Alternatives to Detention Are Cheaper than Universal Detention

President Donald Trump recently modified his policy of separating children from their families.  His new executive order requires the children of border crossers to be detained with their family members. Although a slight improvement over family separation, Trump’s decision raises different questions of whether detaining families together violates the 1997 Flores Settlement, whereby children have to be released after 20 days, which would necessitate family separation. The potential Flores problem could be mitigated entirely by Trump if he relied on alternatives to detention (ATD) programs instead of uniform detention of all border crossers. This would allow President Trump to claim that he ended catch and release without detaining migrant families at taxpayer cost.

Immigration and Customs Enforcement (ICE) manages ATDs to explore cost-effective means for asylum seekers and illegal immigrants to reside outside of detention facilities if they are not public safety threats. The ATDs help guarantee that the migrants show up at their hearings and ensure that they comply with court rulings. The 2017 budget allocated $114 million to ICE to run these programs and the Trump administration requested about $180 million for them for 2018.  

ATDs usually take at least one of three forms. The first is electronic monitoring devices whereby migrants have to wear a tracking device like an ankle bracelet. The second is assigning caseworkers to periodically check up on the migrants. The third is monetary incentives, such as bonds.  Many ATD programs mix these three. ICE runs the ATD program because they are responsible for apprehending, removing, and detaining immigrants inside of the United States. Detention costs about $170 per day for long stays and about $30 for short stays.  The proposed tent cities to house migrant children would have cost about $775 per person per night. As far as I can tell, about 100 percent of them comply with court orders as they are in government detention and therefore have no choice. The tradeoff for this extra effectiveness are the various costs of detention.

ATDs would have to be modified to accommodate recent border crossers, but that would not be difficult as the vast majority of them are not public safety threats. Asylum seekers, for example, have taken part in ATDs for over a decade. This post will explain the major ATDs, how they work, their costs, and effectiveness.

U.S. Withdrawal from the UN Human Rights Council: Right Decision, Bad Optics

Confirming rumors that had been circulating for weeks, the Trump administration announced that the United States will withdraw from the UN Human Rights Council. That body consists of 47 member states with rotating, staggered 3-year terms. It is tasked with protecting human rights as well as highlighting and condemning regimes that violate those rights. The Council has been controversial since its inception, especially among American conservatives. George W. Bush’s administration declined to make the United States a member when the UN General Assembly established the Council in 2006. President Obama reversed that decision in 2009.    

In announcing the U.S. withdrawal, Ambassador Nikki Haley blasted the organization as a “cesspool of political bias.” Vice President Mike Pence was equally caustic, stating that the United States was taking a stand “against some of the world’s worst human rights violators by withdrawing from the United Nations Human Rights Council. By elevating and protecting human rights violators and engaging in smear campaigns against democratic nations, the UNHRC makes a mockery of itself, its members, and the mission it was founded on. For years, the UNHRC has engaged in ever more virulent anti-American and anti-Israel invective and the days of U.S. participation are over.”

The decision has far more symbolic than substantive importance. For all of the publicity surrounding the UNHRC’s periodic condemnations of specific regimes, the body has no enforcement powers. Critics of Washington’s decision, though, see repudiating the UNHRC as another in a series of Trump administration moves to relinquish America’s “global leadership role” and retreat into an “America alone” foreign policy. They cite earlier examples such as Washington’s rejection of the Trans-Pacific Partnership (TPP), the withdrawal from the Paris agreement on climate change, and efforts to undermine the Iran nuclear agreement.

There are understandable reasons for the latest U.S. action, however. Haley correctly noted the offensive absurdity of having nations with horrific human-rights records as members of the UNHRC. But even her citation of such regimes opened the U.S. up to charges of hypocrisy. Her list of inappropriate members was heavily weighted with left-wing regimes hostile to Washington, including China, Cuba, the Democratic Republic of the Congo, and Venezuela. Notably missing from her indictment were such autocratic U.S. allies and notorious rights abusers as Saudi Arabia, Egypt, the Philippines, and Pakistan.

