Trump Is Gunning for Birthright Citizenship—and Testing the High Court
The mood in the lower courts may also be changing. Judge James Ho, whom Trump named to the Fifth Circuit Court of Appeals in his first term, became famous in the late 2000s for a law review article in which he made an originalist case for birthright citizenship. “Nothing in text or history suggests that the drafters intended to draw distinctions between different categories of aliens,” he wrote, using the legal term for noncitizens. “To the contrary, text and history confirm that the Citizenship Clause reaches all persons who are subject to U.S. jurisdiction and laws, regardless of race or alienage.”
Now he appears to have qualified that unequivocal answer. In a recent interview with conservative law professor Josh Blackman, Ho suggested that there might be an atextual exception for the children of undocumented migrants and compared their parents to suspected terrorists held at Guantánamo Bay.
Birthright citizenship is supported by various Supreme Court opinions, both unanimous and separate opinions involving Justices Scalia, Thomas, Alito, and others. But birthright citizenship obviously doesn’t apply in case of war or invasion. No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship. And I can’t imagine what the legal argument for that would be. It’s like the debate over unlawful combatants after 9/11. Everyone agrees that birthright citizenship doesn’t apply to the children of lawful combatants. And it’s hard to see anyone arguing that unlawful combatants should be treated more favorably than lawful combatants.
This does not really hold true if one thinks about it for more than a few minutes. The presence of undocumented immigrants in the United States does not amount to an “invasion” in any legal sense. Additionally, the Supreme Court decided the Wong Kim Ark case while the Chinese Exclusion Act was still in force. Newspapers at the time referred to large-scale Chinese immigration to the West Coast as an “invasion,” reflecting a deep, broad strain of anti-Chinese rhetoric. Originalist legal scholars have also criticized Ho for adding an exception to the citizenship clause that does not exist in its text.