Judge James Ho Kicks Off The Auditions For Trump’s Next Supreme Court Pick

The audition process for potential open Supreme Court seats is off and running, thanks to the possibility that conservative justices Samuel Alito and Clarence Thomas could decide to retire during Donald Trump’s second term.

First out of the gate is the hard-right Fifth Circuit Court of Appeals Judge James Ho. In an interview with the conservative lawyer Josh Blackman, Ho, who was appointed to his current job by Trump, redefined his position on one of the most controversial issues likely to arise in Trump’s second term — and one of the few points on which he and Trump had disagreed — in order to ingratiate himself with the incoming president.

That issue is the 14th Amendment’s grant of birthright citizenship to (almost) all children born on U.S. soil.

Trump has promised to end birthright citizenship for the children of undocumented immigrants, but as it now stands, that would be in plain violation of the Constitution and of the judiciary’s interpretation of the 14th amendment going back to 1898.

Previously, Ho endorsed the widely accepted view that birthright citizenship for everyone born on U.S. soil, except for the children of foreign diplomats. In a 2006 paper titled “Defining ‘American’: Birthright Citizenship And The Original Understanding Of The 14th Amendment,” Ho made an originalist defense of the judiciary’s long-standing interpretation of birthright citizenship while arguing that the only way it could be restricted would be through a constitutional amendment — a much higher bar than Trump, acting on his own, could clear.

With Trump’s imminent return to the White House, Ho has now endorsed a tortured revision of his previous position that rests on endorsing Trump’s view that immigrants constitute an invasion.

“Anyone who reads my prior writings on these topics should see a direct connection between birthright citizenship and invasion,” Ho said in the interview with Blackman.

“Birthright citizenship is supported by various Supreme Court opinions, both unanimous and separate opinions involving Justices Scalia, Thomas, Alito, and others. But birthright citizenship obviously doesn’t apply in case of war or invasion. 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.”

Ho’s response came in reply to a question about an appeals court case where he endorsed Texas’ argument that the state could override federal immigration authority at the border because it faced an invasion.

This argument rests on Article I, Section 10 of the Constitution, which limits the ability of states to “engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Texas claimed that it was “actually invaded” by migrants at the border and could, therefore, engage in defensive war by erecting barriers without the OK of the federal government.

In that case, Ho was the only appeals court judge to endorse this immigration-as-invasion theory. Courts have repeatedly rejected this argument going back to the 1990s, arguing both that immigration is a political question the judiciary cannot resolve and that the word “invasion” in the Constitution is defined as a military invasion by a state or nonstate actor, not the independent migration of peoples.

“In order for a state to be afforded the protections of the Invasion Clause, 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,” one such court decision issued in 1996 states.

As the lone endorser of this wild theory, Ho is unlikely to win the argument. But his application of the immigration-as-invasion theory to birthright citizenship brings him perfectly into alignment with Trump, while resolving his previous argument that birthright citizenship can only be curtailed by constitutional amendment.

Ho’s legal logic rests on the landmark 1898 Supreme Court case of U.S. v. Wong Kim Ark that interpreted birthright citizenship as applying to those born on U.S. soil to noncitizens, no matter their legal status in the country or allegiance to the country. That decision stated:

“The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.” [Emphasis added.]

But this logic is twisted. Neither voluntary migration by migrants seeking better livelihoods nor those seeking asylum from dangerous situations in their countries of origin are obviously the same as a “hostile occupation” or an “invasion.”

Ho’s endorsement of these theories and rewriting of his previous position on birthright citizenship can be best seen as his audition for the next open Supreme Court seat. And it presages how conservative jurists will need to contort the law in knots as they pursue ambitions of higher offices under a president who demands obeisance.