Notable opinions by high court nominee Ketanji Brown Jackson

Ketanji Brown Jackson, President Joe Biden’s nominee for the U.S. Supreme Court, worked for seven years as a judge on the federal trial court in Washington, D.C., before Biden appointed her to the appeals court that meets in the same courthouse. Senate hearings on her nomination began Monday.

Following are excerpts from some of Jackson’s notable opinions:

Presidential power

In 2019, Jackson ruled on a dispute between Democrats who control the U.S. House of Representatives and the Trump administration over lawmakers’ efforts to subpoena former White House counsel Don McGahn to testify to Congress. The Democrats wanted to question McGahn about former President Donald Trump’s alleged efforts to obstruct special counsel Robert Mueller’s investigation of Russian interference in the 2016 election.

Trump claimed that his close advisers, including McGahn, were completely shielded from having to appear before Congress. The argument was grounded in the contested notion that a president must be able to get frank advice from trusted advisers without fear that what was said would become public.

Jackson rejected the argument in a 120-page opinion in November 2019 in which she declared that “Presidents are not kings” and that for a president’s top aides, “absolute immunity from compelled congressional process simply does not exist.”

In siding with House Democrats, Jackson wrote, “This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States.”

The claim that Trump could completely forbid his senior advisers from testifying “is a proposition that cannot be squared with core constitutional values, and for this reason alone, it cannot be sustained.”

The administration appealed, and the case bounced around the U.S. Court of Appeals for the District of Columbia Circuit through the end of Trump’s presidency. Since then, the House and lawyers for McGahn reached an agreement under which McGahn answered questions in a closed-door session.

Immigration

In 2019, Jackson temporarily blocked the Trump administration’s plan to expand fast-track deportations of people in the country illegally, no matter where they are arrested. The fast-tracked deportations had previously been largely limited to people arrested almost immediately after crossing the Mexican border.

Jackson’s ruling turned on whether the administration complied with the Administrative Procedure Act, a federal law aimed at forcing the executive branch to make reasoned, well-explained decisions when it adopts new policies.

Jackson wrote that she was bothered by the seeming failure of the Homeland Security Department to take account of how the lives of people who have lived in the U.S. for up to two years, and their families, would be affected by the expanded deportation policy.

“There is no question in this Court’s mind that an agency cannot possibly conduct reasoned, non-arbitrary decision making concerning policies that might impact real people and not take such real life circumstances into account,” she wrote.

But the D.C. Circuit overruled Jackson, holding that Congress gave the Homeland Security secretary ample discretion to expand the speeded-up deportations without having to comply with the Administrative Procedure Act.

In a 2019 opinion in a case over Trump’s extensive efforts to expand the wall on the nation’s border with Mexico, Jackson rejected environmental groups’ arguments that the administration had improperly ignored environmental and other laws before authorizing the construction of new barriers.

“This Court finds that Congress has spoken in no uncertain terms about the limits of judicial review when it comes to legal claims that challenge on non-constitutional grounds the DHS Secretary’s authority to waive otherwise-applicable legal requirements with respect to the construction of border barriers,” she wrote, citing a major immigration overhaul in 1996. Jackson wrote she also was bound to turn away constitutional challenges to the waiver because of an earlier district court opinion about the same provision of immigration law.

Unions

In her first opinion on the appeals court, Jackson sided with public sector labor unions who challenged a Trump-era rule that made it easier for government agencies to impose workplace changes.

In 2020, the Federal Labor Relations Authority changed a rule that had been in place since the 1980s that required collective bargaining over changes to working conditions that had more than a minimal effect on employees. The FLRA voted to require negotiations with unions only for changes that had a “substantial impact.”

Siding with the unions, Jackson wrote for a unanimous three-judge panel. “The cursory policy statement that the FLRA issued to justify its choice to abandon thirty-five years of precedent promoting and applying the de minimis standard and to adopt the previously rejected substantial-impact test is arbitrary and capricious,” she wrote at the end of an 18-page opinion.

The appeals court that Jackson joined last year often deals with lawsuits like the one organized labor filed in this case.

In a 2018 case also involving unions representing government workers, Jackson ruled against executive orders issued by Trump that the unions complained would weaken their negotiating position in violation of federal law.

Jackson wrote that “it is undisputed that no such orders can operate to eviscerate the right to bargain collectively as envisioned in” federal labor law.

“Viewed collectively,” she wrote, “the challenged executive orders reflect a decidedly different policy choice; namely, the President’s stated view that federal employees’ right to engage in collective bargaining over the conditions of their employment” makes government less efficient and “should be rendered subordinate to the agencies’ interest ‘in developing efficient, effective, and cost-reducing collective bargaining agreements.'”

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