It used to be that right-wing conspiracy theories about shadowy cabals importing migrants to take over the United States were confined to the darker corners of the internet, but apparently, part of making America great again is bringing them to federal court opinions. In his latest bid to impress President-elect Donald Trump, Fifth Circuit Judge James Ho recently put on his finest tinfoil hat to describe desperate people seeking safety for their families as a horde conducting a coordinated invasion of the United States.
This, Ho says in a concurring opinion in United States v. Abbott, justifies denying United States citizenship to children of migrants who are born in the United States. “A sovereign isn’t a sovereign if it can’t defend itself against invasion,” he writes, arguing that Texas Governor Greg Abbot’s declaration of an “invasion” at the border is a “political question” to which federal judges like himself must defer. And in a follow-up interview at The Volokh Conspiracy, Ho asserted that birthright citizenship “obviously” doesn’t apply in the case of “war or invasion”—a little performance that just might vault him into the lead to be Trump’s next Supreme Court pick.
How did a federal judge come to sound like a touched-up version of Alex Jones? As part of the Republican Party’s embrace of the far right, its acolytes have increasingly turned against birthright citizenship, which appears explicitly in the text of the Fourteenth Amendment to the U.S. Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In other words, under the Constitution, in almost all cases, anyone born on U.S. soil is a U.S. citizen.
This, however, doesn’t square with the right’s idea of the United States as a white nation, which means that they need some polite-sounding way to work around the clear text of the Constitution. During his first term in the White House, when Trump announced his intention to issue an executive order revoking birthright citizenship, prominent white supremacists applauded the president for advancing a cause for which they have been fighting for decades.
Fortunately for Republican judges, over the last several years, conservative intellectuals have laundered Trump’s vitriol about immigrants “poisoning the blood of our nation” into respectable legal theories for judges like Ho to cite. The basic premise, as outlined by Heritage Foundation lawyer and voter fraud conspiracy theorist Hans von Spakovsky, is that undocumented immigrants maintain “allegiance” to another country, and are thus are not “subject to the jurisdiction” of the United States, and are thus not covered by the Fourteenth Amendment’s birthright citizenship protection. This analysis ignores the fact that the Court has clarified that the “subject to the jurisdiction” language is a narrow exception that excludes only the children of diplomats—and, prior to the passage of the Indian Citizenship Act of 1924, to members of Indigenous Nations. It also ignores the fact that there is no reason to think that asylum seekers fleeing violence and poverty retain “allegiance” to the country they left.
(Photo By Tom Williams/CQ Roll Call)
More recently, two conservative law professors published a law review article even more in line with the right’s frothing about a “migrant invasion.” While the article presents a supposedly analytic view of the meaning of “invasion,” its relative subtlety may make it even more dangerous. To make their case, the authors pull the usual originalist gimmick of reading through a bunch of dictionaries to say that an “invasion” does not need to be conducted by a military or foreign nation, and quote some founding-era examples of politicians calling immigrants from other states as “invaders” in support. Apparently, Ben Franklin writing an op-ed calling transplants from Connecticut “invaders” is supposed to provide insight into the meaning of the Fourteenth Amendment, which Congress passed almost a century later.
White nationalists calling for an end to birthright citizenship is nothing new, but it is perhaps a little more surprising coming from Ho, who—as his Volokh Conspiracy interviewer helpfully notes—is himself an immigrant who has defended birthright citizenship previously. But Trump is always looking for nominees who support his headline grievance, and since his elevation to the Fifth Circuit in 2017, Ho has been auditioning for a promotion to the Supreme Court by taking public positions against police accountability, transgender rights, “wokeness,” and racism against white people. And given that Trump has said that the first major initiative of his second term will be mass deportations that are certain to ensnare citizens with undocumented parents, too, this will likely tee up a confrontation in the Supreme Court.
One might think that this wouldn’t be such a bad thing: The Constitutional text is clear, and the Supreme Court has clarified any exceptions to this clear text in landmark cases like United States v. Wong Kim Ark, which supported birthright citizenship. For a Court supposedly devoted to the text of the Constitution, this should be a layup. However, the conservative supermajority has shown little deference to precedent, text, or facts when they get in the way of their policy agenda. Abortion rights were solidly protected by precedent, right up until they weren’t. Given that immigration restriction is the right’s current obsession, birthright citizenship seems more endangered than ever at the Supreme Court, particularly if James Ho is soon a part of it.
Ever a creature of the conservative legal movement, Ho’s recent comments are a preview of what to expect from right-wing judges under a second Trump administration. Conservative academics are more than happy to give a sheen of respectability to any of Trump’s racist, misogynist rants. With this support network in place and Trump talking about denaturalizing citizens, deploying the military against U.S. citizens, and jailing political opponents, there is still plenty of room for things to get worse.
