In March, the Solicitor General Began To Use "Noncitizen" Instead of "Alien"

The Acting SG relies on Justice Kavanaugh's footnote in Barton v. Barr (2020)


Today the Supreme Court decided Johnson v. Guzman Chavez. This immigration case split 6-3, along right-left lines. Justice Alito wrote the majority opinion, which was joined by Chief Justice Roberts and Justices Kavanaugh and Barrett. Justice Thomas concurred, joined by Justice Gorsuch. They disagreed with a footnote about jurisdiction. Justice Breyer dissented, joined by Justices Sotomayor and Kagan.

The majority opinion unapologetically used the statutory word, "alien." The dissent adopted legal newspeak, and used the word "noncitizen" in a few places. Though Justice Breyer primarily used the word "alien." He did not, like Justice Sotomayor, expurgate the word from precedents.

Out of curiosity, I checked the Solicitor General's list of briefs. At some point in March, the SG adopted the "noncitizen" neologism. As best as I can tell, this change was made in the Respondents Brief in Sanchez v. Mayorkas. This sentence and footnote appear on page 2:

The statutory condition that generally only noncitizens who entered the United States lawfully are eligible for adjustment to LPR status has been part of U.S. immigration law since 1952. See INA, ch. 477, Title II, § 245, 66 Stat. 217 (authorizing adjustment of status for "an alien who was lawfully admitted to the United States").2

FN2: This brief uses "noncitizen" as equivalent to the statutory term "alien." See Barton v. Barr, 140 S. Ct. 1442, 1446 n.2 (2020) (quoting 8 U.S.C. 1101(a)(3)).

You see, the statute says "alien." But the SG will not use that word, unless it is in a quotation. Instead, "noncitizen." And what authority does the brief cite? Of course, Footnote 2 of Justice Kavanaugh's decision in Barton v. Barr. It provides:

This opinion uses the term "noncitizen" as equivalent to the statutory term "alien." See 8 U. S. C. §1101(a)(3).

I wrote about his decision here. The SG copied Kavanaugh, verbatim.

The same footnote appeared in the response brief for Patel v. Garland, which was granted. This brief also uses the phrase "alien" in quotations.

We will see if the SG begins to expurgate the word "alien" from quotations.

NEXT: Professor Kagan v. Professor Barrett, Round 1 of N

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  1. If changing language usage changed hearts, minds and cultures, we’d have known it by now…

    1. A lot of lawyers really believe in this stuff. You'd be surprised the number of lawyers who think "if I just call the defendants 'Defendants' rather than 'Joe and Sue" in my brief, I'll win the case".

  2. What's wrong with "noncitizen?"

    It's not "legal newspeak." The meaning is perfectly clear, and would have been clear a century ago. It is not intended to obscure.

    Nor is it a neologism, unless you want to claim that leaving out the hyphen is a crime against the language. Again, the meaning would have been clear in 1921, and 1821 for that matter.

    A really silly post by Blackman.

    1. A really silly post by Blackman.

      But you repeat yourself.

      1. And you out yourself once again as a statist through and through, who would rather waste time and effort insulting people he hates than simply not clicking on stories by that author.

        * I don't like something
        * Therefore it must be immoral
        * Other people are not woke enough to hate what I hate
        * Therefore it is my duty to prevent them from seeing what is bad for them

        1. You're a moron.

    2. It certainly is newspeak, like "enslaved worker" for slave. It pretends the old term and new term have different meanings, otherwise it may as well use any old phrase, "xyzzy", "phbbbt", or "those who shall not be named."

      Either the words mean exactly the same, in which case the change is pointless, or they have different meanings, in which case the change is intended to sneak in different usage. A clearer example of "legal newspeak" is hard to think of.

      1. There’s an obvious difference. One term is more sympathetic than the other.
        It’s like “whore” and “sex worker,” “slut” and “liberated,” “homophobic bigot” and “family values.”

        The terms denote the same things. But one has a negative connotation; the other, a neutral or positive one.

      2. Look up denotation and connotation sometime.

        1. Look up the iron law of euphemism some time, or the euphemism treadmill. The problem with adopting a word with a better connotation because you don't like the connotation of the word you abandoned, is that it will come to have the same connotation in time. The connotation actually is attached to the concept the word denotes, and will follow the concept from word to word.

          1. Admittedly, this is close to a best case for the euphemism treadmill, because the distinction between alien and non-citizen is minor. (Unless you're a non-citizen US national, of course!)

            In some cases the euphemism treadmill leaves behind a trail of ruined words, which can no longer be used because their former meanings have been lost due to using them as euphemisms. Try telling somebody to toss a faggot on the campfire some time, or that it's been a gay outing. And isn't that leaf queer looking?

          2. What's wrong with a treadmill?

            I think you're absolutely correct (though that's only my intuition), but I also think the timeline is decades.

            Words are not a depletable resource, ruined words are fine; we can make others.
            I first encountered this from my dad who was a psychiatrist, about psychopath->sociopath->antisocial personality disorder, as each got too much pop-culture charge to be as useful as a diagnosis.

