Kavanaugh Could Stymie Trump’s Immigration Policies

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By Laura D. Francis

President Donald Trump’s nomination of Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the U.S. Supreme Court isn’t necessarily a guaranteed win for the president’s immigration policies.

The Trump administration already is facing a host of lawsuits on a variety of immigration issues: ending the Deferred Action for Childhood Arrivals program and temporary protected status, state and local “sanctuary” policies on whether to cooperate with federal immigration enforcement, and some challenges to limits on business visas.

Kavanaugh hasn’t addressed many immigration cases while on the U.S. Court of Appeals for the District of Columbia Circuit. But he’s likely to face at least some if confirmed to replace Kennedy.

“We’re going to see a lot more business immigration litigation because of the unreasonably restrictive decisions” from U.S. Citizenship and Immigration Services, David Leopold of Ulmer & Berne in Cleveland, Ohio, told Bloomberg Law July 10.

Some of those cases may make their way up to the Supreme Court.

‘Question Mark’ on Immigration

But “the conservative tilt to the court becomes a big question mark when it comes to immigration” because many of the cases involve a “strict” interpretation of the Immigration and Nationality Act, he said. That means conservative justices could go against the Trump administration’s interpretations of the INA, he said.

The Supreme Court “has given Congress plenary authority to write the immigration law,” said Leopold, a past president and past general counsel of the American Immigration Lawyers Association. So it’s possible that Kavanaugh and the other justices will “hold the Trump administration to the letter of the law” when it comes to the INA’s provisions on employment visas, he said.

Kavanaugh is “very much a careful jurist who looks at the statute and looks at the regulation and tries to determine whether the executive branch’s regulation is consistent with the statute,” said Kevin R. Johnson, dean of the University of California, Davis, School of Law.

“He’s going to call it as he sees it,” Johnson told Bloomberg Law July 10. “I don’t think he’s going to allow the executive branch to go beyond what he views as the requirements of the statute,” he said.

The Immigration and Nationality Act “is clear on what constitutes a specialty occupation,” the type of job covered by the H-1B guestworker visa, Leopold said. Instead of following that law, the administration is “making it up as they go along,” he said.

“Brett Kavanaugh is a superb choice to fill the current vacancy in the U.S. Supreme Court,” Federation for American Immigration Reform President Dan Stein said in a July 10 statement. “President Trump should be commended for choosing a candidate who clearly understands the nation’s patchwork of immigration laws and how they are intended to protect both American workers and the overarching national interest,” he said.

FAIR advocates for lower immigration levels.

Pro-DACA?

“With important immigration-related decisions heading to the Supreme Court—including the challenge to the Obama-era Deferred Action for Childhood Arrivals (DACA)—Judge Kavanaugh will provide expert insight into the legality of the program and the ability of future administrations to circumvent Congress and create tailored amnesty programs for large groups of illegal aliens,” Stein said.

But Kavanaugh’s views of the executive’s authority may in fact result in a ruling in favor of DACA.

In a 2013 decision involving nuclear waste storage, Kavanaugh took an expansive view of the president’s power not to enforce the law.

The president “possesses a significant degree of prosecutorial discretion not to take enforcement actions against violators of a federal law,” he wrote. In fact, because of separation of powers concerns, “Congress may not mandate that the President prosecute a certain kind of offense or offender,” Kavanaugh said.

Johnson said it’s “very hard to tell” how Kavanaugh would rule on the DACA issues. Considering that the Supreme Court tied 4-4 when it considered the challenge to the Deferred Action for Parents of Americans and Lawful Permanent Residents program, Kavanaugh could very well be the swing vote one way or another, he said.

“The first question that comes to mind is where is he going to be on prosecutorial discretion,” Leopold said. Kavanaugh’s viewpoint in this area doesn’t just affect DACA, it “affects business immigration as well,” he said.

‘Tremendous Discretion’

The Immigration and Nationality Act gives “tremendous discretion to the executive,” Leopold said.

That was the view of the sitting justices in the recent case involving the president’s travel ban, which turned on the president’s authority under the INA to block the entry of certain immigrants.

“The court has a long history of deferring to the executive” when “it comes to national security,” Leopold said. It’s possible that the justices may rule differently on immigration law questions involving employment, he said.

Johnson agreed, especially when it comes to Kavanaugh. “He might be more deferential to the executive” in a case involving national security than in a “run-of-the-mill” immigration case, Johnson said.

Leopold said he thinks “the real challenge for the justices” is “to set aside their political opinions and not to permit politics into the courtroom.”

“The hope is we have intellectual honesty,” he said.

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