By Cole Borlee
Cole Borlee is a freshman in the College of Arts and Sciences
One of the most notable examples of President Trump being sued is the travel ban that was first put into place in early 2017. The lawsuits poured in immediately following the executive order that instituted the travel ban. And while injunctions were granted right away, there existed a serious question among experts on whether the courts could even consider arguments against the order. This is called justiciability; that is, the ability of a court to actually hear and consider a case [1; 2].
The typical criteria for a matter to be justiciable are fairly straightforward. The plaintiff must have standing, which is to say that they must have been harmed by the defendant, and this harm must be something such that the court can remedy. The matter must be ripe but not moot; that is, the case must present an actual controversy, but not have already been resolved. And finally, the matter cannot be a political question, or be an especially politically charged issue .
In the case of the travel ban, the first question presented to the Supreme Court for their decision was whether the challenges against the power of the President to issue the proclamation were even justiciable. The majority opinion, which was decided for Trump, assumed that these challenges were justiciable and moved right over to the other questions of the case. However, consideration of the justiciability of the case is very important, and can offer insights into the shift of the power of the court in recent decades .
Over the past 50 years, the scope of power that the court has jurisdiction over has increased. The most prominent example of this is their consideration of what is a “political question” in terms of justiciability. Oetjen v. Central Leather Co. (1918) can be used to set a baseline for the extent of the court’s power. The court in this case ruled that the way the executive branch uses its powers is a political question, and therefore not able to be reviewed by the court . The limits on the power of the court through justiciability were increased in 1962 with Baker v. Carr, in which it was decided that matters that are explicitly given to the responsibility of the other two branches by the constitution are political questions, and therefore not justiciable .
The concept of justiciability is one of the most important ones for the judicial powers. The necessity of “standing” on the part of the plaintiff prevents frivolous, unnecessary, or otherwise inappropriate lawsuits from flooding the courts. In addition, the “political question” aspect is an important one for limiting the powers of the judicial; the alternative, in which the Supreme Court is able to rule on cases that have no constitutional controversy, is one in which the justices have to decide on political questions with their personal political beliefs. Given that the judicial is supposed to be the apolitical branch of the government that exists to keep the government true to the constitution, this alternative would be a breach of this purpose. Indeed, this is a slippery slope, upon which the third branch would become as polarized as the other two .
Knowing how important the correct use of justiciability is, it can be frightening to see how it has quickly been slipping away from the minds of the justices in the past handful of years. Again, returning to our principal example, the travel ban was brought up in court on the basis of religious discrimination, which is unconstitutional. Though the first two “drafts” of the travel were certain to be struck down, the third issuance (Proclamation 9645) was “watered down” enough to be considered what Trump was calling it: “national security”, and not the noted religious discrimination . National security is power that is explicitly given to the President (and debatably, Congress) and as such, it constitutes a political question by the decision reached in Baker v. Carr . Therefore, it should not have been justiciable. The fact the court simply assumed justiciability on a political question is a worrying one, and goes to shown the role of the courts in the high contentious presidency that America is experiencing now.
It has been noticed by experts and scholars alike that the court has been drifting away from consideration of legal questions towards the political. This has certainly been jumpstarted by the Trump presidency, which has seen one of the highest rate of lawsuits against a sitting president in the modern era . Since many democrats disagree with Trump on his political issues, and they are not able to see their desired results in the Republican-controlled Congress before the midterms, many democrats see lawsuits and the judicial branch as their only way of fighting back. This is why there have been so many injunctions and federal lawsuits in the past two years.
However, asking the courts to settle these political questions sets a dangerous precedent that can only lead to a degeneration of the purpose of the judicial branch. The only route to pursue a political disagreement is through the executive or the legislative. Instead of asking the courts to strike down government actions that they disagree with on a political level, people should find other ways; protests, boycotts, and voting can all be methods of applying political pressure that are better and more appropriate than these kinds of lawsuits.
 “Timeline of the Muslim Ban.” ACLU of Washington, 26 Nov. 2018.
 Miller, Mark. “Focus on Legal Questions, Not Politics, in Supreme Court Travel Ban Case.” TheHill, The Hill, 23 Apr. 2018.
 Strasser, Mr. Ryan. “Justiciability.” LII / Legal Information Institute, Legal Information Institute, 7 Nov. 2018.
 Trump v. Hawaii, 585 U. S. ___ (2018)
 "Baker v. Carr." Oyez, 29 Nov. 2018
 Hashmall, Mr. Joe. “Political Question Doctrine.” LII / Legal Information Institute, Legal Information Institute, 4 July 2017.
 III, Edwin Meese. “Who Is Responsible for America's Security?” The Heritage Foundation, 11 Aug. 2011.
 Penzenstadler, Nick, and Susan Page. “Exclusive: Trump's 3,500 Lawsuits Unprecedented for a Presidential Nominee.” USA Today, Gannett Satellite Information Network, 23 Oct. 2017.
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.