Will Conservative Judges Abide Trump’s Ending Birthright Citizenship?

I confess to a certain sneaking fondness for Judge Jim Ho of the Fifth Circuit. True, Ho is one of the most extreme judges Donald Trump jammed onto the federal bench. True, Ho has a distinctly un-judicial tendency to proclaim from the bench broad principles that the rest of us seem to be expected to live by (limits on campaign finance are unconstitutional, but “if you don’t like big money in politics, then you should oppose big government in our lives”; abortion is a “moral tragedy”; in a police shooting case, “If we want to stop mass shootings, we should stop punishing police officers who put their lives on the line to prevent them.”) He also has dudgeon to spare, for instance, against Yale, Stanford, or Columbia law schools: finding them insufficiently committed to allowing conservative free speech, he pledged not to hire graduates of these schools (thereby, it has to be said, penalizing only the relatively small number of conservative students who might want to clerk for him).

I have a soft spot for judges who stand by their principles against political pressure. Ho was for years one of the figures in the conservative legal movement who insisted that the Citizenship Clause meant what it said: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Nearly 15 years ago, Ho and I appeared on a panel on this question, addressing then-current efforts in Congress to strip birthright citizenship. I don’t remember anything I said, but I will never forget what Ho said. He dissented from the legal right’s campaign to weaken the clause, and his words were eloquent, clear, and correct:

This proposal fundamentally violates three values that conservatives typically put forth. That’s the belief in textualism, that the words of a legal document matter; originalism, that you go with the original understanding of the Constitution or of a statute and not some subsequent, evolving concept; and, third, American exceptionalism, that there are just some things about America and in particular about American law that is different than from other countries, and proudly so.

Ho was born in Taiwan but grew up in California. He has glittering Federalist Society credentials—University of Chicago law degree, clerkships with radical right judge Jerry Smith and even more radical right Justice Clarence Thomas, service at Big Law with the late Theodore Olson, George W. Bush’s Solicitor General and victor in Bush v. Gore. In 2008, he succeeded Ted Cruz as Texas Governor Rick Perry’s state solicitor general as Texas became a center of far-right challenges to federal programs.

In person, Ho is a fierce but engaging bulldog of a man whose jutting jaw makes clear that he has no hesitation in letting others know what he thinks. “Fuzzy-headed ‘living constitutionalism’” is how he described in conversation the assault on the Citizenship Clause. For those who know the Federalist species, those words are the worst insult imaginable.

But that, I must reluctantly admit, was then. Donald Trump was peaking as the host of Celebrity Apprentice, and Ho was fresh from a turn as Texas’s lawyer. Today, Trump is a president-elect who may soon name a new justice or two to the Supreme Court, and Ho, 51 years old, is a judge of the Fifth Circuit who, one might think, would very much like to be one of them.

The Citizenship Clause is very much in the new administration’s gunsights. At least since 2004, parts of the legal far right, spearheaded by Reagan former Attorney General Edwin Meese and “coup memo” lawyer John C. Eastman, have claimed that the children of the undocumented are not citizens. After Kamala Harris (born in Oakland to legal immigrant parents) was nominated for Vice President, Eastman even wrote that she was not a “natural born citizen” and thus could not be vice president, objections he never raised about Canadian-born Ted Cruz. Even before he took office in 2017, Trump repeatedly attacked birthright citizenship., and he repeated his opposition during the 2024 campaign. In 2018, Michael Anton, a former Trump White House, proposed the idea that the president could set just set the clause aside by executive order, stripping American-born children of their citizenship if their parents were not in legal status when they were born.

I am sure this is just a coincidence, but meanwhile, the Citizenship Clause has begun to look somewhat different to Jim Ho. Ho recently gave an interview to law professor Josh Blackman in Reason magazine, and here are his new thoughts:

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.

Two things about this utterance stand out. First, gone is the lofty rhetoric about “American exceptionalism.” Instead, birthright citizenship seems more like some notion that randomly wandered in from the rain only “supported by various Supreme Court opinions.” This is the diffident tone conservative judges used to describe Roe v. Wade until the newly Trumpified Supreme Court struck it down.

The second is the implication that there is some “war or invasion” going on and that children born to “invading aliens” are not within the Fourteenth Amendment’s terms.

The concept that “alien invaders’” children are not subject to the Citizenship Clause’s guarantee has a somewhat maculate pedigree. In United States v. Wong Kim Ark, the 1898 case interpreting the clause, the Supreme Court held:

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.

