WEBVTT - Kavanaugh Data Excavation Begins Ahead of Confirmations

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com slash podcasts. Arizona Republican Senator

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<v Speaker 1>Jeff Flake spoke in support of Supreme Court nominee Brett

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<v Speaker 1>Kavanaugh yesterday. When you've been UH Circuit Court judge for

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

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<v Speaker 1>just take him a long time to get all the

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<v Speaker 1>papers together. But nothing stands out as an obstacle right now.

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<v Speaker 1>He's a solid pick. Join me as William Buzby, a

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<v Speaker 1>professor at Georgetown University Law Center, Bill. One of the

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<v Speaker 1>things that's been mentioned prominently about kavanaughs that he's an

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<v Speaker 1>opponent of government regulation. He voted to strike down rules

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<v Speaker 1>issued by the Environmental Protection Agency under Barack Obama. Tell

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

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<v Speaker 1>is uh just having a very smart person from all indications,

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<v Speaker 1>a charming person when it comes to his kind of

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<v Speaker 1>substantive leanings in his rulings on the Appellate Court here

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<v Speaker 1>at the Federal Appellate Court here in Washington. He has

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<v Speaker 1>in quite a few big cases found a way, one

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<v Speaker 1>way or the other to hold that E p A

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<v Speaker 1>in particular lacked authority that it had claimed. So does

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<v Speaker 1>he usually side with business interests? Um? He doesn't usually

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<v Speaker 1>focus that much on the kind of business versus environmental interest.

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<v Speaker 1>He tends more often to focus on agencies versus Congress

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<v Speaker 1>or agencies and maybe versus the president. Um. But in

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<v Speaker 1>his outcomes, I would say that he has, in general, um,

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<v Speaker 1>you know, found that agencies do not have broad power

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<v Speaker 1>that you need to have Congress clearly handing power to agencies,

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<v Speaker 1>and that tends to result in reduced agency power, which

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<v Speaker 1>will often but not always, mean little less in a

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<v Speaker 1>way of regulatory burdens on business. But I should say

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<v Speaker 1>it's not always that way. That there's a very recent

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<v Speaker 1>decision he issued that has upset a multibillion dollar industry

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<v Speaker 1>where industry groups are hoping the Supreme Court where Oval

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<v Speaker 1>rule his ruling. So, how might his being the successor

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<v Speaker 1>to Justice Kennedy affect a court that's already pro business

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<v Speaker 1>and where Kennedy ruled pretty consistently in favor of corporate

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<v Speaker 1>over consumer interests. UM. Justice Kennedy was certainly a quite

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<v Speaker 1>conservative justice. I would say he generally voted in ways

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

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<v Speaker 1>often very solicitous of the interests of business. But he

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<v Speaker 1>also was persuadable and in a handful of the most

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<v Speaker 1>important environmental decisions of recent decades, Justice Kennedy was willing

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<v Speaker 1>to protect people's ability to sue polluters or sue the government.

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<v Speaker 1>He supported the idea that the federal government could regulate

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<v Speaker 1>climate change. UM. These were He issued a very important

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<v Speaker 1>ruling about what sorts of waters are federally protectable, and

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<v Speaker 1>so Justice Kennedy in the end, he really was a

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<v Speaker 1>swing vote on some of the big regulatory issues. Judge Kavanaugh,

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<v Speaker 1>when on the Court of Appeals, has been i would say,

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<v Speaker 1>quite a bit more solidly skeptical about agency regulatory power.

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<v Speaker 1>So let's turn to Kavanaugh's view of presidential powers, which

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<v Speaker 1>is coming under a lot of scrutiny. Opponents are pointing to,

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<v Speaker 1>in particular to a law Review article where he wrote,

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<v Speaker 1>I believe that the president should be excused from some

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<v Speaker 1>of the burdens of ordinary citizen ship while serving in office,

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<v Speaker 1>and we should not burden a sitting president with civil suits,

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<v Speaker 1>criminal investigations, or criminal prosecutions. Legal experts are looking at

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

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<v Speaker 1>it's a law review article, so obviously in the end

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<v Speaker 1>it is not itself a statement of the law. In

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<v Speaker 1>that statement, he's pretty clearly talking about that maybe Congress

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<v Speaker 1>should pass a law, or maybe even he'd be talking

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<v Speaker 1>about an amendment to the Constitution that might give a

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<v Speaker 1>president greater protections. In that language, he was not saying

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

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<v Speaker 1>looked at it, it didn't appear you was saying that

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<v Speaker 1>right now the president is beyond legal process. There actually

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<v Speaker 1>have been several major cases going back to President Clinton

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<v Speaker 1>and President Nixon in particular, that in broad language have

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<v Speaker 1>said presidents are subject to um courts oversight and they

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<v Speaker 1>are subject to being sued. And so I view that

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<v Speaker 1>his statement is maybe how he thought the law should go,

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<v Speaker 1>maybe if Congress changed it, or again if there were

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<v Speaker 1>a constitutional shift. Um. What about his view of presidential

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<v Speaker 1>power as expressed in his opinions over the last decade,

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<v Speaker 1>do you see a peer in there. You know that

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<v Speaker 1>that I'm I'm looking at and others are as well.

