REPORT: Alito invokes Scalia in birthright citizenship case over illegal aliens

April 1, 2026

From Fox News: 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 the Constitution according to its text and original meaning.

Alito suggested that illegal immigration, like modern technology such as microwaves, was basically 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.”

Noting that illegal immigration “was basically unknown at the time when the 14th amendment was adopted,” Alito asked, “So, how did we deal with that situation when we have a general rule?”

The report notes that Alito and Justice Clarence Thomas appeared to be the most likely to back the Trump administration’s position.

However, the other justices appeared skeptical of the suggestion that birthright citizenship should be banned.

🚨 BREAKING: Justice Samuel Alito just made a key point during the birthright citizenship arguments — and it’s getting attention 👀🔥

He raised a broader idea:

👉 Laws aren’t frozen in time
👉 They’re often applied to new situations that didn’t exist when they were written… pic.twitter.com/SEHhEKMuhX

— Commentary 🇺🇸 Tom Homan (@HomanNews) April 1, 2026

Alito also brought up the issue that a baby born in the U.S. to an illegal alien could still have a duty to their home country, and could potentially end up in the military of their home country.

Sen. Eric Schmitt (R-Mo.) wrote:

Justice Alito raises a really important point: If an alien—say from China, Russia, or Iran—enters our country illegally and has a child here, that child is automatically a citizen of that foreign nation, and can even be conscripted into that foreign nation’s military and required to fight for that nation.

Isn’t that person “subject to” a foreign nation’s “jurisdiction,” not the US’s—and therefore outside the 14A?

Justice Alito raises a really important point:

If an alien—say from China, Russia, or Iran—enters our country illegally and has a child here, that child is automatically a citizen of that foreign nation, and can even be conscripted into that foreign nation’s military and…

— Senator Eric Schmitt (@SenEricSchmitt) April 1, 2026

LISTEN BELOW:

🚨 HOLY SMOKES. Justice Sam Alito just sounded the alarm that unlimited birthright citizenship means a Chinese, Iranian or Russian foreigner can have a child in America, and that US citizen owes MILITARY ALLEGIANCE to a foreign adversary

“They have the duty of military service.… pic.twitter.com/01aAzfJJVh

— Eric Daugherty (@EricLDaugh) April 1, 2026

Florida Gov. Ron DeSantis wrote, “Justice Alito is characteristically on point. Wish more of the justices saw it this clearly.”

Justice Alito is characteristically on point.

Wish more of the justices saw it this clearly. https://t.co/a37o7sTuDs

— Ron DeSantis (@RonDeSantis) April 1, 2026