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Where does Brett Kavanaugh see the limits of executive power?
Business and labor are two areas of the law that have been front and center at the Supreme Court in recent years. What does nominee Brett Kavanaugh’s record suggest about how he might rule on cases at the high court? Judy Woodruff gets analysis from Karen Harned of the National Federation of Independent Business Small Business Legal Center, and Daniel Goldberg of Alliance for Justice.
But first, with just a few days left until heated confirmation hearings for Supreme Court nominee Brett Kavanaugh begin, we continue our look at his record on key issues senators will likely press him on.
Tonight, business and labor, the subject of a large percentage of cases that reach the high court.
I'm joined by Karen Harned, the executive director of the Small Business Legal Center at the National Federation of Independent Business. And Daniel Goldberg, he's the legal director at Alliance for Justice, an advocacy group.
And we welcome both of you to the "NewsHour."
Karen Harned, I'm going to start with you.
How — as you look back at Judge Kavanaugh's record, how are his decisions seen by your — the people you represent, small businesses?
We have been very encouraged as we have looked at his record, because, really, what he does is give you predictability and certainty in the law because of the way he approaches his decision-making.
He starts with the text of a statute. He starts with what the Constitution says. And so, therefore, the laws that are on the books, you have a better understanding of how — how a case might actually come out, because he really doesn't deviate from what's before him as far as the rule of law.
Daniel Goldberg, what about from your perspective? How do you see his record?
You know, when the White House introduced Brett Kavanaugh, they bragged that Brett Kavanaugh has undermined 75 federal protections for workers, for consumers, and for the environment.
Brett Kavanaugh is somebody who, if you look at his record, has repeatedly sided with the wealthy, the powerful, large corporations, people who are trying to take the country backwards and eviscerate many of the protections that workers, consumers and the American people rely on.
So we have got two very different perspectives here. Let's take a few specifics here.
If you look at, I don't know, the rulings handed down, Karen, that he's written or had a role in, say, involving worker rights, worker safety, what do you see?
Well, again, it's more the approach he takes. We don't necessarily look at the result, other than like the winners and losers.
It's more, what is he — is he looking at the National Labor Relations Act, and what does that say? And he definitely stays true to those — the words of whatever their congressional authorization is, whatever Congress has said, EPA or whatever — Department of Labor can do under their statutory authority.
And that predictability, where Congress is the one making the laws, the administrative branch is interpreting them, that is, we think, the appropriate way to keep everybody in their lanes. And he's very, very aggressive, I would say, in keeping the agencies in particular in their lanes. And we find that to be very good.
So, Daniel, Harned — Karen — Daniel Goldberg, Karen is looking at it from the perspective of how agency rulings and regulations are handled. What about — what do you see when you look at his record on workers and worker — worker safety, worker rights?
Well, I think the case that really is illustrative of who Brett Kavanaugh is the SeaWorld case.
This is a case where a trainer at SeaWorld was killed by a whale. Congress had given OSHA the power to protect…
The office of Occupational Safety and Health.
And Congress made a determination that, in this country, workers should be able to go to work every day and come home, and charged OSHA with the authority make sure our workplaces were safe.
And in this one case, that's — OSHA found that SeaWorld had ignored warnings about this particular whale, had not made the safety conditions that were required, and they had fined SeaWorld.
Brett Kavanaugh dissented in this case and called even the notion of work force safety standards — quote, unquote — "paternalistic."
That's who Brett Kavanaugh is. And workers across the country should know that he's somebody who will undermine worker safety laws, among other things.
How do you respond to that?
Well, I can't speak to that specific case. That's not one we followed.
But I can just say that what we have seen time and again is that he will — he will only let agencies act as far as they are statutorily authorized to do. And I have no reason to doubt that in this case.
Congress is there to make the laws. They're the ones accountable to all of us. And he has been very, very clear in his work that, if there is a problem with a statute, if it doesn't go far enough to do a protection, that's on Congress. That's not on the agency to gap-fill.
And I think — and we think that gives the certainty that small business owners I represent can rely on, because it's hard enough for them to know what the laws are on the books, to have to worry about new novel theories that agencies may be promoting.
All right, let's look at another area where government decisions affect business. And that's with the EPA environmental regulations and rules.
What do you see there, Daniel Goldberg?
Well, I think it's similar to the worker situation, where Congress has made a determination that we want clean air, we want clean water, the American people are entitled to be able to breathe clean air and drink clean water, and given the EPA the authority to protect our families.
In case after case, Brett Kavanaugh has worked to undermine these protections. There's one case where he ruled that the EPA didn't have the authority to require upstates that were polluting to reimburse downstate areas.
And what that meant was EPA, when they issued the rule, found that thousands of people were alive because of the EPA rule which protected this clean air.
And, on that, I will just say, again, with his environmental record, I understand that if you want to just look at the end result, you can pick the winners and losers and maybe not think it's fair.
But what Judge Kavanaugh does is, he goes with the authority the agency had. And I — with EPA in particular, what we have seen over the last several decades is they have pushed the envelope as far as they can as far as doing the outermost bounds of what any statute they have requires them to do.
And he is pushing back on that. And we think that is appropriate, because it's time for Congress to re-look at these laws, the Clean Air Act, the Clean Water Act, if they're dissatisfied with the results, not let EPA continue to legislate. And that's really where Brett Kavanaugh will take issue.
All right, we have just less than 30 seconds.
Do you expect much of a change on the Supreme Court on these issues with Brett Kavanaugh joining?
Sadly — sadly not. The Roberts court has been a pro-corporate court.
Just s year, you saw them rule in the Epic Systems case to make it harder for people who were having their wages stolen from holding corporations accountable.
And, Karen Harned, do you expect much change?
I think that the court will remain very committed to protecting the separation of powers between the branches of government, and also ensuring that statutes and constitutions are followed by those that are tasked with doing so.
And this assumes he is confirmed. And, again, confirmation hearings get under way next Tuesday.
Karen Harned, Daniel Goldberg, thank you both.
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