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<v Speaker 1>The the court he sits on has a very heavy docket,

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<v Speaker 1>that is a high percentage of the cases involved regulations.

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<v Speaker 1>That it's the main court where if an agency issue

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<v Speaker 1>is a big regulation, it is challenged. And so the

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<v Speaker 1>cases have much more often dealt with issues of agency

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<v Speaker 1>power and less often dealt with just the overall extent

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

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<v Speaker 1>You know, I would say this he's he does talk

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<v Speaker 1>a lot about separation of powers. He um. He is

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<v Speaker 1>believe it's important for Congress to do what Congress does

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<v Speaker 1>and agencies to do what they do, and for courts.

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<v Speaker 1>He clearly thinks there should be pretty robust assertion of

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

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<v Speaker 1>out is a little hard to tell. So I'm I

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<v Speaker 1>and others are digging into this and have not seen

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<v Speaker 1>what I view as any clear bellweather cases indicating his

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<v Speaker 1>general views on presidential power. This is tough to do.

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<v Speaker 1>We have only a minute left, but so give me

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<v Speaker 1>your your impression of what the biggest change on the

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

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<v Speaker 1>I'd say the big difference is it's just voting patterns

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<v Speaker 1>that he is a he would be, I believe, a

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<v Speaker 1>much more steady, very conservative justice, he would argue. I mean,

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<v Speaker 1>I'm sorry. He would most likely vote in a way

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<v Speaker 1>very much aligned with what conservative groups have been pushing

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<v Speaker 1>on the court. Um So I think where's Kennedy thought

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<v Speaker 1>a lot about dignity and fairness and believed in environmental protection,

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<v Speaker 1>and that swayed him. I don't think we yet know

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<v Speaker 1>if Kavanaugh will look out for the little person we

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<v Speaker 1>have to live. We have to leave it there. We'll

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<v Speaker 1>have you on again to talk more about Kavanaugh. That's

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<v Speaker 1>William Buzzby, professor at Georgetown University Law Center. The Trump

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<v Speaker 1>administration missed the court order deadline to reunite all onwo

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<v Speaker 1>migrant children under the age of five who were separated

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<v Speaker 1>from their parents. President Trump gave his solution for the

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<v Speaker 1>immigration problem as he boarded Marine one yesterday. Tell people

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<v Speaker 1>not to come to our country illegally. That's the solution.

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

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<v Speaker 1>come illegally. Joining me is David Beer immigration policy analyst

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<v Speaker 1>at the Cato Institute, and David Trump also tweeted just

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<v Speaker 1>a few moments ago that Democrats in Congress must no

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<v Speaker 1>longer obstruct vote to fix our terrible immigration laws. Now

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<v Speaker 1>I'm watching what is going on from Europe. It would

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<v Speaker 1>be so simple to fix. Judges run the system, and

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<v Speaker 1>illegals and traffickers know how it works. They are just

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<v Speaker 1>using children. So first, let me get your opinion on

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<v Speaker 1>how easy it would be to fix. Well, it would

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<v Speaker 1>be pretty easy to fix. Actually, we need to make

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<v Speaker 1>legal immigration far easier than it is right now. If

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<v Speaker 1>you want people to come to this country and follow

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<v Speaker 1>the laws, make those laws sensible and reasonable. Don't make

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<v Speaker 1>them wait twenty years like people have to do in

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<v Speaker 1>order to immigrate to this country for uh, family sponsorship

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<v Speaker 1>and and other reasons. And that is the exact opposite

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<v Speaker 1>of the approach that President Trump and his administration and

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<v Speaker 1>his allies and Congress are advocating right now. Bills that

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<v Speaker 1>have come up for a vote, all of them have

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<v Speaker 1>cut legal immigration, made it more difficult for people to

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<v Speaker 1>come to this country legally. And if you want to

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<v Speaker 1>get rid of the legal immigration, the easiest thing and

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<v Speaker 1>the best thing to do would be to make it

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<v Speaker 1>easier for people to come by following laws. Let's turn

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<v Speaker 1>now to what has captured so much attention, which is

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<v Speaker 1>the young children who have been separated from their families.

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<v Speaker 1>Lawyers for the Justice Department told federal Judge Danas Sabra

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<v Speaker 1>yesterday that only thirty eight of the one younger children

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<v Speaker 1>would be reunited with their parents by Tuesday, which was

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<v Speaker 1>the deadline. With all the resources of the federal government

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<v Speaker 1>at their disposal, why aren't they able to bring just

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<v Speaker 1>a hundred two children back to their parents. Well, they

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<v Speaker 1>have a litany of excuses. They say they're working through

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<v Speaker 1>verifying that these parents are really connected to these children.

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<v Speaker 1>And that's partly because they had no mechanism in place

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<v Speaker 1>to track children who were separated from their parents, so

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<v Speaker 1>they had to work backwards through the process trying to

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<v Speaker 1>figure out which children are supposed to be with which parents.

