Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Petitioners v. Barbara, et al.

Supreme Court briefJan 27, 2026

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No. 25-365

In the Supreme Court of the United States

_____________________

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES, ET AL.,

Petitioners,

BARBARA, ET AL.,

Respondents.

_____________________

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE

U.S. COURT OF APPEALS FOR THE FIRST CIRCUIT

_____________________

Brief of Coolidge Reagan Foundation

as Amicus Curiae in Support of Petitioners

_____________________

Dan Backer

Counsel of Record

CHALMERS, ADAMS, BACKER

& KAUFMAN LLC

441 N. Lee St., Suite 300

(202) 210-5431

dbacker@ChalmersAdams.com

JANUARY 2026

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................... iii

INTERESTS OF AMICI CURIAE ........................... 1

SUMMARY OF ARGUMENT.................................. 1

ARGUMENT ............................................................ 4

THIS COURT SHOULD NOT ALLOW ONE

OF THE MOST IMPORTANT ISSUES OF

THE TWENTY-FIRST CENTURY TO BE

RESOLVED AS A MATTER OF

CONSTITUTIONAL LAW BY ACCIDENT ..... 7

A. This Court Does Not Construe Important

Constitutional Provisions Literally ............. 8

B. This Court Should Not Construe the

Citizenship Clause Literally ...................... 16

II. THIS COURT SHOULD REVERSE

ITS PRECEDENTS EXACERBATING

THIS NATION’S ILLEGAL

IMMIGRATION CRISIS ................................. 20

A. Plyler v. Doe Requires States to

Provide Free Public Education to

Children of Illegal Aliens ........................... 20

B. This Court Has Misapplied Preemption

to Prevent States from Aiding Federal

Enforcement of Immigration Law ............. 30

C. This Court Has Hindered the

Government’s Efforts to Detain

and Deport Illegal Aliens .......................... 33

D. This Court Has Allowed Political

Power to Be Allocated Based on

Illegal Alien Populations ........................... 35

CONCLUSION ....................................................... 37

TABLE OF AUTHORITIES

Cases

Page(s)

Alden v. Maine,

527 U.S. 706 (1999) ........................................... 15

Am. Communs. Ass’n v. Douds,

339 U.S. 382 (1950) ........................................... 13

Am. Ins. Ass’n v. Garamendi,

539 U.S. 396 (2003) ....................................... 2, 12

Arizona v. United States,

567 U.S. 387 (2012) ............................. 1, 3, 10, 31

Armour v. City of Indianapolis,

566 U.S. 673 (2012) ........................................... 27

Barbara v. Trump,

790 F. Supp. 3d 80 (D.N.H. 2025) ...................... 8

Blatchford v. Native Village of Noatak,

501 U.S. 775 (1991) ....................................... 2, 15

Bluman v. FEC,

565 U.S. 1104 (2012) ..................................... 3, 19

Bluman v. FEC,

800 F. Supp. 2d 281 (D.D.C. 2011)

(three-judge district court) ........................... 3, 19

Bolling v. Sharpe,

347 U.S. 497 (1954) ....................................... 2, 15

iii

Buckley v. Valeo,

424 U.S. 1 (1976) (per curiam) ................ 2, 10-11

Burroughs v. United States,

290 U.S. 534 (1934) ........................................... 11

Cabell v. Chavez-Salido,

454 U.S. 432 (1982) ........................................... 19

Cary v. Curtis,

44 U.S. 236 (1845) ......................................... 2, 13

City & Cnty. of San Francisco v. Barr,

965 F.3d 753 (9th Cir. 2020)............................. 32

City of Chicago v. Barr,

961 F.3d 882 (7th Cir. 2020)............................. 32

City of Phila. v. Att’y Gen.,

916 F.3d 276 (3d Cir. 2019) .............................. 32

City of Providence v. Barr,

954 F.3d 23 (1st Cir. 2020) ............................... 32

Clark v. Martinez,

543 U.S. 371 (2005) ........................................... 35

Comptroller of the Treas. v. Wynne,

575 U.S. 542 (2015) ......................................... 1, 9

Dames & Moore v. Regan,

453 U.S. 654 (1981) ........................................... 12

Dep’t of Rev. of Mont. v. Ranch,

511 U.S. 767 (1994) ....................................... 1, 14

Dred Scott v. Sanford,

60 U.S. (19 How.) 393 (1856) .............................. 3

Evenwel v. Abbott,

578 U.S. 54 (2016) ................................... 4, 27, 35

FCC v. Beach Communs.,

508 U.S. 307 (1993) ................................ 22-23, 27

First English Evangelical Lutheran

Church v. Cnty. of Los Angeles,

482 U.S. 304 (1987) ........................................... 14

Foley v. Connelie,

435 U.S. 291 (1978) .................................. 3, 18-19

Gompers v. United States,

233 U.S. 604 (1914) ..................................... 13, 16

Hans v. Louisiana,

134 U.S. 1 (1890) ............................................... 15

Heller v. Doe,

509 U.S. 312 (1993) ...................................... 22-23

Hines v. Davidowitz,

312 U.S. 52 (1941) ............................................. 31

Home Bldg. & Loan Ass’n v. Blaisdell,

290 U.S. 398 (1934) ................................. 2, 11, 16

Hutchinson v. Proxmire,

443 U.S. 111 (1979) ................................... 1, 9, 16

INS v. St. Cyr,

533 U.S. 289 (2001) ........................................... 33

Japanese Immigrant Case,

189 U.S. 86 (1903) ............................................. 33

Jennings v. Rodriguez,

583 U.S. 281 (2018) ........................................... 34

Johnson v. Arteaga-Martinez,

596 U.S. 573 (2022) ..................................... 34-35

Katz v. United States,

389 U.S. 347 (1967) ....................................... 2, 14

Kennedy v. Mendoza-Martinez,

372 U.S. 144 (1963) .................................. 7, 28-29

King v. Burwell,

576 U.S. 473 (2015) ....................................... 2, 18

Konigsberg v. State Bar of California,

366 U.S. 36 (1961) ......................................... 2, 13

Legal Tender Cases,

79 U.S. (12 Wall.) 457 (1870)........................ 2, 10

Lucas v. S.C. Coastal Council,

505 U.S. 1003 (1992) ..................................... 1, 14

Mass. Bd. of Retirement v. Murgia,

427 U.S. 307 (1976) ........................................... 27

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ................ 2, 10, 16

McGowan v. Maryland,

366 U.S. 420 (1961) ........................................... 22

Metro. Theatre Co. v. Chicago,

228 U.S. 61 (1913) ............................................. 28

NLRB v. Noel Canning,

573 U.S. 513 (2014) ............................ 1, 12-13, 16

Nordlinger v. Hahn,

505 U.S. 1 (1992) ............................................... 29

Okla. Tax Comm’n v. Jefferson Lines, Inc.,

514 U.S. 175 (1995) ............................................. 9

Oregon v. Mitchell,

400 U.S. 112 (1970) ....................................... 2, 11

Plyler v. Doe,

457 U.S. 202 (1982) ................. 3, 20-23, 27-30, 33

Polar Tankers, Inc. v. City of Valdez,

557 U.S. 1 (2009) ..................................... 1, 12, 17

Reg’l Rail Reorg. Act Cases,

419 U.S. 102 (1974) ............................................. 2

vii

Saenz v. Roe,

526 U.S. 489 (1999) ........................................... 16

Seminole Tribe v. Florida,

517 U.S. 44 (1996) ........................................ 15-16

Shaughnessy v. United States ex rel. Mezei,

345 U.S. 206 (1953) ........................................... 33

Smith v. Maryland,

442 U.S. 735 (1979) ........................................... 14

Sugarman v. Dougall,

413 U.S. 634 (1973) ........................................... 19

Toll v. Moreno,

458 U.S. 1 (1982) ............................................... 20

Trump v. CASA, Inc.,

606 U.S. 831 (2025) ...................................... 16-17

Trump v. J.G.G.,

604 U.S. 670 (2025) ....................................... 3, 34

Trump v. New York,

592 U.S. 125 (2020) ........................................... 35

U.S. Steel Corp. v. Multistate Tax Comm’n,

434 U.S. 452 (1978) .................................... 1-2, 11

United States v. Brewster,

408 U.S. 501 (1972) ....................................... 2, 17

viii

United States v. California,

921 F.3d 865 (9th Cir. 2019)............................. 38

United States v. Helstoski,

442 U.S. 477 (1979) ............................................. 9

United States v. Johnson,

383 U.S. 169 (1966) ............................................. 9

United States v. Ptasynski,

462 U.S. 74 (1983) ..................................... 1, 9, 16

United States v. Wong Kim Ark,

169 U.S. 649 (1898) ..................................... 10, 17

Utility Air Regulatory Group v. EPA,

573 U.S. 302 (2014) ........................................... 18

Virginia v. Tennessee,

148 U.S. 503 (1893) ........................................... 11

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) ............................ 18

