Business

Column: A Trump judge dropped his unwavering support for birthright citizenship to conform to Trump's view

Published

1 day ago

January 25, 2025

Column: A Trump judge dropped his unwavering support for birthright citizenship to conform to Trump's view

Over his seven years on the federal bench, James C. Ho has acquired a reputation as one of the most conservative members of a notably conservative court, the U.S. 5th Circuit Court of Appeals.

So it’s proper to take heed of Ho’s position on a temporarily blocked issue that Donald Trump has lately placed on the front burner: Birthright citizenship, the principle enshrined in the 14th Amendment that virtually all children born in the U.S. are U.S. citizens.

In an executive order issued on inauguration day, Jan. 20, Trump declared that the right of birthright citizenship doesn’t apply to the children of undocumented immigrants. Trump’s order was temporarily blocked Thursday by a federal judge in Seattle.

Text, history, judicial precedent, and Executive Branch interpretation confirm that the Citizenship Clause reaches most U.S.-born children of aliens, including illegal aliens.

— James C. Ho, 2006

Among legal scholars, that’s a minority view, even a fringe view. The 14th Amendment is forthright; it states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

Ho has long voiced the broadest view of those words. But not lately.

Let’s trace his intellectual journey on the issue.

Ho, as it happens, is an immigrant himself. He was born in Taiwan to parents who immigrated to the U.S. when he was a child and acquired naturalized U.S. citizenship at age 9.

No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship.

— James C. Ho, 2024

Ho’s judicial stance has been solidly conservative. Last year, writing in a case in which his colleagues reversed a ruling by a federal judge in Texas that had blocked the distribution of the abortion drug mifepristone nationwide, Ho engaged in what I called a “curious flight of fancy” to advocate for the ban.

He asserted that abortions cause “aesthetic injury” to doctors forced to participate in the procedure, even if only by treating patients for adverse reactions.

“Unborn babies are a source of profound joy for those who view them,” Ho wrote. “Doctors delight in working with their unborn patients — and experience an aesthetic injury when they are aborted.” He argued in favor of granting the physician plaintiffs in the case a legal interest in the outcome of abortions achieved via the drug, even though none of the plaintiffs had treated women who had taken it.

“The [Food and Drug Administration] has approved the use of a drug that threatens to destroy the unborn children in whom Plaintiffs have an interest,” Ho wrote. “And this injury is likewise redressable by a court order holding unlawful and setting aside approval of that abortifacient drug.”

Ho’s earliest writing on the birthright citizenship that I could find was published in 2006 in The Green Bag, a law journal. At the time, Ho’s career encompassed service as a counsel to the Senate Republican caucus and service as a clerk to Supreme Court Justice Clarence Thomas. He would later serve as solicitor general of Texas, before his appointment to the 5th Circuit appeals court by Trump in 2017.

In his 2006 article, titled “Defining ‘American,’” Ho focused specifically and at length on the argument that children of undocumented immigrants aren’t entitled to birthright citizenship.

Birthright citizenship, he wrote, “is protected no less for children of undocumented persons than for descendants of Mayflower passengers.”

Ho dismissed the assertion by critics of birthright citizenship that the phrase “subject to the jurisdiction” excludes those who are in the U.S. illegally.” Even they, he wrote, are subject to the authority of the U.S. government, and therefore covered by the citizenship clause. He endorsed the most common interpretation, which is that the “jurisdiction” clause excludes only the children of diplomats serving their home countries in the U.S., and enemy combatants on U.S. soil. Instead, he wrote, the citizenship clause “covers the vast majority of lawful and unlawful aliens.”

Ho wrote again on birthright citizenship in a Jan. 5, 2011, op-ed in the Wall Street Journal. The article addressed an effort by a coalition of red state legislators in support of state-level laws to exclude undocumented immigrants from birthright citizenship. It was subtitled, “Opponents of illegal immigration cannot claim to champion the rule of law and then propose policies that violate our Constitution.”

In that article, Ho reviewed the long history of legal and judicial support for the broad reach of birthright citizenship. As I reported this week, that included an 1898 Supreme Court decision upholding the citizenship of an American citizen of Chinese extraction, and Supreme Court rulings in 1982 and 1985 in which the court “unanimously agreed that a child born to an undocumented immigrant was in fact a U.S. citizen,” as Ho wrote.

