This Issue: Two top Supreme Court possibilities would approach immigration decisions through plain text of the law?

Pres. Trump is expected to name his nominee to the Supreme Court over the next day or so, and topping the list are federal judges Amy Coney Barrett and Barbara Lagoa.

With Pres. Trump following former Pres. Obama's lead in making significant changes to immigration policy through executive action, the Supreme Court's role on the issue has intensified due to legal challenges to those actions. Over the last several years, the Court has issued decisions on the DAPA and DACA executive amnesties, public charge, and the president's authority under 1182(f) to suspend immigration if it serves the national interest.

Past decisions and their general judicial philosophy provide some insight into how Barrett and Lagoa might approach immigration issues on the nation's highest court.

AMY CONEY BARRETT

Barrett is considered a textualist, meaning that her rulings tend to be based on the plain text of the law. Her recent opinions on immigration-related cases demonstrate this approach.

• In June 2020, Barrett wrote a dissenting opinion to Cook County v. Wolf, a federal court decision that struck down Pres. Trump's public charge rule that requires immigration officers to consider whether a green card applicant would need to access public benefits. She opined that because the rule only applies to new applicants for green cards and exempts refugees and asylees, among other vulnerable groups, it falls within the context of the laws passed by Congress that block admission for immigrants who could become public charges.

"Congress has delegated the power to determine who may enter the country to the Executive Branch, and courts generally have no authority to second-guess the Executive's decisions."

BARBARA LAGOA

Lagoa is also considered a textualist. She doesn't have any significant federal rulings on immigration, but she did play a role in one of the more publicized immigration cases of the last several decades.

In 2000, she was part of the legal team for the great-uncle of Elian Gonzalez who was fighting to prevent the federal government from returning Gonzalez to his father in Cuba.

In late-1999, Gonzalez's mother, with Elian and her boyfriend, attempted to leave Cuba and reach the United States to take advantage of Pres. Clinton's wet foot, dry foot policy. But their boat was destroyed in a storm, and Elian never made it to U.S. soil. He was picked up by fishermen who turned him over to the Coast Guard. He was eventually released by immigration authorities to his great-uncle in Miami.

Lagoa argued that the plain text of the law defended Gonzalez' great-uncle's custody of Elian and that he should be allowed to stay in the United States. But the federal government prevailed and Gonzalez was returned to his father in Cuba.

Of course, Pres. Trump could nominate someone other than Barrett and Lagoa, but these two are considered the frontrunners by most. Should he nominate someone other than Barrett or Lagoa, we'll provide details of their immigration rulings.

Chris Chmielenski NumbersUSA Deputy Director