Wright v. United States,

302 U.S. 583 (1938) ........................................... 17

Zadvydas v. Davis,

533 U.S. 678 (2001) ....................................... 4, 34

Constitutional Provisions

U.S. CONST. amend. I ............................................. 13

U.S. CONST. amend. IV........................................... 13

U.S. CONST. amend. V ....................................... 14-15

U.S. CONST. amend. XI........................................... 15

U.S. CONST. amend. XIV .................................... 7, 15

U.S. CONST. amend. XXVI ..................................... 11

U.S. CONST. art. I, § 2, cl. 1 .................................... 11

U.S. CONST. art. I, § 4, cl. 1 .................................... 10

U.S. CONST. art. I, § 6, cl. 1 ...................................... 9

U.S. CONST. art. I, § 8, cl. 1 ...................................... 9

U.S. CONST. art. I, § 8, cl. 3 ...................................... 9

U.S. CONST. art. I, § 8, cl. 4 ................................. 9-10

U.S. CONST. art. I, § 8, cl. 18 .................................. 10

U.S. CONST. art. I, § 10, cl. 1. ................................. 11

U.S. CONST. art. I, § 10, cl. 3 ............................. 11-12

U.S. CONST. art. II, § 1, cl. 4 .................................. 10

U.S. CONST. art. II, § 2, cl. 2 .................................. 12

U.S. CONST. art. II, § 2, cl. 3 .................................. 12

U.S. CONST. art. III, § 2, cl. 1. ................................ 13

Statutes

8 U.S.C. § 1401 ......................................................... 8

Rules

S. CT. R. 37.6 ............................................................ 1

Treatises and Other Materials

Todd Bensman, While Illegal Aliens Kill

and Rape, Bogus Crime Comparisons

Still Blunt Solutions, CTR. FOR IMMIG.

STUD. (July 17, 2024) ........................................ 25

JANE BERNSTEIN & ANNA DESNITSKAYA,

GINA FROM SIBERIA (2018)................................. 36

George J. Borjas, Yes, Immigration

Hurts American Workers,

POLITICO MAG. (Sept./Oct. 2016) ...................... 26

Louis Casiano, Rubio Pauses Worker Visas

for Truck Drivers After Deadly Florida

Crash Involving Illegal Immigrant Kills 3,

FOX NEWS (Aug. 21, 2025) ................................ 24

Matthew Dickerson & Amelia Kuntzman,

Billions of Government Benefits for

Illegal Aliens, ECON. POL’Y INNOVATION

CTR. (Dec. 17, 2024) .......................................... 27

Madison Marino Doan, et al., The

Consequences of Unchecked Illegal

Immigration on America’s Public Schools,

HERITAGE FOUND. (Feb. 28, 2024) ................... 26

Alexander Frei, Cracking Down

on Illegal Immigration Would Raise

Wages for Lower-Income Americans,

HERITAGE FOUND. (Jan. 28, 2025) .................... 26

Lucy Gilder, How Many Migrants Have

Crossed the US Border Illegally?,

BBC (Sept. 29, 2024)......................................... 23

Ernesto Londono, How Fraud Swamped

Minnesota’s Social Services System

on Tim Walz’s Watch, N.Y. TIMES

(Jan. 7, 2026)..................................................... 26

Abeba Mussa, et al., How Does

Immigration Into the United States

Affect the Country’s Housing Market,

J. HOUS. ECON., 35:13 (Mar. 2017) ................... 24

Jocelyn Nungaray, Murder: Illegal

Immigration Status of Suspects Confirmed,

FOX 26 HOUSTON (June 21, 2024) ..................... 25

xii

Matt O’Brien, et al., SCAAP Data Suggest

Illegal Aliens Commit Crime at a Much

Higher Rate Than Citizens & Lawful

Immigrants, FED’N FOR AM. IMMIG.

REFORM (Feb. 3, 2019)....................................... 25

Barack Obama, Inaugural Address by

President Barack Obama (Jan. 21, 2013) .......... 6

Alex Oliveira, Minn.’s Somali

Social-Service Scammers May Have

Stolen $9 Million—Nearly Somalia’s Entire

Economy, N.Y. POST (Dec. 21, 2025) ................ 26

Jeffrey S. Passel & Jens Manuel Krongstad,

U.S. Unauthorized Population Reached a

Record 14 Million in 2023, PEW RESEARCH

CTR. (Aug. 21, 2025)............................................ 5

Stepheny Price, Felon Indicted in

Train Murder as Attacks Terrorize

Commuters in Blue City: Report,

FOX NEWS (Sept. 17, 2025) ............................... 25

Jason Richwine, Welfare Consumption

by Illegal Immigrants is Inevitable—

as Long as They’re Here, CTR. FOR

IMMIGRATION STUD. (Mar. 6, 2025)................... 27

Rick Rojas, Migrant Gets Life Sentence

for Killing Laken Riley in Case Seized

on by Trump, N.Y. TIMES (Jan. 15, 2025) ........ 25

xiii

Albert Saiz & Susan M. Wachter, Immigration

and Housing Rents in American Cities,

Working Paper #433 (Mar. 2017) ..................... 24

Amy Taxin, Woman Gets More Than

3-Year Prison Term for Helping

Pregnant Chinese Women Get to

US, ASSOC. PRESS (Jan. 27, 2025) ...................... 6

U.S. Comm’n on Civil Rights, The Impact

of Illegal Immigration on the Wages

and Employment Opportunities of

Black Workers (Jan. 15, 2010) .......................... 26

U.S. Customs and Border Protection,

Criminal Alien Statistics (Jan. 16, 2026) ........ 25

U.S. House Oversight Comm., Wrap

Up: Biden Administration’s Policies

Have Fueled Worst Border Crisis

in U.S. History (Jan. 17, 2024) ......................... 23

U.S. House Subcomm. on Immigration Integrity,

Security, and Enforcement, Judiciary

Comm., Hearing on Terrorist Entry Through

the Southwest Border, 108th Cong., 1st Sess.

(Sept. 14, 2023) ................................................... 5

Corey Williams, Deadly Crash in

California Renews Federal Criticism

of Immigrant Truck Drivers, PBS NEWS

(Oct. 25, 2025) ................................................... 24

xiv

INTERESTS OF AMICI CURIAE1

Amicus Curiae Coolidge Reagan Foundation is a

nonprofit 501(c)(3) corporation established to advance

liberty and fair elections. It focuses on the principles

of free speech enshrined in the First Amendment of

the U.S. Constitution.

SUMMARY OF ARGUMENT

1. This Court generally does not construe

constitutional provisions literally according to their

plain text. See, e.g., Comptroller of the Treas. v.

Wynne, 575 U.S. 542, 548 (2015) (Dormant Commerce

Clause); NLRB v. Noel Canning, 573 U.S. 513, 538

(2014) (Recess Appointments Clause); Arizona v.

United States, 567 U.S. 387, 394 (2012)

(Naturalization Clause); Polar Tankers, Inc. v. City of

Valdez, 557 U.S. 1, 6 (2009) (Tonnage Clause); Dep’t

of Rev. of Mont. v. Ranch, 511 U.S. 767, 784 (1994)

(Fifth Amendment Double Jeopardy Clause); Lucas v.

S.C. Coastal Council, 505 U.S. 1003, 1016-19 (1992)

(Fifth Amendment Takings Clause); United States v.

Ptasynski, 462 U.S. 74, 86 (1983) (Duties Clause);

Hutchinson v. Proxmire, 443 U.S. 111, 124 (1979)

(Speech and Debate Clause); U.S. Steel Corp. v.