Now let’s fast-forward to Nov. 11, days after Trump’s reelection victory. In an interview published by Reason Magazine that Ho gave to conservative lawyer Josh Blackman — who himself supports birthright citizenship for children of undocumented immigrants — Ho backtracked.

“Birthright citizenship obviously doesn’t apply in case of war or invasion,” Ho stated. “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…. 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.”

There’s a lot to unpack here, but Ho certainly seems to be conjuring up a redefinition of “illegal” or undocumented immigrants as “invaders.” He appears to find some equivalence between undocumented immigrants and “invading aliens.” Ho articulated this view in a concurring opinion in an appellate ruling in July that supported efforts by Texas Gov. Greg Abbott to have state officials block immigrants at the Texas border. Ho argued that Abbott’s assertion that Texas faced an “invasion” of illegal immigrants from Mexico deserved respect as a “good faith” description of conditions, and that the state arguably had the right to take matters into its own hands.

That’s a view in which Ho may be in a minority of one. In a 1996 case, a federal appeals court panel ruled that for a state to claim it’s being invaded, “it must be exposed to armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state’s government”—not a flow of individuals seeking jobs.

In his Reason interview, Ho’s definition of “unlawful combatants” is murky, but his free use of the term “invasion” conforms to the observation of legal scholar Rachel Rosenbloom that opposition to birthright citizenship is typically couched “in a highly racialized language of crisis and invasion.”

Why did Ho change his tune, if that’s what he’s done? Paul Blumenthal of Huffpost speculates that Ho’s “rewriting of his previous position on birthright citizenship can be best seen as his audition for the next open Supreme Court seat,” which is likely to be filled by Trump.

I asked Ho via a message to be forwarded to him by his chambers clerk to comment on that conjecture and to clarify his views on birthright citizenship, and how they might have been changed by rhetoric about an “invasion” of Texas or the U.S. by immigrants. He hasn’t replied.

Business

When Is Neurodiversity an Excuse for Rudeness?

Published

6 hours ago

January 26, 2025

Press Room

When Is Neurodiversity an Excuse for Rudeness?

Pay Parity, at Last?

During my annual evaluation last week, my boss admitted that two senior managers, including myself, have been paid less for years than our peers with similar experience and backgrounds. I’ve been with the company for 12 years, starting as a junior manager and working my way up to a senior role for most of the past nine years.
I feel gutted knowing that, despite my hard work and consistently stellar reviews, I’ve been underpaid for so long.
My former boss, who swapped roles with my current boss and is now our vice, is likely responsible for this, but my new boss still consults with him closely before making decisions. While my current boss has said he plans to increase my salary to help close the gap, he hasn’t committed to bringing it fully in line with others or addressing the years of disparity.
I’m not sure what my options are at this point. I don’t want to come across as too demanding, but it’s hard not to feel like I’ve been too accommodating. If they admit to underpaying me so nonchalantly, they seem to still consider me accommodating and low risk for them. Which truly angers me.
— Anonymous

You haven’t been too accommodating all these years — because you didn’t know you were being unpaid. Let’s just get that out of the way first, because it feels to me as if some part of you is blaming yourself for … what? The fact of the matter is that nothing from the past was your fault or within your control; it seems the blame goes to your former boss for 1) not rewarding the quality of your work and 2) not making your salary commensurate with what other people at your level were, and are, making.

I’m curious to know how your current boss communicated the news to you that you’d been underpaid. Was it a slip of the tongue? A confession? Was it said apologetically? With embarrassment or regret? I have to imagine that if your current boss revealed this information to you in an apologetic way it might signal a willingness on his part to make things right.

About making things right: I’m troubled by the reluctance — or unwillingness — to bring your salary fully in line with that of your similarly situated professional peers. Have you asked your current boss why he won’t make things right in this respect? Have you asked him explicitly about addressing the disparity in a way that involves back pay?

As for your options, well, you have every right to come across as demanding or, at the very least, persistent and assertive about this issue. They’ve been underpaying you for years. Years! I’d be angry as well (I’m already angry on your behalf). And don’t think for a second that I haven’t noticed that both your former and current boss are male, and that, based on the name given in your email, you are female. Women still make less than men — 84 percent of what men are paid, and this is without taking race and ethnicity into account — and they suffer from societal assumptions that they’ll be accommodating, thanks to the ways we’re socialized as girls. (I’m writing a book about this, in fact.)

