Brett Kavanaugh & Immigration: What You Need to Know

Brett Kavanaugh

Getty Supreme Court Justice nominee Judge Brett Kavanaugh, meets with U.S. Sen. Marco Rubio (R-FL) at the U.S. Capitol on August 1, 2018 in Washington, DC.

Brett Kavanaugh has a limited record on immigration. The D.C. Circuit Court does not handle deportation or immigration status cases, so Kavanaugh’s opinions on these issues are not well-documented. But President Donald Trump’s nominee could cast deciding votes on crucial immigration cases if confirmed to the Supreme Court.

Here’s what you need to know.


Kavanaugh Dissented in a 2008 Case Concerning Undocumented Workers, Arguing They Can’t Be Protected Under Labor Laws

Kavanaugh and Murkowskii

GettyJudge Brett Kavanaugh (C) and Sen. Lisa Murkowski (R-AK) pose for photographs before their meeting in her Hart Senate Office Building office on Capitol Hill August 23, 2018 in Washington, DC.

Judge Kavanaugh sided against workers in a 2008 case involving the right of employees to unionize. The company in question was a meatpacking business called Agriprocessors in Brooklyn, New York. Many of its workers were undocumented. When they voted to join the United Food and Commercial Workers, Agriprocessors appealed the decision to the National Labor Relations Board.

Agriprocessors argued that the votes of the undocumented workers did not count, due to their immigration status. The company pointed to the 1986 Immigration Reform and Control Act, which prohibits businesses from knowingly hiring illegal immigrants. But the Labor board unanimously sided with the workers, and told the company to begin bargaining with its employees. As the Huffington Post reported, two of the three members of the Labor board were Republicans.

Agriprocessors tried again by appealing to the D.C. Circuit Court. A panel, which included Kavanaugh, upheld the Labor board’s decision 2-1. Kavanaugh wrote the dissent. He argued that “an illegal immigrant worker is not an “employee” under the NLRA for the simple reason that, ever since 1986, an illegal immigrant worker is not a lawful “employee” in the United States.” (You can read the full case decision here).

To put the case into broader context: all workers are protected equally under the law in the United States. The Supreme Court ruled in a 1984 case, Sure-Tan Inc v. NLRB, that all workers, regardless of immigration status, have a right to safe and fair working conditions, and have a constitutional right to unionize. The majority opinion argued that by ruling this way, businesses would NOT have an extra incentive to hire illegal immigrants. “If an employer realizes that there will be no advantage under the NLRA in preferring illegal aliens to legal resident workers, any incentive to hire such illegal aliens is correspondingly lessened.”


The Most High-Profile Case Concerning an Immigrant That Kavanaugh Wrote a Dissenting Opinion for Had More to Do With Abortion Than Immigration

GettyBrett Kavanaugh sworn in as a US Court of Appeals Judge for the District of Columbia June 1, 2006

Judge Kavanaugh dissented from a majority opinion that allowed a 17-year-old girl to be released from a federal detention facility in order to have an abortion. The teenager was an illegal immigrant from Central America. She was referred to only as “Jane Doe” in court proceedings to protect her identity since she was a minor. The ACLU filed the lawsuit on her behalf, which became known as Garza v. Hargan.

The U.S. government, specifically the Department of Health and Human Services, argued that it had no obligation to facilitate an abortion. Acting secretary of the department Eric Hargan stated that she could return to her native country to terminate the pregnancy. She could also be released from custody if she had an American sponsor.

Kavanaugh sat on D.C. Circuit panel that initially reviewed the case. The panel decided 2-1, with Kavanaugh writing the majority opinion, that illegal immigrants detained at the border have a constitutional right to abortions under Roe v Wade. Kavanaugh wrote that the government was not hindering her right as long as the process to find a sponsor was expedited.

However, this did not resolve the case. The ACLU immediately appealed to the full Circuit Court. In a 6-3 vote, the full court ruled in the teenager’s favor. Kavanaugh’s dissenting opinion on the case argued that the decision was “ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand, thereby barring any government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision. The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence.”


Kavanaugh Could Cast Deciding Votes in Major Immigration Cases Looming Before the Supreme Court

Brett Kavanaugh

Supreme Court Justice nominee Judge Brett Kavanaugh walks to a meeting with Sen. Heidi Heitkamp (R-ND) in the Hart Senate Office Building, on August 15, 2018 in Washington, DC.

Kavanaugh could be a deciding vote in key immigration issues looming before the Supreme Court. Some of those cases may include:

• The fate of DACA, the Deferred Action for Childhood Arrivals program
• The policy on sanctuary cities
• The government’s ability to separate children from parents at the border
• The ability to detain immigrants without bond

Kavanaugh could also provide a crucial swing vote if the Supreme Court chose to revisit previous Supreme Court decisions related to immigration. One example is the 1982 Plyler v. Doe decision. The case allowed undocumented children to attend public school. The majority opinion stated that “education has a fundamental role in maintaining the fabric of our society” and that the children of illegal immigrants should not punished for their parent’s actions. The Supreme Court decision was 5-4.

Another potential issue at stake is the 14th Amendment. It guarantees that a person born in the United States is a U.S. citizen. It was ratified on July 9, 1868, effectively granting U.S. citizenship to former slaves following the end of the Civil War.

President Trump has supported restricting this constitutional right, from the very beginning of his campaign. He said during a debate in 2015, “A woman gets pregnant. She’s nine months, she walks across the border, she has the baby in the United States, and we take care of the baby for 85 years. I don’t think so.”

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