Such selectivity contributes to global cynicism about Washington’s ethics. So does the extreme emphasis on the UNHRC’s unfair treatment of Israel. The organization certainly is biased against that country, issuing numerous condemnations of its conduct in recent years and in 2017 describing Israel as the world’s worst human-rights violator. Given the records of such countries as North Korea, Cuba, and Saudi Arabia, that allegation is an groteque exaggeration.

However, the United States has shown a disturbing unwillingness to criticize any aspect of Israel’s policy, even its ongoing harsh treatment of Palestinians. Washington has refused to support, and often vetoes, UN resolutions criticizing Israeli conduct, even when most of America’s democratic allies are on board. That is an unhealthy, hypocritical stance, and using the UNHRC’s treatment of Israel as the primary reason for the decision to quit that body adds to a growing U.S. reputation for hypocrisy.

It also didn’t help matters that the announcement of Washington’s decision came just days after the Office of the UN’s High Commissioner for Human Rights condemned the Trump administration’s policy of separating the families of immigrants accused of illegal entry. The timing appeared to reflect a petty reaction to criticism.

Thus, while U.S. officials made a defensible policy change regarding a toothless, pretentious, and hypocritical UN agency, they could scarcely have done a worse job of managing the optics. The incident is yet another example of the Trump administration’s unduly clumsy handling of foreign affairs.

82% of Dreamers Won’t Benefit from House Bill’s Citizenship Path

House Republicans will vote on their “compromise” immigration bill this week. Moderate Republican supporters of the bill may argue that its many restrictionist features—including draconian asylum provisions, cancelling the applications of 3 million people waiting to immigrate legally, and permanent reductions in legal immigration—are a small price to pay to help the entire Dreamer population gain a “pathway to citizenship.” However, an analysis of the Border Security and Immigration Reform Act (BSIF) shows that even under the most generous assumptions, the bill would likely initially legalize only 821,906 people, provide permanent residence (i.e. a pathway to citizenship) to 628,758, and result in citizenship for 421,268.

As provided in Table 1, only a third of the Dreamer population would likely receive status under the House plan (H.R. 6136), and just 18 percent would likely make it onto the pathway to citizenship. Only 12 percent would likely apply for and receive citizenship. Moreover, even the pathway to citizenship is tenuous, since—for all Dreamers in DACA or without legal status today—it is contingent on a future Congress appropriating money for a quite expensive (at least $25 billion) wall and security system along the Southwest border of the United States. 

Table 1: Dreamer Populations and Eligibility Under Border Security and Immigration Reform Act

Sources: Authors’ calculations (see below) based on population estimates from Migration Policy Institute (DACA eligible and total Dreamer Population based on American Hope Act); Border Security and Immigration Reform Act (H.R. 6136)
*As of December 31, 2016

If Congress wants to help a larger number of Dreamers, then it would need to establish clear legalization criteria with lower costs and fewer risks, while providing greater legal certainty for the parents of Dreamers to mitigate fears of coming forward. Members of Congress should not exaggerate the extent of the legalization of Dreamers as a way to justify politically questionable policy choices, including reducing the annual level of legal immigration and eliminating several current immigration categories.

Restrictive Criteria in the House Bill

Back in January, President Trump promised a pathway to citizenship for Dreamers—up to 1.8 million of them. That’s still just half of the 3.6 million Dreamers—unauthorized immigrants who entered the country as minors—estimated by the Migration Policy Institute (MPI) to be in the United States as of January 1, 2017, but it’s still far more than the estimated number of Dreamers who will likely receive permanent residence under the House compromise legislation that will receive a vote this week.

The BSIF Act creates a four-part framework for potentially receiving permanent residence—a “path to citizenship”—and later citizenship (see Table 2 at the end). First, Dreamers would need to meet a set of basic criteria to receive conditional nonimmigrant status, a temporary renewable legal status. Second, after six years, most would need to apply for a renewal of this status. Third, they could apply for permanent residence over a 15-year period if they met a final set of requirements. Fourth, they could apply for citizenship five years after receiving permanent residence. Each stage will reduce the population that ultimately will become U.S. citizens.