I’m curious: What did you say in response to your current boss when he told you about being underpaid? Did you take notes? Then or afterward? Have you spoken to the other underpaid senior manager you work with? What did he or she say? (I’m also dying to know whether that person is male or female.) (Some states are moving to enact salary transparency laws. Is yours?) And again: have you asked your boss directly to make things right?

I think you should find an employment lawyer and have an introductory discussion with him or her. And, depending on what your employer or boss say, you just might want to consider looking for another job. Pay disparities can be compounded over the years; what may seem like a minor difference in annual salary adds up to a whole lot more over the decades, as you’ve just experienced firsthand. Is your feeling of being passed over, taken for granted and disrespected going to abate if your salary is brought in line — or close to it — with that of others? You’re still in the process of finding that out. But what you may find is that “accommodation” means accommodating yourself and honoring your sense of self-respect. And that you’ll be better off taking your talents elsewhere.

Business

Netflix leads studios and streamers with 16 Oscar nominations and a shot at best picture

Published

7 hours ago

January 26, 2025

Press Room

Netflix leads studios and streamers with 16 Oscar nominations and a shot at best picture

It was a good Oscar nominations morning for Netflix. The Los Gatos, Calif., company led all studios and fellow streamers with 16 feature film nods, thanks to a big showing for “Emilia Pérez,” which could give the streamer its best shot yet at winning best picture.

Indie studio A24 was right behind with 14 feature film nominations, 10 of which were for “The Brutalist,” the 3½-hour-long epic starring Adrien Brody as a Hungarian Jewish architect who immigrates to America after World War II.

Universal Pictures and its specialty film unit Focus Features rounded out the top four with 13 and 12 nods, respectively. Comcast-owned Universal was recognized for its highly marketed musical “Wicked,” while Focus Features received nominations for the papal election drama “Conclave” and the horror film “Nosferatu.” Those nods made Comcast the most nominated company overall.

Walt Disney Co.’s Searchlight Pictures brought in 10 nominations — eight for the Timothée Chalamet-led Bob Dylan biopic “A Complete Unknown.” Counting the Burbank company’s other units, Disney amassed 15 nominations, including a nod for box office smash “Inside Out 2” in animated feature.

Meanwhile, indie studio Neon garnered seven, with recognition for “Anora.” Art house film streamer Mubi got six and was recognized for the body horror film “The Substance,” starring Demi Moore. Warner Bros. Pictures received five nominations, and Paramount Pictures and Sony Pictures Classics bagged three each.

Other than Netflix and Mubi, streaming services had a quieter morning on Thursday than in years past. Amazon MGM Studios received two nominations for “Nickel Boys,” and Apple came up empty-handed. Last year, Apple received 13 nominations, but didn’t win anything on Oscars night.

The muted showing for streamers overall reflects changing strategies at some of these companies, as awards contenders — or even winners — haven’t always translated to subscription boosts, said Stephen Galloway, dean of Chapman University’s Dodge College of Film and Media Arts. (Both “The Substance” and “Nickel Boys” got exclusive theatrical releases.)

“The specialty movie that traditionally won Oscars, it’s not going to sway millions and millions of people to subscribe,” he said.

Netflix also led the nominations tally last year, though the company brought home only one win, for Wes Anderson’s short film “The Wonderful Story of Henry Sugar.” The streamer is still seeking its first best picture award, but has high hopes for “Emilia Pérez,” the largely Spanish-language film set in Mexico that garnered 13 nominations.

The film, which chronicles the journey of a Mexican cartel leader who undergoes gender transition, made Oscars history as star Karla Sofia Gascón became the first out trans woman to be nominated in an acting category.

This year’s nominees skew toward smaller and more art house fare. For as many major studio juggernauts as were released last year, only Universal Pictures’ “Wicked” and Warner Bros. Pictures’ “Dune: Part Two” were represented in the best picture race. “Conclave,” “The Substance” and “A Complete Unknown” were commercially successful, but at a much smaller scale.

Even among the major studios, it was largely their specialty labels that were recognized for awards this year, including Focus Features and Searchlight.

Overall, this year’s best picture nominees brought in $877 million in domestic box office and $1.7 billion globally, marking a 37% drop from last year’s total best picture nominee totals.

