Immigration

5th Circuit Judge James Ho Says a Presidentially Declared 'Invasion' Overrides Birthright Citizenship

The potential SCOTUS nominee qualifies his longstanding position that the U.S.-born children of unauthorized immigrants are citizens under the 14th Amendment.

Jacob Sullum | 10.30.2026 5:00 PM

Share on FacebookShare on XShare on RedditShare by emailPrint friendly versionCopy page URL Add Reason to Google

Media Contact & Reprint Requests

5th Circuit Judge James Ho (Tom Williams/CQ Roll Call/Newscom)

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. 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.

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. 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.

"Birthright citizenship is guaranteed by the Fourteenth Amendment," Ho wrote in a 2006 law journal article. "That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers."

Ho reiterated that position in a 2011 Wall Street Journal 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.

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." The "plain meaning" of that language "is clear," Ho said. "A foreign national living in the United States is 'subject to the jurisdiction thereof' because he is legally required to obey U.S. 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."

So why does Ho think the Supreme Court reached the wrong result in Trump v. 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. "For decades, administrations of both parties have warned........

© Reason.com