Professor Peter Spiro, a globally recognized authority on U.S. constitutional and immigration law, has been an influential voice in the debate over President Trump’s immigration order. Gathered below are his most recent media appearances discussing the order.
President Trump’s New Travel Ban Is Much Narrower — and Possibly Courtproofed: CNBC, March 6, 2017
The revised executive order on immigration “only applies to people who’ve never been admitted to the US at all. ‘Prospective visa holders occupy the lowest rung in the constitutional hierarchy,’ Temple University professor Peter Spiro says. ‘There are many precedents saying flat out that they have no constitutional rights at all.’ Prospective visa holders can’t even sue on their own behalf; US-based institutions or people, like state universities, have to argue they are being deprived of rights because the immigrants aren’t allowed to enter. If the Trump administration had just written the order this way the first time around, it might never have been struck down. But they didn’t, and it was.”
New Trump Travel Ban Order to Shift Legal War: Politico.com, March 6, 2017
President Trump revised the executive order curtailing immigration from Muslim-majority countries. “‘This will definitely be a more difficult constitutional target,’ said Temple University law professor Peter Spiro. ‘To the extent it applies only to prospective visa applicants, they’re sort of on the lowest rung of a ladder that’s already pretty low. The executive has pretty broad authority in general in the immigration context and the authority is at its broadest with respect to noncitizens who have never entered the U.S…It’s definitely a harder case. Does it mean it’s a sure loser? No,’ Spiro said.”
AP Explains: Trump’s Options for Restoring Travel Ban: ABC News, Associated Press, February 11, 2017
President Trump promised to carry forward his immigration order. “The government could file an emergency appeal to the Supreme Court and ask the justices to restore the ban. But it would take at least five justices to overturn the ruling from the 9th U.S. Circuit Court of Appeals, and that may be a long shot. The high court still has only eight members since the death of Justice Antonin Scalia — four conservative and four liberal justices. ‘There are almost surely four votes to deny an emergency request to reinstate the order,’ said Peter Spiro, a law professor at Temple University. The last immigration case to reach the justices ended in a 4-4 deadlock last year. That suggests a similar split over Trump’s order, which would let the 9th Circuit ruling stand and keep the freeze in place.”
Supreme Court May Look for a Middle Ground on Trump’s Travel Ban by Shielding Only Certain Travelers: Los Angeles Times, February 10, 2017
The judicial response to the president’s immigration order continues to move through the courts. “Temple University law professor Peter Spiro agreed the justices may move toward narrowing the order, noting U.S. law gives more protection to people who are in this country, even if they were foreign citizens. ‘The courts have been generally deferential to the political branches when it comes to immigration, but they have been less deferential when it comes to noncitizens already present in the U.S.,’ he said. ‘So this makes sense, both politically and legally. Students in the U.S. with visas, for example, could go back to their home countries for vacation and then return to their studies here. From the administration’s perspective, a limited reinstatement would get them much of what it’s looking for: No new visas would be issued to nationals of the listed countries or to refugees.'”
The Legal Battle Over Trump’s Immigration Ban, Explained
Vox.com, February 7, 2017
For one thing, decisions about who to admit to the US involve foreign policy and national security, where there are fewer checks from the other two branches on the executive branch. For another thing, while everyone has some rights under the Constitution, the courts have tended to agree that noncitizens have fewer than citizens do — and that people who aren’t actually in the US, but are trying to come here, don’t have many rights at all. (Exactly what rights noncitizens have is one of the things at issue in this case — the two sides disagree about how much due process the government has to provide when revoking someone’s visa, for example.) Combine the two, and it’s easy to see why judges have been extremely unwilling to second-guess the immigration decisions of the executive and legislative branches — as Peter Spiro notes at the legal blog Lawfare, “The Supreme Court has never struck down a provision of the immigration law outright.”
The Law Backs a President’s Power on Immigration. Here’s Where the Travel Ban Differs
Los Angeles Times, February 7, 2017
Temple University law professor Peter Spiro agreed the court may look differently at the case. The “path of least resistance would be for the Supreme Court to steer clear of the controversy for now. It could simply refuse to hear an emergency appeal from a 9th Circuit ruling in the case,” he said Monday. “Even though the Supreme Court has been extremely deferential to presidential decision-making relating to immigration in the past, I don’t think they will be here.”