Multistate Tax Comm’n, 434 U.S. 452, 469 (1978)

1 Pursuant to S. CT. R. 37.6, amicus curiae certifies no counsel

for a party authored the brief in whole or part, and no party,

counsel for a party, or person other than amicus, the

Foundation’s members, or amicus’s counsel made any monetary

contributions to fund the preparation or submission of this brief.

(Compacts Clause); Buckley v. Valeo, 424 U.S. 1, 13

n.16 (1976) (per curiam) (Presidential Electors

Clause); Reg’l Rail Reorg. Act Cases, 419 U.S. 102,

158-59 (1974) (Bankruptcy Clause); Bolling v.

Sharpe, 347 U.S. 497, 500 (1954) (Fifth Amendment

Due Process Clause); Home Bldg. & Loan Ass’n v.

Blaisdell, 290 U.S. 398, 428 (1934) (Contracts

Clause); Legal Tender Cases, 79 U.S. (12 Wall.) 457,

547 (1870) (Coinage Clause); see also Am. Ins. Ass’n v.

Garamendi, 539 U.S. 396, 415 (2003) (Treaty Clause);

Blatchford v. Native Village of Noatak, 501 U.S. 775,

779 (1991) (Eleventh Amendment); Oregon v.

Mitchell, 400 U.S. 112, 117-18 (1970) (Qualifications

Clause); Katz v. United States, 389 U.S. 347, 367

(1967) (Harlan, J., concurring) (Fourth Amendment);

Konigsberg v. State Bar of California, 366 U.S. 36, 49

(1961) (First Amendment); Cary v. Curtis, 44 U.S.

236, 245 (1845) (Federal Question Jurisdiction

Clause); McCulloch v. Maryland, 17 U.S. (4 Wheat.)

316, 413 (1819) (Commerce Clause).

Likewise, here, the Court should not adopt a

literal interpretation of the Citizenship Clause that

causes one of the most important problems of the

Twenty-First Century—mass illegal immigration—to

be resolved inadvertently, through the unintended

application of overbroad language to unanticipated

circumstances and a fundamentally different issue

than the clause was adopted to address. See, e.g.,

United States v. Brewster, 408 U.S. 501, 516 (1972);

cf. King v. Burwell, 576 U.S. 473, 485-86 (2015). This

Court should instead construe the clause in light of its

primary purpose of overturning this Court’s ruling in

Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856),

and ensuring former slaves and their children were

recognized as U.S. citizens.

The American people have the sovereign power to

define the scope of their political community by

determining the composition of the American

electorate. See Foley v. Connelie, 435 U.S. 291, 295-96

(1978); see also Bluman v. FEC, 800 F. Supp. 2d 281,

287 (D.D.C. 2011) (three-judge district court),

summarily aff’d, 565 U.S. 1104 (2012). Birthright

citizenship undermines this prerogative by

empowering millions of illegal aliens whose presence

violates federal law to change the American electorate

by conferring citizenship on their offspring.

2. This Court should refuse to constitutionalize

birthright citizenship for illegal aliens to avoid

exacerbating the numerous other lines of precedent

which have contributed to the illegal immigration

crisis. See, e.g., Plyler v. Doe, 457 U.S. 202 (1982)

(requiring states to provide free public education to

illegal aliens’ children); Arizona v. United States, 567

U.S. 387 (2012) (barring states from adopting state

laws concerning illegal aliens which mirror federal

laws the Executive refuses to enforce); Trump v.

J.G.G., 604 U.S. 670 (2025) (habeas rights for illegal

alien gang members); Zadvydas v. Davis, 533 U.S.

678, 701 (2001) (recognizing right of deportable

violent criminal illegal aliens whom no country in the

world will accept to be released into American society

after six months); Evenwel v. Abbott, 578 U.S. 54

(2016) (allowing states to count illegal aliens when

drawing congressional and legislative district lines).

This Court should not aggravate the immigration

crisis by guaranteeing U.S. citizenship for the

children of illegal aliens, thereby both further

enhancing the incentives for illegal immigration and

creating new barriers to the deportation of illegal

aliens.

ARGUMENT

“The number of unauthorized immigrants in

the United States reached an all-time high of 14

million in 2023 after two consecutive years of record

growth . . . .”2 Under President Biden:

[m]ore than 5.7 million illegal aliens

from over 160 countries have illegally

crossed our border. Mr. Biden has

released over 2.6 million of them, a

population larger than the entire State

of New Mexico, into the United States in

violation of our immigration laws. . . .

[A]nother 1.7 million known got-aways

have entered as well. That is an

additional illegal population the size of

West Virginia.

2 Jeffrey S. Passel & Jens Manuel Krongstad, U.S. Unauthorized

Population Reached a Record 14 Million in 2023, PEW RESEARCH

CTR. (Aug. 21, 2025), https://www.pewresearch.org/race-andethnicity/2025/08/21/u-s-unauthorized-immigrant-populationreached-a-record-14-million-in-2023/.

U.S. Subcomm. on Immigration Integrity, Security,

and Enforcement, House Judiciary Comm., Hearing

on Terrorist Entry Through the Southwest Border,

108th Cong., 1st Sess. 1 (Sept. 14, 2023) (statement of

Chair McClintock).

The Government has no idea who most of these

people are—whether they are merely economic

migrants, or violent criminals, terrorists, or radicals

from fundamentally different cultures who despise

Western values and wish the destruction of the

United States. It is absurd to say illegal aliens are not

entitled to remain in the United, yet the Constitution

demands any children to whom they happen to give

birth before justice catches up with them must be

irrevocably granted permanent U.S. citizenship. Such

absurdity has given rise to the so-called “birth

tourism” industry, wherein tens of thousands of

pregnant aliens are smuggled into the United States

annually to touch base solely for the purpose of

commandeering U.S. citizenship for their imminently

arriving infants.3 “Tag” is not a coherent basis for

citizenship.

President Barack Obama declared being an

American is not about race or bloodline, but rather

“our allegiance to an idea”—the principles set forth in

the Declaration of Independence of natural rights and

3 Amy Taxin, Woman Gets More Than 3-Year Prison Term for

Helping Pregnant Chinese Women Get to US, ASSOC. PRESS (Jan.

27, 2025), https://apnews.com/article/chinese-pregnant-womenbirthright-citizenship-260225bd3eea107762b7d2384b096615.

equality. Pres. Barack Obama, Inaugural Address by

President Barack Obama (Jan. 21, 2013).4 It is

impossible to define a nation in terms of an idea when

citizenship is open to anyone who happens to be born

within its boundaries, including the children of

foreigners who flagrantly broke American law by

sneaking into the country, lack allegiance to our

nation, rarely speak our nation’s common tongue,

seldom know our nation’s history, and may staunchly

oppose American values.

The Constitution is not a suicide pact. Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 160 (1963). It does

not require us to allow our nation and its electorate to

be fundamentally transformed, in direct violation of

federal immigration law, by the offspring of unlimited

numbers of illegal aliens from different countries,

with different languages, norms, customs, and values.

This Court must uphold President Donald J. Trump’s

effort to enforce the Citizenship Clause correctly and

coherently.

https://obamawhitehouse.archives.gov/the-press-office/2013/

01/21/inaugural-address-president-barack-obama

THIS COURT SHOULD NOT ALLOW

ONE OF THE MOST IMPORTANT ISSUES

OF THE TWENTY-FIRST CENTURY

TO BE RESOLVED AS A MATTER OF

CONSTITUTIONAL LAW BY ACCIDENT

The Fourteenth Amendment to the Constitution

provides, “All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States . . . .” U.S. CONST.

amend. XIV, § 1. Implementing this provision, federal

law states “a person born in the United States, and

subject to the jurisdiction thereof” shall be a

“national[] and citizen[] of the United States at birth.”

8 U.S.C. § 1401(a).

As with numerous other constitutional provisions,

this Court should not interpret the Citizenship

Clause literally. The Clause was adopted to guarantee

citizenship for former slaves and their children. This

Court should not construe this provision to

inadvertently resolve the fundamentally different

challenge of systemic illegal immigration in the face

of the modern welfare state more than a century later

without any public debate or deliberation. The Court

should not grant the millions of illegal aliens whose

continued presence in this country violates federal

law the constitutional power to change the American

political community—the electorate—by conferring

citizenship upon their children.

A. This Court Does Not Construe Important

Constitutional Provisions Literally

This Court is not bound by a hyper-literal

construction of the Citizenship Clause. To the

contrary, it has repeatedly rejected plain-meaning

constructions of constitutional provisions that would

lead to deleterious or unintended consequences. It

should do so here.

