A graphic is circulating with Justice Clarence Thomas and a single sentence: “Aliens have no equal protection rights against the Federal Government.” The caption says he just told the left what they never want to hear.

The sentence is real. It comes from Thomas’s concurring opinion in Mullin v. Doe , decided June 25, 2026. [9]

But the graphic gets the argument wrong in a way that helps the other side. It invites the reply that Thomas wants illegal aliens to have no rights at all. He does not say that, and the position worth defending does not require it.

Here is the position worth defending: a constitutional right to due process is not a constitutional right to remain in the United States. An illegal alien may be entitled to certain procedural protections. Those protections do not prevent the federal government from enforcing immigration law.

That is a much more defensible argument than claiming illegal aliens have no rights whatsoever, and it leads to the conclusion I hold without apology: illegal aliens should be deported, promptly, because they do not belong here.

This post makes that case in full. It covers what the Court decided, what Thomas actually wrote, what the law has said about illegal aliens for more than a century, what protections remain and why the usual objections fail.

The Line That Matters Is Citizenship

A citizen cannot be removed from this country. Not for a crime, not for a bad opinion, not for being a nuisance. Birth or lawful naturalization creates a permanent bond with the nation, and the Constitution protects it.

A person who is not a citizen has no such bond. An illegal alien, whether he crossed the border without inspection or stayed past the date a visa allowed, never received permission to remain. Nothing in the Constitution converts that act into a right to stay.

The Supreme Court settled the underlying principle in the nineteenth century. In Chae Chan Ping v. United States , the Court upheld the exclusion of a Chinese laborer who had lived here and held a certificate promising his return, and it explained that the power to exclude foreigners is an inherent attribute of national sovereignty. [3]

Four years later, in Fong Yue Ting v. United States , the Court extended that reasoning to expulsion. The power to decide which foreigners may enter and remain belongs to the national government, and it includes the power to send them out. [5]

Those cases came out of a hard chapter in American history, and nobody needs to defend every policy of the era. But the legal principle has survived every era since. A nation decides who joins it. It does not wait for the foreigner to decide for himself.

Reasonable people can argue about how many immigrants we should admit and on what terms. That is a policy debate. Whether an illegal alien holds a constitutional right to stay is not one. He does not.

What Happened in Mullin

Be accurate about the case, because accuracy is the best weapon. Mullin v. Doe concerned Haitian and Syrian nationals holding Temporary Protected Status, a form of relief Congress created by statute and the executive may end when conditions change. [9, 16]

These plaintiffs were not illegal entrants. They held a temporary government-granted status, and the government ended it. The Court ruled six to three that the statute largely bars judicial review and that the Haitian plaintiffs’ equal protection claim was unlikely to succeed. [9]

Thomas joined that majority and wrote separately. He would have gone further and held that the equal protection claim fails on the text of the Constitution. That is the sentence on the meme, and it is his view, not the holding of the Court. [9]

Now follow the logic. If a person with a lawfully granted temporary status has no constitutional claim to keep it, an illegal alien who never had any status has less. The argument gets stronger as you move from TPS to illegal presence, not weaker.

The Textual Argument

Start with the words. The Fourteenth Amendment says no State shall deny any person the equal protection of the laws. It speaks to States. It says nothing of the federal government. [17]

The Fifth Amendment, which does bind Washington, has a Due Process Clause. It does not have an Equal Protection Clause. Thomas’s point is that the Constitution contains one such clause, and it is addressed to the States. [9, 17]

The Court has long read it differently. In Bolling v. Sharpe , decided the same day as Brown v. Board of Education , the justices held that the Fifth Amendment’s due process guarantee carries an equal protection component against the federal government, because racial segregation in the schools of the District of Columbia could not be allowed when it was barred in the States. [2]

One can admire the result and still ask whether the reasoning came from the text. Thomas asks. Judges who say they follow the words of the Constitution should be able to answer.

Notice what this argument does not claim. It does not say the federal government may do anything it likes to anyone. It says one particular constitutional tool, the Equal Protection Clause, was not built to be aimed at Congress and the President. Other tools remain, and the next sections discuss them.

