Five years ago, Judge James Ho told the world that children of undocumented immigrants are citizens under the Constitution. Now, the 5th Circuit judge is arguing that a presidential declaration of “invasion” can wipe that right away. This sudden shift has New Yorkers asking if the law is changing or if the judge is just chasing a seat on the Supreme Court.
Ho’s new stance clashes directly with his own written words from a 2006 law journal article and a 2011 Wall Street Journal essay. According to his earlier statement, the Fourteenth Amendment guarantees birthright citizenship. Those words don’t sit well with his recent speech to Christian activists in Washington, D.C.
The Past vs. The Present
The contradiction is stark. In prior writings, Ho contended that those opposing illegal immigration cannot claim to uphold the rule of law while simultaneously proposing policies that breach the Constitution. He explained the text of the 14th Amendment clearly, noting it says “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” He insisted the “plain meaning” of that language “is clear.”
Back then, he defined “subject to the jurisdiction thereof” to mean anyone legally required to obey U.S. laws. “A foreign national living in the United States is ‘subject to the jurisdiction thereof’ because he is legally required to obey U.S. law,” Ho wrote in 2006. He claimed historical evidence showed everyone agreed the clause extended birthright citizenship to these children. Today, he is saying a president can override that agreement.
Why the Switch Now?
The timing raises eyebrows. The New York Times reports that Ho’s remarks, delivered on October 5, are seen by some as a bid for a Supreme Court nomination. President Donald Trump appointed Ho to the 5th Circuit in 2017 and reportedly considered him for the high court. If the administration needs a conservative jurist to validate a new immigration crackdown, Ho’s new theory fits the bill perfectly.
However, legal experts warn this flip-flop undermines the rule of law. If a judge can rewrite the meaning of the Constitution based on political pressure, then the text no longer matters. The Supreme Court is currently hearing a different case, Rhoney v. Barbosa da Cunha, regarding mandatory detention for noncitizens. That case involves a Brazilian father with no criminal record who was detained after living here for twenty years. While that case deals with detention, Ho’s new theory threatens the very citizenship status of the children in cases like Cunha’s.
New York has long been a hub for immigrants and their families. A ruling that strips birthright citizenship would upend the lives of thousands of local families. It would create a two-tier system where some children are citizens and others are not, despite being born on the same soil. This is not just a legal theory; it is a potential crisis for our city.
We need judges who stick to the text, not ones who twist it to please the administration. If Ho gets that Supreme Court seat, he will have to explain how he reconciles his 2006 words with his 2026 speech. New Yorkers deserve an answer before any rights are stripped away.
This is opinion and commentary from the RapForMayor team.