For example, the Speech and Debate Clause of the

U.S. Constitution provides, “[F]or any Speech and

Debate

either

House,”

Senators

and

Representatives “shall not be questioned in any other

place.” U.S. CONST. art. I, § 6, cl. 1. This Court “has

given the Clause a practical rather than a strictly

literal reading which would limit the protection to

utterances made within the four walls of either

Chamber.” Hutchinson v. Proxmire, 443 U.S. 111, 124

(1979). Moreover, though the clause’s plain language

protects members only from “be[ing] questioned,” this

Court has held it not only grants them immunity from

prosecution for legislative acts, see United States v.

Johnson, 383 U.S. 169, 184-85 (1966), but even bars

the Government from introducing evidence of such

acts against them in otherwise permissible cases,

United States v. Helstoski, 442 U.S. 477, 487 (1979).

The Court has likewise declined to apply the

Constitution’s “uniformity” requirements based on

their plain meaning. For example, the Duties Clause

provides, “[A]ll Duties, Imposts and Excises shall be

uniform throughout the United States.” U.S. CONST.

art. I, § 8, cl. 1 (emphasis added). This Court

nevertheless held Congress may grant exemptions for

products from a certain state based on its “considered

judgment with respect to an enormously complex

problem.” United States v. Ptasynski, 462 U.S. 74, 86

(1983). Similarly, Congress may establish “uniform

Laws on the subject of Bankruptcies,” U.S. CONST.

art. I, § 8, cl. 4 (emphasis added). Yet this Court

declared Congress may adopt laws governing

bankruptcies for railroads “only in a single statutorily

defined region.” Reg’l Rail Reorg. Act Cases, 419 U.S.

102, 158-59 (1974). The Bankruptcy Clause’s

uniformity requirement purportedly allows Congress

to “take into account differences that exist between

different parts of the country, and to fashion

legislation to resolve geographically isolated

problems.” Id.

In contrast, the Court has enforced constitutional

restrictions that appear nowhere in the document’s

text. The Constitution’s grant of authority to

Congress to “regulate Commerce . . . among the

several States,” U.S. CONST. art. I, § 8, cl. 3, “is framed

as a positive grant of power to Congress,” Comptroller

of the Treas. v. Wynne, 575 U.S. 542, 548 (2015). Yet

this Court “has consistently held this language to

contain a further, negative command, known as the

dormant Commerce Clause, prohibiting certain state

taxation even when Congress has failed to legislative

on the subject.’” Id. at 548-49 (quoting Okla. Tax

Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 179

(1995)).

The Constitution gives Congress authority over

“Naturalization,” U.S. CONST. art. I, § 8, cl. 4, which

is “a power to confer citizenship,” United States v.

Wong Kim Ark, 169 U.S. 649, 703 (1898). This Court

has nevertheless construed this provision as affording

Congress broader plenary discretion to regulate

immigration into the nation completely independent

of any citizenship-related purposes. See Arizona v.

United States, 567 U.S. 387, 394 (2012). Congress

may “coin money,” yet this Court has read this

provision as giving Congress “complete control over

the currency,” including authority to issue paper

money. Legal Tender Cases, 79 U.S. (12 Wall.) 457,

547 (1870).

The Constitution empowers Congress to “make all

Laws necessary and proper for carrying into

Execution” other powers the Constitution confers on

the Government. U.S. CONST. art. I, § 8, cl. 18

(emphasis added). McCulloch v. Maryland, 17 U.S. (4

Wheat.) 316, 413 (1819), teaches this provision allows

Congress to pass any laws which are “convenient, or

useful” to achieving its goals. Whereas the

Constitution grants Congress power to “make or

alter” rules governing “[t]he Times, Places and

Manner” of congressional elections, U.S. CONST. art. I,

§ 4, cl. 1, it permits Congress only to “determine the

Time of chusing the Electors,” id. art. II, § 1, cl. 4. This

Court

has

nevertheless

“recognized

broad

congressional power to legislate in connection with

the elections of the President and Vice President.”

Buckley v. Valeo, 424 U.S. 1, 13 n.16 (1976) (per

curiam) (citing Burroughs v. United States, 290 U.S.

534 (1934)).5

This Court has similarly refused to give full effect

to the Constitution’s categorical prohibitions. For

example, no state may “pass any . . . Law impairing

the Obligation of Contracts.” U.S. CONST. art. I, § 10,

cl. 1. This Court has cautioned, despite this

provision’s language, “the prohibition is not an

absolute one and is not to be read with literal

exactness like a mathematical formula.” Home Bldg.

& Loan Ass’n v. Blaisdell, 290 U.S. 398, 428 (1934).

Likewise, “without the Consent of Congress,” no state

may “enter into any Agreement or Compact with

another State.” U.S. CONST. art. I, § 10, cl. 3. Yet this

Court has declared, “[N]ot all agreements between

States are subject to the strictures of the Compact

Clause.” U.S. Steel Corp. v. Multistate Tax Comm’n,

434 U.S. 452, 469 (1978); see also Virginia v.

Tennessee, 148 U.S. 503, 518 (1893) (“[T]he terms

‘compact’ or ‘agreement’ in the Constitution do not

apply to every possible compact or agreement

between one State and another . . . .”).

States are also prohibited from imposing any

“Duty of Tonnage” without congressional consent.

5 The Constitution provides electors for the U.S. House in each

state “shall have the Qualifications requisite for Electors of the

most numerous Branch of the State Legislature.” U.S. CONST.

art. I, § 2, cl. 1. Yet prior to the Twenty-Sixth Amendment’s

ratification, see U.S. CONST. amend. XXVI, this Court held

Congress may require states to treat any citizens who were at

least eighteen years old as eligible to vote for federal office. See

Oregon v. Mitchell, 400 U.S. 112, 117-18 (1970).

U.S. CONST. art. I, § 10, cl. 3. The plain meaning of

this phrase refers to a “duty [which] varies according

to the internal cubic capacity of a vessel.” Polar

Tankers, Inc. v. City of Valdez, 557 U.S. 1, 6 (2009)

(quotation marks omitted). Nevertheless, this Court

has “interpreted the language of the Clause in light of

its purpose,” id. at 6, to “forbid[] all charges,

whatever their form, that impose a charge for the

privileges of entering, trading in, or lying in a port,”

id. at 9 (emphasis added, quotation marks omitted).

The Court has overlooked the literal text of other

Articles, as well. Article II grants the President power

“to make Treaties, provided two thirds of the Senate

present concur.” U.S. CONST. art. II, § 2, cl. 2. Yet this

Court has concluded “[t]he President has the

authority to make ‘executive agreements’ with other

countries, requiring no ratification by the Senate.”

Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 415

(2003); cf. Dames & Moore v. Regan, 453 U.S. 654, 686

(1981) (congressional-executive agreements).

“The President shall have Power to fill up all

Vacancies that may happen during the Recess of the

Senate.” U.S. CONST. art. II, § 2, cl. 3 (emphasis

added). The Court acknowledged “the most natural

meaning of ‘happens’ as applied to a ‘vacancy’ . . . is

that the vacancy ‘happens’ when it initially occurs.”

NLRB v. Noel Canning, 573 U.S. 513, 538 (2014).

However, based on “the basic purpose of the Clause,”

historical practice, and “common sense,” the Court

concluded the President may make recess

appointments even for “vacancies that come into

existence while the Senate is in session.” Id. at 545,

549.

Article III provides “[t]he judicial Power shall

extend to all Cases, in Law and Equity, arising under

this Constitution, [and] the Laws of the United

States.” U.S. CONST. art. III, § 2, cl. 1. Except

Congress need not actually authorize federal courts to

exercise such jurisdiction. See Cary v. Curtis, 44 U.S.

236, 245 (1845).

The Court has departed from the plain text of the

Bill of Rights, as well. The First Amendment

provides, “Congress shall make no law . . . abridging

the freedom of speech.” U.S. CONST. amend. I. Yet this

Court has refused to construe First Amendment

freedoms as “absolutes.” Konigsberg v. State Bar of

California, 366 U.S. 36, 49 (1961). The provision’s

meaning is not “to be gathered . . . by taking the words

and a dictionary.” Gompers v. United States, 233 U.S.

