James Ho, whom President Donald Trump appointed to the U.S. Court of Appeals for the 5th Circuit in 2017 and considered as a potential Supreme Court nominee, recently criticized Trump v. Barbara, the June 2026 decision rejecting Trump's attempted restrictions on birthright citizenship.
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Trump → appoint → citizenship
Ho's remarks, part of a speech he delivered on October 5 to a gathering of Christian activists at the Museum of the Bible in Washington, D.C., are striking because they seem to contradict his longstanding position that the children of unauthorized immigrants qualify as citizens under the 14th Amendment when they are born in the United States.
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they → deliver → States
The New York Times presents Ho's speech as evidence that he hopes Trump will nominate him to the Supreme Court, assuming that opportunity arises during the next two years.
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opportunity → present → years
But whatever you make of that theory, Ho's position on Trump v. Barbara is hard to reconcile with what he has repeatedly said about the meaning of the 14th Amendment's Citizenship Clause.
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he → make → Clause
"Birthright citizenship is guaranteed by the Fourteenth Amendment," Ho wrote in a 2006 law journal article.
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Ho → guarantee → article
"That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers."
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birthright → protect → passengers
Ho reiterated that position in a 2011 Wall Street Journal essay.
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Ho → reiterate → essay
"Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution," he wrote.
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he → claim → Constitution
The first sentence of the 14th Amendment, Ho noted, says "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
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persons → note → States
The "plain meaning" of that language "is clear," Ho said.
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Ho → say → language
"A foreign national living in the United States is 'subject to the jurisdiction thereof' because he is legally required to obey U.S. law."
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he → live → law
The historical evidence, he added, shows that "both proponents and opponents of the citizenship clause agreed" that "it would extend birthright citizenship to the U.S.-born children of Chinese laborers and other noncitizens.
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it → add → laborers
So why does Ho think the Supreme Court reached the wrong result in Trump v. Barbara?
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Court → think → Barbara
"Foreign governments weaponize illegal immigration in order to hurt other countries," he said at the Museum of the Bible conference, which was convened by the Judicial Action Group.
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which → weaponize → Group
"For decades, administrations of both parties have warned the people about the use of illegal immigration as a weapon of war, and judges are supposed to defer to presidential proclamations about a state of invasion.
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judges → warn → invasion
So the Supreme Court should have upheld the president's birthright citizenship order in full based on his invasion proclamation."
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Court → uphold → proclamation
Ho hinted at this position in a November 2024 interview with South Texas College of Law professor Josh Blackman, who agrees with Ho that the Citizenship Clause covers the children of unauthorized U.S. residents.
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Clause → hint → residents
The previous July in United States v. Abbott, Blackman noted, Ho had written a dissenting opinion arguing that illegal immigration could qualify as an "invasion" under Article I, Section 10, Clause 3 of the Constitution, which says no state may "engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."
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state → note → delay
Blackman asked Ho to address criticism of that opinion.
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Blackman → ask → opinion
"Anyone who reads my prior writings on these topics should see a direct connection between birthright citizenship and invasion," Ho replied.
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Ho → read → citizenship
"Birthright citizenship is supported by various Supreme Court opinions, both unanimous and separate opinions involving Justices Scalia, Thomas, Alito, and others.
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citizenship → support → Scalia
But birthright citizenship obviously doesn't apply in case of war or invasion.
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citizenship → apply → war
No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship.
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children → argue → citizenship
And I can't imagine what the legal argument for that would be."
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argument → imagine → that
The problem with Ho's qualification is that it empowers the president to override birthright citizenship, which Ho has said is guaranteed by the 14th Amendment, simply by declaring that illegal immigration amounts to an "invasion."
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immigration → empower → invasion
It is not hard to see why that position would appeal to Trump, since it means he can unilaterally redefine citizenship.
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he → see → citizenship
Does that mean Ho is kissing up to Trump because he wants to replace any justice who might retire before the end of Trump's term?
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who → mean → term
That is what Times reporter Mattathias Schwartz suggests.
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Schwartz → suggest → what
Schwartz concedes that Ho, like most of the potential Supreme Court nominees that Trump listed during his first term, falls into the category of "traditional conservatives with strong ties to the Federalist Society."
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Trump → concede → Society
But Schwartz says "some experts perceive Judge Ho's remarks" as "an attempt to show his alignment with Mr. Trump's worldview.
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experts → say → worldview
Ho's speech "channeled frustrations shared by Mr. Trump and his base that the Supreme Court's six-judge conservative supermajority—three of whom are Mr. Trump's appointees—have failed to uniformly back his agenda," Schwartz writes.
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Schwartz → channel → agenda
"Despite a string of conservative wins on abortion, gun rights, and gerrymandering, there is a sense on the Trump-aligned right that Justices Brett M. Kavanaugh, Amy Coney Barrett and Neil M. Gorsuch are becoming unreliably centrist swing votes—'squishes' in the online parlance—in the mold of Justices Anthony M. Kennedy and David H. Souter.
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Kavanaugh → be → Kennedy
That framing implies that backing Trump's agenda is a matter of conservative principle.
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backing → imply → principle
But Trump himself has no coherent ideology, and his authoritarian impulses often run headlong into conservative principles such as originalism, the rule of law, and the separation of powers.
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impulses → have → powers
It makes sense to describe justices who occasionally disagree with Trump as "centrist" only if you accept the idea that his views are the standard by which judicial performance should be judged.
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performance → make → which
In any event, Schwartz suggests that Ho is presenting himself as a Trump-friendly judge who, unlike Kavanaugh, Barrett, and Gorsuch, could be relied upon to take the president's side.
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who → suggest → side
But the evidence that Schwartz cites to support that take is thin.
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Schwartz → cite → take
As Schwartz acknowledges, it is not even clear that Ho wants the job for which he supposedly is auditioning.
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he → acknowledge → which
His wife, Allyson N. Ho, works for a law firm that frequently litigates Supreme Court cases, and Judge Ho has suggested that her career would be ruined if he joined Court.
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he → work → Court
"I can't imagine that Allyson's firm would want to be categorically recused from the highest court in the land," Ho said in a recent interview.
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Ho → imagine → interview
…and 25 more, not listed.
The Aporia
