SCOTUS (Segment A)

Abstract

The long-held SCOTUS position that it remains the ultimate expositor of the constitutional text has influenced an array of important cases involving foreign affairs. In the two Zivotofsky cases the Court was faced with particularly thorny foreign policy issues. After 82 years SCOTUS declared specific dicta from Curtiss-Wright to be of no consequence and rejected them. During the past 15 years SCOTUS has systematically jettisoned its traditional foreign affairs functionalism in favour of formalism. A major jurisprudential shift was developing in SCOTUS’s approach to analysing and applying separation-of-powers questions. Gone are the days of presidential free reign in foreign affairs. In some cases judicial trust once placed in the executive has been replaced by distrust. The claim that the President possessed unbounded power in foreign affairs became a dead letter. The Court ensured that the executive continued to function within constitutional limits. Far from standing on the constitutional side lines, SCOTUS has for most of its history, by way of its rulings, contributed to the juridical debates within the foreign affairs establishment. Thus by pronouncing on issues impacting on foreign affairs, SCOTUS has not only fulfilled its constitutional mandate, but also reaffirmed its role in foreign affairs which by now has become distinguished and influential. Immigration into the USA has taken on a new meaning altogether after 9/11, especially since President Trump became President in 2017. The series of travel bans he ordered had important foreign policy and national security implications. They did not escape the attention of SCOTUS. The significance of amici curiae is reviewed.