A recent survey revealed that 80% of Americans believe the Biden administration is doing a “bad job” at securing America’s border. That’s an understatement to describe the historic border crisis we’re experiencing — it’s a clear rejection of the administration’s failed strategy.
In a separate survey, nearly two-thirds of Americans support classifying the border emergency as an “invasion.” That’s up from two years ago, when just over half of Americans agreed with labeling the surge of illegal aliens an invasion. (RELATED: BOB UNANUE: The Biden Administration’s Hispanic Chain Gang)
It’s not surprising that the border crisis is now a top issue on the minds of voters ahead of November’s elections. Despite the growing consensus that America is indeed facing an invasion, most federal judges have declined to adopt that nomenclature.
But one judge stands apart from his colleagues. Judge James C. Ho, of the U.S. Court of Appeals for the Fifth Circuit — a former law clerk to Justice Clarence Thomas and a legal immigrant himself— appears to be one of the few judges in America who sees the border crisis for what it is. Two recent cases illustrate how compelling Judge Ho is in understanding that a nation of laws must first and foremost be a sovereign Nation.
Amid the surge of illegal crossings at the southern border, Texas wielded its constitutional right, branding the situation an invasion, and underlining the urgent need to fend off illegal immigration, drug trafficking and terrorism. Despite the Biden administration’s assurances of border security, it took legal action against Texas, contending that federal permission is obligatory for Texas to safeguard itself.
Notwithstanding Texas’ arguments, both the district court and a panel of the Fifth Circuit ruled against it. Now, the entire Fifth Circuit will convene with all its judges present, as Texas strives to halt proceedings.
Judge Ho, in his dissent, underscored the case’s pivotal significance for the right to self-defense. In response to the Biden administration’s “mother-may-I” argument, Judge Ho fired back, stating that: “If only ‘the political branches of the federal government’ can decide if a state has been invaded, it effectively prohibits states from exercising their sovereign right of self-defense without federal permission.”
In essence, just as states can declare a state of emergency for natural disasters, Judge Ho asserts they should have the right to determine if a flood of illegal aliens, drugs, and terrorists poses an imminent threat to their citizens’ safety and security.
In articulating the legal, historical, and linguistic bases that support Texas’ declaration, Judge Ho employs a mastery of originalism and precedent few can rival.
This is not the first time Judge Ho has waded into the current national debate on the illegal immigration crisis.
Last year, a different Fifth Circuit panel held that Texas can offer illegal aliens a 90% lower tuition rate at public universities than it offers for out-of-state American citizens. In an astonishing rate 15-1 vote, the Fifth Circuit declined to review the case with all judges present.
As the lone vote in support, Judge Ho correctly framed the granting of in-state tuition benefits to illegal aliens as bad law and bad policy.
Once again employing his mastery of originalism, history, and even some Aristotelian logic, Judge Ho’s conclusion echoed an overwhelming majority of Americans: “United States citizenship is one of the greatest privileges this world has ever known. … But a sovereign isn’t a sovereign if it can’t control its borders. Congress has enacted a number of restrictions to govern entry into our country. Our national objectives are undercut when states encourage illegal entry into the United States.”
From the broader perspective, these cases highlight Judge Ho as perhaps the boldest judge in America who believes: 1) The current border crisis is properly characterized as an “invasion” as the Founders would have understood that term; and 2) we should not incentivize more illegal aliens to cross the border with the promise of taxpayer subsidized college tuition.
As articles and commentators understandably lament judicial reticence when it comes to the border emergency, we should also acknowledge that one federal judge, Judge James Ho, continues to be an America First trailblazer.
Mike Berry, Executive Director for AFPI’s Center of Litigation, is a former Adjunct Professor of Law at the United States Naval Academy.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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