Ruth Bader Ginsburg used now-banned term 'illegal aliens' while affirming immigrants' dignity

People who unlawfully enter the U.S. now must be described using "inclusive" terminology, according to a new directive.

Updated: April 20, 2021 - 4:52pm

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The late Supreme Court Justice Ruth Bader Ginsburg, an icon among American liberals, used language in official writings that the top border protection chief on Monday banned from use when describing illegal immigrants.

Immigration officials now must use new, "inclusive" terminology to describe the border-crossers. The directive was issued April 19 by Troy Miller, who is acting as commissioner of the U.S. Customs and Border Protection agency. According to Miller's directive, the term "alien" is banned, and has been replaced by "noncitizen or migrant." Also off-limits is the phrase "illegal alien," which is supplanted by "undocumented noncitizen, undocumented individual, or migrant."

Miller couched the directive as fulfilling the wishes of President Joe Biden, and as conferring dignity on migrants. Implicit in the memo was the suggestion that longtime language, codified in U.S. law, is improper, and that it deprives migrants of dignity. 

The language issue emerged only recently, and was not raised by Ginsburg, who was known to be a stalwart of liberal causes. Ginsburg, who supported same-sex weddings, abortion rights, and gender equality, also heard cases involving people who entered the U.S. illegally. In those cases, she did not flinch in her use of language.

In one such case, she joined two other justices in an opinion regarding a 2003 ruling on an Immigration and Naturalization Service case against immigrant Hyung Joon Kim. 

In the opinion, Ginsburg and her colleagues appeared sympathetic toward the respondent Kim. They also used the term "alien" 154 times, along with the terms "illegal entrants" and "unlawful." 

Ginsburg and colleagues directly acknowledged the dignity of immigrant aliens.

"It has been settled for over a century that all aliens within our territory are 'persons' entitled to the protection of the Due Process Clause," they wrote. Additionally, the justices noted that "aliens residing in the United States" were entitled to protection under the law, and had "a right to challenge mistreatment of their person or property."

Such language if used today would not be allowed in CBP communications. 

Biden has made "dignity" a touchstone of his policy toward migrants.

"If I'm elected president, we're going to immediately end Trump's assault on the dignity of immigrant communities," Biden said in his acceptance speech last year at the Democratic National Committee's virtual convention. "We're going to restore our moral standing in the world and our historic role as a safe haven for refugees and asylum-seekers." 

Border facilities now have been overrun with would-be migrants who are kept in physically squalid conditions, according to people such as North Carolina's Republican Sen. Thom Tillis, who have visited the sites.

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