Texas nominee for federal court at odds with Trump on birthright citizenship

In many ways, James Ho is the perfect nominee.

The Taiwanese immigrant and prominent Dallas attorney, named last month as one of President Donald Trump’s Texas picks for the U.S. 5th Circuit Court of Appeals, has both years of private sector experience and extensive government chops, too. A former Texas solicitor general, he has won cases before the U.S. Supreme Court and the 5th Circuit. He’s an active member of the Federalist Society — a conservative pipeline for judicial nominees — and of the National Asian Pacific American Bar Association.

Ho has, as legal blogger David Lat put it, “a great record, great credentials — and he’s diverse.”

Yet in legal writings spanning over a decade, Ho has maintained a position on one thorny issue — birthright citizenship — that pits him against many prominent Republicans, including the president who appointed him.

“Birthright citizenship is a constitutional right, no less for the children of undocumented persons than for descendants of passengers of the Mayflower," Ho wrote in 2007 in the Des Moines Register.

And he's written on the issue many times before and since: Starting in 2000 in Constitutional Commentary, just a year after graduating from law school at the University of Chicago; in 2004, for The Green Bag, a quarterly legal journal; again in the Green Bag in 2006; for the Register in 2007; the Wall Street Journal and then the Washington Times in 2011.

Trump, who came out during his presidential campaign against birthright citizenship, has argued that children of undocumented immigrants — sometimes unflatteringly termed “anchor babies” — are not U.S. citizens. Granting them citizenship, he argued, is “the biggest magnet for illegal immigration.” Several other Republican candidates for president also publicly supported ending birthright citizenship.

The matter has generated some debate over the past several years, but most legal experts agree with Ho that children of undocumented immigrants possess citizenship rights rooted firmly in Supreme Court precedent and the 14th Amendment.

The question of how that doctrine might be changed has also sparked debate. The consensus among legal experts, Ho again among them, is that changing that law would require a constitutional amendment. The Texas Republican Party's platform adopts this strategy with a plank calling on "Congress to pass a constitutional amendment that defines citizenship as those born to a citizen of the United States or through naturalization."

But some right-wing immigration opponents argue that Congress could undo more than a century of birthright citizenship by passing a law.

Trump himself argued just that with then-Fox News personality Bill O’Reilly in 2015. 

“I was right on the anchor babies... You don’t have to do a constitutional amendment,” Trump said.

"No, you weren't," O'Reilly disagreed. "You'd have to get a constitutional amendment passed to overturn that." 

A White House spokesperson told the Tribune that the president has not made any statements on the issue of birthright citizenship since the campaign but could not offer guidance on whether Trump’s position has changed. In April, U.S. Immigrations and Customs Enforcement hired as an adviser Jon Feere — who has called publicly to end birthright citizenship for the children of “birth tourists” and proposed doing so through legislative and executive means.

Ho did not respond to a request for comment, but his allies say that his consistent stance on the issue demonstrates faithfulness to the law, even when it’s not politically expedient. Indeed, it’s one of the only clear opinions the Dallas attorney has expressed. Unlike many other federal judicial nominees – including another Texan Trump nominated to the 5th Circuit last month, Texas Supreme Court Justice Don Willett – Ho has never served as a judge. Along with his work as Texas' solicitor general and in U.S. Sen. John Cornyn's office, he has worked extensively in private practice and clerked for U.S. Supreme Court Justice Clarence Thomas. But he has rarely, if ever, clearly demarcated his own opinions from his clients’ interests.

His preoccupation with the issue of American citizenship — who possesses it by law and what it entitles those people to — has persisted through private- and public-sector positions. And he has rooted his view in not only legal argumentation but in principles: “textualism, originalism and American exceptionalism.” 

“Opponents of illegal immigration sacrifice the moral high ground they seek to claim by invoking the rule of law when they support proposals to repeal birthright citizenship by statute,” Ho wrote in 2011.

Presidential eligibility

In his decades of legal scholarship, Ho has also focused on another extension of the citizenship debate, one more directly tied to politics: presidential eligibility. In several of his writings, Ho seems to make the case for allowing foreign-born U.S. citizens — or even naturalized citizens — to serve as president, arguing that “one way to assess whether an individual is a full and equal member of a community is to ask whether the individual is eligible to serve in the highest office in that community.”

That issue has come up several times in recent political campaigns, including with U.S. Senator Ted Cruz, who was born in Canada to an American mother and Cuban father and is a friend of Ho's. Throughout his failed 2016 presidential bid, Cruz faced questions of whether he was eligible to run for president. Many constitutional experts said he was. 

And that legal debate is also a personal issue for Ho, who in his writing explicitly makes the connection between his family’s immigration story and the legal matter at hand.

“No matter who wins the White House this November," Ho wrote in 2000 in Constitutional Commentary, "I — and millions of other Americans like me — once again will have suffered a certain measure of exclusion from the selection process. We have the right to vote, to be sure. But we cannot serve as president.”

Of the nine judicial nominees Trump announced two weeks ago, Ho is the only one whose name has not been officially sent to the Senate for confirmation; the other eight were sent to the upper chamber within a week. When asked about issues with Ho's nomination, a Justice Department official said Tuesday, "The President announced his intent to nominate Ho, which is similar to announcements he's made about many other nominees before officially submitting their nominations to the Senate." 

Ho was born in Taiwan and immigrated with his parents as a child. He became a naturalized citizen at age 9 and became “Texan by marriage,” he often jokes, when he married Houston native and fellow Chicago law grad Allyson Ho in 2004.

Ho would be the first Asian-American judge on the 5th Circuit and one of only a handful of Asian-American judges serving on federal appeals courts across the country. That’s a significant step for an administration whose record on diversity among judicial nominees has been “horrendous,” said National Council of Asian Pacific Americans Director Chris Kang, who vetted judicial candidates for the Obama administration.

Ho has long been active in the Asian-American legal community, serving in leadership roles and earning accolades from the National Asian Pacific American Bar Association. And those ties translate into his legal opinions: a good deal of the case law around birthright citizenship stems from cases involving discrimination against Asian-Americans in particular.

“I do think that having the immigrant experience has helped shape the way he looks at things,” said Vincent Eng, a friend and longtime colleague of Ho’s. “Birthright citizenship was particularly important to him because of his experience.”

Ho ends more than one of his articles with a warning to the reader: “Stay tuned: Dred Scott II could be coming soon to a federal court near you” — a reference to a controversial 19th century case, since overturned, that ruled that children of slaves were not American citizens. Should such a case — and Ho himself — find its way to the 5th Circuit, his writings suggest he's already made up his mind.