Kavanaugh Data Excavation Begins Ahead of Confirmations

twelve years, you're gonna have a long paper trail. Will just take him a long time to get all the papers together. But nothing stands out as an obstacle right now. He's a solid pick. Join me as William Buzby, a professor at Georgetown University Law Center, Bill. One of the things that's been mentioned prominently about kavanaughs that he's an opponent of government regulation. He voted to strike down rules issued by the Environmental Protection Agency under Barack Obama. Tell

us about his record on that. Yes, you're correct, which is uh just having a very smart person from all indications, a charming person when it comes to his kind of substantive leanings in his rulings on the Appellate Court here at the Federal Appellate Court here in Washington. He has in quite a few big cases found a way, one way or the other to hold that E p A in particular lacked authority that it had claimed. So does

he usually side with business interests? Um? He doesn't usually focus that much on the kind of business versus environmental interest. He tends more often to focus on agencies versus Congress

or agencies and maybe versus the president. Um. But in his outcomes, I would say that he has, in general, um, you know, found that agencies do not have broad power that you need to have Congress clearly handing power to agencies, and that tends to result in reduced agency power, which will often but not always, mean little less in a way of regulatory burdens on business. But I should say

it's not always that way. That there's a very recent decision he issued that has upset a multibillion dollar industry where industry groups are hoping the Supreme Court where Oval rule his ruling. So, how might his being the successor to Justice Kennedy affect a court that's already pro business and where Kennedy ruled pretty consistently in favor of corporate over consumer interests. UM. Justice Kennedy was certainly a quite

conservative justice. I would say he generally voted in ways you'd expect for a conservative and judge, sometimes skeptical of government, often very solicitous of the interests of business. But he also was persuadable and in a handful of the most important environmental decisions of recent decades, Justice Kennedy was willing to protect people's ability to sue polluters or sue the government. He supported the idea that the federal government could regulate

climate change. UM. These were He issued a very important ruling about what sorts of waters are federally protectable, and so Justice Kennedy in the end, he really was a swing vote on some of the big regulatory issues. Judge Kavanaugh, when on the Court of Appeals, has been i would say, quite a bit more solidly skeptical about agency regulatory power. So let's turn to Kavanaugh's view of presidential powers, which

is coming under a lot of scrutiny. Opponents are pointing to, in particular to a law Review article where he wrote, I believe that the president should be excused from some of the burdens of ordinary citizen ship while serving in office, and we should not burden a sitting president with civil suits, criminal investigations, or criminal prosecutions. Legal experts are looking at this in different ways. How do you view it? Um, Well, first, it's a law review article, so obviously in the end

it is not itself a statement of the law. In that statement, he's pretty clearly talking about that maybe Congress should pass a law, or maybe even he'd be talking about an amendment to the Constitution that might give a president greater protections. In that language, he was not saying that he thought right now. Um, at least as I've looked at it, it didn't appear you was saying that

right now the president is beyond legal process. There actually have been several major cases going back to President Clinton and President Nixon in particular, that in broad language have said presidents are subject to um courts oversight and they are subject to being sued. And so I view that his statement is maybe how he thought the law should go, maybe if Congress changed it, or again if there were

a constitutional shift. Um. What about his view of presidential power as expressed in his opinions over the last decade, do you see a peer in there. You know that that I'm I'm looking at and others are as well. The the court he sits on has a very heavy docket, that is a high percentage of the cases involved regulations. That it's the main court where if an agency issue

is a big regulation, it is challenged. And so the cases have much more often dealt with issues of agency power and less often dealt with just the overall extent of a president's power. So I'm not as clear on that, um, You know, I would say this he's he does talk a lot about separation of powers. He um. He is believe it's important for Congress to do what Congress does and agencies to do what they do, and for courts. He clearly thinks there should be pretty robust assertion of

the court's function, um. And so how that would play out is a little hard to tell. So I'm I and others are digging into this and have not seen what I view as any clear bellweather cases indicating his general views on presidential power. This is tough to do. We have only a minute left, but so give me your your impression of what the biggest change on the

court would be if he is actually succeeds just as Kennedy. Well, I'd say the big difference is it's just voting patterns that he is a he would be, I believe, a much more steady, very conservative justice, he would argue. I mean, I'm sorry. He would most likely vote in a way very much aligned with what conservative groups have been pushing on the court. Um So I think where's Kennedy thought a lot about dignity and fairness and believed in environmental protection,

and that swayed him. I don't think we yet know if Kavanaugh will look out for the little person we have to live. We have to leave it there. We'll have you on again to talk more about Kavanaugh. That's William Buzzby, professor at Georgetown University Law Center. The Trump administration missed the court order deadline to reunite all onwo migrant children under the age of five who were separated from their parents. President Trump gave his solution for the