How Trump’s ‘Muslim Ban’ Comments Can Hurt His Travel Ban Case
CNN.com, February 6, 2017
Temple University law professor Peter Spiro wrote an op-ed when Trump first proposed a Muslim ban in 2015 that said while he disagrees with the idea, it was constitutional. He said that’s probably still true of Trump’s actual executive order as well, especially given the arguments that the countries affected are limited in number. But he acknowledged that the record of comments weaken the government’s case — and he suspects that they could be introduced alongside evidence that the order isn’t tailored to a clear security risk and its haphazard rollout to strengthen constitutional challenges. “It’s not too difficult to portray the policy as just being flat-out irrational, and then you can pull in the Muslim ban rhetoric by way of adding to that argument that it’s irrational policy and that then has constitutional questions,” Spiro said. “it does add to the atmospherics here, which put this law in sort of a really bad odor, and there are lots of elements of the story that cast doubt on the efficacy of this law, the way in which it was adopted, whether it would advance any counter-terror objectives, it just all looks bad. And courts sort of assimilate those atmospherics, in ways that make them more inclined to apply greater scrutiny.”
What’s Next in the Legal Battle Over the Travel-Ban Block?
New York Magazine, February 5, 2017
The chaotic and confusing way the Trump administration rolled out the travel ban could also have an impact on the government’s legal credibility, as Lawfare’s Peter Spiro explained last week: “The atmospherics are consequential. First is the spectacularly sloppy way in which the ban was adopted. There isn’t even the pretense of the order having been properly vetted within the executive branch. That will offend judicial sensibilities—already evidenced by the district court orders [last] weekend—which start with procedural regularity. Although that won’t show up in any opinions, judges will approach the order with skepticism rather than obeisance.”Spiro also believes that the widespread criticism of the Trump administration’s stated rationale for the ban “could help shift the courts away from their historically cautious approach to anything implicating national security values”: “That is at the heart of jurisdictional barriers to considering foreign relations controversies, which is in turn at the heart of plenary power. Judges fret that they have an incomplete understanding of foreign relations. What’s more, if they get it wrong, they see a dramatic downside risk. Judges are unlikely to have that feeling here. Any educated observer can see the folly of Trump’s move. They won’t worry about getting it wrong, or about a downside risk, at least not as a matter of national security.”
Battle Over Trump’s Immigration Order: What We Know
Yahoo.com, February 5, 2017
Late Saturday, the Justice Department officially challenged Robart’s ruling. The Trump administration filed an emergency motion with the Ninth Circuit Court of Appeals saying that suspending the ban was causing “irreparable harm” to the American public. It also argued that Robart had run afoul of constitutional separation of powers, and “second-guesses the president’s national security judgment.” The appeals court rejected the request for an emergency stay, and asked both sides to present additional documents by late Monday. Vice President Mike Pence called the decision “frustrating.” Eventually, the case could go to the Supreme Court, said Peter Spiro, a law professor at Temple University in Philadelphia. “It could go very, very fast,” he added.Legal experts said Trump’s attack on Robart was unusual. “It’s not exactly contempt of court, but it certainly is contemptuous, and it conveys a lack of respect for the independent judiciary,” said Laurence Tribe, a constitutional scholar and Harvard Law professor. For Spiro, the Temple law professor, Trump made a mistake by mocking Robart as a “so-called judge.” “That’s not something that judges like,” he said.
Battle Over Trump’s Immigration Order: What We Know
Digital Journal, February 4, 2017
Judge James Robart of the federal district court in Seattle suspended the president’s order banning entry to travelers from select Muslim-majority nations. “The Trump administration filed an emergency motion with the Ninth Circuit Court of Appeals saying that suspending the ban was causing ‘irreparable harm’ to the American public. It also argued that Robart had run afoul of constitutional separation of powers, and ‘second-guesses the president’s national security judgment.’ If the appeals court upholds Robart’s ruling, the case could go to the Supreme Court, said Peter Spiro, a law professor at Temple University in Philadelphia. ‘It could go very, very fast,’ he added.”
