During the final months of the Biden presidency, a federal appeals court judge made what was then a startling assertion: The number of undocumented immigrants coming across the southern border amounted to an “invasion.”
The assertion that the United States was under attack appeared in a partial dissent by Judge James C. Ho of the U.S. Court of Appeals for the Fifth Circuit in a dispute over the legality of buoys that Gov. Greg Abbott of Texas had placed along the Rio Grande. Framing migrants as invaders was by then a familiar trope in the conservative media ecosystem and in the campaign rhetoric of then-candidate Donald J. Trump.
But Judge Ho’s opinion marked the first time a federal judge had put a legal imprimatur on the concept of a migrant “invasion,” giving new legitimacy to a theory Mr. Trump would attempt to use to transform long-established understandings of due process for migrants.
In the case, Mr. Abbott, a Republican, had used it to justify placing the buoys along the Rio Grande by invoking his state’s constitutional power to “engage in war” if “actually invaded.”
Ten appellate judges agreed with Mr. Abbott about the buoys, including all six of Mr. Trump’s nominees to the stridently conservative Fifth Circuit. But they stopped short of endorsing the invasion theory, except for Judge Ho.
What Mr. Abbott was doing in Texas, Mr. Trump would soon do nationwide after returning to office, declaring an invasion as the legal foundation for some of his most sweeping immigration policies, including summarily deporting Venezuelan immigrants to El Salvador. Top Trump aides have also discussed using the declared invasion as way to suspend the right of habeas corpus without violating the Constitution.
Judge Ho, who declined to comment, is the 12th of 54 appellate judges chosen during Mr. Trump’s first term, the most in a four-year span since Jimmy Carter’s presidency. Mr. Trump’s record of redrawing the boundaries of law in ways that accommodate conservative theories shows the extent to which Mr. Trump’s first-term judicial appointments have paved the way for his second-term agenda.
That project has been especially successful at the Supreme Court, and at the 13 appellate courts, where Trump appointees have repeatedly intervened to lift blocks placed on the administration by district court judges.
But now, as Mr. Trump’s second-term approach to judicial nominations takes shape, he may be looking for something that goes beyond what one of his most conservative first-term nominees can offer.
“This time they have to be a hell of a lot more bold and fearless than they were last time,” said Mike Davis, the president of the Article III Project, a pro-Trump judicial advocacy group. “Conservatives have gone through Covid. We’ve been through Black Lives Matter. We understand what we’re up against this time, and we’re ready to go all in.”
Judge Ho, chosen for the bench by Mr. Trump in 2017, was one of eight appellate judges who appeared on a White House shortlist of potential replacements for Justice Ruth Bader Ginsburg. He arrived with endorsements that spanned powerful Texas Republicans, the conservative Federalist Society, and right-wing activist groups. His name is likely to surface again should Mr. Trump have the opportunity to fill additional seats on the Supreme Court.
His career over the last seven and a half years offers a case study of a judge with the résumé of a traditional G.O.P. nominee, but who has evolved in ways that support Mr. Trump’s aggressive agenda in the courts.
Eight of the nine sitting Supreme Court justices were elevated from appellate courts. Normally, judges looking to be nominated for a future vacancy seek to avoid the appearance that they are publicly campaigning for a position. In a statement, a White House spokesman called Mr. Trump the “ultimate decision-maker,” and said that he looks for judges “who will faithfully apply the law in the mold of Justice Thomas, Justice Alito and the late Justice Scalia.”
One person familiar with White House officials’ thinking on judicial appointments, who declined to be named because of the sensitivity of criticizing a sitting judge, said the “flamboyant” style of Judge Ho’s jurisprudence and his eagerness to wade into culture wars could work against him.
But a president with an unusual appetite for public displays of perceived fealty could be drawn to a judge unafraid to make noise. While Mr. Davis declined to say whether Judge Ho’s name appeared on a list of possible Supreme Court picks that he has passed on to Mr. Trump, he praised him as a model second-term Trump-appointed judge. “On every crucial but controversial legal issue,” he said, “Jim Ho is constantly the tip of the spear.”
A Trump Judge in Action
Judge Ho was born in Taiwan, immigrated to the U.S. when he was 1 and became a citizen when he was 9. After attending Stanford and the University of Chicago Law School, he clerked for a Fifth Circuit judge.
Judge Ho then went to Washington to work for the law firm Gibson Dunn, where, along with now-Chief Justice John G. Roberts Jr., he was part of an army of lawyers who argued George W. Bush’s side in the contested 2000 election. He spent the next phase of his career shuttling between Washington and Texas, working for Mr. Bush’s Justice Department, clerking for Justice Clarence Thomas and serving as the solicitor general of Texas under Mr. Abbott, then the state’s attorney general.
He also did pro bono work for the First Liberty Institute, a conservative nonprofit that backs public religious expression. The institute would later call him one of its “most active volunteer network attorneys.” In 2016, he worked for Senator Ted Cruz’s presidential campaign. In 2018, when Judge Ho was sworn in standing beside Justice Thomas at the home of Harlan Crow, the Dallas billionaire, Mr. Cruz posted a photo of the moment on social media.
