The Supreme Court’s 5-4 decision upholding birthplace citizenship in Trump v. Barbara isn’t stopping conservative lawmakers and legal strategists from pursuing new angles to end what they call an abuse of the 14th Amendment.
At a Capitol Hill event following the ruling, John Eastman — Director of the Claremont Institute Center for Constitutional Jurisprudence — said the fight is far from over.
“I don’t think it was a loss at all. Yes, we lost 5-4 on the constitutional question, but if you think about where we were just a few years ago, I mean, almost uniformly everybody said, ‘This is settled by the Constitution — the only way you can change this is a constitutional amendment.'”
Eastman noted that many expected the Court to rule 9-0 against Trump’s executive order challenging birthright citizenship. The 5-4 split shows how far the debate has shifted in just a few years.
The case began when President Trump issued an executive order interpreting the 14th Amendment’s citizenship clause to exclude children born on U.S. soil to illegal immigrants. Early legal challenges saw judges threaten Trump’s lawyers with sanctions.
Now, conservatives are rallying around legislative paths the Court left open.
Three Paths Forward
Iowa Solicitor General Eric Wessan identified three areas where Congress and the White House can act without Supreme Court interference.
First: declaring an invasion. Gov. Greg Abbott and Trump have both declared an invasion at the southern border. Under that framework, children of invaders would have no citizenship claim — even under the Barbara majority’s logic.
Sen. Jim Banks introduced the Citizenship Act of 2026, which would legally define millions of illegal border crossers as an “invasion,” block their children from obtaining citizenship, and assert that Congress — not the Supreme Court — controls naturalization rules.
Elle Rogers Bernstein, general counsel for Banks, explained the strategy during the panel.
“An ‘invasion’ is not a lawyer’s term. It’s not a term that has a precise definition that’s for the courts to adjudicate. It’s for the political branches to decide. The operative question is not, ‘Do we think a court would agree there’s been an invasion?’ The operative question is, ‘Does Congress have the courage to say that our country has been invaded by 15 million illegal aliens and counting?'”
Second: statutory redefinition. Multiple bills in Congress would redefine citizenship eligibility in ways that force the Supreme Court to overturn explicit legislation — a much tougher political fight than striking down an executive order.
Third: ending birth tourism. Foreigners currently fly to the U.S. to give birth, securing citizenship for their child before returning home. Once that child turns 21, they can petition to bring their parents to America as citizens.
Roger Severino of the Heritage Foundation noted that the Northern Mariana Islands — a U.S. territory — has become a massive hub for Chinese birth tourists. There are now more birth-tourist Chinese born on the islands than actual Americans.
Legislative Arsenal
Sen. Eric Schmitt introduced the American Citizenship Act, which limits birthplace citizenship to those born to at least one American parent. It also revokes citizenship improperly issued to children of diplomats — a practice even the Barbara majority rejected but which still occurs.
Ethan Harper, chief counsel to Schmitt, said Korean newspapers are criticizing their diplomats for dual loyalty after 139 Korean diplomat children received U.S. citizenship.
Other proposals include removing noncitizens from congressional apportionment, prohibiting dual citizens from holding public office, ending work authorization and temporary protected status programs, and aggressive worksite enforcement — including arresting CEOs who hire illegals.
Harper suggested one particularly potent lever: debanking all illegals and temporary-status foreigners. That would stop their ability to earn money in the U.S. and block remittances to their home countries.
Banks has also introduced the Nuclear Family Priority Act, which would end chain migration by removing parents from the category of relatives immigrants can sponsor.
Schmitt is pushing to end the H-1B visa program entirely.
The Filibuster Question
Harper acknowledged the Senate may need a broader filibuster conversation to pass some bills. Bernstein said other fixes can pass with a simple majority — and that some Republican senators need to “respond to incentives” like primary challenges.
With 30 states electing Republican senators, the 60-vote threshold is theoretically reachable. The question is political will.
Harper framed the fight in generational terms.
“We’re having a conversation about citizenship in this country for the first time in a generation, if not more. America 250 really puts things into perspective. The question of what is an American, as we have 15 percent of the country being foreign-born, a very large illegal immigrant population here, a very large legal immigrant population here, and trying to figure out what does an American look like in the 21st century.”
Bernstein invoked Abraham Lincoln’s warning: “As a nation of free men, we must live for all time or die by suicide.”
Her advice to conservatives: “Let 1,000 flowers bloom.” Attack birthplace citizenship from every angle — legislation, litigation, constitutional amendment, and executive action.
The charges remain allegations. The case has not been proven in court.
