The Supreme Court dropped the ball. But Republicans are picking it up.
Now a key Republican moved to end birthright citizenship.
The Court Said No. Congress Has Something To Say About That.
The Supreme Court blocked President Trump’s executive order on birthright citizenship in late June, ruling 5-4 in Trump v. Barbara that children born in the United States to parents who are unlawfully or temporarily present are citizens at birth under the 14th Amendment. It was a significant ruling. It was not the last word.
Sen. Eric Schmitt, R-Mo. — who chairs the Senate Judiciary Subcommittee on the Constitution and has made birthright citizenship his most prominent post-Barbara legislative priority — came out swinging Wednesday with two distinct but complementary actions: a new letter to Secretary of State Rubio and DHS Secretary Mullin demanding action on a specific, legally settled category of cases, and his American Citizenship Act, introduced Tuesday, which targets the broader question the Supreme Court just answered against him.
The letter focuses on something the Supreme Court did not touch. Even the majority in Trump v. Barbara explicitly recognized that children of foreign diplomats do not acquire citizenship at birth — because their parents are not “subject to the jurisdiction” of the United States in the constitutional sense, which has been the established legal position for more than a century. The 14th Amendment’s phrase “subject to the jurisdiction thereof” has always been understood to exclude diplomatic personnel, whose legal status is governed by international law rather than U.S. domestic authority.
What Schmitt’s letter alleges is that, despite this clear legal exclusion, foreign diplomats’ children have still been able to obtain birth certificates, Social Security numbers, and other documents that can be used to claim U.S. citizenship — because agencies lack adequate safeguards to flag when a newborn’s parents hold diplomatic status before citizenship-related documents are issued. He is asking Rubio and Mullin to investigate the scope of the problem, implement processes to prevent future improper issuances, identify individuals who received the documentation, and revoke those documents.
“Foreign diplomats’ children using improperly procured citizenship documentation to illegally claim citizenship degrades the meaning of American citizenship, undermines our sovereignty, and threatens our national security,” Schmitt wrote.
The American Citizenship Act — And The Constitutional Battle Ahead
The broader legislation Schmitt introduced Tuesday is a direct challenge to the court’s ruling and is intended to restart the constitutional fight through Congress rather than through the executive branch. His American Citizenship Act would limit birthright citizenship to children of U.S. citizens and lawful permanent residents — explicitly excluding children born to illegal aliens and tourists, the population the Supreme Court majority ruled are covered by the 14th Amendment.
“SCOTUS got birthright citizenship dangerously wrong,” Schmitt wrote on X. “I’m filing the American Citizenship Act to start the process of restoring the 14th Amendment’s original meaning.”
The legislative path is uphill. Democrats in the Senate will block the bill, and even within the Republican conference there is disagreement about whether a statutory restriction on birthright citizenship can survive constitutional challenge after the Supreme Court’s explicit ruling. The ACLU, which successfully challenged Trump’s executive order, has indicated it will challenge any legislative alternative on the same 14th Amendment grounds.
But Schmitt’s strategy appears designed for a longer horizon than one legislative session. The American Citizenship Act is both a policy proposal and a legal vehicle — introducing statutory language that could eventually produce a new test case, with different facts and a different legal record, that could be presented to a Supreme Court that may look different in two or four years. The diplomat letter is more immediate: it targets a category of cases where the existing law is on Schmitt’s side, the Supreme Court’s ruling is irrelevant, and the problem is simply one of administrative enforcement that the executive branch can and should be able to fix without congressional action.
Why It Matters For November — And Beyond
Trump spent his first press conference after the Barbara ruling suggesting that Congress could and should address birthright citizenship legislatively. Schmitt’s bill is the direct response to that invitation. Whether it passes this session, it serves a midterm function: it puts every Democrat on the record on a question — should children born to tourists and illegal immigrants automatically receive American citizenship — that polls quite differently than the legal question the Supreme Court resolved.
The birth tourism industry is real and documented. Thousands of foreign nationals travel to the United States specifically to give birth on American soil, returning home with children who hold U.S. passports, access to U.S. education and benefits, and the right to sponsor their parents for immigration in 21 years. That practice enjoys zero popular support among the American public regardless of party, and the Supreme Court’s ruling protecting it created an immediate and ongoing political opportunity for the Republican Party to make the case that Congress should act where the Court would not.
Schmitt is making that case. The battles ahead are many.
