Over his seven years on the federal bench, James C. Ho has acquired a reputation as one of the most conservative members of a notably conservative court, the U.S. 5th Circuit Court of Appeals.
So it’s proper to take heed of Ho’s position on a temporarily blocked issue that Donald Trump has lately placed on the front burner: Birthright citizenship, the principle enshrined in the 14th Amendment that virtually all children born in the U.S. are U.S. citizens.
In an executive order issued on inauguration day, Jan. 20, Trump declared that the right of birthright citizenship doesn’t apply to the children of undocumented immigrants. Trump’s order was temporarily blocked Thursday by a federal judge in Seattle.
Text, history, judicial precedent, and Executive Branch interpretation confirm that the Citizenship Clause reaches most U.S.-born children of aliens, including illegal aliens.
— James C. Ho, 2006
Among legal scholars, that’s a minority view, even a fringe view. The 14th Amendment is forthright; it states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
Ho has long voiced the broadest view of those words. But not lately.
Let’s trace his intellectual journey on the issue.
Ho, as it happens, is an immigrant himself. He was born in Taiwan to parents who immigrated to the U.S. when he was a child and acquired naturalized U.S. citizenship at age 9.
No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship.
— James C. Ho, 2024
Ho’s judicial stance has been solidly conservative. Last year, writing in a case in which his colleagues reversed a ruling by a federal judge in Texas that had blocked the distribution of the abortion drug mifepristone nationwide, Ho engaged in what I called a “curious flight of fancy” to advocate for the ban.
He asserted that abortions cause “aesthetic injury” to doctors forced to participate in the procedure, even if only by treating patients for adverse reactions.
“Unborn babies are a source of profound joy for those who view them,” Ho wrote. “Doctors delight in working with their unborn patients — and experience an aesthetic injury when they are aborted.” He argued in favor of granting the physician plaintiffs in the case a legal interest in the outcome of abortions achieved via the drug, even though none of the plaintiffs had treated women who had taken it.
“The [Food and Drug Administration] has approved the use of a drug that threatens to destroy the unborn children in whom Plaintiffs have an interest,” Ho wrote. “And this injury is likewise redressable by a court order holding unlawful and setting aside approval of that abortifacient drug.”
Ho’s earliest writing on the birthright citizenship that I could find was published in 2006 in The Green Bag, a law journal. At the time, Ho’s career encompassed service as a counsel to the Senate Republican caucus and service as a clerk to Supreme Court Justice Clarence Thomas. He would later serve as solicitor general of Texas, before his appointment to the 5th Circuit appeals court by Trump in 2017.
In his 2006 article, titled “Defining ‘American,’” Ho focused specifically and at length on the argument that children of undocumented immigrants aren’t entitled to birthright citizenship.
Birthright citizenship, he wrote, “is protected no less for children of undocumented persons than for descendants of Mayflower passengers.”
Ho dismissed the assertion by critics of birthright citizenship that the phrase “subject to the jurisdiction” excludes those who are in the U.S. illegally.” Even they, he wrote, are subject to the authority of the U.S. government, and therefore covered by the citizenship clause. He endorsed the most common interpretation, which is that the “jurisdiction” clause excludes only the children of diplomats serving their home countries in the U.S., and enemy combatants on U.S. soil. Instead, he wrote, the citizenship clause “covers the vast majority of lawful and unlawful aliens.”
Ho wrote again on birthright citizenship in a Jan. 5, 2011, op-ed in the Wall Street Journal. The article addressed an effort by a coalition of red state legislators in support of state-level laws to exclude undocumented immigrants from birthright citizenship. It was subtitled, “Opponents of illegal immigration cannot claim to champion the rule of law and then propose policies that violate our Constitution.”
In that article, Ho reviewed the long history of legal and judicial support for the broad reach of birthright citizenship. As I reported this week, that included an 1898 Supreme Court decision upholding the citizenship of an American citizen of Chinese extraction, and Supreme Court rulings in 1982 and 1985 in which the court “unanimously agreed that a child born to an undocumented immigrant was in fact a U.S. citizen,” as Ho wrote.
Now let’s fast-forward to Nov. 11, days after Trump’s reelection victory. In an interview published by Reason Magazine that Ho gave to conservative lawyer Josh Blackman — who himself supports birthright citizenship for children of undocumented immigrants — Ho backtracked.
“Birthright citizenship obviously doesn’t apply in case of war or invasion,” Ho stated. “No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship. And I can’t imagine what the legal argument for that would be…. Everyone agrees that birthright citizenship doesn’t apply to the children of lawful combatants. And it’s hard to see anyone arguing that unlawful combatants should be treated more favorably than lawful combatants.”
There’s a lot to unpack here, but Ho certainly seems to be conjuring up a redefinition of “illegal” or undocumented immigrants as “invaders.” He appears to find some equivalence between undocumented immigrants and “invading aliens.” Ho articulated this view in a concurring opinion in an appellate ruling in July that supported efforts by Texas Gov. Greg Abbott to have state officials block immigrants at the Texas border. Ho argued that Abbott’s assertion that Texas faced an “invasion” of illegal immigrants from Mexico deserved respect as a “good faith” description of conditions, and that the state arguably had the right to take matters into its own hands.
That’s a view in which Ho may be in a minority of one. In a 1996 case, a federal appeals court panel ruled that for a state to claim it’s being invaded, “it must be exposed to armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state’s government”—not a flow of individuals seeking jobs.
In his Reason interview, Ho’s definition of “unlawful combatants” is murky, but his free use of the term “invasion” conforms to the observation of legal scholar Rachel Rosenbloom that opposition to birthright citizenship is typically couched “in a highly racialized language of crisis and invasion.”
Why did Ho change his tune, if that’s what he’s done? Paul Blumenthal of Huffpost speculates that Ho’s “rewriting of his previous position on birthright citizenship can be best seen as his audition for the next open Supreme Court seat,” which is likely to be filled by Trump.
I asked Ho via a message to be forwarded to him by his chambers clerk to comment on that conjecture and to clarify his views on birthright citizenship, and how they might have been changed by rhetoric about an “invasion” of Texas or the U.S. by immigrants. He hasn’t replied.