Alito invokes Scalia in birthright citizenship clash over illegal immigration

Justice Samuel Alito invoked an analogy with the late Justice Antonin Scalia on Wednesday as the Supreme Court considered whether birthright citizenship extends to the children of illegal immigrants.

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

Alito suggested that illegal immigration, much like modern technologies such as microwaves, was basically unknown when the 14th Amendment was ratified in 1868. Alito recognized historical exceptions to the amendment, including children born to foreign diplomats and certain Native Americans, and he questioned whether the children of illegal immigrants could be considered a comparable modern exception.

“Justice Scalia had an example that addressed this situation,” Alito said. “He came up with an old theft law that was enacted long before anyone designed a microwave oven. And then afterwards, someone is charged with the crime of stealing a microwave oven. And this man says, ‘Well, I can’t be convicted under that because the microwave didn’t exist in those days.’ And he rejected that. There is a general rule there, and you apply it to future applications. »

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Samuel Alito, Associate Justice of the Supreme Court of the United States, on October 7, 2022 in Washington, DC (Alex Wong/Getty Images)

Alito said illegal immigration “was virtually unknown at the time the 14th Amendment was passed.”

“So how did we handle this situation when we have a general rule?” Alito asked, wondering if the rule was intended to “apply to subsequent requests that might arise.”

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Justice Antonin Scalia (AP Photo/Charles Rex Arbogast, file)

Solicitor General John Sauer argued before the Supreme Court for Trump’s birthright 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 completely agree with the way you phrased it, that there is a general principle,” Sauer told Alito about the microwave analogy.

While Sauer seemed in sync with Alito, most of the justices expressed strong skepticism about Trump’s arguments. Alito and Justice Clarence Thomas appeared most likely to support Trump’s position.

People protest outside the U.S. Supreme Court ahead of President Donald Trump’s scheduled arrival on April 1, 2026 in Washington, DC. (Al Drago/Getty Images)

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

“Your whole theory of the case hinges on this group…so you can’t really follow Justice Alito’s theory,” Kagan said. “You have to say there is a principle that existed at the time of the 14th Amendment.”