Author: Peter J. Spiro

Donald Trump

Trump’s Anti-Muslim Plan Is Awful. And Constitutional.

Donald J. Trump’s reprehensible call to bar Muslim immigrants from entering the United States tracks an exam question I’ve been giving my immigration law students since Sept. 11. Would such a proposal be constitutional? The answer is not what you might think — but it also raises the issue of what, exactly, we mean when we say something is “constitutional” in the first place. In the ordinary, non-immigration world of constitutional law, the Trump scheme would be blatantly unconstitutional, a clear violation of both equal protection and religious freedom (he had originally called for barring American Muslims living abroad from re-entering the country as well; he has since dropped that clearly unconstitutional notion). But under a line of rulings from the Supreme Court dating back more than a century, that’s irrelevant. As the court observed in its 1977 decision in Fiallo v. Bell, “In the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.” The court has given the political branches the judicial …

American Fingerprint

Report on Citizenship Law: United States of America

The United States has a liberal citizenship tradition. With the important exception of racial qualifications, which were not fully eliminated from the nationality law until 1952, barriers to citizenship have been low. Since the adoption of the Fourteenth Amendment to the US Constitution in 1868, the United States has maintained a near-absolute rule of territorial birthright citizenship. Naturalisation requirements have been and continue to be satisfied by permanent residents in most cases upon satisfaction of durational residency requirements. Citizenship law has remained stable in recent decades, for the most part insulated from highly charged debates over immigration policy. Restrictionist successes with respect to immigration policy have not translated into tightened access to citizenship. The parameters of citizenship acquisition have been largely uncontested for more than a century and a half. As a historical matter, citizenship’s low profile is attributable to the country’s immigration roots. Immigration to the United States was open until towards the end of the nineteenth century. Those who came to the United States were assumed to stay. The legal assimilation of immigrants …

The Supreme Court of the United States

Reflections on Zivotofsky v. Kerry: Normalizing Foreign Relations Law After Zivotofsky II

These have been heady times for those interested in foreign relations law. The last twenty years have seen the field transformed. In the 1970s and 1980s, Vietnam had triggered significant attention on constitutional war powers, but that interest was more political than scholarly. Other foreign relations law issues were debated only at the margins. The Restatement (Third) supplied a largely unchallenged conventional wisdom in the area, even if some of its main points were more aspirational than descriptive. The courts had long been missing in action; though they had been active in the first century or so of the Republic on international law and foreign relations law issues, probably the most important Supreme Court ruling in the area from the second half of the twentieth-century merely served to confirm the judicial timidity. On many of the most important issues of foreign relations, sparse judicial precedents (such as they existed) had no more than oracular application to contemporary questions. Other actors nonetheless managed to achieve constitutional equilibria with little help from the courts or scholars. The …

The Supreme Court of the United States

Three Quick Thoughts of Zivotofsky

Long-awaited decision here finding the President to have exclusive recognition power, trumping Congress’ attempt to require birthplace of US citizens born in Jerusalem to be recorded as “Israel” on US passports issued to them. 1. Phew. Who knows what the response would have been in the Middle East if the Court had come out the other way. Maybe nothing, but it’s obviously still a tinderbox in which little sparks can lead to firestorms. 2. Though the President wins, Kennedy’s opinion cuts back on Curtiss-Wright, dismissing its broad characterization of executive power as dicta. “In a world that is ever more compressed and interdependent, it is essential the congressional role in foreign affairs be understood and respected. For it is Congress that makes laws, and in countless ways its laws will and should shape the Nation’s course. The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue. See, e.g., Medellín v. Texas, 552 U. S. 491, 523–532 (2008); Youngstown, 343 U. S., at 589; Little v. Barreme, 2 Cranch 170, 177–179 (1804); Glennon, Two Views …