Be warned, if Brett Kavanaugh is confirmed to the US Supreme Court, he will only strengthen Trump’s invisible border wall

The nominee’s views on presidential authority and immigration, as reflected in his judicial record, suggest he will side with the divisive administration

Karnig Dukmajian
Wednesday 05 September 2018 15:33 BST
Supreme Court nominee Brett Kavanaugh delivers opening statement

Nearly two years into his presidency, President Trump has not been able to muster the congressional support and funding to deliver on his key campaign promise to build a physical wall on the United States’ border with Mexico. However, the President’s nomination of Brett Kavanaugh to the US Supreme Court looks set to dramatically shore up the “invisible wall” that has sprung up, and is arguably doing far more to restrict US immigration than any border wall ever will.

Although the border wall captured much of the early focus, the Trump administration has been busily bypassing Congress and focusing on the far-reaching changes in policies and procedures through the use of executive powers that have made up the “invisible wall”. While invisible, it is a very real phenomenon, however, keeping out even legal immigrants and making the processes of obtaining visas, migrating to or remaining in the US slower, less reliable and more difficult.

Like the president’s travel ban executive order earlier this year, parts of this “invisible wall” are being legally challenged and more cases may ultimately reach the Supreme Court. Brett Kavanaugh’s nomination to replace the retired Justice Kennedy, who was often a swing vote in close or politically sensitive cases, becomes critical – in part explaining the controversy surrounding his Senate confirmation hearings which began this week. If confirmed, Kavanaugh appears likely to serve as a reliable vote to uphold the Trump administration’s immigration policies against any legal challenges that may come before it.

Due to media scrutiny, the wider public is aware of some of the Trump administration’s most egregious actions against immigrants, such as the travel ban, the family separation border policy, and the decision to rescind DACA (an Obama-era policy aimed at preventing the deportation of undocumented immigrants brought to the US as children). Other changes, however, have flown under the radar despite having caused substantial changes to the legal immigration system.

These include the president’s “Buy American and Hire American” executive order signed in April 2017, which now requires US consular officers to consider whether the “economic interests” of American workers are threatened when adjudicating visa applications in five of the most common professional work visa categories. The new requirement – which has no statutory basis – has led to an increase in arbitrary visa denials for otherwise qualified applicants. This is harming the US employers whose businesses benefit from those workers, as well as the interests of UK and other foreign workers needing to travel to the US for work or business. Likewise, an October 2017 decision rescinded a longstanding policy of giving deference to prior approvals for many work visa extensions. This means that professional foreign workers can be told they no longer qualify under their visa category, despite multiple previous approvals and years of working in the same position for the same employer in the US. Further, the administration’s “extreme vetting” of certain visa applicants abroad has resulted in applications being placed in an “administrative processing” queue, delayed for weeks, months, or longer, without ever disclosing the underlying reason for the delay or providing an estimated timeline.

Kavanaugh’s views on presidential authority and immigration, as reflected in his judicial record, suggest he will side with the Trump administration should immigration policy challenges reach the Supreme Court.

In a 2014 case stemming from a visa petition denial, Kavanaugh wrote a dissenting opinion concluding that a specially trained churrasqueiro chef did not qualify for a specialised knowledge visa to work at US-based Brazilian steakhouse chain Fogo de Chao. Focusing on the contention that Americans were being displaced by cheaper Brazilian labour, and that American workers could learn to do the job, Kavanaugh concluded that “mere economic expediency does not authorise an employer to displace American workers for foreign workers.” This approach is in line with the spirit and intent behind President Trump’s “Buy American and Hire American” executive order, and suggests the White House will be able to count on Kavanaugh’s vote against a challenge to that order.

Kavanaugh also signalled a conservative approach to immigration matters in a 2008 case regarding whether the votes of undocumented immigrant workers could be included in an election to form a labour union. In another dissenting opinion, Kavanaugh agreed with the employer that undocumented workers could not be deemed “employees” under the relevant labour relations law, referring to the union election as having been “tainted” and “diluted” by the votes of the immigrant workers.

There are legal challenges working their way through the courts against a number of the Trump administration’s immigration policies and decisions, including the rescission of DACA, the “extreme vetting” program, the termination of Temporary Protected Status for those fleeing unsafe conditions in countries such as Haiti, El Salvador and Honduras, and the termination of work authorisation for spouses of some professional workers. If Kavanaugh becomes a Supreme Court justice, he will likely be a key, if not deciding vote, on whether those legal challenges succeed or fail.

Based on an analysis of his decisions and other writings, legal scholars have concluded that Kavanaugh has a particularly broad view of the constitutional limits on presidential power and executive authority, giving deference to actions taken by a sitting president. Given that the Trump administration’s changes to immigration policies and procedures have been instituted by the executive branch rather than through legislation, Kavanaugh’s view on executive authority coupled with his judicial record on immigration provide a reliable indication that, when faced with challenges to immigration policies, he could ultimately help provide the lasting structural integrity for Trump’s “invisible wall”.

Karnig Dukmajian is a US immigration attorney at Laura Devine Solicitors in London

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