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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. Arizona Republican Senator

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Speaker 1: Jeff Flake spoke in support of Supreme Court nominee Brett

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Speaker 1: Kavanaugh yesterday. When you've been UH Circuit Court judge for

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Speaker 1: twelve years, you're gonna have a long paper trail. Will

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Speaker 1: just take him a long time to get all the

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Speaker 1: papers together. But nothing stands out as an obstacle right now.

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Speaker 1: He's a solid pick. Join me as William Buzby, a

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Speaker 1: professor at Georgetown University Law Center, Bill. One of the

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Speaker 1: things that's been mentioned prominently about kavanaughs that he's an

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Speaker 1: opponent of government regulation. He voted to strike down rules

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Speaker 1: issued by the Environmental Protection Agency under Barack Obama. Tell

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Speaker 1: us about his record on that. Yes, you're correct, which

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Speaker 1: is uh just having a very smart person from all indications,

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Speaker 1: a charming person when it comes to his kind of

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Speaker 1: substantive leanings in his rulings on the Appellate Court here

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Speaker 1: at the Federal Appellate Court here in Washington. He has

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Speaker 1: in quite a few big cases found a way, one

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Speaker 1: way or the other to hold that E p A

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Speaker 1: in particular lacked authority that it had claimed. So does

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Speaker 1: he usually side with business interests? Um? He doesn't usually

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Speaker 1: focus that much on the kind of business versus environmental interest.

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Speaker 1: He tends more often to focus on agencies versus Congress

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Speaker 1: or agencies and maybe versus the president. Um. But in

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Speaker 1: his outcomes, I would say that he has, in general, um,

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Speaker 1: you know, found that agencies do not have broad power

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Speaker 1: that you need to have Congress clearly handing power to agencies,

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Speaker 1: and that tends to result in reduced agency power, which

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Speaker 1: will often but not always, mean little less in a

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Speaker 1: way of regulatory burdens on business. But I should say

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Speaker 1: it's not always that way. That there's a very recent

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Speaker 1: decision he issued that has upset a multibillion dollar industry

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Speaker 1: where industry groups are hoping the Supreme Court where Oval

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Speaker 1: rule his ruling. So, how might his being the successor

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Speaker 1: to Justice Kennedy affect a court that's already pro business

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Speaker 1: and where Kennedy ruled pretty consistently in favor of corporate

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Speaker 1: over consumer interests. UM. Justice Kennedy was certainly a quite

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Speaker 1: conservative justice. I would say he generally voted in ways

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Speaker 1: you'd expect for a conservative and judge, sometimes skeptical of government,

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Speaker 1: often very solicitous of the interests of business. But he

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Speaker 1: also was persuadable and in a handful of the most

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Speaker 1: important environmental decisions of recent decades, Justice Kennedy was willing

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Speaker 1: to protect people's ability to sue polluters or sue the government.

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Speaker 1: He supported the idea that the federal government could regulate

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Speaker 1: climate change. UM. These were He issued a very important

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Speaker 1: ruling about what sorts of waters are federally protectable, and

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Speaker 1: so Justice Kennedy in the end, he really was a

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Speaker 1: swing vote on some of the big regulatory issues. Judge Kavanaugh,

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Speaker 1: when on the Court of Appeals, has been i would say,

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Speaker 1: quite a bit more solidly skeptical about agency regulatory power.

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Speaker 1: So let's turn to Kavanaugh's view of presidential powers, which

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Speaker 1: is coming under a lot of scrutiny. Opponents are pointing to,

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Speaker 1: in particular to a law Review article where he wrote,

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Speaker 1: I believe that the president should be excused from some

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Speaker 1: of the burdens of ordinary citizen ship while serving in office,

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Speaker 1: and we should not burden a sitting president with civil suits,

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Speaker 1: criminal investigations, or criminal prosecutions. Legal experts are looking at

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Speaker 1: this in different ways. How do you view it? Um, Well, first,

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Speaker 1: it's a law review article, so obviously in the end

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Speaker 1: it is not itself a statement of the law. In

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Speaker 1: that statement, he's pretty clearly talking about that maybe Congress

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Speaker 1: should pass a law, or maybe even he'd be talking

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Speaker 1: about an amendment to the Constitution that might give a

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Speaker 1: president greater protections. In that language, he was not saying

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Speaker 1: that he thought right now. Um, at least as I've

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Speaker 1: looked at it, it didn't appear you was saying that

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Speaker 1: right now the president is beyond legal process. There actually

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Speaker 1: have been several major cases going back to President Clinton

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Speaker 1: and President Nixon in particular, that in broad language have

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Speaker 1: said presidents are subject to um courts oversight and they

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Speaker 1: are subject to being sued. And so I view that

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Speaker 1: his statement is maybe how he thought the law should go,

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Speaker 1: maybe if Congress changed it, or again if there were

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Speaker 1: a constitutional shift. Um. What about his view of presidential

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Speaker 1: power as expressed in his opinions over the last decade,

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Speaker 1: do you see a peer in there. You know that

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Speaker 1: that I'm I'm looking at and others are as well.

