government have stalled.
Voters have noticed.
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Samuel Corum/Sipa/Bloomberg/Getty Images
The legislative solution follows directly from Kavanaugh’s opinion and the historical record presented by the dissenters.
Congress should pass a Birthright Citizenship Reform Act amending 8 U.S.C. § 1401(a). Citizenship at birth should attach only when at least one parent is a United States citizen or a lawful permanent resident domiciled here.
Congress should also define “subject to the jurisdiction thereof” to exclude the children of foreign nationals present unlawfully or admitted only temporarily.
The legislation should apply prospectively and include narrow transition provisions. These changes would respect the original limits of the 14th Amendment, close national security gaps, and restore the integrity of American citizenship.
I am running for Congress in Florida’s 19th District because Washington needs representatives willing to turn constitutional principles into legislation.
I qualified for the ballot through citizen participation rather than by writing a check. As a former January 6 defendant who refused a false plea agreement and endured solitary confinement, I understand the cost of standing on principle.
In Congress, I will introduce the Birthright Citizenship Reform Act and fight for its passage. I will also demand action on election integrity and work to restore American sovereignty.
Justice Alito identified the danger. Justice Thomas supplied the historical case. Justice Kavanaugh identified the legislative remedy. All that remains is for Congress to find the courage to enact it.
The court has ruled. Congress must answer.
This is our republic. We have a duty to keep it.
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