Business

The Surveillance Tools That Could Power Trump’s Immigration Crackdown

Published

13 hours ago

January 26, 2025

Press Room

The Surveillance Tools That Could Power Trump’s Immigration Crackdown

Apps and ankle monitors that track asylum seekers in real time wherever they go. Databases packed with personal information like fingerprints and faces. Investigative tools that can break into locked phones and search through gigabytes of emails, text messages and other files.

These are pieces of a technology arsenal available to President Trump as he aims to crack down on illegal immigration and carry out the largest deportation operation in American history. To do so, his administration can tap a stockpile of tools built up by Democrats and Republicans that is nearly unmatched in the Western world, according to an analysis by The New York Times.

A review of nearly 15,000 contracts shows that two agencies — Immigration and Customs Enforcement, and Citizen and Immigration Services — have spent $7.8 billion on immigration technologies from 263 companies since 2020.

The contracts, most of which were initiated under the Biden administration, included ones for tools that can rapidly prove family relationships with a DNA test to check whether, say, an adult migrant crossing the border with a minor are related. (Families are often treated differently from individuals.) Other systems compare biometrics against criminal records, alert agents to changes in address, follow cars with license plate readers, and rip and analyze data from phones, hard drives and cars.

The contracts, which ranged in size, were for mundane tech like phone services as well as advanced tools from big and small companies. Palantir, the provider of data-analysis tools that was co-founded by the billionaire Peter Thiel, received more than $1 billion over the past four years. Venntel, a provider of location data, had seven contracts with ICE totaling at least $330,000 between 2018 and 2022.

The Biden administration used many of these technologies for immigration enforcement, including in investigations of drug trafficking, human smuggling and transnational gang activity. How Mr. Trump may apply the tools is unknown, especially as the whereabouts of many immigrants are known and the government faces a shortage of officers and facilities to detain people.

But Mr. Trump has already made clear that his immigration agenda is strikingly different from his predecessor’s. This week, he announced a barrage of executive actions to lock down the borders and expel migrants and those seeking asylum.

“All illegal entry will immediately be halted and we will begin the process of returning millions and millions of criminal aliens back to the places from which they came,” Mr. Trump said at his inauguration on Monday.

Tech products are almost certain to feature in those plans. Thomas Homan, the administration’s border czar, has discussed meeting with tech companies about available tools.

“They’ll certainly use all tools at their disposal, including new tech available to them,” said John Torres, a former acting assistant secretary for ICE.

A White House spokesman declined to comment. ICE said in a statement that it “employs various forms of technology, and information to fulfill its mission, while protecting privacy, and civil rights and liberties in accordance with applicable laws.”

Eric Hysen, the chief information officer for the Homeland Security Department under President Biden, said ICE and other immigration agencies have vast responsibilities. Many tools were designed for investigations of drug traffickers and other criminals, not tracking migrants, he said, while other technology like license plate readers could be used to ease traffic at border crossings.

The federal government has had longstanding internal policies to limit how surveillance tools could be used, but those restrictions can be lifted by a new administration, Mr. Hysen added. “Those are things that can change, but they are not easy to change,” he said.

Creating an arsenal

The buildup of immigration tech goes back to at least the creation of the Homeland Security Department after the Sept. 11, 2001, attacks. Interest in the tools fueled a boom that is expected to grow under Mr. Trump. Leaders in Europe and elsewhere are also investing in the technologies as some adopt increasingly restrictive immigration policies.

Many companies are racing to meet the demand, offering gear to fortify borders and services to track immigrants once they are inside a country.

In the United States, the beneficiaries include the makers of GPS tracking devices, digital forensics tools and data brokers. Palantir and others won contracts with ICE for storing and analyzing data. Thomson Reuters, Lexis Nexis and credit rating companies provide access to databases of personal information that can help government agents find the homes, workplaces and social connections of citizens and noncitizens alike.

Clearview AI, a facial recognition firm, had contracts worth nearly $9 million, according to government records. Cellebrite, an Israeli phone-cracking company, sold ICE about $54 million in investigative tools. The F.B.I. famously used Cellebrite tools in 2016 to unlock the iPhone of a mass shooter in San Bernardino, Calif., to aid the investigation.