How the Courts Could See Their Way to Striking Down the Trump Travel Ban
Lawfare, February 2, 2017
The Trump executive order banning nationals of seven Muslim states and suspending refugee admissions is, as a matter of policy, monumentally stupid. It is malevolence tempered only by incompetence, as Ben Wittes puts it. That may ultimately prove its constitutional undoing, but the result is hardly foreordained. Beyond this weekend’s initial skirmishes, legal challenges to the order face an uphill battle. The courts have never imposed meaningful constraints on the executive branch in this context. That does not mean they couldn’t or that they won’t here.
President Trump’s Immigration Order: Is It Legal?
Constitution Daily, a podcast from the National Constitution Center, February 2, 2017
On January 27, President Donald Trump signed an executive order temporarily suspending refugee admissions to the United States and travel from several countries in the Middle East. In the immediate aftermath of the order, several lawsuits were filed, and multiple judges have issued stays against parts of the order. What are the best constitutional and statutory arguments for and against the order’s legality? Peter Spiro holds the Charles Weiner Chair in international law at the Temple University Beasley School of Law. He is the author of Beyond Citizenship: American Identity After Globalization and At Home in Two Countries: The Past and Future of Dual Citizenship. Anil Kalhan is associate professor of law at the Drexel University Thomas R. Kline School of Law. He is Chair of the New York City Bar Association’s International Human Rights Committee and a Visiting Scholar at the Center for the Study of Law and Society at the University of California, Berkeley, School of Law.
No Matter What You Call It, Trump’s Immigration Order Will Be Tough to Overturn, Legal Analysts Say
Washington Post, February 2, 2017
The mass action, analysts said, is intended both to prevent the White House from trying to marginalize individual judges who rule against the administration, as well to show the many other lives affected by the order. That might push the judiciary to a tipping point to conclude that precedents shaped in a pre-civil rights era — founded on rulings such as one upholding the internment of Japanese Americans during World War II and another approving the expulsion of communists — no longer apply. “Judges look at the newspapers, too,” said Peter J. Spiro, a professor of immigration and constitutional law at Temple University. “The fact that they see spontaneous public unrest about the order, that empowers the courts in pushing back against the administration and finding a way to striking down the law.”
Trump’s Immigration Order Faces Mounting Legal Questions
ABC News, January 30, 2017
Courts have a long history of upholding portions of immigration law that discriminate on the basis of race and nationality, said Peter J. Spiro, a law professor at Temple University. As far back as 1889 the Supreme Court upheld the exclusion of Chinese laborers, and more recent rulings have also upheld similar discrimination. It’s also possible that federal judges could be more likely to push back in light of the massive public backlash over Trump’s ban, Spiro said. “If there’s going to be a case in which a constitutional challenge has some chance of succeeding, this is it,” he said.
Legal Challenges to Travel Ban Face Uphill Battle
Wall Street Journal, January 31, 2017 (subscription required)
Peter J. Spiro, a Temple University professor who specializes in constitutional and immigration law, described plenary power as a kind of “parallel constitutional universe” for immigration law that allows the federal government to take measures that might be unconstitutional otherwise. Professor Spiro said U.S. courts have generally been reluctant to undermine to government in disputes over foreign relations and national security, fearing a misstep when the stakes are high. The U.S. Supreme Court has held that securing U.S. borders is fundamentally the job of the federal government and has never sided against it in a challenge to immigration classifications, Professor Spiro said.
Trump’s Immigration Order Faces Mounting Legal Questions
New York Times, January 30, 2017
“The legal fight over President Donald Trump’s ban on refugees is likely to turn on questions of a president’s authority to control America’s borders and on whether the new immigration policy unconstitutionally discriminates against Muslims…Courts have a long history of upholding portions of immigration law that discriminate on the basis of race and nationality, said Peter J. Spiro, a law professor at Temple University. As far back as 1889 the Supreme Court upheld the exclusion of Chinese laborers, and more recent rulings have also upheld similar discrimination…It’s also possible that federal judges could be more likely to push back in light of the massive public backlash over Trump’s ban, Spiro said. ‘If there’s going to be a case in which a constitutional challenge has some chance of succeeding, this is it,’ he said.”
The President’s Travel Ban, Then the Road Ahead for the Auto Industry
Radio Times, January 30, 2017
We start off the hour with a response to the President’s actions this weekend initiating a temporary travel ban on immigration from seven Muslim-majority countries. Temple Law Professor Peter Spiro walks us through the legal battle ahead.
