Alito invokes Scalia analogy in birthright citizenship fight over illegal immigration

Justice Samuel Alito invoked an analogy from late Justice Antonin Scalia Wednesday as the Supreme Court weighed whether birthright citizenship extended to children of illegal immigrants.

Alito said Scalia had illustrated how to apply textualism to modern circumstances, a point he raised during high-stakes oral arguments over President Donald Trump’s effort to limit birthright citizenship under the 14th Amendment, which grants most people born in the United States automatic citizenship. Textualism is a legal view that courts should read laws and the Constitution according to their plain text and original meaning.

Alito said illegal immigration, similar to modern technology such as microwaves, was relatively unknown when the 14th Amendment was ratified in 1868. Alito acknowledged historical exceptions to the amendment, including children born to foreign diplomats and certain Native Americans, and he questioned whether illegal immigrants' children could be considered a comparable modern-day exception.

"Justice Scalia had an example that dealt with this situation," Alito said. "He imagined an old theft statute that was enacted well before anybody conceived of a microwave oven. And then, afterwards, someone is charged with the crime of stealing a microwave oven. And this fellow says, 'Well, I can't be convicted under this because the microwave oven didn't exist at that time.' And he dismissed that. There's a general rule there, and you apply it to future applications."

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Alito said illegal immigration "was basically unknown at the time when the 14th amendment was adopted."

"So, how did we deal with that situation when we have a general rule?" Alito asked, questioning if the rule was intended to "apply to later applications that might come up."

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Solicitor General John Sauer argued to the Supreme Court in support of Trump's birthright citizenship executive order, which would end automatic citizenship for babies born in the United States to mothers who are illegal immigrants or legal temporary visitors.

"I strongly agree with the way that you framed it, that there is a general principle," Sauer told Alito of the microwave analogy.

While Sauer appeared in sync with Alito, most of the justices voiced strong skepticism of Trump’s arguments. Alito and Justice Clarence Thomas appeared to be the most likely to back Trump's position.

Justice Elena Kagan said Sauer could not argue in the way Alito suggested because the bulk of Sauer's arguments had centered on people temporarily visiting the country, not illegal immigrants.

"Your whole theory of the case is built on that group … so you can’t really be going with Justice Alito’s theory," Kagan said. "You must be saying that there is a principle that was there at the time of the 14th Amendment."