Within the past 24 hours, I learned of numerous instances in which a Federal Court of Appeals Judge has demonstrated that he supports life, liberty, and due process – and that he is willing to stand up to the radical leftist authoritarian death cult. James Ho is a new conservative hero. 

Champion for gun rights and due process

Current federal law prohibits any person who is the subject of a restraining order from possessing a firearm. In 2023, a three-judge panel of the 5th Circuit Federal Court of Appeals unanimously struck down the federal law as unconstitutional. In his concurrence with the two other judges on the panel, Ho wrote:

“Our Founders understood that those who commit or threaten violence against innocent law-abiding citizens may be arrested, convicted, and incarcerated. They knew that arrest and incarceration naturally entail the loss of a wide range of liberties—including the loss of access to arms…So when the government detains—and thereby disarms—a member of our community, it must do so consistent with the fundamental protections that our Constitution affords to those accused of a crime. For example, the government may detain dangerous criminals, not just after conviction, but also before trial. Pre-trial detention is expressly contemplated by the Excessive Bail Clause and the Speedy Trial Clause. And it no doubt plays a significant role in protecting innocent citizens against violence…Our laws also contemplate the incarceration of those who criminally threaten but have not (yet) committed, violence. After all, to the victim, such actions are not only life-threatening—they’re life-altering…In sum, our Founders envisioned a nation in which both citizen and sovereign alike play important roles in protecting the innocent against violent criminals. Our decision today is consistent with that vision. I concur.”

Protecting life in a creative way

Also in 2023, Ho made leftist heads explode when he wrote a lengthy opinion when his three-judge panel unanimously ruled in favor of a group of doctors who were suing the FDA for unlawfully approving and minimizing restrictions on an abortion drug. The organizations seek relief on behalf of their members, many of whom are OB/Gyns or emergency-room doctors. Many women face severe complications as a result of taking mifepristone. The Doctors allege that they are harmed when they treat those kinds of patients. According to the Doctors, when they treat women who are experiencing complications after taking mifepristone, they are required to perform or complete an abortion, or otherwise required to participate in a process that facilitates abortion. They maintain that personally conducting those procedures violates their sincerely held moral beliefs. The Doctors also contend that treatment of mifepristone patients diverts time and resources away from their ordinary patients, causes substantial mental and emotional distress, and exposes them to heightened malpractice risk and increased insurance costs. In order to grant standing to the doctors, the judges relied on the idea that the plaintiffs were harmed by the FDA approving and then expanding access to the abortion drug because they find infants and pre-born babies to bring joy to their lives. Depriving them of seeing babies harms the doctors, which grants them the standing to sue. Of course, leftists are not eager to mention that this exact concept was created by radical leftists in 2018 when they insisted that pretty much all people had the right to sue the government on the basis of ‘global warming and environmentalism’ harming them because they like visiting parks and seeing animals’.

The court wrote that “In loosening mifepristone’s safety restrictions, FDA failed to address several important concerns about whether the drug would be safe for the women who use it. It failed to consider the cumulative effect of removing several important safeguards at the same time. It failed to consider whether those “major” and “interrelated” changes might alter the risk profile, such that the agency should continue to mandate reporting of non-fatal adverse events. And it failed to gather evidence that affirmatively showed that mifepristone could be used safely without being prescribed and dispensed in person.”

The striking down of the FDA’s recent loosening of restrictions on mifepristone is paused until the Supreme Court determines whether it will review this case. 

Aliens over citizens?

Also in 2023, Judge Ho was the sole member of a 16-judge panel to express concerns that a state-run college system offers illegal aliens a 90% discount from the tuition it charges out-of-state US citizens. The University of North Texas is being sued by the Young Conservatives of Texas Foundation. A district court ruled against the Texas post-secondary education system. The Appeals Court reversed the lower court’s ruling by a vote of 15-1. Disagreeing with all of his colleagues, James Ho wrote: 

“The State of Texas offers in-state illegal aliens a 90% discount on the tuition it charges at its universities to out-of-state U.S. citizens.

This is a blatant violation of federal law. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 prohibits states from granting lower tuition rates to in-state illegal aliens than to out-of-state U.S. citizens. See 8 U.S.C. § 1623(a).

So I’m not surprised that the district court held Texas law preempted by § 1623(a). But a panel of our court reversed. 

Federal law prohibits states from offering illegal aliens any postsecondary educational benefit that it does not offer to out-of-state U.S. citizens. It reads as follows:

Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident. 8 U.S.C. § 1623(a). 

Put simply, states can’t treat illegal aliens better than they treat U.S. citizens.

Yet that’s undeniably what Texas law does. Since 2001, the Texas Legislature has directed that in-state illegal aliens are entitled to substantial tuition benefits not granted to out-of-state U.S. citizens.

Under Texas law, the overwhelming majority of U.S. citizens who come from one of the 49 other states must pay “900% higher” tuition than in-state illegal aliens. (“$50 per semester credit hour” versus “$458 per semester credit hour”).

By bestowing greater benefits on illegal aliens than U.S. citizens when it comes to postsecondary education benefits, Texas law conflicts with federal law. It is therefore preempted.”

Freedom of expression

In his first written opinion on the appeals court, Ho dissented with his colleagues, arguing that the court “should have granted rehearing en banc and held that the Austin campaign contribution limit violates the First Amendment” stating that “if there is too much money in politics, it’s because there’s too much government.”

Accountability over immunity

In 2023, Ho wrote a sharply worded dissent from denial of rehearing after the 5th Circuit granted qualified immunity to officials who jailed their critics. Ho wrote that the 5th Circuit left Americans “vulnerable to public officials who choose to weaponize criminal statutes against citizens whose political views they disfavor.”

The Taiwanese-born judge studied public policy at Stanford University, graduating in 1995 with a Bachelor of Arts with honors. Ho attended the University of Chicago Law School, where he was an editor of the University of Chicago Law Review. He graduated from law school in 1999 with high honors. He has been a judge on the 5th Circuit Court of Appeals since 2018.

In a time when very few people right of center are demonstrating any will to oppose the radical left, an unknown conservative star sits on an Appeals Court in the south. Surrounded by progressives, James Ho demonstrates that courage is not entirely extinct in the land of the unfree. 

This article does not necessarily reflect the opinions of The Liberty Block or any of its members. We welcome all forms of serious feedback and debate. 


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