The House immigration bill would use the same restrictive basic criteria as the Deferred Action for Childhood Arrivals (DACA) program. Its authors argue that if the requirements were good enough for President Obama who created DACA in 2012, they should be good enough for Democrats today. But as an act of prosecutorial discretion, DACA was never meant to be permanent immigration law, and in any case, President Obama tried to update its eligibility requirements in 2015, only to be stopped by the courts. The bill wouldn’t stop there. The House plan imposes additional eligibility requirements that would exclude even more Dreamers from receiving permanent protection.

Must The Court Step In When Other Branches Fail?

As I noted yesterday, the Supreme Court has decided the Wisconsin gerrymandering case of Gill v. Whitford on standing grounds, without reaching the main constitutional issues: the case returns to lower courts for a chance to repair the standing issue with most or all of its central contentions intact. Much the same can be said of the Maryland claims in Benisek v. Lamone, where timing as opposed to standing was the issue.

Along the way, however, Chief Justice Roberts in his opinion for a unanimous Court in Gill paused to linger over one argument that had been raised along the way. This is the argument that the Court must act because political branches have failed to address some serious problem which as a result can be fixed by no institution other than the Court. The Gill Court takes sharp issue with this argument:  

At argument on appeal in this case, counsel for the plaintiffs argued that this Court can address the problem of partisan gerrymandering because it must: The Court should exercise its power here because it is the “only institution in the United States” capable of “solv[ing] this problem.”   Such invitations must be answered with care. “Failure of political will does not justify unconstitutional remedies.”   Our power as judges to “say what the law is” rests not on the default of politically accountable officers, but is instead grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff’s particular claim of legal right.

In short, the Constitution empowers the Court to vindicate the sound legal claims of particular plaintiffs, not to step into the role of other branches that are not doing their jobs well. Note that the decision was unanimous: not a single Justice backs the notion that other branches’ irresponsible failure to act on some problem can, by itself and without more, make it legitimate for courts to step in. 

Since there remains some uncertainty on this point in some quarters of the commentariat, it’s good to hear unanimously voiced guidance from the Justices themselves.  

 

Trump’s AHPs Rule: a Generally Lousy Idea that Would Reduce Premiums for Some and Make ObamaCare’s Costs More Transparent

The Trump administration has released its final rule expanding so-called association health plans. The rule would allow many consumers to avoid some of ObamaCare’s unwanted regulatory costs. But the rule also highlights both the destructive power of ObamaCare and Republicans’ utter lack of imagination when it comes to health care.

As originally proposed, the idea behind association health plans was to allow small businesses that purchased health insurance through a member-organization (i.e., an association) to enjoy the same federal exemption from insurance regulation that large businesses have traditionally (if unwisely) enjoyed. Small businesses have long wanted that exemption so they could escape oppressive state regulation. Now, small businesses are clamoring for association health plans because they want to escape oppressive federal regulation.

ObamaCare exempts large-employer health plans from many of the regulations it imposes on small-employer plans. The new rule treats association health plans like large-employer plans for purposes of ObamaCare, which allows small employers who purchase health insurance through a member organization to avoid those costly regulations. The consulting firm Avalere estimates the ability to avoid some of ObamaCare’s unwanted regulatory costs would induce 3.2 million people to enroll in association health plans and reduce their premiums:

Premiums in the new AHPs are projected to be approximately $2,900 a year lower compared to the small group market and $9,700 a year less compared to the individual market.

By Grabthar’s hammer, what a savings!

Traditionally, association health plans have always been a terrible idea that violates Republicans’ federalist principles, because they would move health-insurance regulation from the state level to the federal level. But since ObamaCare went ahead and federalized regulation of small-business health plans, and the association-health-plans rule merely allows small businesses to opt for lighter versus heavier federal regulation, association health plans no longer violate federalism. Credit ObamaCare with making a bad idea good.

