Brett Kavanaugh and the Case of the Brazilian Gauchos

by Michael Kagan — Tuesday, July 24, 2018@MichaelGKagan

Because he sat on the D.C. Circuit, Supreme Court nominee Brett Kavanaugh did not decide many immigration cases. There are no immigration courts in the District of Columbia. As a result, petitions for review of orders of removal — the most common type of immigration appeal in the federal courts — do not reach his court. But a few immigration matters did come before Judge Kavanaugh. Judge Kavanaugh’s dissent in one of them, Fogo de Chao v. Department of Homeland Security (2014), suggests that he takes a restrictionist approach to interpreting immigration law. He also seems to have relied on assumptions about the impact of immigration on the American economy, without rigorously searching for an evidentiary foundation in the record. 

The Cultural Knowledge Problem

Fogo de Chao is a chain of Brazilian steakhouses. It sought to bring to the United States Brazilian chefs who had been raised in the gaucho tradition in the region of Brazil from which the restaurant takes its culinary inspiration. For this particular visa program, the statute required that a foreign worker possess “specialized knowledge.” Fogo argued, and the court eventually agreed, that “specialized knowledge” could be cultural knowledge, rather than skills learned in formal training or on the job. As the majority put it:

[A] critical component of its success has been the employment in each of its restaurants of genuine gaucho chefs, known as churrasqueiros, who have been raised and trained in the particular culinary and festive traditions of traditional barbecues in the Rio Grande do Sul area of Southern Brazil. …  only those native Brazilian churrasqueiros, who come with years of firsthand experience in the churrasco tradition and have survived Fogo de Chao’s own selection process, have proven capable of performing all of the culinary and service-related duties that Fogo de Chao requires of its churrasqueiro chefs.

Fogo explained that it did not only recruit chefs who had been raised in a particular cultural tradition. It also put the churrasqueiros through a 18 to 24-month training period in Brazil before sending them to  work in the United States. But the basic argument was that there are subtleties to gaucho cuisine that could not be easily taught to someone not brought up in the culture.  This is a fascinating proposition, touching on questions of authenticity and appropriation. In the District Court, one of Fogo’s experts argued that the restaurant sought a competitive advantage because

what [competitors] offered was clearly an imitation — an Americanized version — of a true Brazilian churrascaria experience. Competitors that employ less skilled, costumed employees playing the role of churrasqueiros or gauchos translates into a lack of real authenticity and a diminished expected total guest experience. … Simply put, what distinguishes Fogo de Chao from its competitors in the United States is the quality, experience and authenticity of its Brazilian churrasqueiro chefs.

The recognition of cultural knowledge as having unique economic value embraces the idea that new culture is an asset that immigrants bring to the country. There is a potential anti-elitist element to this as well, because it recognizes that information we learn from our parents and grandparents may be just as valuable as the skills we learn in a professional course of study.

But giving official recognition to cultural knowledge carries dangers. Can a restaurant acquire false authenticity by hiring workers from a certain ethnic group, regardless of whether they really possess any knowledge that cannot be easily taught to someone else? Would Brazilian steak really taste different if it was prepared and served by non-Brazilians? Even if some cultural knowledge is unique and hard to acquire, how can manageable limits be administered to prevent abuse? Would this be a backdoor to discrimination or labor exploitation?

Despite Fogo’s efforts to say that it only wanted to recruit Brazilians with a very specific type of experience and background, Judge Kavanaugh did not buy it. He ridiculed the  “so-called ‘cultural’ argument.” He criticized the possibility that “foreign citizenship and cultural background constitute specialized knowledge for purposes of working in an ethnic restaurant or bar.” He was clearly unconvinced that an American could not be taught to cook and serve just as well as any Brazilian gaucho. But there is a bit more to it than that. 