Investors have taken note. The stock price of Geo Group, a private prison operator that sells monitoring technology to ICE, has more than doubled since Mr. Trump won November’s election. Cellebrite’s shares have also nearly doubled in the past six months and Palantir’s shares have risen nearly 80 percent.

Tom Hogan, Cellebrite’s interim chief executive, said the company was proud to help “keep our homeland and borders safe with our technology.” Thomson Reuters said in a statement that its technology is used by agencies to support investigations into child exploitation, human trafficking, drug smuggling and transnational gang activity. Lexis Nexis, Clearview and Palantir did not respond to requests for comment.

In an investor call in November, Wayne Calabrese, Geo Group’s chief operating officer, said the company expected the “Trump administration to take a much more expansive approach to monitoring the several millions of individuals” who were going through immigration proceedings but had not been detained.

“We have assured ICE of our capability to rapidly scale up,” he said.

In a statement for this article, Geo Group, based in Boca Raton, Fla., said it looked forward to supporting the Trump administration “as it moves quickly to achieve its announced plans and objectives for securing the country’s borders and enforcing its immigration laws.”

Tracking locations

One technology that may be used immediately in mass deportations can identify the exact location of immigrants, experts said.

About 180,000 undocumented immigrants wear an ankle bracelet with a GPS tracking device, or use an app called SmartLink that requires them to log their whereabouts at least once a day. Made by a Geo Group subsidiary, the technology is used in a program called Alternatives to Detention. The program began in 2004 and expanded during the Biden administration to digitally surveil people instead of holding them in detention centers.

Location data collected through the program has been used in at least one ICE raid, according to a court document reviewed by The Times. In August 2019, during the first Trump administration, government agents followed the location of a woman who was being tracked as part of the program. That helped the agents obtain a search warrant for a chicken processing plant in Mississippi, where raids across the state resulted in the detention of roughly 680 immigrants with uncertain legal status.

Sejal Zota, the legal director of Just Futures Law, a group that opposes government surveillance programs, said the Trump administration would likely need to rely on digital surveillance tools as it would be impossible to physically detain vast numbers of individuals without legal status.

“While this administration wants to scale up detention, and I believe that it will find ways to do that, it will take time,” she said. “I think that this program will continue to remain important as a method to surveil and control people.”

Troves of data

The Trump administration also has access to private databases with biometrics, addresses and criminal records. Agents can obtain records of utility bills for roughly three-quarters of Americans and driver’s licenses for a third of Americans, according to a 2022 study by Georgetown University.

These tools could potentially be used to track people high on ICE’s priority list, like those with a criminal history or people who do not show up for immigration court hearings. Investigators could use the databases to find someone’s automobile information, then use license plate readers to pinpoint their location.

During the first Trump administration, ICE could access driver’s license data through private companies in states like Oregon and Washington, even after the state tried cutting off access to the information to the federal government, according to the Georgetown study.

Mr. Torres, the former ICE official, said this information was critical for agents to find people.

“We know people give false addresses,” he said. Agents can use “big data sharing to triangulate their location based on habits.”

That has raised privacy concerns. “Privacy harms may seem theoretical on paper, but they’re never theoretical for vulnerable people on the front lines,” said Justin Sherman, a distinguished fellow at Georgetown Law’s Center on Privacy and Technology.

During the Biden administration, ICE also bought software from Babel Street, a tech company that gathers data from thousands of publicly available websites and other sources. Its services can assess people as potential security risks based on data. Babel Street did not respond to requests for comment. ICE has also paid about a dozen companies for software that can be used to overcome passcodes, surface deleted files and analyze email inboxes.

Some immigration experts have questioned how much of this technology the Trump administration may use. Some tools are most relevant for targeted investigations, not for widespread deportations, said Dave Maass, the director of investigations at the Electronic Frontier Foundation, a civil liberties group.

“What they are buying and what is actually useful may be totally different things,” said Mr. Maass. Regardless, he said, tech companies “are going to make a lot of money.”

Methodology

The New York Times analyzed government contract data from usaspending.gov. The data covered spending from Immigration and Customs Enforcement and Citizenship and Immigration Services from 2020 to the present. The Times filtered the data to technology-related contracts, using recipient information and contract description. The Times looked at money that had been spent, not just pledged, to calculate the total spending and total number of tech companies.