Faculty Journal Posted on Friday, December 21, 2018

Cypher or Partisan? Locating Brett Kavanaugh’s Position on Immigrants’ Rights

Lina Newton Associate Professor of Political Science, Hunter College

Brett Kavanaugh has joined the Supreme Court at a critical time for cases involving immigrants’ rights. The cases that immigration policy scholars are currently following shine a spotlight on a critical constitutional question: are unauthorized immigrants “people” in a constitutional sense? Do those who have arrived here undocumented enjoy fundamental protections from arbitrary government action, as well as safeguards by which to claim such protections?

Collectively, past court decisions have determined that protections of freedom of religion, due process, and equal protection extend to anyone on U.S. territory regardless of legal status. However, cases arising from the arrival of unaccompanied immigrant minors will ask a newly reconstituted bench to decide the scope of constitutional protections and claims-making for minors . While due process is protected in principle, the federal courts have granted the government broad powers to limit all but the most basic access to hearings before an immigration judge. Steps that Congress took to expedite deportations in 1996 have now intersected in 2018 with the Trump administration’s zero-tolerance policy at the southern border, further limiting immigrants’ due process rights.

The question of due process has been further complicated with the increase over the past five years in the numbers unaccompanied minors in government custody. Some are in federal custody because they were apprehended at the southern border, while some are in custody because they were separated from family members seeking asylum there. Immigration law does not distinguish between adults and those under the age of eighteen: anyone who enters the U.S. illicitly will face civil penalties, and possible criminal charges in the case of illegal re-entry. By contrast anti-trafficking laws and family law do distinguish between adults and minors, and these areas of the law are also pertinent in regulating government treatment of immigrant minors in its custody.

In Strangers to the Constitution: Immigrants Borders, and Fundamental Law, Gerald Neuman notes that past architects of constitutional personhood owed their appointments to presidents of both partiesGiven that our legal system prioritizes federal court precedent (past decisions based on consistent interpretations of the law) irrespective of the partisanship of justices who authored these opinions, it is reasonable to assume that even a right-leaning court would be bound by prior verdicts. Justice Kavanaugh, though, may have already revealed his view of precedent with respect to the constitutional personhood and rights of unauthorized immigrants. As a judge on the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh heard four immigration cases, two of which addressed immigrant rights. His dissents in these cases, Agri Processor Co. Inc. v. National Labor Relations Board (2008) and Garza v. Hargan (2017) contended that undocumented immigrants who work or who are minors are not people to whom the Constitution applies.

Kavanaugh on immigrant workers’ rights

Agri Processor Co. Inc. v. National Labor Relations Board (2008) involved a kosher food processing company in Brooklyn, NY whose immigrant workforce voted unionize in 2005. Agri Processor refused to recognize the union despite an NLRB order to do so. Notably, in May 2008, the company’s Postville, Iowa meat processing plant would be the target of the largest ICE raid in U.S. history. The raid resulted in detention of 400 immigrant workers (many of whom were deported) and charges against the company for numerous labor violations.

In response to the NLRB’s order, Agri Processor petitioned the court for relief, claiming unlawful aliens are not “employees” covered by the 1937 National Labor Relations Act. The D.C. Circuit denied Agri Processor their petition citing “the Act’s plain language and binding Supreme Court precedent… Judge Kavanaugh, however, dissented, claiming the 1986 Immigration Reform and Control Act—an expansive but unrelated federal immigration law—had changed the NLRB’s definition of “employee” to exclude undocumented immigrants and therefore had nullified a well-known precedent among scholars of immigrants’ constitutional protections, a 1984 decision in Sure Tan v. NLRB. My own policy research on the development and implementation of the 1986 IRCA for Illegal, Alien or Immigrant: The Politics of Immigration Reform supports Judge Karen L. Henderson’s assertion that the 1986 IRCA did not nullify Sure Tan. Judge Henderson, it is worth noting, was a President George W. Bush appointee to the D.C. Appeals Circuit.

Kavanaugh on rights of immigrant minors

Garza v. Hargan (2017) involved an unaccompanied minor who requested an abortion while in Office of Refugee Resettlement (ORR) custody. A local judge waived Texas’s parental consent requirement, allowing the girl to leave the ORR shelter to have her abortion. However, the head of ORR refused, and also forbade staff in all contracted shelters from assisting young women seeking abortions.

Ruling on the case, the Circuit Court for the District of Columbia ordered the government to allow immigrant minors in its custody to receive abortions, and when the government appealed that decision, Judge Kavanaugh joined Judge Henderson in dissent, arguing that the young woman was neither a person with constitutional rights to abortion, nor had the federal government placed undue burdens on her. Kavanaugh argued that the government had offered two paths for girls in similar circumstances: young migrants could self-deport to their home countries to get abortions, or, alternatively, the government could provide abortion access once minors settled in the U.S. with their sponsors. The D.C. circuit judge responded with a broad injunction on the administration’s actions, claiming they created an “undue burden” on the women, which the Supreme Court disallowed in Planned Parenthood v. Casey (1992) and reaffirmed in Whole Woman’s Health v. Hellerstedt (2016).

Kavanaugh on precedent

In each of these cases, court decisions ultimately favored legal precedents establishing immigrants’ rights. Each time, Justice Kavanaugh’s dissents were in the minority. While court observers think the Court has moved reliably to the right with Kavanaugh’s addition to the bench, his treatment of past decisions may be more instructive than his partisanship. His positions in Agri Processors and Garza signal his willingness to both revisit precedent and to stray from bipartisan jurisprudence on protections for unauthorized immigrants. Both will matter if enough of his colleagues on the Supreme Court are similarly inclined.

Kavanaugh’s choice to veer from precedent could shape his approach to rules of detention for unaccompanied minors established with Flores v. Reno (1997). As the Trump administration pursues detention-as-deterrence at the U.S.-Mexico border, it has simultaneously attempted to peel back family and minor protections Flores put in place. A judge from the 9th Circuit already denied the administration’s request to detain children beyond Flores 20-day limit, but the administration continues to pursue relief from its instructions.

Also likely to end up before the high court is C.J.L.G. v. Sessions (now Whitaker) where the 9th Circuit has been asked to decide whether undocumented children have a right to counsel in immigration proceedings—or, more plainly, whether migrant children are “people” under the Constitution’s due process clause.

Finally, the Court is likely to decide on the constitutionality of President Trump’s decision to end Deferred Action for Childhood Arrivals (DACA). The program, created through an executive order signed by President Obama in August, 2012 granted provisional safeguards to those brought to the U.S. illegally as children, and shielded nearly 690,000 qualified applicants from deportation until the program was ended by President Trump’s executive order in November, 2017. The suits against the Trump administration, brought by various groups—including one filed by 17 state attorneys general against the administration’s decision and one filed by nine state attorneys general in favor of it—touch on procedural questions, issues of state jurisdiction, as well as crucial questions about the limits of executive orders relative to congressional lawmaking. Ultimately, however, a decision on DACA, whose recipients now exist in limbo, will also speak to whether these young migrants have any constitutional protections from arbitrary government action.

Lina Newton is associate professor of Political Science at Hunter College. She is the author of Illegal, Alien, or Immigrant: The Politics of Immigration Reform (New York University Press, 2008), and her latest work on the rise of immigration policy making across the American states has appeared in Publius, Law & Society, and Laws.