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

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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.

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.

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