During the Biden presidency, Judge Ho showed a willingness unusual among judges to wade into controversy. He led a boycott among Trump-appointed judges on hiring clerks from Yale Law School because of what he called its “closed and intolerant environment,” rife with “cancel culture.” During a lecture to the conservative Heritage Foundation, he spoke about the need for like-minded judges to show “courage,” to be willing to buck popular consensus.
On the bench, Judge Ho has shown an independent streak, backing First Amendment rights while staking out anti-abortion positions. In 2023, he wrote a dissent arguing that a 20-year-old decision by the Food and Drug Administration to approve the abortion drug mifepristone should be overturned, because the agency had improperly used regulations for “serious or life-threatening illnesses,” which pregnancy was not.
Judge Ho’s legal conclusions on immigration law have been most aligned with Mr. Trump.
A week after Mr. Trump was re-elected, Judge Ho gave an interview to a conservative legal blog in which he arguably appeared to back Mr. Trump’s view that the Fourteenth Amendment does not guarantee citizenship for all children born on U.S. soil. Birthright citizenship, Judge Ho argued, “obviously doesn’t apply in case of war or invasion.”
Judge Ho’s detractors accused him of revising his views, pointing to his full-throated endorsement of universal birthright citizenship in a legal journal in 2006. The paper remains an influential piece of legal scholarship almost 20 years later. Justice Sonia Sotomayor cited it this year in a dissent, arguing that the Supreme Court should have struck down Mr. Trump’s order to restrict birthright citizenship as unconstitutional, instead of leaving open the question of its legality.
Justice Sotomayor quoted Judge Ho’s assertion from 2006 that citizenship “is protected no less for children of undocumented persons than for descendants of Mayflower passengers.”
Judge Ho’s more recent comments seemed to be “backtracking,” altering his earlier position “purely because of the circumstances,” said John P. Collins Jr., a law professor at George Washington University. “He’s now got a president who wants to end birthright citizenship, and what the boss says is what goes.”
Judge Ho’s restatement of his views on citizenship could be construed as “as an audition for a promotion” to the Supreme Court, wrote Stephen I. Vladeck, a law professor at Georgetown. Mr. Vladeck has called Judge Ho’s rulings in support of Mr. Trump’s deportation efforts “nihilistic.”
At the same time, Judge Ho’s sometimes combative opinions are belied by his friendships with people who have otherwise been critical of Mr. Trump’s approach to the law. Akhil Reed Amar, a law professor at Yale who is close to Judge Ho, called the citizenship issue “a test of judicial integrity,” and said Judge Ho’s position was not yet fully clear. “Standing by his earlier courageous and correct principles on birthright citizenship — that’s what judicial courage would look like,” he said.
The Fifth Circuit is the country’s most conservative appellate court, with outsize influence over immigration matters because of its jurisdiction, which covers Louisiana and Texas. Three of the court’s judges are now considering the legality of Mr. Trump invoking the Alien Enemies Act, an 18th-century wartime law, to respond to what he claimed was an invasion by Venezuelan gang members. It is the same legal issue, in broad strokes, that Judge Ho embraced before Mr. Trump took office.
In their temporary, early procedural rulings on the case, Judge Ho and his colleagues took steps to clear the way for Mr. Trump to quickly deport immigrants the administration claimed were gang members.
In April, they rejected a last-minute effort to block the deportation of a group Venezuelans held at an ICE detention center in Texas. When the Supreme Court stepped in to intervene, Judge Ho castigated its ruling overriding a district court judge — another Trump appointee — who received the motion in the middle of the night. “We seem to have forgotten that this is a district court — not a Denny’s,” he wrote. He appeared to accept the government’s untested assertion that the detainees were simply members of the Venezuelan gang.
But as much as he disagreed with the Supreme Court’s ruling, he did not dispute that he was bound by it. The larger issue is still being considered by a three-judge panel. It is likely to return to the Supreme Court and be the first challenge to Mr. Trump’s “invasion” claim considered by the justices.
Even as Judge Ho has endorsed the legal view that illegal immigration constitutes an “invasion,” his support for legal immigration has remained stalwart. In May, at a federal courthouse in downtown Dallas, he led a naturalization ceremony for 83 people assembled for the final step in the process of becoming U.S. citizens.
“In America, it doesn’t matter where or how you were born,” he said, according to his prepared remarks. “It only matters what you choose to do with your life once you’re here.”
At the ceremony, which has not been previously reported, Judge Ho emphasized that his role there was unusual one for an appellate judge, and that he had to ask the district court for permission. He did it, he said, to commemorate the anniversary of his own naturalization in 1982.
“For those of you who have children, I ask you: Where do you think your son or daughter will end up?” he said. Thinking about the vast possibilities for his own children, he told the room, makes him smile. “Because in this country,” he said, “truly anything is possible.”