This week’s Supreme Court hearings on the nomination of Brett Kavanaugh to the Supreme Court offer some insight into his views on immigration. One case, Agri Processor Co. Inc. v. National Labor Relations Board (Agri Processor), was focused on by Democrats questioning Kavanaugh. That case concerned the right of undocumented immigrants to join a labor union.
In Agri Processor, the federal district court for the District of Columbia ruled that if a company employed undocumented immigrants, it could not claim that they were not employees for purposes of union recognition. Agri Processor, a slaughterhouse, tried to evade the federal labor laws by arguing that the immigrant workers it had employed for years could not be “employees” under the law because they were undocumented. Judge Kavanaugh was the only judge on the panel who agreed with the company.
Under established precedent, workers can be part of a union as long as they meet certain criteria. One reason this rule exists is because the employer chooses who its employees are, not the union. A company could undermine unionization simply by hiring undocumented workers if undocumented workers could not join the union.
The court majority cited precedent in defining the criteria for determining whether specific workers could join a union with other employees. According to existing case law, those factors were “the similarity of wages, benefits, skills, duties, working conditions, and supervision of the employee.” In the Agri Processor case, the majority ruled that “With regard to each of these factors, undocumented workers and legal workers in a bargaining unit are identical. While undocumented aliens may face penalties for violating immigration laws, they receive the same wages and benefits as legal workers, face the same working conditions, answer to the same supervisors, and possess the same skills and duties.”
Kavanaugh dissented, writing “I would hold that an illegal immigrant worker is not an ‘employee’” and he insisted that the union election at Agri Processor that led to the recognition of the union was thereby “tainted.” Kavanaugh said that he was protecting the rights of the “legal workers, whose votes may have been diluted or overridden in the union election by the votes of illegal immigrant workers.”
Apart from Kavanaugh’s departure from precedent, the language of the judge’s dissent indicates his hostility to the workers in question. While the majority refers to them as “undocumented immigrants,” Kavanaugh never passes up a chance to call them “illegal immigrants” or “illegal immigrant workers.” In one passage, he says that “the workers were illegal.”
In questioning Kavanaugh Wednesday about this case, Senator Dick Durbin said,“The fact that you were a dissenter and everyone else saw it the other way should give us pause when you say you only follow precedent.”
Durbin pointed out that the “plain meaning” of the statute that Agri Processor was decided under included undocumented workers within its protections. He criticized Kavanaugh’s claim that, as a judge, he only followed the laws as they were written, saying that while Kavanaugh claimed “over and over again to be a textualist to be carefully weighing every word of a statute,” he had departed from the text of the law in his dissent. Durbin concluded ominously that Kavanaugh “bent over backwards to take the company’s side against these workers.”