Process Is Not Permanence

Here is the heart of the matter. Due process guarantees a fair procedure. It does not guarantee a particular outcome. A criminal defendant who receives a fair trial and is convicted has not been wronged by the conviction. An illegal alien who receives the process the law provides and is ordered removed has not been wronged by the order.

The Court has said this repeatedly. In Shaughnessy v. Mezei , an alien seeking entry was excluded without a hearing on the evidence, and the Court held that for an alien denied entry the procedure Congress authorizes is the process that is due. [15]

More recently, in Department of Homeland Security v. Thuraissigiam , a Sri Lankan man who crossed the border illegally and was caught just yards inside it asked a federal court to review the rejection of his asylum claim. The Court, seven to two, held that he could claim only the procedural rights Congress had given him, and that the Constitution did not entitle him to more. [4]

Congress has also authorized expedited removal for certain aliens who arrive without proper documents, which allows removal without a full hearing before an immigration judge. [7]

None of this is a loophole or a trick. It is the law as written by Congress and read by the Court. The more a person’s claim rests on having entered illegally, the less the Constitution requires the government to slow down.

The Government Can Enforce the Law

Congress has written detailed statutes defining which aliens are removable, including those who entered unlawfully or overstayed, and it has created a process for removing them. [12]

Courts treat removal as a civil matter, not criminal punishment. In Arizona v. United States , the Court noted that being a removable alien is generally a civil matter and that the federal government holds broad discretion over removal decisions. [1]

That civil character is why the exclusionary rule and some other criminal protections do not apply in removal hearings. The Court said so in INS v. Lopez-Mendoza , in a case about an illegal alien who tried to suppress evidence of his own identity. [6]

And the Court has refused to let illegal aliens turn enforcement into a trial about why they were chosen. In Reno v. American-Arab Anti-Discrimination Committee , it held that an alien unlawfully in the country has no constitutional right to assert selective enforcement as a defense against deportation. [13]

In plain words: an illegal alien does not get to stay because the government could have gone after someone else first.

What They Still Have

Honest argument concedes what the other side has right. An illegal alien is still a “person” under the Constitution. The Court has held that the Fifth Amendment’s due process guarantee protects aliens within the country, lawful or not. [8]

In Wong Wing v. United States , the Court held that Congress could provide for the removal of illegally present aliens through administrative proceedings, but could not sentence them to hard labor without a judicial trial. [18]

In Zadvydas v. Davis , the Court held that the government may not detain a removable alien indefinitely when removal is not reasonably foreseeable. Even there, the Court said the government may remove the alien and may detain him for a reasonable period while it does. [20]

In Yick Wo v. Hopkins , the Court held that a State cannot enforce a neutral law against foreign nationals in a discriminatory way. [19]

And in Plyler v. Doe , the Court held by a five to four vote that a State may not deny children a public education because of their parents’ illegal status. I disagree with the reasoning and the result, but it is the law, and a serious writer says so. [11]

These protections are about procedure and basic fairness. They do not amount to a right to stay. A hearing is not a visa. A lawyer is not a green card. An illegal alien who receives due process and loses has been treated lawfully, and should be on the next plane or bus out.

This is the distinction the meme blurs. Thomas’s point, and mine, is not that foreigners are outside the law. It is that illegal presence cannot generate a constitutional right to stay.

What Enforcement Actually Looks Like

Critics talk as if removal were a midnight raid with no questions asked. The ordinary path is slower and more orderly than that, and it contains more process than most Americans realize.

The government identifies a person who is removable and serves a notice to appear. The alien then goes before an immigration judge, where he may be represented by a lawyer at his own expense, present evidence, call witnesses and apply for any relief the statute allows. If the judge orders removal, he can appeal to the Board of Immigration Appeals and then ask a federal court of appeals to review legal questions. [12]

That is a real system with real checks. It is not a rubber stamp, and it is not a tribunal that needs a constitutional supplement. Congress built it, the courts supervise it and the executive runs it.

The separation of powers explains why the courts defer. The Court has said that decisions about which aliens may enter and stay are intertwined with foreign relations, national security and the conduct of the political branches, and that those branches hold the primary authority. [8]

That is not a technicality. A judge does not know which countries will accept removals, which nations are hostile, which threats are rising or which treaties are at stake. The President and Congress do, and they answer to voters. The judiciary does not.