Even in this iteration, however, association health plans still aren’t much of a good an idea. Trump’s association health plans rule builds on the broken model of employer-sponsored health insurance. Employer-sponsored coverage is lousy coverage. It deprives workers of control of their health-insurance dollars and decisions. It sticks millions of workers with health plans they would never choose themselves. It leaves millions of workers with uninsurable preexisting conditions, because it disappears for no good reason after workers get sick. It increases prices for health care and health insurance. The failures of our government-created system of employer-sponsored coverage are what created the demand for ObamaCare in the first place. Rather than offer an agenda to make health care better, more affordable, and more secure, Trump’s association health plans rule works entirely within that framework. It does nothing to move Americans toward a better system of providing health insurance.

Still, it would allow some workers to avoid some unwanted regulatory costs. So there’s that.

And that part gives rise to the only other good part of this rule, which is also the part that ObamaCare supporters hate the most: the rule will make ObamaCare’s costs more transparent. ObamaCare imposes its highest hidden taxes, in the form of higher premiums, on the healthy. The association-health-plans rule will free an estimated 1 million disproportionately healthy people to escape those unwanted regulatory costs. When those folks drop out of the Exchanges, the average risk in ObamaCare’s risk pools will rise. Correspondingly, ObamaCare premiums will rise, perhaps even faster than they have to date

ObamaCare supporters decry this as “sabotage,” but that is a subterfuge. When ObamaCare premiums rise to reflect the cost of ObamaCare’s regulations, it is what the world calls transparency. ObamaCare supporters fear such transparency because, as ObamaCare architect Jonathan Gruber admitted, the public would have rejected the law (and still might!) if they could actually see what it does. “[If] you made explicit that healthy people pay in and sick people get money,” Gruber admitted, “it would not have passed.”

And if you reach a point where you decry transparency as sabotage, it may be time to reevaluate your life. 

Green Energy Corporate Welfare

On page 5 of my Wall Street Journal this morning, and page 7 of my Washington Post, a full-page ad for Wells Fargo banners

Wells Fargo and NextEra Energy join together to fuel low-carbon economy throughout the U.S. 

Meanwhile, the front page of my Journal announces

Green-Power King Thrives on Government Subsidies

The article explains that NextEra Energy

has grown into a green Goliath, almost entirely under the radar, not through taking on heavy debt to expand or by touting its greenness, but by relentlessly capitalizing on government support for renewable energy, in particular the tax subsidies that help finance wind and solar projects around the country. It then sells the output to utilities, many of which must procure power from green sources to meet state mandates.

And also:

While environmentalists applaud NextEra’s commitment to building wind and solar farms outside Florida, they have criticized what they see as its attempts to slow the deployment of rooftop solar inside Florida where it would directly compete with its utility business.

As Wells Fargo tries to rescue its reputation after its account scandals, maybe it should forgo bragging about helping a company get heavy subsidies in order to sell its products to compelled buyers. Maybe as part of its apology and restitution, it should swear off participating in taxpayer-subsidized projects, as BB&T in 2006 vowed not to lend to projects that relied on eminent domain.

Would NextEra even be profitable without all these subsidies and mandates? At least it’s not Solyndra, the Obama-connected solar power company that left the taxpayers holding the bag for $500 million when it collapsed. (“Obama’s green-technology program was infused with politics at every level, The Washington Post found in an analysis of thousands of memos, company records and internal ­e-mails. Political considerations were raised repeatedly by company investors, Energy Department bureaucrats and White House officials.”)

Maybe we should drop all these subsidies, restrictions, mandates, and trade barriers and let the free market deliver the right mix of energy at the lowest cost.

A Trade Armistice in the Works?

President Trump set off another round of Twitter hyperventilation and financial market selling these past 18 hours with his latest threat to assess duties on another $200 billion of Chinese imports. What to make of this?

