Trump Judicial Appointee Defended Birthright Citizenship

President Donald Trump may want to end birthright citizenship, but one of his conservative judicial appointees has previously defended the right based on Supreme Court precedent.

“Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution,” James C. Ho, who now sits on the U.S. Court of Appeals for the Fifth Circuit, wrote in a 2011 opinion piece while in private practice.

The Fifth Circuit, which is based in New Orleans and includes Texas, is where high profile immigration cases are frequently heard.

Ho’s writing is spotlighted following Trump’s politically charged plan for an executive order to end birthright citizenship, which was announced Oct. 30 just days before the crucial midterm elections.

The matter is likely headed to the courts where stiff resistance is expected. Legal scholars immediately pointed to Supreme Court precedent upholding the citizenship birthright, which was underlined by Ho’s Wall Street Journal opinion piece.

Ho quoted the 14th Amendment’s first sentence, which provides that all “persons born or naturalized” in the U.S., and “subject to the jurisdiction thereof,” are U.S. citizens.

“The meaning of this language"—that the Constitution protects the U.S.-born children of noncitizens—"is clear,” Ho said.

A foreign national living in the U.S. is “subject to the jurisdiction thereof” because “he is legally required to obey U.S. law,” he said.

Ho contrasted such a national with a foreign diplomat enjoying diplomatic immunity, whom he said wouldn’t be subject to such jurisdiction.

Congressional debates just prior to the 14th Amendment’s enactment support this interpretation, Ho said.

That’s also important since Sen. Lindsey Graham (R-S.C.) also tweeted that he plans to introduce legislation “along the same lines” as Trump’s proposed order.

Three Decisions Cited

Ho cited three Supreme Court decisions.

The court held that the 14th Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory,” including “all children here born of resident aliens,” in 1898’s United States v. Wong Kim Ark.

The high court said the 14th Amendment extends to the U.S.-born children of undocumented immigrants, in the 1982 decision of Plyler v. Doe.

Further, the court “unanimously agreed that a child born to an undocumented immigrant was in fact a U.S. citizen” in 1985’s Immigration & Naturalization Serv. v. Rios-Pineda, Ho said.

Ho argued that state-level legislation attacking birthright citizenship would be “a poor strategy” because citizenship determinations are the “unique province of the federal government.”

Ho, confirmed to the appeals court last year, is a former Clarence Thomas clerk and a Texas’s solicitor general before becoming a partner at Gibson, Dunn & Crutcher.

In a dissenting opinion earlier this year, he wrote that “if you don’t like big money in politics, then you should oppose big government in our lives,” prompting some to say he sounded more like a politician than a judge.