Wednesday is the last argument day of this year’s Supreme Court term, and the Supreme Court is going out with a really big case — Trump vs. Hawaii on immigration ban, version 3.0.  The significance and public interest in this case is revealed by the fact that the audio from the argument will be released later in the day.  (Usually, on argument days, the Supreme Court only releases the transcript with the audios from all arguments in a week being released on Friday.)

From the first day in office, President Trump has been attempting to ban immigration from certain predominately Muslim countries.  Version 1.0 was a rushed order that got into legal trouble quickly.  Version 2.0 reflected the administration taking the time to actually think about the terms of the order.  Version 2.0 expressly established a time frame for studying problems with the visa system and identifying which countries were problematic.  Version 3.0 placed restrictions on immigration from six Muslim countries (Chad, Iran, Libya, Somalia, Syria, and Yemen) and two non-Muslim countries (North Korea and Venezuela).  According to Version 3.0, these eight countries do not adequately assist the United States in terms of sharing information on the background of visa applicants.

There are two side issues in this case.  The first issue is the question of whether the case is “justiciable.”  In plain English, whether a court can review the President’s exercise of executive power related to immigration.  Generally speaking, individual visa decisions are not reviewable, but this case involves a broader policy.  The other side issue is the question of “global injunctions.”  In plain English, typically, a judge can only issue an order that resolves the claims of the parties to the case.  There is an exception for class actions in which one plaintiff is a representative of a larger group of plaintiffs, but, in a class action, all members of the class are parties to the case and have a right to have input on any settlement.  Recently, there have been several cases — both under the Obama Administration and now under the Trump Administration — in which a judge has issued an injunction that covers the precludes the government from applying a new policy to anybody, not just the individual plaintiffs. Continue Reading...