WASHINGTON, D.C. — The Supreme Court dealt an enormous blow to American sovereignty and civilization when it decided that any random person born on U.S. soil had the full benefits of citizenship, but many in the conservative movement do not view the high court’s betrayal as the end of the road for eliminating so-called “birthright citizenship.”
Chief among those conservatives is John Eastman, Director of the Claremont Institute Center for Constitutional Jurisprudence, who spoke optimistically about the road ahead during an event on Capitol Hill concerned with the next steps after the disappointing defeat in Trump v. Barbara.
“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 said. “There were a lot of people that thought … that it would end 9-0.”
Barbara started as a challenge to an executive order from President Donald Trump interpreting the 14th Amendment’s citizenship clause not to include any foreigner who happens to give birth in America, but Eastman noted that the initial challenges to that order show just how universally judges accepted the incorrect notion of birthplace citizenship.
Eastman, who won an award at the event for his foundational work since the 1990s making legal arguments against birthplace citizenship, noted how the first case to challenge the order actually saw the judge threaten lawyers defending Trump’s order with sanctions and a referral for discipline.
Recalling the 5-4 opinion at the high court again, Eastman said, “think about how far we have moved the discussion, not just not just in the legal community, but nationwide in just a relatively few short years.”
Just because the Supreme Court decided this case now, with its current makeup, does not mean that the issue will take 50-plus years to overturn, as with other extremely harmful decisions like Roe v. Wade, many at the event noted. In fact, some think that this issue can be resolved rather quickly if conservatives are creative enough about how to line up the next challenge for the court to review.
“This is not like Griswold in terms of the violence done to the law. I don’t see this is going to spawn a series of precedents that’s going to erode our republic, like Griswold led to Roe and led to Lawrence v. Texas and Obergefell,” Roger Severino, Vice President of Economic and Domestic Policy at the Heritage Foundation, said. “I just don’t see that sort of same progression because it was an originalist debate, which is a victory in itself.”
Invaders Have No Right To Citizenship
For Iowa Solicitor General Eric Wessan, the court found it much easier to strike down an executive order than it likely would have a piece of legislation, which would have two co-equal branches of government challenge the constitutional edict of the third co-equal branch. On the constitutional question itself, it will likely take personnel change, but the court is one justice away (e.g. Chief Justice John Roberts) from being able to affect change.
“While the chief wanted to close the door firmly shut on reassessing the constitutionality of birthright citizenship, they really left the door ajar, and there’s a lot of room for creativity in what to do next,” he said.
Wessan pointed to three areas that Barbara either did not address or where the Supreme Court would have no jurisdiction to block government policy, including declaring an invasion. Gov. Greg Abbott, R-Texas, and Trump have both declared an invasion at the southern border, and if that is the case, “and I see no reason why that wouldn’t be so,” Wessan said, then the court has no ability to weigh in on the kind of response needed to repel it.
Moreover, even under the legal logic used by the Barbara majority to maintain birthplace citizenship, the children of invaders would never be entitled to such citizenship.
Wessan supported the Citizenship Act of 2026, introduced by Sen. Jim Banks, R-Ind., which would legally define the millions of illegal migrants crossing the border an “invasion.” It would also block children born in the U.S. to illegals from obtaining citizenship and assert that Congress — not the Supreme Court — has primary jurisdiction to set rules for naturalization and immigration.
Elle Rogers Bernstein, general counsel for Banks, sat in for the senator during a panel as he attended the memorial service for the late Sen. Lindsey Graham, R-S.C., and explained that “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?'”
Banks’ bill also fits well with Wessan’s second option left open by Barbara, which is statutory redefinition. Banks’s bill would do that, but there are numerous bills that have been introduced that would address the issues in different ways, presenting separate challenges for the Supreme Court to have to wade through if it attempts to overturn the statute, once passed.
“For a Supreme Court that cares so much about its own legitimacy and popularity, the idea that they would undo or counteract a massive legislative achievement like that, I think it presents a much tougher question for them practically, even if not necessarily jurisprudentially,” Wessan said.
The third area Barbara left open is regulating birth tourism — where foreigners are able to give birth on American soil to obtain citizenship for their child, then move back to their home country to raise them. While the Barbara regime currently allows that to happen (though, not explicitly), Wessan believes it could be easily made illegal by statute.
Birth tourism is an enormous problem under the structure of birthplace citizenship. Once the child turns 18, they are an adult U.S. citizen, no matter if they ever stepped foot in the country after they were born, and by the time they are 21, they have the ability to petition for their parents to become citizens, too.
Severino noted that U.S. territory Northern Mariana Islands is a massive hub for Chinese birth tourists to obtain American citizenship, where there are now more birth tourist Chinese born on the islands than actual Americans.
‘Let 1,000 Flowers Bloom’
Banks’ bill is one of many on both sides of the legislature, but Bernstein believes conservatives should be attacking birthplace citizenship from all available angles.
“Let 1,000 flowers bloom,” she said. “Let’s do a constitutional amendment, let’s test cases, let’s try to end the technicalities of birthright tourism.” Invoking Abraham Lincoln, she added that on this issue, “As a nation of free men, we must live for all time or die by suicide.”
Ethan Harper, chief counsel to Sen. Eric Schmitt, R-Mo., said he believes legislation is the easiest way to address the problem. Schmitt introduced the American Citizenship Act, which limits birthplace citizenship to those born to at least one American parent and removes that capability from tourists, visa holders, and illegals. It also revokes citizenship improperly issued to the children of diplomats, a phenomenon that is explicitly rejected by even the Barbara majority, but is still taking place.
According to Harper, Korean newspapers are running articles criticizing their diplomats for dual loyalty after 139 Koreans were born to them, but received U.S. citizenshhip.
There are other separate legislative fixes to different aspects of the issue, including basic things like noncitizens not being counted in congressional apportionment, only allowing American citizens to hold public office (currently, there are numerous elected officials and judges with dual citizenship), and prohibiting noncitizens from receiving federal benefits.
While simultaneously pursuing a policy to “deport them all,” Bernstein said, there can be some institutional disincentives for illegal aliens or immigrants, generally, to come to the U.S. in the first place.
One option is fixing employment so that it is actually illegal — with heavy consequences — for employers to hire aliens, coupled with ending parole, temporary protected status (TPS), and work authorization for virtually everyone.
Harper added that worksite enforcement, including arresting noncompliant CEOs in a public display, could shift the incentives for businesses to pursue foreign labor to begin with. Another very potent possibility would be debanking all illegals and foreigners with “legal status” who should not be in the country.
That would stop their ability to make any money working in the U.S. as well as block them from remitting the money back to their home country.
Banks and Schmitt have other bills as well, including Banks’ Nuclear Family Priority Act, which would end parts of chain migration by taking parents out of the category of individuals an immigrant in the U.S. is allowed to bring over with them.
Schmitt, similarly, has been trying to end the H-1B program in its entirety.
Ultimately, the question is how capable is Congress, particularly the Senate, to do any of this?
Harper says it may take a broader conversation about the filibuster, but Bernstein says that some of it can be done with a simple majority. Similarly, while Harper said that there are 30 states that have a propensity to elect Republican senators, thereby achieving the 60 votes needed to break a filibuster, Bernstein said that some senators need to be forced to “respond to incentives” like getting primaried.
“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,” Harper said. “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 …”
“We still have a consent of the governed. Did the 14th Amendment get rid of so many things from the Founding that we were not the same country anymore? Are we different now than we were in 1866, 1868?” he asked, stating that the current moment requires conservatives to get aggressive and “go big.”
