5th Circuit Judge James Ho Says Supreme Court Should Have Upheld Trump's Birthright Order on 'Invasion' Grounds

James Ho, a judge on the U.S. Court of Appeals for the 5th Circuit since President Donald Trump appointed him in 2017, says the Supreme Court got it wrong in Trump v. Barbara.

That is the June 2026 decision rejecting Trump's attempted restrictions on birthright citizenship. Ho made his case on October 5 at the Museum of the Bible in Washington, D.C., at a gathering convened by the Judicial Action Group.

The invasion argument

"Foreign governments weaponize illegal immigration in order to hurt other countries," Ho said. "For decades, administrations of both parties have warned the people about the use of illegal immigration as a weapon of war, and judges are supposed to defer to presidential proclamations about a state of invasion."

His conclusion: "So the Supreme Court should have upheld the president's birthright citizenship order in full based on his invasion proclamation."

Ho had previewed the idea before. In a November 2024 interview with South Texas College of Law professor Josh Blackman, he pointed in that direction. Blackman noted that the previous July, in United States v. Abbott, Ho had written a dissenting opinion arguing that illegal immigration could qualify as an "invasion" under Article I, Section 10, Clause 3 of the Constitution.

In that interview, Ho said: "Anyone who reads my prior writings on these topics should see a direct connection between birthright citizenship and invasion." He added that "birthright citizenship obviously doesn't apply in case of war or invasion."

What Ho wrote before

The speech cuts against Ho's own record. In a 2006 law journal article, he wrote: "Birthright citizenship is guaranteed by the Fourteenth Amendment. That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers."

In a 2011 Wall Street Journal essay he went further. "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.

Ho argued then that the Citizenship Clause's plain meaning "is clear." A foreign national in the United States, he wrote, is "subject to the jurisdiction thereof" because he is legally required to obey U.S. law. He also wrote that "both proponents and opponents of the citizenship clause agreed" it would reach the U.S.-born children of Chinese laborers and other noncitizens.

Reason's analysis calls his current position "hard to reconcile" with those statements. Blackman, who shares Ho's reading of the clause, is the one who flagged the earlier hints.

The invasion theory offers Ho a way to hold both positions. On his telling, the clause means what he said it means in 2006 and 2011, but a presidential declaration of invasion changes what courts may do. Reason notes the problem with that qualification: it lets the president override birthright citizenship simply by declaring that illegal immigration amounts to an "invasion." The Supreme Court rejected Trump's order in June.

The nomination angle

The New York Times has presented the speech as evidence that Ho hopes Trump will nominate him to the Supreme Court, assuming a seat opens during the next two years. Times reporter Mattathias Schwartz reports that some experts perceive Ho's remarks as an attempt to show alignment with Trump's worldview. Ho did not say that in the remarks quoted here.

The religious framing

The event was billed as a "National Consecration of our Courts" and was organized by activist Phillip Jauregui. People For the American Way's Peter Montgomery, writing October 26, says Jauregui promotes a "biblical worldview" test for future Supreme Court nominees. Montgomery calls that a Christian nationalist religious test.

Montgomery says Ho did not mention that test directly but seemed to embrace its core principle. Ho said: "In an ideal world, being a Christian actually should have nothing to do with being a judge. But in a fallen world, being a Christian has everything to do with being a judge."

Ho also said: "I'm a judge, not a pastor." He added that "we should have no illusions about what happens when Christians abandon the public square." Everyone else in America, he argued, lets their most cherished principles and values influence their views on government.

Ho faulted the current Supreme Court for not upholding "the biblical truth that marriage is the union of one man and one woman." Montgomery also reports that Ho complained that, even though the Court ruled as he would have in an anti-trans case, the caption of the case used a pronoun that violated "the biblical truth that men are not women."

Ho framed the choice as one between "biblical principles" and "business prerogatives," and between leaders who regard values as "transcendent or as transactional." Montgomery asks whether Trump and his religious-right supporters embody the transactional view. That question is Montgomery's, not Ho's.

A sitting appellate judge told a room of activists that the Supreme Court should have deferred to a president's declaration of invasion over a constitutional citizenship guarantee he once called clear. Whether a proclamation can displace the 14th Amendment is the question Ho says the justices should have answered differently. Months after the Court answered it the other way, he is still arguing the point.