604, 610 (1914). “Although the First Amendment

provides that Congress shall make no law abridging

the freedom of speech . . . . [the provision] does not

comprehend the right to speak on any subject at any

time.” Am. Communs. Ass’n v. Douds, 339 U.S. 382,

394 (1950).

The Fourth Amendment guarantees the “right of

the people to be secure in their persons, houses,

papers, and effects.” U.S. CONST. amend. IV. “These

words connote the idea of tangible things with size,

form, and weight, things capable of being searched,

seized, or both.” Katz v. United States, 389 U.S. 347,

365 (1967) (Black, J., dissenting). Yet Justice

Harlan’s concurrence in Katz, which has since been

treated as controlling, see Smith v. Maryland, 442

U.S. 735, 740 (1979), concluded the amendment

applies even outside the textually specified

circumstances, whenever a person has a reasonable

expectation of privacy. Katz, 389 U.S. at 361 (Harlan,

J., concurring). It therefore bars the Government

from remotely wiretapping conversations made on a

public payphone. Id. at 359 (majority op.).

The Fifth Amendment’s Double Jeopardy Clause

provides, “[N]or shall any person be subject for the

same offence to be twice put in jeopardy of life or

limb.” U.S. CONST. amend. V. This Court had no

problem concluding it protects against fines and other

criminal monetary penalties which jeopardize neither

“life” nor “limb.” E.g., Dep’t of Rev. of Mont. v. Ranch,

511 U.S. 767, 784 (1994). The Fifth Amendment’s

Takings Clause states, “[N]or shall private property

be taken for public use, without just compensation.”

U.S. CONST. amend. V. Yet the Court has applied this

provision to so-called regulatory takings, where the

Government neither acquires possession of property,

occupies it, nor trespasses onto it, but instead adopts

regulations which deprive it of economic value, Lucas

v. S.C. Coastal Council, 505 U.S. 1003, 1016-19

(1992), even temporarily, see First English

Evangelical Lutheran Church v. Cnty. of Los Angeles,

482 U.S. 304, 318 (1987).

The Court does not even purport to apply the text

of the Eleventh Amendment, which states the federal

judicial power “shall not be construed to extend to any

suit . . . against one of the United States by Citizens

of another State . . . .” U.S. CONST. amend. XI. The

Court readily acknowledges it has “understood the

Eleventh Amendment to stand not so much for what

it says, but for the presupposition . . . which it

confirms.” Blatchford v. Native Village of Noatak, 501

U.S. 775, 779 (1991). “[B]lind reliance upon the text

of the Eleventh Amendment is to strain the

Constitution and the law to a construction never

imagined or dreamed of.” Seminole Tribe v. Florida,

517 U.S. 44, 69 (1996) (quotation marks omitted).

This Court has concluded states enjoy sovereign

immunity against suits by their own citizens, see

Hans v. Louisiana, 134 U.S. 1 (1890), even in their

own courts, Alden v. Maine, 527 U.S. 706, 730-31

(1999).

Perhaps most notably, Section 1 of the Fourteenth

Amendment contains both a Due Process Clause and

an Equal Protection Clause which limit the power of

state governments in different ways. U.S. CONST.

amend. XIV, § 1. This Court has nevertheless held the

Fifth Amendment, which contains only a Due Process

Clause, id. amend. V, imposes both due Process and

Equal Protection constraints on the federal

government, Bolling v. Sharpe, 347 U.S. 497, 500

(1954).

This discussion is not intended to suggest the

cases cited above are incorrect or undesirable. To the

contrary, it demonstrates this Court has repeatedly

departed from the plain text of the Constitution to

reach reasonable, just outcomes.

B. This Court Should Not Construe

the Citizenship Clause Literally

Similarly, here, this Court should not succumb to

“blind reliance,” Seminole Tribe, 517 U.S. at 69, on

what may be the “most natural meaning,” Canning,

573 U.S. at 538, of the “literal” words, Hutchinson,

443 U.S. at 124; Blaisdell, 290 U.S. at 428, of the

Citizenship Clause. “This provision is made in a

constitution, intended to ensure for ages to come, and,

consequently, to be adapted to the various crises of

human affairs.” McCulloch, 17 U.S. at 415. This Court

should allow President Trump to address the

“enormously complex problem[s],” Ptasynski, 462 U.S.

at 86, of mass illegal immigration, anchor babies,

birth tourism, and the involuntary and illegal

modification of the American electorate in a

“practical” manner, Hutchinson, 443 U.S. at 124,

taking into account “the basic purpose of the Clause,”

history, and “common sense,” Canning, 573 U.S.

at 549, rather than relying primarily on “a

dictionary,” Gompers, 233 U.S. at 610.

1. The undisputed purpose of the Citizenship

Clause was to overturn this Court’s ruling in Dred

Scott v. Sanford to ensure former slaves and their

children would be recognized as American citizens,

Saenz v. Roe, 526 U.S. 489, 502 n.15 (1999); Trump v.

CASA, Inc., 606 U.S. 831, 879 (2025) (Sotomayor, J.,

dissenting)—not to guarantee citizenship to children

of illegal aliens from around the world remain in U.S.

territory in violation of federal law. The Solicitor

General convincingly demonstrates, prior to this

Court’s ruling in United States v. Wong Kim Ark, 169

U.S. 649 (1898), “[c]ontemporary commentators

agreed” the “children of temporarily present aliens do

not become U.S. citizens by birth here.” Brief for the

Petitioners 25-27 (Jan. 2026). This Court should

construe the Citizenship Clause in light of its

purpose. Polar Tankers, 557 U.S. at 6 (“The Court

over the course of many years has consistently

interpreted the language of the [Tonnage] Clause in

light of its purpose . . . .”); United States v. Brewster,

408 U.S. 501, 516 (1972) (“[T]he Speech or Debate

Clause must be read broadly to effectuate its

purpose . . . .”); see also Wright v. United States, 302

U.S. 583, 607 (1938) (Stone, J., concurring) (“The

Court has hitherto consistently held that a literal

reading of a provision of the Constitution which

defeats a purpose evident when the instrument is

read as a whole, is not to be favored.”).

2. It would be one thing if the nation had ever

engaged in solemn constitutional deliberations to

decide whether to permanently confer U.S.

citizenship on the offspring of illegal aliens regardless

of their language, culture, illiteracy, lack of education,

poverty, lack of allegiance to the United States and

American values, criminal history, support for

terrorism or extremism, or other pertinent factors any

rational nation would consider before opening its

doors to someone. This Court should not allow

Respondents to play constitutional “gotcha” by

exploiting the Citizenship Clause’s overbroad

language to address a national crisis which did not

exist a century and a half ago, which that provision

was not crafted to address. The modern “major

questions” doctrine teaches sweeping language in

legal provisions cannot settle crucial, controversial

issues either accidentally or by implication. See King

v. Burwell, 576 U.S. 473, 485-86 (2015) (declining to

construe statute in a manner that resolves “a question

of deep ‘economic and political significance’” which

the statute does not “expressly” address) (citing

Utility Air Regulatory Group v. EPA, 573 U.S. 302,

324 (2014)); see also Wayman v. Southard, 23 U.S. (10

Wheat.) 1, 42-43 (1825) (suggesting the legal

resolution of “important subjects” must occur as the

result of conscious deliberation rather than

inadvertently through “general provisions”). This

principle should apply with even greater force to the

Constitution.

3. This Court should be especially willing to depart

from a literal reading of the Citizenship Clause to

preserve the American electorate’s ability to control

its own composition by restricting the availability of

citizenship. “A new citizen has become a member of a

Nation, part of a people distinct from others.” Foley v.

Connelie, 435 U.S. 291, 295 (1978). This process does

not occur in any meaningful sense for infants born to

illegal aliens who remain citizens of, and subject to

deportation to, foreign countries and are likely to

have their own languages, cultures, allegiances,

histories, and values.

The sovereign has an “obligation to preserve the

basic conception of a political community.” Id. at 296

(quoting Sugarman v. Dougall, 413 U.S. 634, 648

(1973)). “It is fundamental to the definition of our

national political community that foreign citizens do

not have a constitutional right to participate in, and

thus may be excluded from, activities of selfgovernment.” Bluman v. FEC, 800 F. Supp. 2d 281,

287 (D.D.C. 2011) (three-judge district court),

summarily aff’d, 565 U.S. 1104 (2012); see also Bernal

v. Fainter, 467 U.S. 216, 220 (1984). The “exclusion of

aliens from basic governmental processes is . . . a

necessary consequence of the community’s process of

self-definition.” Cabell v. Chavez-Salido, 454 U.S.