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<v Speaker 1>And that's really a shocking discovery that, you know, astounded

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<v Speaker 1>the court to such an extent that the judge in

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<v Speaker 1>the case pointed it out that this is this is

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<v Speaker 1>actually more uh less rigorous process of tracking than they

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<v Speaker 1>have in place for property that is being taken away.

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<v Speaker 1>From migrants who come to the border. They actually have

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<v Speaker 1>a system in place for tracking property, but not for

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<v Speaker 1>children being separated from their parents. So it's hard to

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<v Speaker 1>imagine that judge. The judge refused to extend the next deadline.

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<v Speaker 1>Almost three thousand older kids have to be returned to

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

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<v Speaker 1>And and really, what is the penalty the punishment for

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<v Speaker 1>the government here if it says once again that logistics

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<v Speaker 1>made it impossible to comply, etcetera, etcetera. Is there any deterrent?

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<v Speaker 1>It doesn't appear that there's any penalty that's going to

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<v Speaker 1>be imposed by this judge. I imagine that unless it

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<v Speaker 1>becomes obvious that the administration is um, you know, just

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<v Speaker 1>intentionally flouting this requirements, that she will not impose any

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<v Speaker 1>kind of contempt order, which would really be what was

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<v Speaker 1>necessary to get them to act um expeditiously. Are they

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<v Speaker 1>effectively returning to the catch and release policy that Trump

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<v Speaker 1>criticized the Obama administration for over and over again during

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<v Speaker 1>the campaign and promised to eliminate. Oh yes, absolutely they are.

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<v Speaker 1>They're releasing these families, uh with ankle bracelets, and they're

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<v Speaker 1>going to monitor them electronically. This is what should have

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<v Speaker 1>been happening this whole time, and what the administration repeatedly said,

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

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<v Speaker 1>the law. They had to separate these children. All these

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<v Speaker 1>defenses that we've heard are now laid bare as the

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<v Speaker 1>falsehoods that they were at the time. UH. They can

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<v Speaker 1>do this, They can monitor people, they can require them

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<v Speaker 1>to appear in court and track them through electronic means,

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<v Speaker 1>and so there was never any reason for this entire

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

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<v Speaker 1>now at the border as far as Trump's zero tolerance

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<v Speaker 1>immigration policy, what's going on to new new people that

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<v Speaker 1>come with their children to the border. Well, the official

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<v Speaker 1>policy from the administration is we are not referring um

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<v Speaker 1>parents with children to UH for prosecution unless there is

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<v Speaker 1>a parent available to take care of that child. But

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<v Speaker 1>otherwise they are attempting to prosecute everyone that comes to

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<v Speaker 1>the border illegally. So, Democratic Senator Diane Feinstein and Republican

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<v Speaker 1>Senator Tom Chillis both said that bipartisan negotiators are making

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<v Speaker 1>progress on a bill designed to keep undocumented immigrant families

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<v Speaker 1>together at the border while their claims of immigration are

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<v Speaker 1>are being considered. Is there is there hope for that bill?

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<v Speaker 1>I would be very surprised at this point, UH if

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<v Speaker 1>legislation came out of Congress, especially given how divided people

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<v Speaker 1>are in this issue. UM. Some members of Congress in

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<v Speaker 1>the Republican side think that the family separation policy was

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<v Speaker 1>great and it should have been continued and was in

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<v Speaker 1>fact even required by the law, and do not want

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<v Speaker 1>to see any kind of middle ground approach to this.

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<v Speaker 1>And then you have members on the Democratic side who

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<v Speaker 1>are actually happy with the status quo. They you know,

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<v Speaker 1>the administration is now releasing these UH families pending their

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<v Speaker 1>court date, and you know that's the policy that they

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<v Speaker 1>would favor. So there's no reason for the sides to

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<v Speaker 1>come together on this and and come to a legislative resolution.

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<v Speaker 1>So David, about a minute here forget about whether the

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<v Speaker 1>zero tolerance policy is right or wrong. Is it slowing

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<v Speaker 1>down immigration to the border. No? Uh, You know, we

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<v Speaker 1>actually have now two months of experiment with the policy

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<v Speaker 1>and May and June, and the numbers from the administration

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<v Speaker 1>show that there was no change. There were about ten

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<v Speaker 1>thousand UH families who came to the border in both

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<v Speaker 1>May and June, and that was the same level as

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<v Speaker 1>in the prior months in April and March, when this

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<v Speaker 1>policy was not in effect, and so that's pretty good

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<v Speaker 1>evidence that it's not having the tough turn effect that

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

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

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<v Speaker 1>immigration policy analyst at the Cato Institute. Thanks for listening

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<v Speaker 1>to the Bloomberg Law Podcast. You can subscribe and listen

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<v Speaker 1>to the show on Apple podcast, SoundCloud, and on Bloomberg

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<v Speaker 1>dot com slash podcast. I'm June Basso. This is Bloomberg