I see two (and only two) ways of looking at this. You can conclude that Trump is irrational, engaging in rhetoric and taking actions that are inconsistent with his goals, or you can see him as rational. You may not like his goals, but that doesn’t make him irrational.  And he may be rational, but that doesn’t mean he’s not misguided.  It seems to me, though, that if you think Trump’s irrational, then there’s not much use in trying to make heads or tails of the daily gyrations. There’s no basis, really, for offering much in the way of useful analysis of U.S. trade policy for the next couple of years.

I see Trump as rational, but deeply misguided. His unpredictability is risky and frustrating, but it’s also a staple of his governance. Unpredictability is the most predictable feature of this administration. But Trump’s goal is consistent and predictable.  Trump’s goal is to cut deals that make him look Herculaean. The deals he most covets are those that cast him as fixing the trade problem with China and fixing the “worst trade deal ever negotiated,” NAFTA.

From the outset, Trump set his sights on “fixing” the U.S. bilateral trade deficit with China.  Is that a worthwhile priority of trade policy?  Absolutely not. But Trump is convinced that reducing the deficit is priority number one.  He sees his high stakes engagement as worthwhile because he miscalculates the potential benefits and costs of his approach. I see the upside of Trump’s approach as offering potentially smallish benefits (getting China to do something that may benefit U.S. exporters), but the downside (a deleterious trade war that leaves the world in far worse shape) as severe and significant. My own approach would be far more risk-averse.

Trump wants the Chinese to buy more American goods and services.  On its face, this is a reasonable desire for a U.S. president to have.  But Trump wants the Chinese government to commit to purchasing more U.S. goods and services, somewhere in the neighborhood of $100 billion to $200 billion per year (which, of course, reinforces the fact that China’s economy is centrally directed, which is the basis for the legitimate problems in the economic relationship in the first place.) Threatened tariffs of 25 percent on $50 billion of imports from China, announced as result of a U.S. investigation into Chinese technology and IP practices, are Trump’s initial leverage in getting the Chinese to commit to more purchases. Beijing’s announced retaliation slightly negates that leverage, but then the administration cracked down on ZTE, the Chinese information and communications technology company that admittedly violated U.S. export control laws by selling certain products to Iran and North Korea, and was cut off from U.S. suppliers of semiconductors and other critical components.

The on-again-off-again-on-again sanctions seem to be conditioned on whether and to what extent Beijing commits to purchasing U.S. exports, and that decision now seems to be conditioned upon Trump granting a reprieve to ZTE. Trump has already given ZTE a reprieve on paper (with certain conditions and requirements), but Congress seems to have strenuous objections, and is considering an amendment to the defense authorization bill to prevent Trump’s reprieve from taking effect.

Trump’s latest threat to hit another $200 billion of Chinese products with tariffs is just as much a threat to Congress as it is to China.  Either the Chinese will relent and agree to purchase U.S. stuff (without need of reinstating ZTE) and the tariffs will be called off or Congress, fearing (more than Beijing does) a trade war that will take down U.S. manufacturing and agricultural interests and their representative in Washington, will relent on its legislative push to block ZTE.  Of course, relenting on ZTE while continuing to treat Canada, Mexico, the EU and other allies as national security threats (especially since that designation has resulted in those countries applying tariffs to U.S. agricultural and manfuacturing exports, too) isn’t going to sit well with Congress either. 

So, in order to fix these asymmetries and make Congress and U.S. allies whole (wholer, whole-ish): Congress abandons its legislation to block ZTE, which gets back in business (with conditions); the U.S.-China tariff war is called off; China signs purchasing orders for $100 billion to $200 billion of U.S. exports; the steel and aluminum tariffs on Canada, Mexico, and the EU are removed; and the NAFTA negotiations are restarted and concluded before the midterms. This gives Trump two major pyrrhic victories that will reinforce his greatness to his base.

Seems to me these are the only outcomes that could remotely explain (if not justify) the ride Trump is taking us on. I see it as misguided, but not irrational.

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