5 Things to Know About the Rights of Refugees at U.S. Borders
Wall Street Journal, January 30, 2017 (subscription required)
Professor Peter Spiro clarified one of the Wall Street Journal’s five things to know about the rights of refugees at U.S. borders. “Refugees are typically protected from immediate deportation: Under federal law, no one at the U.S. border claiming refugee or asylum status can be immediately deported back to their home countries without an opportunity to challenge their removal. ‘Everyone has the right for some review of the inadmissibility finding,’ said Peter Spiro, a professor who specializes in immigration at Temple University’s Beasley School of Law. ‘A border patrol officer cannot say, ‘You have to leave and that’s that.””
Rulings on Trump’s Immigration Order Are First Step on a Long Legal Path
New York Times, January 29, 2017
Judicial orders in response to the president’s immigration ban came swiftly, leading to confusion. “On Sunday, there were widespread reports that government officials at airports were not complying with aspects of the orders. That may have been a product of confusion and miscommunication, but some feared it was an early sign of a potential constitutional showdown. ‘The scariest scenario,’ said Peter J. Spiro, a law professor at Temple University, ‘is one in which the Department of Homeland Security simply ignores the court orders. That would have been close to unimaginable in prior administrations. In this one, unfortunately, it would almost be unsurprising.'”
Trump’s Ban on Visitors from Seven Nations Creates Chaos at Airports
Reuters, January 29, 2017
President Trump’s order suspending refugee entry may have exceptions. “Trump said in an interview with the Christian Broadcasting Network that the exception would help Syrian Christians fleeing the civil war there…Peter Spiro, a professor at Temple University Beasley School of Law, said Trump’s action would likely be constitutional because the president and congress are allowed considerable deference when it comes to asylum decisions. ‘It’s a completely plausible prioritisation, to the extent this group is actually being persecuted,’ Spiro said.”
President Trump’s Immigration Order, Annotated
New York Times, January 29, 2017
Professor Peter Spiro helped the New York Times parse President Trump’s executive order suspending refugee entry to the United States. “‘There is no statutory requirement that noncitizens entering the United States support the Constitution,’ said Peter J. Spiro, a law professor at Temple University. ‘The executive order seems to suggest that even temporary visitors like tourists and students should support the U.S. Constitution, which doesn’t make a lot of sense.'”
About Professor Spiro
Peter J. Spiro holds the Charles Weiner Chair in international law. Before joining Temple’s faculty in 2006, Professor Spiro was Rusk Professor of Law at the University of Georgia Law School. A former law clerk to Justice David H. Souter of the U.S. Supreme Court, Spiro specializes in international, immigration, and constitutional law. Spiro is the author of Beyond Citizenship: American Identity After Globalization (Oxford University Press 2008) and At Home in Two Countries: The Past and Future of Dual Citizenship (NYU Press 2016). He has contributed commentary to such publications as The New York Times, Foreign Affairs, The Wall Street Journal, and The New Republic, and is frequently quoted in the media on international and immigration law issues.
Spiro has held fellowships at the European University Institute, the Council on Foreign Relations, and the Open Society Institute. He has also held visiting appointments at the University of Texas, the Australian National University, and Sungkyunkwan University. Spiro is a member of the International Mobility Treaty Commission and the Investment Migration Council, and a former member of the U.S. Department of State’s Historical Advisory Committee. He is co-chair of the Migration Law Interest Group of the American Society of International Law. Spiro serves as U.S. country expert for the European University Institute’s Citizenship Observatory. In July 2011, he testified before the Senate Foreign Relations Committee on the application of the War Powers Act to U.S. participation in NATO operations in Libya. In 2007 and 2016 surveys, Professor Spiro ranked in the top 25 nationally among international law scholars on the basis of academic citation frequency.
In addition to his 1990-91 Supreme Court clerkship, Spiro served as a law clerk to Judge Stephen F. Williams of the U.S. Court of Appeals for the D.C. Circuit. He has also served as director for democracy on the staff of the National Security Council, as an attorney-adviser in the U.S. Department of State’s Office of the Legal Adviser and as a resident associate at the Carnegie Endowment for International Peace. Spiro holds a B.A. from Harvard College and a J.D. from the University of Virginia School of Law.