‘America First’ SCOTUS Choice: Judge Brett Kavanaugh Applies Trump’s Economic Patriotism to the Law

Judge Kavanaugh
Dennis Cook/AP

Judge Brett Kavanaugh, in the running to replace Justice Anthony Kennedy, appears to share President Trump’s views on immigration and protecting the American worker.

In two dissenting opinions and one concurring opinion for the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh sided with American citizens and U.S. industry over illegal aliens and foreign competitors — opinions that align to Trump’s “America First” approach to the U.S. economy, immigration, worker protections, and trade.


Kavanaugh: Illegal aliens are not lawful employees in the United States

In 2007, Agri Processor Co. — a wholesaler for kosher meats in Brooklyn, New York — argued that they did not have to bargain with the United Food and Commercial Workers union that their workers had voted to join because the majority were illegal aliens, and thus their votes were invalid.

That’s when the union filed complaints of unfair labor practices against the meat wholesaler with the National Labor Relations Board.

The case explains:

In a hearing before an administrative law judge, the company claimed that after the election it put the Social Security numbers given by all the voting employees into the Social Security Administration’s online database and discovered that most of the numbers were either nonexistent or belonged to other people.

Based on this evidence, the company alleged that most of the workers who had voted in the election were aliens unauthorized to work in the United States. Arguing that undocumented workers do not count as “employees” protected by the [National Labor Relations Act] (NRLA), the company claimed the election was invalid.

The company also asserted that undocumented aliens may not belong to the same bargaining unit as legal workers, rendering improper the bargaining unit created by the Board.

Though the majority opinion sided with the illegal alien workers, Kavanaugh wrote the dissenting opinion, arguing that illegal aliens do not have the same bargaining rights as American citizens and legal workers.

“… an illegal immigrant worker is not an ’employee’ under the NLRA for the simple reason that, ever since 1986, an illegal immigrant worker is not a lawful ’employee’ in the United States,” Kavanaugh wrote in his dissenting opinion.


Kavanaugh: Corporations don’t have a right to import foreign workers

In 2014, the restaurant Fogo de Chao argued that they should be allowed to import chefs from Brazil on L-1B visas, which are supposed to be for immigrants holding “specialized knowledge” that cannot otherwise be found in the United States.

When the Department of Homeland Security (DHS) blocked Fogo de Chao from importing a Brazillian chef on the L-1B visa rather than hiring an American chef, the D.C. District Court ruled in favor of Fogo de Chao.

Kavanaugh, though, wrote the dissenting opinion, noting that U.S. multinational corporations do not have the right to import foreign workers that they perceive to be better at a particular job than Americans.

Kavanaugh wrote in a scathing dissenting opinion:

Ultimately, Fogo de Chao’s argument is that American chefs either can’t learn to cook or won’t cook Brazilian steaks… But the “Americans can’t learn to cook” proposition is a factually unsupported stereotype that finds no home in the specialized knowledge visa program. And the “Americans won’t cook” proposition in the end is just an economic argument.

Like other restaurants, Fogo de Chao must compete in the chef market by offering better wages or benefits to attract quality chefs. Fogo de Chao undoubtedly would save money if it could simply import experienced Brazilian chefs rather than hiring and training only American chefs to cook at its steakhouses here in the United States.

And at bottom, that seems to be at least part of what is going on in this case – namely, Fogo’s desire to cut labor costs masquerading as specialized knowledge. But under the provision of the immigration laws at issue here, mere economic expediency does not authorize an employer to displace American workers for foreign workers.


Kavanaugh: U.S. has a historical interest in supporting American industry

In 2014, Kavanaugh wrote a concurring opinion, siding with American industry over foreign competitors when it comes to the mandate that products must be marked with “country of origin” labels for consumers.

“May the U.S. Government require an imported Chinese-made product to be labeled ‘Made in China’? For many readers, the question probably answers itself: Yes,” Kavanaugh wrote in his concurring opinion.

Kavanaugh concluded in his opinion that Congress has an interest in protecting American industry from foreign competition and thus country of origin labels serve the interests of Americans. Kavanaugh wrote:

… country-of-origin labeling is justified by the Government’s historically rooted interest in supporting American manufacturers, farmers, and ranchers as they compete with foreign manufacturers, farmers, and ranchers. Since the early days of the Republic, numerous U.S. laws have sought to further that interest, sometimes overtly and sometimes subtly.

Kavanaugh continued:

Although economists debate whether various kinds of protectionist legislation help U.S. consumers and the overall U.S. economy, there is no doubt that Congress has long sought to support and promote various U.S. industries against their foreign competition. How is that interest implicated by country-of-origin labeling?

Country-of-origin labeling, it is widely understood, causes many American consumers (for a variety of reasons) to buy a higher percentage of American made products, which in turn helps American manufacturers, farmers, and ranchers as compared to foreign manufacturers, farmers, and ranchers. That is why Congress has long mandated country-of-origin disclosures for certain products.

Trump is expected to announce his final decision on who he will choose to fill Kennedy’s role on the Supreme Court on July 9, as Breitbart News’s Legal Editor Ken Klukowski reported.

John Binder is a reporter for Breitbart News. Follow him on Twitter at @JxhnBinder


Please let us know if you're having issues with commenting.