In late January of this year Donald Trump signed an executive order that caused massive nationwide protests, and sparked a dialogue surrounding the issues of executive authority, race and ethnicity, and foreign relations. The decision to ban the immigration of individuals from specific countries, despite its shaky judicial foundation, raises an important question about the nature of the American judicial system and how it functions.
The travel ban was immediately challenged in several states across the country for a variety of reasons. Violations of due process, or the equal protection clause of the 14th amendment, led to the ban being reviewed by the 9th circuit court of appeals which summarily blocked the implementation of the travel ban. Following the court’s ruling the administration fired back with a renewed executive order to instate a revised travel ban as part of the overall administration’s immigration policy. The back and forth between the administration and the judicial system continued until last Tuesday when the Supreme Court addressed the latest iteration of the administrations travel ban. The court dismissed the case, because the underlying order that was appealed had run its course and expired.
The way that the court dealt with the Travel Ban demonstrates a key issue in American Jurisprudence. In order for the Supreme Court to establish precedent for the lower courts to follow the underlying case to be decided has to meet the criteria of justiciability. There are numerous criteria for a case to be heard in the highest court in the land, but one of the most fundamental is the concept of mootness — i.e. a case has to be relevant and there has to be some aspect of the case that has an impact at the time the court is supposed to decide the issue. In order to substantively weigh in on pressing issues in contemporary american jurisprudence there needs to be some specific case that the court can select as a vessel for establishing a new legal rule. However, this temporal question interacts with the structure of the political system in the sense that it takes a very long time indeed for these kinds of legal challenges to reach the Supreme Court.
Before the court can create some foundational legal rule regarding the executive’s authority, and the extent to which that authority can be used to create new federal policies regarding specific immigration policy, the Justices must first be presented with some test case that resolves the underlying issues of justiciability.
Almasy, Steve, and Darran Simon. “A timeline of President Trump’s travel bans.” CNN. March 30, 2017. http://www.cnn.com/2017/02/10/us/trump-travel-ban-timeline/index.html.
Barnes, Robert. “Supreme Court dismisses case against Trump’s expired travel ban.” The Washington Post. October 10, 2017. https://www.washingtonpost.com/politics/courts_law/supreme-court-dismisses-case-against-trumps-expired-travel-ban/2017/10/10/2aef82d6-ad37-11e7-be94-fabb0f1e9ffb_story.html?utm_term=.5ec18ac4161e.