            1. I think you're being overly optimistic with your decades long timeline. Remember, the connotation is switching over at the same time the usage is, both take time to accomplish. The connotation is quite capable of keeping up with the word choice, especially once people notice the effort to switch words.

              Anyway, I don't think the replacement of "alien" with "non-citizen" is going to catch on.

              First, because they are not actually legally interchangeable, and the statutes actually do use specific words. That kind of matters in a legal context.

              But, second, because "alien" doesn't actually have much in the way of a negative connotation, so, what's the point, why would anybody follow them?

              Demanding people refer to illegal aliens as "undocumented" actually made some sense in that latter regard, which is why it caught on with part of the population.

              1. If it doesn't catch on, but is still used by some official cohort, then it takes that much longer for the treadmill effect.

                See: the current name for psychopathy above.

                I do think for many alien does have connotations of otherness that are not explicitly negative, do have an insular charge.

                1. The thing where I think Blackman has a point is on the wording of the statutes. The statutes say "aliens", just like statutes say "Indians" even though some woke types hate that word too. That makes a big difference, because it becomes clumsy to be constantly correcting the language of the statutes.

                  But other than using the words of the statute, I see no problem with noncitizens. It's not the euphamism treadmill, because there's only been one change.

                  I would also say, however, that a lot of the liberal discourse around language is also wrong. In other words, when people say "alien" has too much "otherness", that's not something inherent in the word; it's something that is read into it. All those people saying "minorities" all those years weren't actually saying they were inherently worth less, and the folks saying "people of color" were not excluding Black people from their rightful place in the center of discourse, and people saying "GLBT" were not slighting lesbians. This is all made-up BS. If we actually took a hard stand on changing language for these phony reasons, it wouldn't impede social progress; it would just be a silly constraint on language.

      3. Gosh, I guess that's what I said. Either they are the same, thus the change is meaningless, or they have different meanings, in which case it's an attempt to sneak in the change. Quibbling about "denotation and connotation" just shows you don't want to admit the difference.

      4. You obviously have no idea what "newspeak" means.

        Unsurprising, give what an idiot you are.

    3. What's wrong with "alien"? It's the word the relevant laws and precedents use.

      My wife was an "alien" for half our marriage, a "legal resident alien", to be specific. I never once suspected her of having acid blood, or even green.

      1. Do you personally need to see something wrong with a word for change to be allowed?

        1. Do you personally need to hide the difference and pretend there is none in order to sneak in a change?

          1. Please explain what you see as the functional difference between alien and noncitizen.

            1. If there is none, then there is no point to the change.

              If there is one, then the change should be disallowed in legal writings, because the relevant laws actually say "alien".

              Either way this is a stupid move.

              1. Come on, Brett, you know that there are differences other than how a word functions in a legal case.

                1. We are literally discussing this in the context of a legal case. Did that escape your notice?

                  1. But the use of a word in a legal case does more than it's explicit legal function.
                    People are not automata, even those involved in the administration of the law. But also those uninvolved read as well, with this blog as an example. Thus the mere legal function is only part of a words' effect, even in a legal case.

    4. It's not even accurate. All aliens are non-citizens, but not all non-citizens are aliens, such as most of the population of American Samoa (who are non-citizen American nationals). I think "aliens" is fine, but if the SG and SCOTUS want to avoid it, then at least be accurate or make up a new term. Non-citizen sometimes meaning alien and sometimes just meaning non-citizen is hopelessly muddled.

    5. Because the "noncitizen" and alien don't mean exactly the same thing. While an alien is necessarily a noncitizen (regardless of the specifics of immigration and citizenship law), the reverse is not necessarily true, a noncitizen is not necessarily an alien.

      For a long time the US had a significant population group that were neither citizens nor aliens.

      1. Or we could use US Person, which is also a legal term.

        But in this case, both words serve the same function, do they not?

      2. In the contexts of these decisions/briefs, is the distinction relevant?

  3. Not a fan of euphemisms? Ready to move past political correctness?

    Should we stop enabling racists to hide behind "traditional values," gay-bashers to hide behind "family values," obsolete misogynists to hide behind "conservative values?"

    Should superstition become a common term in courtroom discussions of religion?

    Should judges ditch the political correctness and use "conservative bigots" in decisions to refer to Republicans (such as those in North Carolina) who engage in race-targeting voter suppression?

    1. Why not speak clearly without euphemisms Artie? That is the left's ability to change words around. It's a loyalty test so they know who's failing to follow them blindly. Like you.

      1. I call a bigot a bigot. That seems to rile most of the right-wingers around here.

        Tough. Get better or prepare for replacement.

  4. Let’s see if, next term, any opiniojs use the term “baby” instead of “fetus” because, you know, the term “fetus” is kind of dehumanizing.

    Perhaps some of the Justices thought about the status of U.S. nationals, who are neither citizens nor aliens.

  5. Note whose sensibilities get catered to and whose sensibilities get ignored. Whichever side of that you and your family are on should tell you whether the people doing it consider you a first class human or some lesser creature.

    1. Notice how you increasingly turn everything into something that is oppressing you. You're working very hard to justify your resentment.

      1. .... but enough about systemic racism and CRT.

      2. We learn by watching others succeed. If you don’t want people acting a certain way, stop rewarding it.

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