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Speaker 1: The the court he sits on has a very heavy docket,

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Speaker 1: that is a high percentage of the cases involved regulations.

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Speaker 1: That it's the main court where if an agency issue

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Speaker 1: is a big regulation, it is challenged. And so the

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Speaker 1: cases have much more often dealt with issues of agency

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Speaker 1: power and less often dealt with just the overall extent

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Speaker 1: of a president's power. So I'm not as clear on that, um,

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Speaker 1: You know, I would say this he's he does talk

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Speaker 1: a lot about separation of powers. He um. He is

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Speaker 1: believe it's important for Congress to do what Congress does

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Speaker 1: and agencies to do what they do, and for courts.

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Speaker 1: He clearly thinks there should be pretty robust assertion of

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Speaker 1: the court's function, um. And so how that would play

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Speaker 1: out is a little hard to tell. So I'm I

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Speaker 1: and others are digging into this and have not seen

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Speaker 1: what I view as any clear bellweather cases indicating his

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Speaker 1: general views on presidential power. This is tough to do.

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Speaker 1: We have only a minute left, but so give me

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Speaker 1: your your impression of what the biggest change on the

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Speaker 1: court would be if he is actually succeeds just as Kennedy. Well,

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Speaker 1: I'd say the big difference is it's just voting patterns

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Speaker 1: that he is a he would be, I believe, a

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Speaker 1: much more steady, very conservative justice, he would argue. I mean,

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Speaker 1: I'm sorry. He would most likely vote in a way

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Speaker 1: very much aligned with what conservative groups have been pushing

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Speaker 1: on the court. Um So I think where's Kennedy thought

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Speaker 1: a lot about dignity and fairness and believed in environmental protection,

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Speaker 1: and that swayed him. I don't think we yet know

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Speaker 1: if Kavanaugh will look out for the little person we

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Speaker 1: have to live. We have to leave it there. We'll

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Speaker 1: have you on again to talk more about Kavanaugh. That's

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Speaker 1: William Buzzby, professor at Georgetown University Law Center. The Trump

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Speaker 1: administration missed the court order deadline to reunite all onwo

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Speaker 1: migrant children under the age of five who were separated

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Speaker 1: from their parents. President Trump gave his solution for the

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Speaker 1: immigration problem as he boarded Marine one yesterday. Tell people

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Speaker 1: not to come to our country illegally. That's the solution.

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Speaker 1: Don't come to our country illegally. Come like other people do,

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Speaker 1: come illegally. Joining me is David Beer immigration policy analyst

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Speaker 1: at the Cato Institute, and David Trump also tweeted just

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Speaker 1: a few moments ago that Democrats in Congress must no

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Speaker 1: longer obstruct vote to fix our terrible immigration laws. Now

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Speaker 1: I'm watching what is going on from Europe. It would

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Speaker 1: be so simple to fix. Judges run the system, and

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Speaker 1: illegals and traffickers know how it works. They are just

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Speaker 1: using children. So first, let me get your opinion on

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Speaker 1: how easy it would be to fix. Well, it would

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Speaker 1: be pretty easy to fix. Actually, we need to make

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Speaker 1: legal immigration far easier than it is right now. If

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Speaker 1: you want people to come to this country and follow

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Speaker 1: the laws, make those laws sensible and reasonable. Don't make

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Speaker 1: them wait twenty years like people have to do in

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Speaker 1: order to immigrate to this country for uh, family sponsorship

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Speaker 1: and and other reasons. And that is the exact opposite

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Speaker 1: of the approach that President Trump and his administration and

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Speaker 1: his allies and Congress are advocating right now. Bills that

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Speaker 1: have come up for a vote, all of them have

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Speaker 1: cut legal immigration, made it more difficult for people to

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Speaker 1: come to this country legally. And if you want to

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Speaker 1: get rid of the legal immigration, the easiest thing and

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Speaker 1: the best thing to do would be to make it

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Speaker 1: easier for people to come by following laws. Let's turn

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Speaker 1: now to what has captured so much attention, which is

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Speaker 1: the young children who have been separated from their families.

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Speaker 1: Lawyers for the Justice Department told federal Judge Danas Sabra

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Speaker 1: yesterday that only thirty eight of the one younger children

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Speaker 1: would be reunited with their parents by Tuesday, which was

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Speaker 1: the deadline. With all the resources of the federal government

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Speaker 1: at their disposal, why aren't they able to bring just

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Speaker 1: a hundred two children back to their parents. Well, they

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Speaker 1: have a litany of excuses. They say they're working through

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Speaker 1: verifying that these parents are really connected to these children.

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Speaker 1: And that's partly because they had no mechanism in place

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Speaker 1: to track children who were separated from their parents, so

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Speaker 1: they had to work backwards through the process trying to

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Speaker 1: figure out which children are supposed to be with which parents.

