James Ho, a Texas lawyer nominated by President Donald Trump to serve as a federal appeals court judge, has raised eyebrows among immigration hawks over his past defense of birthright citizenship.
The doctrine holds that the 14th Amendment automatically confers U.S. citizenship on any baby born in America, regardless of the parents’ citizenship — with the exception of diplomats. But the Supreme Court never has directly defined how broadly it applies, and some legal scholars believe Congress could place restrictions on the children of illegal immigrants. Rep. Steve King (R-Iowa) and 33 co-sponsors introduced a bill in January to do just that.
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Ho, a partner at Gibson Dunn & Crutcher in Dallas, laid out a comprehensive defense of birthright citizenship in the law journal Green Bag.
The nominee for the 5th U.S. Circuit Court of Appeals referenced the debate in Congress over the 14th Amendment, arguing that while there was dissent over the amendment itself, and some disagreement about whether it would apply to American Indians, lawmakers seemed to agree it would cover foreigners who give birth in America.
“Birthright citizenship is guaranteed by the 14th Amendment,” Ho wrote. “That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.”
William Gheen, president of Americans for Legal Immigration political action committee, said Ho’s nomination is one more example of betrayal by a president who has failed to deliver on some of his immigration promises.
“We know clearly now that Trump lies to his base,” he said. “Trump has a well-established record of supporting Establishment candidates who support amnesty.”
There is a tinge of irony in a Trump nominee defending birthright citizenship. As a candidate, Trump called for an end to automatic citizenship for the children of illegal immigrants and argued that the 14th Amendment does not guarantee citizenship to them.
Trump also needled his strongest competitor for the GOP nomination, Sen. Ted Cruz (R-Texas), on his Canadian birth and suggested he did not meet the constitutional requirement as a natural-born citizen even though his mother was American.
Ho succeeded Cruz as the solicitor general of Texas.
A number of legal experts disagree with Ho’s reading of the 14th Amendment. Michael Hethmon, senior counsel at the Immigration Reform Law Institute, said drafters of the amendment wanted to extend citizenship to the newly freed slaves after the Civil War. It is far less clear that they intended it to apply to foreigners with no connection to America, he said.
“Almost none of the debate was on what we’d call today aliens,” he said. “It wasn’t really a developed concept.”
Many scholars, including Ho, believe the Supreme Court answered the question in 1898 when it ruled in favor of Wong Kim Ark, a San Francisco-born man with Chinese parents. After traveling to China on business, he found himself blocked from returning under the Chinese Exclusion Acts by U.S. authorities who determined that he was not a citizen.
The majority opinion in the 6-2 decision held that the 14th 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 only exceptions being children of foreign diplomats and members of Indian tribes.
Ho wrote that the “sweeping language” of the ruling encompasses legal and illegal immigrants.
“He takes seriously the work of the Constitution and where he thinks it should go.”
Hethmon argued that term “allegiance” in the opinion restricts its application to people who have some connection to the United States, such as legal permanent residents.
“I don’t see the Wong Kim case resolving the issue at all,” he said.
John Eastman, a lawyer who has written extensively about birthright citizenship — and has debated Ho about it — agreed. He pointed to a phrase in the text of the amendment, itself — “subject to the jurisdiction” of the United States. He argued that does not apply to illegal immigrants.
In the Wong Kim Ark case, he said, the issue was not illegal immigrants.
“They were what we would call lawful permanent residents,” said Eastman, a Chapman University law professor and founding director of The Claremont Institute’s Center for Constitutional Jurisprudence.
Eastman, likewise, rejects Ho’s argument that the Supreme Court put the issue to rest in a 1982 case called Plyler v. Doe, which held that Texas could not deny public education to illegal immigrants. Ho noted a footnote in the majority opinion referencing that illegal immigrants are “subject to the jurisdiction” of the United States just like citizens and legal residents.
“It’s just a little footnote,” Eastman said. “That wasn’t even an issue in the case.”
Given their profound disagreement on the meaning of the 14th Amendment, Eastman said, “I hope I draw a different judge … on the Fifth Circuit panel if I ever argue a case.”
But Eastman, nonetheless, said he believes Ho is an excellent choice for the court. He said Ho’s analysis of the birthright citizenship issue is grounded in an effort to interpret the Constitution and its amendments based on their language and the original intent of the men who drafted that language.
“He takes seriously the work of the Constitution and where he thinks it should go,” he said.
Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, declined to comment on the birthright citizenship issue. But she said even strict constructionists do not always agree on difficult constitutional questions.
“There are a lot of issues where there’s a real debate, even from an originalist perspective, about what the right answers are,” she said.