immigration problem as he boarded Marine one yesterday. Tell people not to come to our country illegally. That's the solution. Don't come to our country illegally. Come like other people do, come illegally. Joining me is David Beer immigration policy analyst at the Cato Institute, and David Trump also tweeted just a few moments ago that Democrats in Congress must no longer obstruct vote to fix our terrible immigration laws. Now I'm watching what is going on from Europe. It would

be so simple to fix. Judges run the system, and illegals and traffickers know how it works. They are just using children. So first, let me get your opinion on how easy it would be to fix. Well, it would be pretty easy to fix. Actually, we need to make legal immigration far easier than it is right now. If you want people to come to this country and follow

the laws, make those laws sensible and reasonable. Don't make them wait twenty years like people have to do in order to immigrate to this country for uh, family sponsorship and and other reasons. And that is the exact opposite of the approach that President Trump and his administration and his allies and Congress are advocating right now. Bills that have come up for a vote, all of them have cut legal immigration, made it more difficult for people to

come to this country legally. And if you want to get rid of the legal immigration, the easiest thing and the best thing to do would be to make it easier for people to come by following laws. Let's turn now to what has captured so much attention, which is the young children who have been separated from their families.

Lawyers for the Justice Department told federal Judge Danas Sabra yesterday that only thirty eight of the one younger children would be reunited with their parents by Tuesday, which was the deadline. With all the resources of the federal government at their disposal, why aren't they able to bring just a hundred two children back to their parents. Well, they have a litany of excuses. They say they're working through verifying that these parents are really connected to these children.

And that's partly because they had no mechanism in place to track children who were separated from their parents, so they had to work backwards through the process trying to figure out which children are supposed to be with which parents.

And that's really a shocking discovery that, you know, astounded the court to such an extent that the judge in the case pointed it out that this is this is actually more uh less rigorous process of tracking than they have in place for property that is being taken away. From migrants who come to the border. They actually have a system in place for tracking property, but not for children being separated from their parents. So it's hard to

imagine that judge. The judge refused to extend the next deadline. Almost three thousand older kids have to be returned to their parents by July. That's fifteen days. How likely is that? And and really, what is the penalty the punishment for the government here if it says once again that logistics made it impossible to comply, etcetera, etcetera. Is there any deterrent? It doesn't appear that there's any penalty that's going to

be imposed by this judge. I imagine that unless it becomes obvious that the administration is um, you know, just intentionally flouting this requirements, that she will not impose any kind of contempt order, which would really be what was necessary to get them to act um expeditiously. Are they effectively returning to the catch and release policy that Trump criticized the Obama administration for over and over again during the campaign and promised to eliminate. Oh yes, absolutely they are.

They're releasing these families, uh with ankle bracelets, and they're going to monitor them electronically. This is what should have been happening this whole time, and what the administration repeatedly said, They couldn't do this. It was illegal, they were following the law. They had to separate these children. All these defenses that we've heard are now laid bare as the

falsehoods that they were at the time. UH. They can do this, They can monitor people, they can require them to appear in court and track them through electronic means, and so there was never any reason for this entire episode to ever have taken place. So, David, what's happening now at the border as far as Trump's zero tolerance immigration policy, what's going on to new new people that

come with their children to the border. Well, the official policy from the administration is we are not referring um parents with children to UH for prosecution unless there is a parent available to take care of that child. But otherwise they are attempting to prosecute everyone that comes to

the border illegally. So, Democratic Senator Diane Feinstein and Republican Senator Tom Chillis both said that bipartisan negotiators are making progress on a bill designed to keep undocumented immigrant families together at the border while their claims of immigration are are being considered. Is there is there hope for that bill? I would be very surprised at this point, UH if legislation came out of Congress, especially given how divided people

are in this issue. UM. Some members of Congress in the Republican side think that the family separation policy was great and it should have been continued and was in fact even required by the law, and do not want to see any kind of middle ground approach to this. And then you have members on the Democratic side who are actually happy with the status quo. They you know, the administration is now releasing these UH families pending their court date, and you know that's the policy that they

would favor. So there's no reason for the sides to come together on this and and come to a legislative resolution. So David, about a minute here forget about whether the zero tolerance policy is right or wrong. Is it slowing down immigration to the border. No? Uh, You know, we actually have now two months of experiment with the policy and May and June, and the numbers from the administration

show that there was no change. There were about ten thousand UH families who came to the border in both May and June, and that was the same level as in the prior months in April and March, when this policy was not in effect, and so that's pretty good evidence that it's not having the tough turn effect that was championed by all Right, I have to stop you there, David. Always a pleasure to have you on. That's David Beer, immigration policy analyst at the Cato Institute. Thanks for listening

to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Basso. This is Bloomberg