Supreme Court Considers Birthright Citizenship for Children of Illegal Immigrants
On Wednesday, Justice Samuel Alito referenced a point made by the late Justice Antonin Scalia as the Supreme Court deliberated on whether birthright citizenship applies to children of illegal immigrants. Alito noted Scalia’s views on textualism, particularly in relation to President Trump’s efforts to redefine citizenship under the 14th Amendment, which traditionally grants citizenship to most individuals born in the United States. Textualism advocates interpreting laws based on their plain text and original intent.
During the discussion, Alito remarked that illegal immigration was largely unrecognized when the 14th Amendment was enacted in 1868, akin to how technologies like microwave ovens were not anticipated back then. He did acknowledge certain historical exceptions to the amendment, such as children born to foreign diplomats and specific Native Americans, questioning whether the children of illegal immigrants could fit into a similar contemporary exception.
Alito illustrated his point using an analogy from Scalia, who envisioned a scenario where someone was accused of stealing a microwave—a previously nonexistent item when the theft laws were established. The accused might argue, “We didn’t have microwaves back then, so I shouldn’t be guilty.” Alito dismissed this argument, stressing the importance of applying existing rules to future circumstances.
Alito further explained that illegal immigration was “basically unknown” when the 14th Amendment was ratified. “If you have a general rule, how do you deal with new situations?” he questioned, pondering the application of legal principles to future events.
Attorney General John Sauer argued in favor of President Trump’s executive order, which aims to end automatic citizenship for children born in the U.S. to mothers who are illegal immigrants or temporary residents. He expressed agreement with Alito on the importance of general principles, particularly regarding the earlier mentioned analogy.
Despite Sauer’s alignment with Alito, the sentiment among the majority of justices appeared skeptical of Trump’s stance. Alito and Justice Clarence Thomas seemed to lean more towards supporting the President’s position.
Justice Elena Kagan countered Sauer’s arguments by highlighting that they revolved mainly around individuals visiting the U.S. temporarily rather than illegal immigrants, indicating a disconnect with Alito’s framework. “Your entire theory is based on that group… so you can’t quite follow Justice Alito’s reasoning,” Kagan observed, acknowledging the principles existing at the time of the 14th Amendment.
