Galston | Trump’s Attack on Birthright Citizenship

Good informative commentary:

James C. Ho, the son of immigrants from Taiwan and a naturalized U.S. citizen, received a juris doctor with high honors in 1999 from the University of Chicago Law School, where he joined the Federalist Society. He went on to work in the private sector, in the Justice Department and as a legal adviser to subcommittees of the Senate Judiciary Committee. Between 2005-06, he clerked for Justice Clarence Thomas. In 2008 he became solicitor general of Texas, succeeding Ted Cruz, who became one of his strongest supporters in the U.S. Senate. 

In October 2017, President Trump nominated Mr. Ho to fill a seat on the Fifth U.S. Court of Appeals, based in New Orleans. The Senate confirmed Mr. Ho two months later. In late 2020, Mr. Trump included Judge Ho on a list of potential Supreme Court nominees, where he reportedly remains today.

Judge Ho is a staunch cultural conservative. He supports an expansive understanding of religious liberty and in 2022 publicly pledged not to hire law clerks from Yale Law School, charging that the school not only tolerates but actively practices cancel culture. He vigorously opposes illegal immigration, arguing that a country that can’t control its borders isn’t fully sovereign. 

But Judge Ho is also the author of a 2006 legal article that strongly argued in favor of birthright citizenship, including for the children of illegal immigrants. In support of his conclusion, he cited the text and history of the 14th Amendment as well as the key cases—U.S. v. Wong Kim Ark (1898) and Plyler v. Doe (1982)—in which the Supreme Court has interpreted its application. In Plyler, he noted, all nine justices endorsed the proposition that illegal immigrants are “subject to the jurisdiction” of the U.S. This matters because the 14th Amendment establishes being “subject to the jurisdiction” of the U.S. as the threshold qualification for children born in the U.S. to be citizens at birth. Mr. Ho ended his legal paper by dubbing efforts to eliminate birthright citizenship “Dred Scott II.”

In October 2017, President Trump nominated Mr. Ho to fill a seat on the Fifth U.S. Court of Appeals, based in New Orleans. The Senate confirmed Mr. Ho two months later. In late 2020, Mr. Trump included Judge Ho on a list of potential Supreme Court nominees, where he reportedly remains today.

Judge Ho is a staunch cultural conservative. He supports an expansive understanding of religious liberty and in 2022 publicly pledged not to hire law clerks from Yale Law School, charging that the school not only tolerates but actively practices cancel culture. He vigorously opposes illegal immigration, arguing that a country that can’t control its borders isn’t fully sovereign. 

But Judge Ho is also the author of a 2006 legal article that strongly argued in favor of birthright citizenship, including for the children of illegal immigrants. In support of his conclusion, he cited the text and history of the 14th Amendment as well as the key cases—U.S. v. Wong Kim Ark (1898) and Plyler v. Doe (1982)—in which the Supreme Court has interpreted its application. In Plyler, he noted, all nine justices endorsed the proposition that illegal immigrants are “subject to the jurisdiction” of the U.S. This matters because the 14th Amendment establishes being “subject to the jurisdiction” of the U.S. as the threshold qualification for children born in the U.S. to be citizens at birth. Mr. Ho ended his legal paper by dubbing efforts to eliminate birthright citizenship “Dred Scott II.”

Until recently, Judge Ho’s article was of academic interest only. No longer. On day one of his second term, Mr. Trump issued an executive order aimed at eliminating birthright citizenship for children born to mothers who are present in the U.S. illegally or temporarily—unless the father is a U.S. citizen or permanent resident at the time of the birth. In response to suits filed by multiple states, a federal judge issued a temporary injunction against the executive order, calling it “blatantly unconstitutional.” 

If a higher court disagrees, this dispute will almost certainly end up at the Supreme Court. What then? If the justices follow Judge Ho’s argument—or their own prior rulings—Mr. Trump will lose. But in an interview last November after Mr. Trump’s election victory, Judge Ho offered the court an escape hatch. “Birthright citizenship obviously doesn’t apply in case of war or invasion,” he said. “No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship.” If Mr. Trump’s characterization of mass illegal immigration as an invasion is legally correct, Judge Ho implies, the executive order could be upheld.

But is it an invasion? Enter the Texas Public Policy Foundation, not exactly a band of never-Trumpers. This staunchly conservative organization was headed by Kevin Roberts before he left to become president of the Heritage Foundation. Brooke Rollins, who founded the America First Policy Institute and is Mr. Trump’s nominee to head the Agriculture Department, is a senior adviser to the Texas foundation’s board. 

In November 2022, the foundation issued a report: “The Meaning of Invasion Under the Compact Clause of the U.S. Constitution.” After a careful textual, legal and historical inquiry, the report rightly concluded that the term invasion involves two core concepts—entry plus enmity. “Entry alone, which is trespass, is not sufficient to constitute an invasion,” the report concluded. While some nonstate actors, such as cartel-affiliated gangs, may fall under the category of invaders, most illegal entrants don’t. By itself, “the unlawful entry of people into the United States cannot be construed as an invasion.” Thus, Mr. Trump’s use of the term to characterize the situation at the southern border is a metaphor without legal validity or force. The report slams shut Mr. Ho’s proposed escape hatch. 

If the Supreme Court agrees to accept the cases challenging the executive order, the justices will face a choice: They can follow the text and history of the 14th Amendment as well as the court’s past decisions, or they can disregard logic and common sense to give the president what he wants, as they did in their decision on the scope of presidential immunity.

Many Americans have come to view the court as dominated by politics rather than nonpartisan jurisprudence. The court’s decision on birthright citizenship will either accelerate this decline in public trust or begin the long process of reversing it.

Source: Opinion | Trump’s Attack on Birthright Citizenship