The right should embrace that legacy, John Yoo, a law professor at the University of California, Berkeley, and a former official in the George W. Bush administration, wrote in 2018, after Mr. Trump first started talking about his opposition to birthright citizenship.
“Conservatives should reject Trump’s nativist siren song,” he wrote, “and reaffirm the law and policy of one of the Republican Party’s greatest achievements: the 14th Amendment.”
Mr. Trump and his allies focus on a phrase in the 14th Amendment that limits birthright citizenship to those “subject to the jurisdiction” of the United States.
That phrase has a straightforward meaning, James C. Ho, a lawyer who later became a federal judge, wrote in a careful and thorough 2016 article in The Green Bag, a legal journal.
“It excludes those persons who, for some reason, are immune from, and thus not required to obey, U.S. law,” he wrote. “Most notably, foreign diplomats and enemy soldiers — as agents of a foreign sovereign — are not subject to U.S. law, notwithstanding their presence within U.S. territory.”
Aside from those narrow exceptions, he wrote, birthright citizenship “is protected no less for children of undocumented persons than for descendants of Mayflower passengers.”
Judge Ho, who sits on the U.S. Court of Appeals for the Fifth Circuit and has been mentioned as a candidate for the Supreme Court, seemed to recede from that broad view in an interview in November.
“Birthright citizenship obviously doesn’t apply in case of war or invasion,” he told Josh Blackman, a conservative law professor (and a supporter of birthright citizenship). “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.”
Whatever Judge Ho’s current position, the conclusion of his 2016 article may turn out to be prescient.
“Stay tuned,” he wrote. “Dred Scott II could be coming soon to a federal court near you.”