Immigration policy is on the ballot. If voters don’t decide, the conservative Supreme Court will

If Biden is elected president, two of three cases before the court would go away, and the potential impact of the third would be blunted.

In the run-up to the election, the Supreme Court agreed to review three Trump administration immigration policies. J. Scott Applewhite/Associated Press

President Trump and former vice president Joe Biden may not be focusing much on the issue of immigration on the campaign trail.

But immigration is on the presidential ballot this year, in a very direct way. You need look no further than the US Supreme Court’s docket to see why.

In the run-up to the election, the justices agreed to decide the fate of three major Trump administration immigration policies. Earlier this month, the Court agreed to take up the fate of Trump’s order to exclude undocumented immigrants from the 2020 Census for the apportionment of congressional districts. Last week, the court also agreed to rule on two more challenges to administration policies this term: the diversion of Pentagon funds to build a southern border wall, and the policy forcing asylum seekers from countries to the south to remain in Mexico while they wait for their cases to be decided.

If Biden is elected president, two of these cases would go away, and the potential impact of the third would be blunted. That means the votes of Americans are just as important as those of the justices on the bench — which will presumably include Amy Coney Barrett — in deciding these crucial cases.

But the importance of this election on immigration policies extends far beyond these three controversies. The reelection of Trump would probably send a host of other cases to the highest court to decide with its new 6-3 conservative majority — from Trump’s move to phase out temporary protected status to hundreds of thousands of immigrants who fled their home countries for humanitarian reasons, to Trump’s “public charge” rule (which strips immigrants living in the country legally of their permanent resident status if they use public benefits like Medicaid), to future attacks by Trump on the Obama-era Deferred Action for Childhood Arrivals program.

Given Trump’s penchant for attacking even the principle of birthright citizenship, his reelection would continue his assault on one of the most fundamental constitutional provisions that serve as an underpinning for protecting civil rights of Americans born here as well as abroad.

The policies before the court represent “the early stages of a far-right attack on the 14th Amendment,” said Ali Noorani, president and CEO of the National Immigration Forum, a nonprofit immigration advocacy organization. A key legal argument against Trump’s census order is the 14th Amendment’s language that the census represents “the whole number of persons in each state” for apportionment purposes.

“There are so many protections to American society that are the result of the 14th Amendment,” Noorani said. “We see this, particularly with the census case, as a way for the Trump administration and others on the far right to make the case to the public that immigrants do not count.”

The challenges to Trump’s border wall funding and the administration’s policy to remand immigrants to Mexico won’t be decided until after the presidential inauguration. If Biden wins, his administration would swiftly eliminate those policies, rendering the court cases moot and bringing them to an end before they are decided.

The census case is more complicated. The court set that case for an expedited argument on Nov. 30, with an aim of rendering a decision before the Dec. 31 deadline imposed by federal law to tabulate and report total numbers from the census count to the president for apportionment purposes. Regardless of the election outcome, Trump will still be in charge then.

Congress also has a say. But precisely how a battle between Congress and the White House over the drawing of district lines will play out is unknown, because — like so many other things in the Trump era — it would be historically unprecedented.

But if Biden is president, that fight would end on Jan. 20. It will only be a matter of determining when would be too late to stop a redistricting process that would discount millions of immigrants living in the country — to the benefit of Republicans for congressional apportionment — if the high court rules in Trump’s favor.

Of course, if Trump wins reelection and continues to pursue other restrictive immigration policies, he will probably have a judicial ally in his most recent Supreme Court appointee. Though Barrett doesn’t have a long history of immigration law jurisprudence, she was the dissenting vote earlier this year, in a 2-1 Seventh Circuit Court of Appeals ruling putting a partial hold on Trump’s public charge rule. In Barrett’s dissenting view, the Trump administration “has chosen to exercise the leeway that Congress gave it” under immigration law.

That also serves to underscore the importance of this election on immigration policy. Though the impact of the court’s rulings could be sweeping, the justices cannot enact immigration law. That’s the job of officials who are elected by the American people. And voters must cast their ballots with that in mind.

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