Donald Trump

Trump Judicial Nominees Oppose the Trump Administration on Civil Asset Forfeiture and Birthright Citizenship

In the 5th Circuit, it's shaping up to be Trump vs. Trump's judicial picks.


Texas Supreme Court

President Donald Trump recently nominated Texas Supreme Court Justice Don Willett and former Texas Solicitor General James Ho to fill two vacancies on the U.S. Court of Appeals for the 5th Circuit, the federal appellate court whose jurisdiction covers federal districts in Texas, Mississippi, and Louisiana.

They are both eminently qualified and highly respected in legal circles. They are superb judicial nominees.

There's something else worth noting about them. They have both taken legal positions that are directly at odds with positions taken by the Trump administration.

Let's start with Don Willett. He is perhaps known for his libertarian-leaning views on economic rights and state regulation. He also happens to be a sharp critic of civil asset forfeiture.

Civil asset forfeiture is the controversial practice that allows law enforcement agencies to take property from innocent people who have not been charged or convicted of any underlying crime.

Trump's attorney general, Jeff Sessions, loves civil asset forfeiture. He has called it a "key tool" and is currently pushing for its aggressive use nationwide.

5th Circuit nominee Willett, by contrast, questions whether civil asset forfeiture is even lawful in the first place. "Does our Constitution have anything to say about a 'presumed guilty' proceeding in which citizens are not arrested or tried, much less convicted, but are nonetheless punished, losing everything they've worked for?" Willett complained in the 2014 case Zaher El-Ali v. Texas.

James Ho, Willett's fellow 5th Circuit nominee, stands opposed to the Trump administration on a different legal issue: birthright citizenship. A former clerk to Justice Clarence Thomas, Ho is the author of a 2006 law review article defending the constitutionality of birthright citizenship for the U.S.-born children of undocumented immigrant parents. "Birthright citizenship is guaranteed by the Fourteenth Amendment," Ho wrote. "That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers."

Trump holds the opposite view. In an August 2015 immigration white paper, for example, presidential candidate Trump vowed to "end birthright citizenship," calling it the "biggest magnet for illegal immigration." In an interview with Fox News host Bill O'Reilly, Trump said, "I don't think they have American citizenship," referring to the U.S.-born children of undocumented parents. "It's not going to hold up in court."

We'll have to see about that. I, for one, look forward to watching the Trump administration lose a birthright citizenship case before Judge Ho and then lose an asset forfeiture case before Judge Willett.