Restrictionism

To be clear, this is only one case, and it is a narrow, nuanced decision. Given the potential divisiveness of any discussion touching on immigration, substantial caution is required. In partisan terms, we should be clear that Judge Kavanaugh wanted to rule in favor of the Obama Administration, which had refused to issue the visas.  In critiquing his reasoning, I am not saying that Judge Kavanaugh indicated any strident anti-immigrant bias. He wrote:

The United States is a nation of immigrants. In our constitutional system, Congress and the President determine the circumstances under which foreign citizens may enter the country. The judicial task is far narrower: to apply the immigration statutes as written.

But there are aspects to Kavanaugh’s opinion that do indicate inclinations that are adverse to immigrants. Of course, the court’s job was “to apply the immigration statues as written.” But how to handle the ambiguities of this statute? That’s the real problem. 

For the majority, cultural knowledge can theoretically count as specialized knowledge because “nothing in the statute itself textually excludes all culturally acquired knowledge.” In other words, when Congress opens up a visa category, a court should not read into it a limitation that isn’t clearly in the statutory text. By contrast, Judge Kavanaugh thought this to be “an end-run around the carefully circumscribed specialized knowledge visa program.”  There is an important philosophical difference here. Should an ambiguous statute be interpreted in favor of inclusion or restriction? Kavanaugh took the restrictionist route. But was that what the statute required, or what Judge Kavanaugh preferred?

For those interested in statutory interpretation, the majority decision by Judge Millett made extensive use of dictionary definitions to understand what “specialized knowledge” might mean, and engaged in a lengthy comparative dissection of various phrases that Congress used in the statute. By contrast, Judge Kavanaugh showed relatively little engagement with the statutory text. He spent more time arguing that recognizing cultural knowledge for the purpose of sponsoring a foreign worker was a bad idea.  He might have had good reasons for his skepticism, but they appear to be mainly policy-based. Ultimately, he worried that cultural knowledge was just a loophole.  But even if he was right, doesn’t Congress often write statutes with loopholes? And didn’t Judge Kavanaugh say that judges should simply apply the statutes as Congress wrote them? Judge Kavanaugh has been labeled as a judge who takes text seriously. His Fogo dissent indicates that he may be less than consistent about his devotion to neutral textual analysis. 

Assumptions

The best defense of Judge Kavanaugh’s opinion is that he focused more on the evidentiary record in the specific case before him than on the statute. He made cogent and specific arguments from the record suggesting that it actually was possible for Fogo to train Americans to cook in the gaucho style. But thinking of Judge Kavanaugh’s dissent as a primarily fact-based analysis highlights a troubling aspect of it. He also made a sweeping negative judgment about the motives of a party to the case and about the effect of immigration on the economy generally. And he did this without any apparent evidentiary basis.  Judge Kavanaugh wrote:

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.

While he cited the administrative record throughout much of the rest of his opinion, Judge Kavanaugh gave no citation to evidence for this assertion. His bold assertion is especially striking because it  is not an argument that the government made in its brief. From the evidence discussed in the majority decision and in the briefs, it seems plausible that Fogo’s elaborate employment scheme actually may have raised its labor costs. More generally, the premise that immigrants depress the wages of American workers is a contested claim; it is debated at the macroeconomic level and will often be demonstrably wrong at the microeconomic level. It’s not something that a judge should assume is “undoubtedly” true. 

Fogo is just one decision, which presented a narrow statutory question. It also presented a fairly unusual, intellectually provocative problem. All of which means it could be unique. Moreover, Judge Kavanaugh’s bottom line judgment is perfectly defensible. The cultural knowledge concept is interesting and appealing in some important ways, but fraught. Reasonable people can and should disagree about it. But the way Judge Kavanaugh reached his conclusion displays some important methodological weaknesses. Judge Kavanaugh seemed to tip his hand about his private view of immigration policy: He thinks immigration is bad for wages. This personal view would explain why he took a restrictionist approach to interpreting an immigration statute.   But by his own account, it wasn’t his job to act on his personal opinions. This opinion by Judge Kavanaugh should worry those who want judges who apply rigorous, neutral analysis rooted in text and the evidentiary record, not their own policy preferences and assumptions. 

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