Kavanaugh's Record Shows a Disregard for Immigrants — and the Law
Days before President Donald Trump nominated Judge Brett Kavanaugh to the U.S. Supreme Court, Breitbart published an article describing Kavanaugh as the “‘America First’ SCOTUS Choice.” Reading through Kavanaugh’s dissenting opinions, it’s not hard to see why a website associated with Steve Bannon would view his confirmation as a victory for their anti-immigrant agenda. Kavanaugh has a long record of ignoring well-established law to deny immigrants basic legal protections, and his opinions suggest that he subscribes to the nativist belief that the native-born are locked in a zero-sum battle with immigrants that only one side can win.
In 2008, Judge Kavanaugh wrote a dissenting opinion in Agri-Processor v. National Labor Relations Board in which he argued that undocumented workers are not “employees” within the meaning of the National Labor Relations Act (NLRA). To reach this conclusion, Kavanaugh — an alleged textualist — explicitly disregarded the plain language of the NLRA, which defines the term “employee” broadly to include “any employee” (with certain exceptions that did not apply). He also dismissed a 24-year-old Supreme Court precedent that resolved the precise question before him: It held, “Since undocumented aliens are not among the few groups of workers expressly exempted by Congress [in the NLRA], they plainly come within the broad statutory definition of ‘employee.’”
In short, Kavanaugh ignored both the actual words of the law and binding Supreme Court precedent to eviscerate basic labor protections for undocumented immigrant workers. And while he described the decision as protecting “legal workers” from having their votes “diluted or overridden in [a] union election by the votes of illegal immigrant workers,” his dissent would have actually undermined wages and working conditions for all workers regardless of citizenship or immigration status.
Kavanaugh again created his own rule in a 2014 dissent in which he sided with an agency determination to deny a “specialized knowledge” visa to a Brazilian gaucho chef employed by the restaurant Fogo de Chao. In a few short pages, Kavanaugh badly misrepresented the reasoning of the agency below, the arguments presented by the parties in the case, and the record before him, and wrote a decision that contained — literally — no legal reasoning whatsoever.
Instead, Kavanaugh unfairly reduced the restaurant’s case to one absurd point — “American chefs either can’t learn to cook or won’t cook Brazilian steaks” — and he found a handful of ways to make it clear that this idea enraged him. (Never mind that the record showed that the restaurant hired many American chefs, and that the presence of Brazilian chefs with specialized knowledge — derived, in part, from having grown up around and trained in traditional barbeques in a particular region in Southern Brazil — enhanced the skills and abilities of their American counterparts.) In his dissent, Kavanaugh also rejected the notion that culturally acquired knowledge and skills can hold unique value. That’s a long way of saying he denied what many, but not all, of us believe: that diversity is our strength.
What’s more, in Garza v. Hargan, Kavanaugh noted begrudgingly that all parties in the case assumed that “unlawful immigrant minors such as Jane Doe have a right under Supreme Court precedent to obtain an abortion in the United States.” As a result, he had to accept that the government could not impose an “undue burden” on the detained girl’s right to access an abortion. But even within those confines, Kavanaugh endorsed a rule that would have forced Jane Doe and similar undocumented immigrants in government custody to wait several weeks to access an abortion, at which point a safe, legal abortion might no longer be possible.
Given the unprecedented frequency and breadth of the current administration’s attacks on immigrant communities, we can expect the Supreme Court to be called upon increasingly in the months and years ahead to consider fundamental questions about the rights of immigrants. Some questions which may arise in the near future include whether children can be snatched from their parents at the border; whether immigrants can be detained indefinitely without an opportunity for release; and whether the more than 700,000 DACA recipients who came to this country years ago as children and are thriving should be allowed to keep renewing their protections. Other questions that may be further down the road include challenges to birthright citizenship under the Citizenship Clause of the Fourteenth Amendment, and to the right of all students, regardless of immigration status, to obtain a public education.
In his Garza dissent, Judge Kavanaugh explained that, “As a lower court, our job is to follow the law as it is, not as we might wish it to be.” As the Senate prepares to vote on whether Kavanaugh should be placed on the nation’s highest court, now is the time to ask what he might wish the law to be.
Tom Jawetz is the vice president of Immigration Policy at the Center for American Progress.