Going back to the framing of the Fourteenth Amendment, I haven’t found any mention of invading armies in the real legislative history of the Citizenship Clause. Professor Julie Novkov, a political scientist at SUNY Albany and the co-author of American by Birth: Wong Kim Ark and the Battle for Citizenship, reminded me in an email that “the Court that rendered that ruling also decided Plessy [v. Ferguson] a few years earlier and was the institutional co-architect of the concept of racialized illegal immigration on the federal level.” But since Wong Kim Ark, restrictionists have been trying to poke new loopholes in the seemingly absolute rule the clause lays down.

Until recently, the claim was that these American children are not “subject to the jurisdiction” of the United States, not because those words mean that (they don’t) but because there was a Da Vinci code meaning to them that no one picked up until the 1980s. That dog hasn’t hunted all that well: As any lawyer knows, a non-citizen in the U.S., whatever their immigration status, is, unless protected by diplomatic immunity, “subject to the jurisdiction” of U.S. courts and law; a child born in the U.S. is also clearly so.

So a new idea has popped up, borrowed from Wong Kim Ark: undocumented immigrants are not just civilians—men, women, and children crossing the border—they are a foreign army, alien enemies, whose children are wholly outside the protections of the clause, as would say an imaginary army of Quebeçois who stormed south to Maine and declared themselves American.

The state of Texas advanced this argument to support “Operation Lone Star,” its attempt to use state power to seize control of the Mexican border and oust federal authorities. Governor Gregg Abbott cobbled together an argument that he is permitted to defy federal law. It runs like this:

1. Article I, Section 10 of the Constitution prohibits states from engaging in war “unless actually invaded, or in such imminent danger as will not admit of delay.”
2. The exception for “imminent danger” is a grant of power to engage in war without congressional approval if state officials feel threatened;
3. Justice Antonin Scalia, in a solo separate opinion, once referred to what he claimed to be “the States’ sovereign interest in protecting their borders”;
4. The governor of a state has the power to “declare an invasion,” set aside federal immigration law, and go to war against undocumented immigrants;
5. That “State War Power,” once exercised, “is the supreme law of the land and supersedes any federal statutes to the contrary.”

This makes the arguments I used to hear at Pacific Northwest militia meetings—as an observer, I might add—federal courts don’t exist, the Fourteenth Amendment was never adopted, Social Security is unconstitutional, etc. sound rational by comparison. It takes a clause that forbids states from doing something and converts it into a source of power to do that very thing; it takes a solo partial dissent and claims it is the law; it creates an extra-constitutional power to “declare an invasion,” which the Constitution itself assigns exclusively to the federal government. To cap this catalog of folly, it claims that a state governor’s proclamation can set aside federal statutes.

An unbroken string of cases testing this precise question has held that “invasion” refers to an organized attack by a foreign state’s military forces. As District Judge David Ezra wrote when enjoining Abbott’s “Operation Lone Star,”

Contemporary definitions of “invasion” and “actually invaded,” as well as common usage of the term in the late Eighteenth Century, predominantly referred to an “invasion” as a hostile and organized military force too powerful to be dealt with by ordinary judicial proceedings. This Court could not locate a single contemporaneous use of the term to refer to surges in unauthorized foreign immigration. The text and structure of the State War Clause imply that “invasion” was to be used sparingly for temporary, exigent, and dangerous circumstances. Put simply, the overwhelming textual and historical evidence does not support Texas’s understanding of the State War Clause.

Of course, that decision is on appeal—it has come before the Ho’s Fifth Circuit and likely will again. In fact, Ho wrote a separate opinion in the first appeal of the case, endorsing the invasion theory. Ho’s remarks in the Reason interview might be read (Oh, who are we kidding? Of course, they must be read) as a comment on an issue that may come before him again in his judicial capacity. And they are bad and dangerously bad, law.

Professor Amanda Frost of the University of Virginia, author of You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers, told me in an email that the “invasion” argument “is particularly dangerous because it has no limits. If undocumented immigrants can be labeled ‘invaders’ whose children are denied citizenship, what is to prevent the government from claiming to be invaded by any number of other individuals and groups it designates as a threat, including legal immigrants and even citizens?”

Someone less generous than I might read Ho’s comments as a signal to a president-elect that Ho could find a way to uphold a specific citizenship-stripping order (Presidents probably can “declare invasions”) without entirely renouncing his previous view; and if it’s an “invasion,” then olly olly oxen free. Send in the ICE agents to check everyone’s papers and deport some children born in the U.S.A. to countries they have never seen.

It seems, from the outside, like a self-betrayal by a figure who once took a brave stand. And it seems like a telling symptom of the degree to which the advent of Trumpism has destabilized even the most venerable legal precedent.

That I am disappointed in Jim Ho is the least important consequence of the current dispute.

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