The Supreme Court’s recent ruling on birthright citizenship has ignited a push from conservatives to change how citizenship is defined, and Missouri Sen. Eric Schmitt has introduced a legislative and constitutional path to narrow the clause so it reflects allegiance and permanent membership rather than mere birth inside the country.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” That sentence from the Citizenship Clause sits at the center of this fight and is now being reread in a way that has lawmakers and litigators arguing over the original meaning and modern consequences.
On his first day back in office President Donald Trump issued an order making it policy that citizenship documents should not be issued to a person whose mother was unlawfully in the country and whose father was neither an American citizen nor a permanent resident at the time of the person’s birth. That executive move set off years of litigation and questions about the limits of executive action and Congress’s role in defining nationality.
The U.S. Supreme Court in Trump v. Barbara concluded that “children born in the United States to parents unlawfully or temporarily present are ‘subject to the jurisdiction’ of the United States and are citizens at birth under the Fourteenth Amendment’s Citizenship Clause.” Conservatives who see this as an overreach are now exploring legal and legislative responses to prevent what they call an open-border interpretation of citizenship.
In the wake of that decision Missouri Sen. Eric Schmitt warned that “the majority tried to constitutionalize unlimited birthright citizenship. But Justice Kavanaugh MAY have left Congress a door.” Schmitt’s move is to treat the ruling not as final policy but as a call to reclaim the definition through law and amendment.
The Executive Order does not violate the Fourteenth Amendment. But the Order does contravene a federal statute, 8 U.S.C. § 1401(a). 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. But Congress has not yet done so.
Schmitt argues that when the Court’s interpretation becomes effectively entrenched, the nation must use the constitutional tools available to correct it. “We must do what the Constitution commands in moments of national crisis: We must amend the Constitution and restore American citizenship. We must again put ‘We the People’ first,” he wrote, urging an Article V response.
“When the Court entrenches its mistake as a constitutional command, the remedy must match the injury,” Schmitt added, laying out the procedural reality: an amendment requires two-thirds of both chambers of Congress and ratification by three-quarters of the states. That difficulty is intentional, he says, and exactly why an amendment would carry force and clarity.
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The senator also filed legislation aimed at clarifying statutory language. Schmitt announced he is amending Section 301 of the Immigration and Nationality Act and proposing an “American Citizenship Act” to restate who counts as subject to U.S. jurisdiction at birth. His bill would change the statutory baseline so the constitutional clause aligns with a revised legal definition of nationality.
Schmitt’s draft text would make clear that a person born in the United States is “deemed subject to a foreign power if neither parent of such person is a United States citizen or has been lawfully admitted for permanent residence at the time of such person’s birth.” The proposal also specifies it would not apply retroactively to those already born, limiting its reach to future cases.
“That amendment will restore the original American understanding of citizenship. It will restore the right of the American people to define their own political community,” Schmitt said, framing the effort as a restoration of allegiance and permanence rather than a punitive change to existing citizens’ status.
Justice Samuel Alito, joined in part by Justice Clarence Thomas, criticized the majority’s approach and listed what he called textual contradictions with long-standing law and practice. He highlighted three points in particular:
- “It gives the Fourteenth Amendment’s citizenship test a meaning that plainly differs from that in the Civil Rights Act, even though it is beyond any reasonable dispute that Congress did no such thing”;
- “The Court cannot explain why the Fourteenth Amendment did not confer citizenship on children born in the United States to tribal Indians”; and
- “The Court cannot explain why the phrase ‘subject to the jurisdiction’ of the United States applies to naturalized citizens.”
Alito said in conclusion that “the Court has made a mistake that will seriously affect the country’s future.” That warning encapsulates the stakes for those who want Congress or the states to step in.
President Donald Trump has urged Congress to act and suggested the problem could be fixed through legislation, arguing “no long and unwieldy Constitutional Amendment is necessary!” His comment keeps the door open for a statutory solution, though supporters of an amendment say only a constitutional fix would be permanent and clear.
