On Wednesday, the Supreme Court heard oral arguments in Trump v. Barbara, a case that hinges on whether a proper interpretation of the Constitution compels us to bestow “birthright citizenship” to children born on American soil if their parents are illegal immigrants.

During the hearing, many justices tried to interpret the 14^th Amendment and relevant cases by considering the historical and cultural context of the periods when the laws were written and the cases decided. Precedent matters. Unfortunately, however, viewing today’s immigration policy through the prism of precedents established over a century ago will doom even the most cautious efforts to restrict immigration in 2026.

That’s because we really didn’t have a comprehensive immigration policy when the 14^th Amendment was ratified in 1868—and we didn’t have one for many decades following. In other words, many of the justices on Wednesday weren’t merely comparing apples and oranges—they seemed to signal an intent to render a decision on the quality of oranges based on their similarity to apples. Obviously, the oranges will be found lacking. But only because they aren’t apples.

The absence of a fully articulated immigration policy in the 1860s did not indicate that something necessary was lacking. As a general rule, legislators shouldn’t enact laws that they cannot enforce. When it came to immigration, that was certainly the case in the 19^th century. At that time, America held true to its doctrine of limited government. We had an enormous territory, much of it very sparsely populated and without robust law enforcement. The government had no reliable way to track who entered the country from abroad, how they got here, when they arrived, nor why they came. Importantly, not only did the state lack the power to restrict immigration, they didn’t have a compelling reason to do so. At that time America needed more people and, considering the means of travel and both the material and immaterial costs of travel at that distance, there was little danger of the country being overwhelmed by unassimilated newcomers.

Even later in the century, as hordes entered through Ellis Island, the annoyance for some “natives” whose families had arrived in America before the Revolution may have been real in many cases, but the newcomers didn’t pose a problem of government. The people who were getting off the boats were entitled to nothing—there was no welfare state. At that time, people came to America on the promise of pure opportunity and a belief that if they worked hard, they could achieve a better life for themselves—on their own.

The same cannot be said of those coming here in recent years through  hotspots like Eagle Pass, Texas. Although we do have the means to physically secure our borders (as Trump has demonstrated), it is  somewhat regrettable that, however necessary it is today, we can only do that because we also have a government that is large and powerful enough to evaluate, track, and monitor nearly every person who enters. Nevertheless, the main way that our current circumstances differ from the past is that the government now has a compelling interest in regulating immigration. As the Biden administration showed, the feds may not always be incentivized to act upon that obligation—but it’s certainly there and it is possible to do it.

Why should the government carefully regulate immigration? Because many millions who have come illegally over the last 10 years came not for “opportunity” but to take advantage of the largesse of the United States. Opportunity can be had in many countries. Yet many migrants insist upon America as their only possible destination. Why? It’s not because of opportunity; it’s because of entitlements. Unlike during the 19^th century, when immigrants who arrived did so in full knowledge that their prospects to thrive depended entirely on their own efforts and abilities, today’s illegal immigrants come with the expectation that their well-being will be subsidized by American taxpayers.

Disembarking on Ellis Island in the 19^th century guaranteed you nothing, but those who come through Eagle Pass today (legally or otherwise) can expect to be granted enormous benefits upon arrival. We allow illegal arrivals to send their children to “free” public schools. That “free” education still costs a lot of money … for us. Arriving in America also guarantees the availability of quality medical treatment. Such treatment comes with a price tag, but the services are provided before payment is rendered. Most often, those payments never come from the recipients, raising the already exorbitant cost of health care for citizens. College loans and grants are made available to illegal immigrants specifically. Driver’s licenses are issued. Food stamps, welfare benefits, and many other forms of financial support are on offer. Some jurisdictions outside of Texas even allow illegal immigrants to vote in local elections.

Simply put, immigration used to be cost-neutral or even a driver of U.S. economic growth. Now it comes with a price tag. The bag of goodies included as a welcome gift isn’t free, and citizens pay the cost. We can’t blame people of other nations for taking advantage of this generosity. Their choices are rational. We are incentivizing them to make that choice. But we can and should blame a government that refuses to acknowledge its duties to Americans:  protecting the value of citizenship and being a good steward of the public trust.

When immigrants came here purely for opportunity, we got eager workers, many with valuable skills or knowledge. Now that they come for the perks, we get a subset of migrants who are inclined to dependency. Many of them also desire opportunity—but their motives are mixed. Too often, the entitlements are the “opportunity.” Traditionally, America championed independence, and all that word implies. Importing millions of dependents changes the character of the nation itself.

For all these reasons, the Supreme Court’s deference to legal precedents designed and applied to the circumstances of more than 100 years ago locks us into a course of action that is imprudent in today’s circumstances. Of course today’s immigration and citizenship policies won’t find precedent in jurisprudence from the 19^th century—it was a time when the U.S. government had neither the ability nor the reason to regulate these matters. But rejecting policies that directly address contemporary immigration challenges because those policies bear little resemblance to the ones implemented over a century ago is to insist upon policies built for 1890 in 2026.

Few Americans today realize the magnitude of what happened when Joe Biden opened the border. By our government’s ownconservative estimate, we allowed the unvetted entry of around 12 million people in four years.  Shockingly, that figure is roughly equal to (or greater than) the number of people who entered through Ellis Island in the half-century that marked the height of America’s most famous wave of immigration. These figures provide a stark illustration of how the drivers of immigration have changed.

The Supreme Court now has a duty to acknowledge the administration’s compelling interest in regulating further immigration. Judging the constitutionality of new regulations on the basis of historical precedent from early American jurisprudence will guarantee that the Court remains willfully blind to this duty. If they decide to strike down Trump’s policy, citizens will have more evidence that their government is no longer “for the people.” That perception sits at the root of the public anger that so many officials see as potentially explosive. They should stop adding fuel to the fire.