432, 439 (1982).

Birthright citizenship enables aliens who have

violated federal law and are not legally present in the

country to nevertheless change the American political

community by conferring citizenship on children who

Congress has determined should not have been born

here in the first place. Allowing millions of foreign

lawbreakers to alter the composition of our nation’s

electorate undermines the American people’s ability

to engage in “self-definition,” Cabell, 454 U.S. at 439,

and “democratic self-government,” Bernal, 467 U.S.

at 220. The Citizenship Clause was never intended to

constitutionally enshrine such a policy—particularly

against the modern backdrop of mass illegal

immigration, a pervasive welfare state, and

ethnically

hyperpolarized

electorate.

importantly, fundamental democratic principles

dictate against it.

II. THIS COURT SHOULD REVERSE ITS

PRECEDENTS

EXACERBATING

THIS

NATION’S ILLEGAL IMMIGRATION CRISIS

This Court does not adjudicate this case in a

vacuum, but rather against the backdrop of

precedents which create tremendous incentives for

illegal immigration while hampering efforts to

combat it. This Court should reconsider each of these

destructive lines of constitutional doctrine. At the

very least, it should refrain from adding to them by

constitutionalizing the pernicious doctrine of

birthright citizenship.

A. Plyler v. Doe Requires States to Provide Free

Public Education to Children of Illegal Aliens

Plyler v. Doe, 457 U.S. 202 (1982), imposes a

Court-created rule of constitutional law for the

benefit of illegal aliens that goes even further than

Respondents’ limitless view of birthright citizenship.

Under Plyler, children of illegal aliens who do not

qualify for birthright citizenship are nevertheless

constitutionally entitled to state-funded public

education at no cost to them or their parents.6 Cf. Toll

v. Moreno, 458 U.S. 1 (1982) (holding a state may not

6 This arrangement is often called “free public education,” but

that phrase obscures the fact public education is not, in fact, free.

The American public must pay for teachers, facilities, school

meals, computers, books, translators, security guards,

psychologists, and the full panoply of other expenses which are

only heightened with regard to non-English speaking children

raised by illegal aliens willing to violate the law.

refuse to give nonimmigrant aliens the same in-state

tuition discounts to which U.S. nationals are

entitled). The Constitution should not require the

American taxpayer to subsidize illegal aliens.

Plyler rests on a series of factual and legal

misstatements as well as faulty, results-oriented

reasoning. Starting from the premise “there is no

assurance” the Government will actually deport all

children of illegal aliens, the Court inexplicably leaps

to the conclusion such children have “an inchoate

federal permission to remain.” Id. at 226. Based on

this non-existent “inchoate federal permission,” the

Court concludes it is “most difficult for the State to

justify” denying those children a publicly funded

education. Id. In the Court’s view, the possibility

illegal aliens and their children may ignore court

orders, use fraudulent identification and work papers,

lie, hide, flee immigration officials, exploit the

government’s limited enforcement capacity, and

violate federal law for a substantial period of time

implicitly entitles them in some sense to not only

remain in the country, but receive government

benefits as a matter of constitutional law.

Second, Plyler fabricated a sui generis level of

constitutional scrutiny to implement the thenmajority’s progressive policy preferences rather than

established principles of constitutional law. The

Court properly acknowledged it could not apply strict

scrutiny because public education is not a right, id.

at 221, and the children of illegal aliens are not a

suspect class, id. at 223. It did not mention

intermediate scrutiny. Rather, the Court repeatedly

insisted it was assessing the “rationality” of the

state’s exclusion of illegal aliens from public schools.

Id. at 224 (discussing the Court’s effort to

“determin[e] the rationality” of the policy); see also id.

at 220 (claiming it was “difficult to conceive of a

rational justification” for denying a free public

education to the children of illegal aliens); id. at 224

(assessing whether a “sufficient rational basis” for the

policy exists).

The opinion systematically misapplied rational

basis scrutiny. It began by ignoring the “strong

presumption of validity” to which statutes subject to

rational basis review are entitled. Heller v. Doe, 509

U.S. 312, 319 (1993); accord FCC v. Beach Communs.,

508 U.S. 307, 314 (1993); see also McGowan v.

Maryland,

366

U.S.

420,

425-26

(1961)

(“[L]egislatures are presumed to have acted within

their constitutional power despite the fact that, in

practice, their laws result in some inequality.”). It

proceeded to mischaracterize the applicable standard

of review. The Court declared the state’s policy could

“hardly be considered rational unless it furthers

some substantial goal of the State.” Id. at 224

(emphasis added); see also id. at 230 (holding the

State cannot deny free public education to the

children of illegal aliens unless it shows that the

policy “furthers some substantial state interest”).

This analysis was flawed in two respects. Rational

basis scrutiny requires only a “rational relationship

between the disparity of treatment and some

legitimate governmental purpose.” Heller, 509 U.S.

at 320 (emphasis added). The government interest

underlying the challenged provision need not rise to

the level of “substantial.” Moreover, the state need not

prove its policy actually furthers its asserted interest,

but only that there is a rational reason for believing it

might do so. Plyler declared, “There is no evidence in

the record suggesting that illegal entrants impose any

significant burden on the State’s economy.” Plyler,

457 U.S. at 228. But “[a] legislative choice is not

subject to courtroom factfinding and may be based on

rational speculation unsupported by evidence or

empirical data.” Beach Communs., 508 U.S.. at 315. A

law “must be upheld against equal protection

challenge if there is any reasonably conceivable

state of facts that could provide a rational basis for

the classification.” Heller, 509 U.S. at 320 (emphasis

added).

Even if it were true a half century ago that illegal

immigration did not harm the American economy,

recent events have made it rational to fear some of the

millions of illegal aliens which Democrats have

allowed to enter the country7 have contributed to

7 Lucy Gilder, How Many Migrants Have Crossed the US Border

Illegally?,

BBC

(Sept.

29,

2024),

https://www.bbc.com/news/articles/c0jp4xqx2z3o; U.S. House

Oversight Comm., Wrap Up: Biden Administration’s Policies

Have Fueled Worst Border Crisis in U.S. History (Jan. 17, 2024),

https://oversight.house.gov/release/wrap-up-bidenadministrations-policies-have-fueled-worst-border-crisis-in-u-shistory/

skyrocketing housing prices,8 turned our nation’s

highways into deathtraps,9 engaged in violent

8 The most reputable studies focus on overall immigration rather

than illegal immigration, but the underlying principles appear

comparable. See Albert Saiz & Susan M. Wachter, Immigration

and Housing Rents in American Cities, Working Paper #433

(Mar.

2017),

https://realestate.wharton.upenn.edu/wpcontent/uploads/2017/03/433.pdf; Abeba Mussa, et al., How Does

Immigration Into the United States Affect the Country’s Housing

Market,

HOUS.

ECON.,

35:13

(Mar.

2017),

https://housingmatters.urban.org/research-summary/how-doesimmigration-united-states-affect-countrys-housing-market.

9 Louis Casiano, Rubio Pauses Worker Visas for Truck Drivers

After Deadly Florida Crash Involving Illegal Immigrant Kills 3,

FOX

NEWS

(Aug.

21,

2025),

https://www.foxnews.com/politics/rubio-pauses-worker-visastruck-drivers-deadly-florida-turnpike-crash-kills-three;

see

Corey Williams, Deadly Crash in California Renews Federal

Criticism of Immigrant Truck Drivers, PBS NEWS (Oct. 25,

2025), https://www.pbs.org/newshour/politics/deadly-crash-incalifornia-renews-federal-criticism-of-immigrant-truck-drivers.

crime,10 murdered innocent Americans,11 defrauded

the country out of billions of dollars for the benefit of

See U.S. Customs and Border Protection, Criminal Alien

Statistics

(Jan.

16,

2026),

https://www.cbp.gov/newsroom/stats/cbp-enforcementstatistics/criminal-alien-statistics; Todd Bensman, While Illegal

Aliens Kill and Rape, Bogus Crime Comparisons Still Blunt

Solutions, CTR. FOR IMMIG. STUD. (July 17, 2024),

https://cis.org/Bensman/While-Illegal-Aliens-Kill-and-RapeBogus-Crime-Comparisons-Still-Blunt-Solutions; Matt O’Brien,

et al., SCAAP Data Suggest Illegal Aliens Commit Crime at a

Much Higher Rate Than Citizens & Lawful Immigrants, FED’N

FOR

AM.

