GOP Lawmaker Brings Birthright Citizenship to Congress

On June 30, the US Supreme Court ruled 6-3 in Trump v. Barbara against the president’s executive order to end birthright citizenship for the children of certain non-citizens. Well, that’s it then, right? Not quite: The Court didn’t rule in favor of blanket birthright citizenship so much as rule against creating immigration law by presidential fiat. So, could a simple change of venue turn this whole thing around? That’s what Rep. John McGuire (R-VA) hopes to accomplish with his Birthright Citizenship Clarification Act of 2026.

Clarifying Birthright Citizenship

On Thursday, July 9, the House of Representatives met for a pro forma session lasting precisely three minutes and 22 seconds. In that time, the only official business was gaveling in, designating a speaker pro tempore, praying, approving the journal, reciting the Pledge of Allegiance, and gaveling out. But that doesn’t mean no work was done on this day. Virginia Republican John McGuire introduced a bill, as well, that, should it become law, would largely accomplish what President Donald Trump simply couldn’t do alone: abolish blanket birthright citizenship.

Upon a first reading, the wording of certain passages of the Birthright Citizenship Clarification Act of 2026 may seem unnecessarily convoluted. That’s not uncommon; legislation is often written in far more complex language than is necessary – but not always. Sometimes, like in this case, it’s exactly as convoluted as it has to be.

The bill would amend section 301(a) of the Immigration and Nationality Act (8 U.S.C. 1401(a)) so that a person born in the US is not automatically granted citizenship if they meet certain criteria. The first three items on the list are:

“(A) the person is a child of a foreign sovereign or a minister of a foreign sovereign;

“(B) the person is born on a foreign public ship;

“(C) the person is a child of an enemy within and during a hostile occupation of any part of the territory of the United States;”

There’s no real change here. The bill takes the rules established by previous Supreme Court cases and writes them into the statute – though that could insulate them from a hypothetical future ruling overturning the original ones. But then come the final two bits:

“(D) the person’s mother is an alien who is unlawfully present in the United States, and the person’s father is not, at the time of such person’s birth, a citizen or national of the United States or an alien lawfully admitted for permanent residence; or

“(E) the person’s mother is an alien whose presence in the United States is lawful but temporary and the person’s father is not, at the time of such person’s birth, a citizen or national of the United States or an alien lawfully admitted for permanent residence.”

The last two conditions that disqualify citizenship are the actual changes, and while it may seem there’s an easier way to word them, simpler attempts actually introduce the potential for loopholes or legal challenges against the 14th Amendment.

And, of course, perhaps the strongest reason for this wording is that it mimics the language of the law that’s already on the books – language that has stood the test of time and judicial review in courts all across the nation over the course of decades.

So, who would and who wouldn’t be granted birthright citizenship under this law?

Right now, if a woman gives birth to a baby in the US while here illegally – or even legally but temporarily on a tourist, student, or work visa – the baby is automatically a US citizen. That’s the potential “birth tourism” loophole to our current citizenship laws that President Trump hopes to eliminate. Under this bill, that baby would be denied US citizenship unless the father were proven to be a permanent resident or citizen.

From Court to Congress, and Back Again

So what’s the difference, you might ask, between this and the president’s executive order? Put simply, it’s a matter of process. When the Supreme Court ruled in June, that six-justice majority included the “liberals,” Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson – but it also included three from what most call the “conservative” bloc: Brett Kavanaugh, Amy Coney Barrett, and Chief Justice John Roberts.

But, as the late great Herman Cain used to say, the devil is in the details. Justice Kavanaugh voted alongside the rest of the majority to strike down the order, but he split from the others on the constitutional question. Roberts relies heavily on stare decisis (respecting the established rulings and procedures), and in his view, the 1898 Wong Kim Ark precedent settles the issue: The 14th Amendment applies across the board here. But Brett Kavanaugh, on the other hand, disagrees. His issue with the executive order is that it’s an overreach of executive power – and he wrote that, while the president can’t unilaterally bypass immigration laws, Congress does have the authority to change or clarify them.

Now, the dissenting conservatives – Clarence Thomas, Neil Gorsuch, and Samuel Alito – certainly wouldn’t oppose an act of Congress if they supported the executive order, and the three liberal justices in the majority seem unlikely to change sides on the issue out of ideology no matter what else changes in the approach. But simply changing the mechanism from executive order to an act of legislation would almost guarantee that, when this law is inevitably challenged, Justice Kavanaugh comes down in support of it rather than in opposition.

The question is, would it convince Justice Barrett to make that same change, effectively turning a 6-3 ruling against the executive order into a 5-4 ruling for the law?

It’s a clever approach, but it may still be all for naught. Can this bill pass the House? Assuming the current kerfuffle over the SAVE America Act doesn’t hold it up, most likely it can. But what of the Senate? Will enough Democrats cross the aisle to deliver the necessary 60 votes? The SAVE America Act passed the House and has been stalled in the Senate for five months now. If the election security bill won’t clear, it doesn’t seem likely the birthright citizenship one would either.