Published 5:31 PM EDT Oct 8, 2018
When Justice Brett Kavanaugh settles in for his first week on the Supreme Court, he will inherit cases that will determine the short-term fate of more than 1 million immigrants and possibly change the course of the nation's immigration system for decades.
From his perch at the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh has presided over only a handful of cases that directly deal with immigration. The cases were varied and dealt with very specific issues, but one lawyer who appeared before Kavanaugh said President Donald Trump's nominee established a clear-cut approach to immigration.
"The only common thread is the immigrant ... did not benefit from the outcome," said Leon Fresco, who headed immigration legislation in President Barack Obama's Justice Department.
Marielena Hincapié is so concerned about Kavanaugh's views on immigrants that the organization she leads – the National Immigration Law Center, a traditionally nonpartisan group that represents immigrants – issued its first-ever opinion on a Supreme Court nomination when it came out against Kavanaugh.
"Kavanaugh on the court will be devastating for the country for decades to come, especially for women and minorities," Hincapié said after his confirmation was secured.
With Kavanaugh’s addition, the nine-judge court will have its first reliable conservative majority in decades.
Other attorneys who appeared before Kavanaugh said the concerns are overblown. John Miano is an attorney with the Immigration Reform Law Institute, a group that represents local governments that pass laws cracking down on undocumented immigrants and has sued the federal government over policies it deemed too immigrant-friendly.
Miano said his group lost as many times before Kavanaugh as it won, citing cases in which Kavanaugh allowed immigration-related matters to drag out rather than bringing the gavel down against immigrants.
"People are talking like this is going to be the end of the world, and it's not," Miano said. "He’s a very bright guy, he’s very thoughtful, he has a very even temper on the bench."
Those question marks will be answered as the court takes up landmark immigration cases in the months and years to come.
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The most notable is a challenge to Trump's decision to terminate the Deferred Action for Childhood Arrivals program, known as DACA, an Obama-era program that has allowed more than 800,000 undocumented immigrants brought to the country as children to legally live and work in the USA. Three federal judges have ruled that the administration used a flawed process and legal justification to end the program, decisions the Trump administration is appealing.
The court could decide whether a federal judge in California was justified when he blocked the administration last week from terminating most of the Temporary Protected Status program, known as TPS, which has allowed more than 300,000 foreigners to legally live and work in the USA as their home nations recover from civil strife and natural disasters.
Along the way, Kavanaugh may deal with the Trump administration's efforts to crack down on "sanctuary cities" that do not fully comply with federal immigration enforcement efforts; its "zero-tolerance" enforcement strategy that led to more than 2,500 family separations this summer; and its decision to place a citizenship question on the 2020 Census.
Kavanaugh's first immigration case will come before the court on Wednesday, when the justices are scheduled to hear oral arguments in Nielsen v. Preap. That will decide which immigrants the federal government is legally allowed to detain without bond as they await their deportation hearings.
Attorneys and advocates on both sides of the immigration debate will listen closely to get a sense of where Kavanaugh stands, because his record is brief and mixed.
Throughout his confirmation process, Kavanaugh vowed to adhere to the letter of the law, and a case from 2016 provides an example of that. Washington Alliance of Technology Workers v. Department of Homeland Security featured U.S. workers who argued that they faced unfair competition from foreign workers who entered the country on F-1 student visas but were allowed to work in the USA for several years after they graduated.
"The word in the statute is student," Kavanaugh said during oral arguments. "To call people who are working full-time jobs students ... makes hash of the language."
Kavanaugh veered from U.S. law when he dissented in a case in 2014 involving a different visa. In Fogo de Chao Holdings Inc. v. U.S. Department of Homeland Security, the Brazilian-themed restaurant attempted to bring a Brazilian chef to the USA under an L-1B visa, which is used by U.S. companies to transfer foreign employees with "specialized knowledge relating to the organization’s interests."
The D.C. Circuit sided with the restaurant, ruling that U.S. law specifically allows that kind of foreign worker. Kavanaugh dissented in an opinion that focused on the broader economic problems posed by foreign labor. He wrote that American chefs could be trained how to cook in the Brazilian style and suggested that the restaurant was simply trying to hire a lower-cost foreign chef over an American one.
"Mere economic expediency does not authorize an employer to displace American workers for foreign workers," Kavanaugh wrote.
That quote was cited by the Federation for American Immigration Reform, a group that advocates for lower levels of legal and illegal immigration, in its endorsement of Kavanaugh. Immigration advocates said it's an example of his tendency to cherry-pick which laws and precedents he'll respect.
"I think people can expect his viewpoints toward immigration to be very enforcement-friendly" and not dictated by U.S. law, said Fresco, who argued the student visa case before Kavanaugh.
Two other cases muddle Kavanaugh's views on U.S. law and legal precedent even more.
In 2008, the D.C. Circuit relied on Supreme Court precedent when it ruled in Agri Processing Co. Inc v. National Labor Relations Board that undocumented workers must be considered employees eligible to participate in labor unions. Kavanaugh dissented, pointing to a 1986 law that made it a crime to employ undocumented immigrants, rendering them ineligible, in his view, to participate in unions.
The majority wrote that the 1986 law Kavanaugh cited did not amend the labor law in question. The majority argued that Kavanaugh's interpretation was illogical, accused him of creating his "own rule" to reach his decision and that such a rule would lead to "absurd results" from the Supreme Court.
In 2017, Kavanaugh dissented again in the case of Garza v. Hargan, which considered a 17-year-old undocumented immigrant who attempted to get an abortion while in government custody. The Trump administration argued that the teen, and others in her position, should return to their home country or find a U.S.-based sponsor before obtaining an abortion. The American Civil Liberties Union, representing the teen, said that would deny her the chance to remain in the USA and finding a sponsor could take too long.
The majority of the court ruled that she could get an abortion under law. Kavanaugh disagreed, writing that the ruling gave detained immigrants a “new right” to “obtain [an] immediate abortion on demand."
The Supreme Court dismissed the case as moot after the teen obtained her abortion, but the issue could return to the Supreme Court.
Miano said Kavanaugh's dissent had more to do with abortion rights than immigrant rights, making it meaningless when trying to assess his views on immigration law. Hincapié said it showed "his level of disdain" for young immigrants in detention.
That track record, however limited, leads Fresco to predict that Kavanaugh will easily slide into a bloc of justices that will mostly rule against immigrants, a group that includes Justices Samuel Alito, Clarence Thomas and Neil Gorsuch. In that scenario, Chief Justice John Roberts becomes the swing vote on immigration matters.
Miano disagreed, saying Kavanaugh would be far from his first choice if he were to pick a judge who would always rule against immigrants.
"I would enthusiastically support him as a fair judge who has a good demeanor," Miano said. "But if I wanted to get a judge who's going to rule for me on everything on immigration, that ain't Kavanaugh."