IMMIG.

REFORM

(Feb.

2019),

https://www.fairus.org/sites/default/files/2019-01/SCAAP-DataIllegal-Aliens-Have-Higher-Crime-Rate_0.pdf.

11 See, e.g., Stepheny Price, Felon Indicted in Train Murder as

Attacks Terrorize Commuters in Blue City: Report, FOX NEWS

(Sept. 17, 2025), https://www.foxnews.com/us/felon-indicted-intrain-murder-as-attacks-terrorize-commuters-in-blue-cityreport; Rick Rojas, Migrant Gets Life Sentence for Killing Laken

Riley in Case Seized on by Trump, N.Y. TIMES (Jan. 15, 2025),

https://www.nytimes.com/2024/11/20/us/laken-riley-murdertrial-jose-ibarra-guilty.html; Jocelyn Nungaray, Murder: Illegal

Immigration Status of Suspects Confirmed, FOX 26 HOUSTON

(June

21,

2024),

https://www.fox26houston.com/news/venezuelan-nationals-facecapital-murder-charges-houston-girls-death-ice-confirms.

foreigners abroad,12 stole American jobs,13 depressed

wages,14 undermined the American education

system,15 absorbed billions in various public benefits

12 Alex Oliveira, Minn.’s Somali Social-Service Scammers May

Have Stolen $9 Million—Nearly Somalia’s Entire Economy, N.Y.

POST (Dec. 21, 2025), https://nypost.com/2025/12/21/usnews/minn-s-social-services-scammers-may-have-stolen-9billion/; Ernesto Londono, How Fraud Swamped Minnesota’s

Social Services System on Tim Walz’s Watch, N.Y. TIMES (Jan. 7,

2026),

https://www.nytimes.com/2025/11/29/us/fraudminnesota-somali.html.

U.S. Comm’n on Civil Rights, The Impact of Illegal

Immigration on the Wages and Employment Opportunities of

Black

Workers

(Jan.

15,

2010),

https://www.usccr.gov/files/pubs/docs/IllegImmig_10-1410_430pm.pdf.

14 Alexander Frei, Cracking Down on Illegal Immigration Would

Raise Wages for Lower-Income Americans, HERITAGE FOUND.

(Jan.

28,

2025),

https://www.heritage.org/jobs-andlabor/commentary/cracking-down-illegal-immigration-wouldraise-wages-lower-income; George J. Borjas, Yes, Immigration

Hurts American Workers, POLITICO MAG. (Sept./Oct. 2016),

https://www.politico.com/magazine/story/2016/09/trumpclinton-immigration-economy-unemployment-jobs-214216/.

See Madison Marino Doan, et al., The Consequences of

Unchecked Illegal Immigration on America’s Public Schools,

HERITAGE

FOUND.

(Feb.

28,

2024),

http://files.eric.ed.gov/fulltext/ED662169.pdf.

programs,16 and reallocated political power within

our nation.17

Likewise, Plyler declares denying free public

education to the children of illegal aliens is a less

effective way of stemming illegal immigration than

“prohibiting the employment of illegal aliens.” Plyler,

457 U.S. at 228-29. But the rational basis test does

not require the government to choose “the best means

to accomplish [its] purpose.” Mass. Bd. of Retirement

v. Murgia, 427 U.S. 307, 316 (1976). Even if a

“superior system” exists, “the Constitution does not

require the [government] to draw a perfect line nor

even to draw a line superior to some other line it

might have drawn.” Armour v. City of Indianapolis,

566 U.S. 673, 685 (2012). Under rational basis

scrutiny, it was up to the State—not the Court—to

determine which public school eligibility policies

would benefit the State’s economy. See Beach

Communs., 508 U.S. at 313 (“[E]qual protection is not

a license for courts to judge the wisdom, fairness, or

logic of legislative choices.”). “The problems of

government are practical ones and may justify, if they

Matthew Dickerson & Amelia Kuntzman, Billions of

Government Benefits for Illegal Aliens, ECON. POL’Y INNOVATION

CTR. (Dec. 17, 2024), https://epicforamerica.org/federalbudget/billions-of-government-benefits-for-illegal-aliens/; Jason

Richwine, Welfare Consumption by Illegal Immigrants is

Inevitable—as Long as They’re Here, CTR. FOR IMMIGRATION

STUD. (Mar. 6, 2025), https://cis.org/Richwine/WelfareConsumption-Illegal-Immigrants-Inevitable-Long-Theyre-Here.

17 See Evenwel v. Abbott, 578 U.S. 54, 68 (2016).

do not require, rough accommodations—illogical, it

may be, and unscientific.” Metro. Theatre Co. v.

Chicago, 228 U.S. 61, 69-70 (1913).

Plyler was based on yet a third error: the notion

denying the children of illegal aliens a publicly

subsidized education at no cost to them constituted

punishment. The Plyler Court opined it was “difficult

to conceive of a rational justification for penalizing”

illegal alien children “for their presence within the

United States” since children “have little control” over

that status. Plyler, 457 U.S. at 220 (emphasis added).

The Court described the children of illegal aliens as

“victims” of the state’s policy, id. at 224, and

emphasized their “innocen[ce],” id. at 224 n.21; see

also id. at 223 (declaring children of illegal aliens are

“not accountable for their disabling status”); id. at 226

(reiterating children of illegal aliens are illegally

present in the country “through no fault of their

own”). The Court added, “[L]egislation directing the

onus of a parent’s misconduct against his children

does not comport with fundamental conceptions of

justice.” Id.

But refusing to spend public resources to educate

illegal aliens is not a punishment. In Kennedy v.

Mendoza-Martinez, 372 U.S. 144 (1963), this Court

articulated a multifactor constitutional test for

determining whether a governmental policy

constitutes a punishment. It requires the Court to

consider a range of factors, hardly any of which

suggest refusing to publicly subsidize public

education for the children of illegal aliens qualifies as

punishment under the Constitution. Id. at 168-69.

Denial of public education neither imposes a

“restraint” on illegal aliens nor has “historically been

regarded as a punishment.” Id. The eligibility

requirements apply regardless of whether a person

knowingly violated federal immigration law. Id.

Perhaps most importantly, a range of non-punitive

purposes would be served by denying publicly

subsidized education to the children of illegal aliens,

including removing incentives for illegal immigration,

withholding subsidies from people who should not be

here, rendering immigration law more coherent,

conserving public resources, and improving the

quality of public education by reducing both class

sizes and the proportion of non-English-speakers in

the student body requiring expensive special services.

Finally, Plyler emphasized the “lasting impact” of

depriving children of an education. 457 U.S. at 221;

see also id. at 222 (discussing the “toll” a lack of

education takes “on the social, economic, intellectual,

and psychological well-being of the individual”). In

the Plyler Court’s view, it is “most difficult” to

“reconcile the[se] cost[s]” with the Equal Protection

Clause. Id. But Equal Protection does not require

states to guarantee “the ‘American Dream,’”

Nordlinger v. Hahn, 505 U.S. 1, 17 (1992), to illegal

aliens, whether adults or children.

Plyler does not rest on an analysis of the text,

structure, original public meaning, drafting debates,

or ratification history of the Equal Protection Clause,

but rather the view of several Justices that the

children of illegal aliens “should not be left on the

streets uneducated.” 457 U.S. at 238 (Powell, J.,

concurring); id. at 223 (“By denying these [illegal

alien] children a basic education, we deny them the

ability to live within the structure of our civic

institutions, and foreclose any realistic possibility

that they will contribute in even the smallest way to

the progress of our Nation.”); id. at 231 (Blackmun, J.,

dissenting) (“Like JUSTICE POWELL, I believe that

the children involved in this litigation should not be

left on the streets uneducated.” (quotation marks

omitted)); cf. id. at 242 (Burger, J., dissenting) (“[I]t is

senseless for an enlightened society to deprive any

children—including illegal aliens—of an elementary

education.”). Plyler v. Doe reflects politically

motivated results-oriented jurisprudence. This Court

should extirpate this welcoming beacon for illegal

aliens who will seek birthright citizenship for future

children they have here.

