Kavanaugh Rejects Sen. Durbin’s Claim that Illegal Immigrants Can Form Unions

AP Photo/Andrew Harnik

Democratic Sen. Dick Durbin argued that illegal immigrants can join unions, and suggested that a 2008 decision by Judge Brett Kavanaugh shows he is hostile to “immigrants.”

Kavanaugh countered by arguing that his 2008 dissent complied with the Supreme Court’s Sure-Tan decision in 1984.

In the 2008 case, two other judges outvoted Kavanaugh and said the 1984 Sure-Tan decision allowed illegal migrants to join unions.

But Kavanaugh noted that the Sure-Tan decision had said illegals could join unions because Congress had not previously barred the employment of illegal immigrants. So once Congress passed a law in 1986 barring the employment of illegal aliens, the Sure-Tan decision also ensured illegals were not allowed to join unions, said Kavanaugh.

Durbin began his criticism by describing illegal migrants as legal “immigrants,” then suggested that the 11 million illegal migrants in the United States are protected by federal labor law and can join unions — regardless of their wage-lowering impact on American workers, especially on meatpackers.

“My dirtiest job I ever had was four summers working in a slaughterhouse,” Durbin began.

It was unbearable. It was dirty. It was hot. The things I did were unimaginable and I would not even start to repeat them … At least a third of the workers, Judge Kavanaugh, in our nation’s slaughterhouses are immigrants  … You’re going to find a lot of immigrants doing these miserable, dirty, stinking, hot jobs. Many of them are undocumented. The work is low paid and dangerous.

Durbin continued:

Then came a case before you called Agriprocessors vs. NLRB … You bent over backwards to take the company’s side against these workers … Your dissent argued that this company’s workers should be prohibited from unionizing because they did not fit your definition of an employee … You ignored the plain language of the [National Labor Relations Act] statute.

“The Supreme Court precedent compelled me to reach the results that I reached,” Kavanaugh responded, citing the details in the Court’s prior Sure-Tan v. NLRB (1984) decision. 

The Court’s Sure-Tan decision says:

A primary purpose in restricting immigration is to preserve jobs for American workers; immigrant aliens are therefore admitted to work in this country only if they “will not adversely affect the wages and working conditions of the workers in the United States similarly employed … Application of the NLRA [National Labor Relations Act] helps to assure that the wages and employment conditions of lawful residents are not adversely affected by the competition of illegal alien employees who are not subject to the standard terms of employment. If an employer realizes that there will be no advantage under the NLRA in preferring illegal aliens to legal resident workers, any incentive to hire such illegal aliens is correspondingly lessened. In turn, if the demand for undocumented aliens declines, there may then be fewer incentives for aliens themselves to [467 U.S. 883, 894]  enter in violation of the federal immigration laws.

Kavanaugh’s subsequent dissent says:

Applying the Sure-Tan analysis, I would hold that 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.

Durbin’s suggestion that illegals should be allowed into unions comes as immigration curbs set by President Donald Trump are forcing meatpacking companies to raise employees’ wages.

Breitbart reported:

Fresh Mark, a meat processor in Salem, Ohio, was raided by ICE and had nearly 150 of their employees arrested on suspicion of being illegal aliens. A total of 13 illegal aliens arrested in the raid have already been federally charged with using fake identities.

Since the raid, Fresh Mark has posted job listings where they seem to offer higher wages and signing bonuses for willing workers. The average wage of production workers at the company is typically $9.69. Now, Fresh Mark is hiring 15 production workers at a starting wage of up to $10.80 for workers who have an array of qualifications.

Likewise, an assembly line position at Fresh Mark paid on average about $9.87 an hour. Now, the meatpacking plant is looking for assembly workers at a $10.50 hourly wage with an additional 50 cent bonus after six months of employment.

Each year, four million young Americans enter the workforce — and the government imports 1 million legal immigrants, replenishes the population of roughly 1.5 million white-collar guest workers, and does little to repatriate the resident population of roughly 8 million illegal immigrants.

Overall, the Washington-imposed economic policy of economic growth via immigration shifts wealth from young people towards older people by flooding the market with cheap foreign labor.

That process spikes profits and Wall Street values by cutting salaries for manual and skilled labor offered by blue-collar and white-collar employees. The policy also drives up real estate priceswidens wealth-gaps, reduces high-tech investment, increases state and local tax burdens, hurts kids’ schools and college education, pushes Americans away from high-tech careers, and sidelines at least 5 million marginalized Americans and their families, including many who are now struggling with opioid addictions. Immigration also pulls investment and wealth away from heartland states because investment flows towards the large immigrant populations living in the coastal states.



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