“Scalia is asking questions, not giving an opinion.”
That’s true but in his written concurrence in Nguyen v INS, he backed up his questions with an on the record opinion
by saying that he didn’t feel the Court had an ability to grant someone citizenship who did not get it in one of the two ways that he described in his concurrence in Miller v. Albright.
From Scalia’s concurrence in Miller v. Albright: “The Constitution ‘contemplates two sources of citizenship, and two only: birth and naturalization.’ United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898).”
Justice Scalia went on to say “I remain of the view that the Court lacks power to provide relief of the sort requested in this suit–namely, conferral of citizenship on a basis other than that prescribed by Congress. See Miller v. Albright,523 U.S. 420, 452 (1998) (Scalia, J., concurring in judgment). A majority of the Justices in Miller having concluded otherwise, see id., at 423 (opinion of Stevens, J., joined by Rehnquist, C. J.); id., at 460 (Ginsburg, J., joined by Souter and Breyer, JJ., dissenting); id., at 471 (Breyer, J., joined by Souter and Ginsburg, JJ., dissenting); and a majority of the Court today proceeding on the same assumption; I think it appropriate for me to reach the merits of petitioners’ equal protection claims. I join the opinion of the Court.”
In brief, it appears that Justice Scalia is a Wong Kim Ark guy and not a Minor v Happersett guy.
Justice Thomas joined Justice Scalia’s concurrence.
A Wong Kim Ark guy IS a Minor v. Happersett guy. The quote from WKA doesn't say there are only two "ways" to get citizenship. It says there are two "sources" of citizenship IN the Constitution. Gray first acknowledged that NBC is defined OUTSIDE of the Constitution. He cited Waite's definition of NBC from the Minor decision and affirmed that it was reliant on both jus soli and jus sanguinis criteria. The sources of citizenship IN the Constitution are from the 14th amendment and from Congress' general power of naturalization.
Here's the central question in Miller v. Albright: "The petitioner in this case challenges the constitutionality of the statutory provisions governing the acquisition of citizenship at birth by children born out of wedlock and outside of the United States." When Scalia ponders about the NBC question and says it requires jus soli, he is bringing this up because the petitioner doesn't meet this condition. He doesn't have to contemplate the citizenship of the parents in regards to NBC because they have to at least have a child born in the country first.