B. This Court Has Misapplied Preemption

to Prevent States from Aiding Federal

Enforcement of Immigration Law

This Court has not only required states to provide

certain benefits to illegal aliens, but forbidden them

from effectively deterring illegal aliens. In particular,

the Court has barred states from enforcing state laws

which mirror federal law, even when the Executive

Branch cannot or will not implement federal

immigration law, opens the border, and releases

illegal aliens and fraudulent asylees into the country.

In Hines v. Davidowitz, 312 U.S. 52, 67 (1941), this

Court invoked field preemption to hold states may not

“complement” federal immigration law, even when

their enactments are fully consistent with such law.

It declared, “Any concurrent state power that may

exist is restricted to the narrowest of limits.” Id. at 68.

The Court took this principle to a harmful extreme

in Arizona v. United States, 567 U.S. 387 (2012).

There Arizona made it a state misdemeanor for aliens

violate

certain

already-existing

federal

“proscri[ptions].” Id. at 400. The Court declared since

Congress had occupied the entire field of alien

registration, “even complementary state regulation is

impermissible.” Id. at 401. Preemption doctrine,

however, is meant to protect the efficacy of federal law

from interference by states. Arizona twists the

doctrine out of fear that allowing states to enforce

legal requirements set forth in federal law would

somehow “frustrate federal policies.” Id. at 402. The

Court declared, “Discretion in the enforcement of

immigration law embraces immediate human

concerns” as well as issues relating to “international

relations.” Id. at 396; see also id. at 409 (expressing

concern state officials may “harass[]” a removable

illegal alien “who federal officials determine should

not be removed” and declaring an alien should not be

“arrest[ed] . . . for being removable”). In effect,

Arizona constitutionalizes the President’s prerogative

to ignore federal immigration law. Federal statutes—

not Executive Branch enforcement policies—are the

supreme law of the land, U.S. CONST. art. VI, § 2.

States should be permitted to enforce their own legal

provisions which mirror such law.

While hindering state efforts to enforce

immigration law, the judiciary has aided states

wishing to impede such enforcement. Numerous

circuits have enjoined federal efforts to withhold

federal law enforcement funds for self-proclaimed

sanctuary cities whose official policy is to undermine

federal immigration enforcement and refuse to assist

federal immigration authorities in basic ways. See,

e.g., City & Cnty. of San Francisco v. Barr, 965 F.3d

753, 761, 764 (9th Cir. 2020); City of Chicago v. Barr,

961 F.3d 882, 894, 896, 909 (7th Cir. 2020); City of

Phila. v. Att’y Gen., 916 F.3d 276 (3d Cir. 2019); City

of Providence v. Barr, 954 F.3d 23 (1st Cir. 2020). And

in United States v. California, 921 F.3d 865 (9th Cir.

2019), cert. denied, 590 U.S. 1015 (2020), this Court

refused to consider the Government’s challenge to the

so-called California Values Act, which prohibits law

enforcement officials from turning over incarcerated

illegal aliens to federal authorities except under

certain narrow circumstances. This Court should not

bar states from enforcing federal immigration law,

bolster state efforts to protect illegal aliens who flout

that law, and then insist their children be granted

U.S. citizenship.

C. This Court Has Hindered the Government’s

Efforts to Detain and Deport Illegal Aliens

This Court has created an illegal immigration

rachet in which Democratic administrations can

affirmatively facilitate the importation of millions of

illegal aliens, while Republican administrations are

hamstrung in their efforts to enforce immigration

law. When Democratic administrations allow illegal

immigrants to flood the nation—indeed, they

incentivize and even fund such mass migration into

the

nation—justiciability

doctrine

precludes

Americans from suing to enforce our borders.

And once illegal aliens have made their way into

the country, this Court has recognized a range of

barriers to impede their detention and deportation.

Decades before the dawn of the modern illegal

immigration crisis, this Court declared the Executive

Branch may not deport an alien “alleged to be illegal

here” without due process of law. Japanese

Immigrant Case, 189 U.S. 86, 101 (1903). To the

contrary, “aliens who have once passed through our

gates . . . illegally[] may be expelled only after

proceedings conforming to traditional standards of

fairness encompassed in due process of law.”

Shaughnessy v. United States ex rel. Mezei, 345 U.S.

206, 212 (1953); see also Plyler, 457 U.S. at 210.

Rather than reassessing these sweeping

declarations in light of the illegal immigration crisis,

this Court has instead built upon them. In INS v. St.

Cyr, 533 U.S. 289 (2001), this Court allowed a

deportable criminal alien to petition for a writ of

habeas corpus for the sole purpose of arguing the

Attorney General had discretion to refrain from

deporting him. This past year, this Court went on to

emphasize illegal alien gang members could petition

for habeas relief to obtain an “opportunity to

challenge their removal.” Trump v. J.G.G., 604 U.S.

670 (2025).

This Court has similarly frustrated the

Government’s attempts to detain deportable illegal

aliens. In Zadvydas v. Davis, 533 U.S. 678, 701

(2001), this Court held, when the Government cannot

find a country willing to accept deportable violent

aliens within six months of a deportation order and

there is no reasonable prospect of doing so, then it

must generally release them into the United States.

Under Zadvydas, the very worst of the worst—violent

felons who literally no other country in the world are

willing to take—are entitled to be released into the

United States—a country in which they are

illegally present and have no right to remain—

to victimize more Americans.

Lower courts have latched onto Zadvydas as an

excuse for grafting ever more elaborate procedural

rights for aliens to fight their detention and seek

release into our nation. See, e.g., Johnson v. ArteagaMartinez, 596 U.S. 573, 582 (2022) (“[T]he detailed

procedural requirements imposed by the Court of

Appeals below reach substantially beyond the

limitation on detention authority recognized in

Zadvydas.”); Jennings v. Rodriguez, 583 U.S. 281, 299

(2018) (“Zadvydas represents a notably generous

application of the constitutional-avoidance canon, but

the Court of Appeals in this case went much

further.”). Zadvydas was “wrong the day it was

decided and thus does not warrant ‘stare decisis

effect.’” Arteaga-Martinez, 596 U.S. at 586 (Thomas,

J., concurring) (quoting Clark v. Martinez, 543 U.S.

371, 401 (2005) (Thomas, J., dissenting)). This Court

should reequilibrate constitutional law to remove

artificial barriers to excluding, detaining, and

removing illegal aliens. Our deportation system

cannot operate at a detailed retail level when illegal

immigrants are able to enter at a rate which is orders

of magnitude greater.

D. This Court Has Allowed Political Power to be

Allocated Based on Illegal Alien Populations

Finally, this Court has incentivized certain

politicians to enthusiastically support illegal

immigration because it artificially enhances the

political power of Democratic-leaning areas of states.

In Evenwel v. Abbott, 578 U.S. 54 (2016), this Court

held the Constitution permits states to draw

congressional and legislative district lines based on

total population, including illegal aliens, rather than

U.S. nationals or even all lawfully present

individuals.

It went on in Trump v. New York, 592 U.S. 125

(2020), to reject the federal government’s effort to

include a citizenship question on the U.S. census—

despite the fact such a question had been included on

earlier versions and is completely valid information

for the government to collect. By bolstering the

political power of regions with numerous illegal

aliens, this Court incentivizes politicians to import

even more of them, leading to a self-defeating cycle

that fundamentally changes the American electorate,

and this nation, at an exponentially growing rate.

Granting birthright citizenship to the children of

illegal aliens only perverts these bizarre political

incentives even further.

CONCLUSION

For these reasons, this Court should REVERSE

the judgment of the Court of Appeals.18

Respectfully submitted,

JANUARY 2026

Dan Backer

Counsel of Record

Chalmers, Adams, Backer

& Kaufman LLC

441 N. Lee St., Suite 300

(202) 210-5431

dbacker@

ChalmersAdams.com

Undersigned counsel presents these arguments as an

immigrant himself, whose family in fled soviet oppression in

1978, including the family dog, as published in JANE BERNSTEIN,

CHARLOTTE GLYNN, & ANNA DESNITSKAYA, GINA FROM SIBERIA

(2018). Counsel lawfully, and gratefully, became a citizen

through legal channels in 1986, and submits this brief to

encourage this Court to refuse to create backdoor channels to

circumvent the naturalization process.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.