So when someone says a court should step in because enforcement feels harsh, ask what authority the court has to second-guess a political judgment the Constitution gives to others. The honest answer is the one Thomas gives. It has none, unless the text provides it.

The Scale of the Problem

This is not an abstract question. Pew Research Center estimated that 14 million unauthorized immigrants lived in the United States in 2023, a record, or about 4.1 percent of the population. The number grew by roughly 3.5 million in two years. [10]

Pew also reported that about 6 million of that total held some form of protection from deportation. That tells you how much of the system runs on temporary grants, discretionary programs and administrative pauses, each one able to change with policy. [10]

The courts are overwhelmed. According to TRAC, the immigration court backlog hit a record 3.7 million pending cases at the end of fiscal 2024 and stood near 3.4 million a year later. [14]

Think about what that means. A case can sit for years. During those years the illegal alien works, builds a life, has children and then points to all of it as the reason he should stay. The delay creates the equities. Then the equities are cited as the reason for more delay.

That is not due process. It is a system that rewards the one thing the law forbids, which is getting in and getting lost. Speed is not the enemy of fairness here. Speed is how you keep the process from becoming the prize.

Answering the Objections

“They have been here for years.” So has a thief who has not been caught. Time does not clean the original violation. If it did, the rule would be that the way to win in immigration is to evade the system until you outlast it. Congress can decide to grant relief for long residence. Courts cannot assume it.

“Some of them have American children.” That is a human reality, and it is the parent’s decision that created it. The law does not make a child a hostage to the parent’s illegal status. It places the burden of the choice on the one who chose to break the law. Families can leave together.

“What about mistakes? Citizens have been wrongly detained.” It is a real concern, and it is exactly why identification procedures matter. The answer to occasional error is to verify identity and status carefully. It is not to stop enforcing the law. We do not abolish criminal trials because juries sometimes err.

“The economy needs these workers.” Then let Congress create a legal channel and enforce it. Employers who want workers can ask for more visas. What they cannot ask is that the law be ignored because the labor is cheaper without it.

“It is cruel.” Enforcing a law is not cruelty. Every country on earth removes people who enter without permission. Mexico does. Canada does. Most of Europe does. In few places is the idea treated as a moral scandal the way it is here.

Fairness to Those Who Followed the Rules

There is a group that rarely appears in these arguments, and it is the largest: the people who did it the right way. They filled out the forms. They paid the fees. They waited years, sometimes decades, in their home countries. Many of them are now citizens who cried at their oath ceremonies.

Every time an illegal alien is allowed to stay because enforcement was inconvenient, those people are told that their patience was a mistake. The one who waited loses to the one who jumped the line.

Immigrants who came lawfully are the strongest advocates for enforcement, and they have the most standing to be angry when it is not carried out. They did not ask for the system to be open to anyone who got across. They asked it to be fair.

Why the Left Dislikes It

The reaction is predictable. Many on the left want the law to treat illegal presence as a form of membership. They want years of residence, family ties or sympathy to harden into a legal entitlement. They call it humanity. It is a reward for breaking the rules.

Sympathy is a fine reason to change a statute. It is not a reason for a court to rewrite the Constitution. If voters want amnesty for illegal aliens, they can elect a Congress that grants one. That is how the system is built.

What they cannot do is ask unelected judges to declare that breaking the entry rules produces a right to stay. If it did, the rules would mean nothing and the people who followed them would be fools.

And the principle cuts both ways. If you cheer when judges invent a right the Constitution does not contain, you have no complaint when a later Court uses the same method on a right you care about.

My Bottom Line

An illegal alien is not a citizen. That sentence ought not to be controversial, and it explains everything else.

Citizens have a right to remain. Illegal aliens do not. They broke our law to get here, they have no claim to stay and they do not belong here. The government should enforce the law and remove them immediately, after the process the law requires and not one day of delay beyond it.

Due process is real, and I defend it. A hearing, a chance to be heard, a neutral decision maker: all of that belongs to anyone on American soil. But a fair process is the means by which the government establishes that a person has no right to be here. It is not a way to create one.

That is not cruelty. It is the difference between a country and a place where borders are a suggestion. You can want a more generous system. You have to win that argument at the ballot box, not claim the Constitution already says it.