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Speaker 1: And that's really a shocking discovery that, you know, astounded

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Speaker 1: the court to such an extent that the judge in

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Speaker 1: the case pointed it out that this is this is

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Speaker 1: actually more uh less rigorous process of tracking than they

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Speaker 1: have in place for property that is being taken away.

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Speaker 1: From migrants who come to the border. They actually have

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Speaker 1: a system in place for tracking property, but not for

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Speaker 1: children being separated from their parents. So it's hard to

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Speaker 1: imagine that judge. The judge refused to extend the next deadline.

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Speaker 1: Almost three thousand older kids have to be returned to

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Speaker 1: their parents by July. That's fifteen days. How likely is that?

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Speaker 1: And and really, what is the penalty the punishment for

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Speaker 1: the government here if it says once again that logistics

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Speaker 1: made it impossible to comply, etcetera, etcetera. Is there any deterrent?

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Speaker 1: It doesn't appear that there's any penalty that's going to

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Speaker 1: be imposed by this judge. I imagine that unless it

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Speaker 1: becomes obvious that the administration is um, you know, just

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Speaker 1: intentionally flouting this requirements, that she will not impose any

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Speaker 1: kind of contempt order, which would really be what was

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Speaker 1: necessary to get them to act um expeditiously. Are they

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Speaker 1: effectively returning to the catch and release policy that Trump

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Speaker 1: criticized the Obama administration for over and over again during

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Speaker 1: the campaign and promised to eliminate. Oh yes, absolutely they are.

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Speaker 1: They're releasing these families, uh with ankle bracelets, and they're

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Speaker 1: going to monitor them electronically. This is what should have

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Speaker 1: been happening this whole time, and what the administration repeatedly said,

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Speaker 1: They couldn't do this. It was illegal, they were following

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Speaker 1: the law. They had to separate these children. All these

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Speaker 1: defenses that we've heard are now laid bare as the

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Speaker 1: falsehoods that they were at the time. UH. They can

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Speaker 1: do this, They can monitor people, they can require them

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Speaker 1: to appear in court and track them through electronic means,

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Speaker 1: and so there was never any reason for this entire

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Speaker 1: episode to ever have taken place. So, David, what's happening

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Speaker 1: now at the border as far as Trump's zero tolerance

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Speaker 1: immigration policy, what's going on to new new people that

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Speaker 1: come with their children to the border. Well, the official

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Speaker 1: policy from the administration is we are not referring um

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Speaker 1: parents with children to UH for prosecution unless there is

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Speaker 1: a parent available to take care of that child. But

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Speaker 1: otherwise they are attempting to prosecute everyone that comes to

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Speaker 1: the border illegally. So, Democratic Senator Diane Feinstein and Republican

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Speaker 1: Senator Tom Chillis both said that bipartisan negotiators are making

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Speaker 1: progress on a bill designed to keep undocumented immigrant families

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Speaker 1: together at the border while their claims of immigration are

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Speaker 1: are being considered. Is there is there hope for that bill?

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Speaker 1: I would be very surprised at this point, UH if

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Speaker 1: legislation came out of Congress, especially given how divided people

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Speaker 1: are in this issue. UM. Some members of Congress in

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Speaker 1: the Republican side think that the family separation policy was

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Speaker 1: great and it should have been continued and was in

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Speaker 1: fact even required by the law, and do not want

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Speaker 1: to see any kind of middle ground approach to this.

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Speaker 1: And then you have members on the Democratic side who

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Speaker 1: are actually happy with the status quo. They you know,

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Speaker 1: the administration is now releasing these UH families pending their

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Speaker 1: court date, and you know that's the policy that they

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Speaker 1: would favor. So there's no reason for the sides to

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Speaker 1: come together on this and and come to a legislative resolution.

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Speaker 1: So David, about a minute here forget about whether the

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Speaker 1: zero tolerance policy is right or wrong. Is it slowing

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Speaker 1: down immigration to the border. No? Uh, You know, we

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Speaker 1: actually have now two months of experiment with the policy

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Speaker 1: and May and June, and the numbers from the administration

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Speaker 1: show that there was no change. There were about ten

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Speaker 1: thousand UH families who came to the border in both

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Speaker 1: May and June, and that was the same level as

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Speaker 1: in the prior months in April and March, when this

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Speaker 1: policy was not in effect, and so that's pretty good

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Speaker 1: evidence that it's not having the tough turn effect that

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Speaker 1: was championed by all Right, I have to stop you there, David.

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Speaker 1: Always a pleasure to have you on. That's David Beer,

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Speaker 1: immigration policy analyst at the Cato Institute. Thanks for listening

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Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen

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Speaker 1: to the show on Apple podcast, SoundCloud, and on Bloomberg

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Speaker 1: dot com slash podcast. I'm June Basso. This is Bloomberg