October 12, 2017 2:29PM

Licensing the Press: A Bad Idea Whose Time Has Come Again?

Yesterday, the President tweeted:

He then followed up with this:

It is true that the U.S. Supreme Court has long upheld the awarding or withholding of broadcasting licenses by the Federal Communications Commission (FCC). In 1968, Richard Nixon thought the networks were hostile to his bid for the presidency. After his narrow victory, the Nixon administration contrived a plan to indirectly sanction the speech of the networks, as I noted in my Cato Policy Analysis on the Fairness Doctrine:

In December, after the [1968] election, Clay T. Whitehead, the head of the White House Office of Telecommunications Policy, delivered a speech in Indianapolis proposing changes in the Communications Act of 1934. When their licenses were up for renewal, local stations would be required to demonstrate that they were “substantially attuned to the needs and interests of the community” and had offered a reasonable opportunity for the “presentation of conflicting views on controversial issues.” Local station managers and network officials would be held responsible for “all programming, including the programs that come from the network.” Those who did not correct imbalances or bias in network political coverage would be “held fully accountable at license renewal time.” The policy would have bite. If a station could not demonstrate meaningful service to all elements of its community, the license should be taken away by the FCC. Along with that threat came two offers: the license period for stations would be extended, and challenges to license renewal would become harder to sustain.

The Nixon administration argued that the government should make the network news monopoly offer various viewpoints. They invoked that now defunct Fairness Doctrine, which required a balance of views on public issues from broadcast license-holders. The media struck back:

A Washington Post editorial captures the spirit of the harsh response that met Whitehead’s speech: “the administration is endangering not simply the independence of network news organizations, but the fundamental liberties of the citizens of this country as well.”…Robert G. Fichtenberg, chairman of the freedom of information committee of the American Society of Newspaper Editors, called the proposed licensing standards “one of the most ominous attacks yet on the people’s right to a free flow of information and views.”

The Nixon administration began to back off. In March 1973, they introduced legislation that would extend the term of a broadcasting license from three to five years. The other proposals mentioned at the start of Nixon’s first term “were not included in the proposed legislation nor were they mentioned again by the administration.”

More recently, in 2004, seventeen U.S. Senators bullied the Sinclair Broadcasting Group out of showing a documentary harshly critical of presidential candidate John Kerry. In this case, the media lost: Sinclair backed down for fear of its affiliates losing their licenses. The Kerry documentary went unseen.

President Trump’s tweets promise unconstitutional attacks on freedom of speech and of the press. Not for the first time, the tweets show illiberal passions dominating a man whose job demands rationality, discipline, and a respect for fundamental law. Absent those, President Trump might consider Richard Nixon’s failure to bring the press to heel. Perhaps prudence might serve as a substitute for absent virtues. 

October 11, 2017 1:39PM

Impeachment for “Impulsive, Ignorant Incompetence”?

In Sunday’s episode of “Reality-Show Presidency,” we found out what happens when the president and the chairman of the Senate Foreign Relations Committee “stop being polite… and start getting real.” After President Trump blasted him in a series of tweets early Sunday, Sen. Bob Corker (R-TN) shot back:

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Senator Corker is hardly the only highly placed Republican to express grave doubts about Trump’s stability and competence. Daniel Drezner has assembled a list—now at 115 items and counting—of news stories in which the president’s own aides or political allies talk about him as if he’s a “toddler.”  But since Corker’s not running for reelection, he felt free to go on the record: Trump “concerns me,” Corker said in an interview later that day, “he would have to concern anyone who cares about our nation.” His recklessness and lack of emotional discipline could, Corker said, put us “on the path to World War III.”

In Corker’s account, it’s an open secret that our 45th president is a walking constitutional crisis. Is there a constitutional remedy?

The conventional wisdom says no: we have impeachment if the president turns out to be a crook, and the 25th Amendment if he falls into a coma—but for anything in between “felon” and “vegetable,” tough luck. When he introduced his article of impeachment against President Trump this summer, Rep. Brad Sherman (D-CA) explained that he’d focused on obstruction of justice because, sadly, “the Constitution does not provide for the removal of a President for impulsive, ignorant incompetence.”  

But when it comes to “the most powerful office in the world,” impulsive, ignorant incompetence can be as damaging as willful criminality. Did the Framers really leave us defenseless against it?

Actually, no: impeachment’s structure, purpose, and history suggest a remedy broad enough to protect the body politic from federal officers whose lack of stability and competence might cause serious harm. Contrary to the conventional wisdom, there’s no constitutional barrier to impeaching a president whose public conduct makes reasonable people worry about his access to nuclear weapons.

We tend to think of presidential impeachments in terms of the paradigmatic case: a corrupt, criminal president who abuses his power. Richard Nixon quit before he was actually impeached, but his case rightfully looms large in the public understanding of what the mechanism is for. As Cass Sunstein writes in his forthcoming book Impeachment: A Citizen’s Guide, “If a president uses the apparatus of government in an unlawful way, to compromise democratic processes and invade constitutional rights, we come to the heart of what the impeachment provision is all about.”

But that’s not all impeachment is about. During the Philadelphia Convention’s most extensive period of debate on the remedy’s purpose, James Madison declared it “indispensable that some provision should be made for defending the community against the incapacity, negligence, or perfidy of the Chief Magistrate.” Those faults might be survivable when they afflict individual legislators, Madison argued, because “the soundness of the remaining members would maintain the integrity and fidelity” of the branch as a whole. But “the Executive magistracy… was to be administered by a single man,” and “loss of capacity” there “might be fatal to the Republic.”

In practice, impeachment has never been limited to cases of “perfidy” alone. In its comprehensive report on the “Constitutional Grounds for Presidential Impeachment,” the Nixon-era House Judiciary Committee staff identified three categories of misconduct held to be impeachable offenses in American constitutional history: abuse of power, using one’s post for “personal gain,” and, most important here, “behaving in a manner grossly incompatible with the proper function and purpose of the office.” The House has the power to impeach, and the Senate to remove, a federal officer whose conduct “seriously undermine[s] public confidence in his ability to perform his official functions.”

One of our earliest impeachments—the first to result in a federal officer’s removal—fell into that category. It involved federal judge John Pickering, a man “of loose morals and intemperate habits,” per the charges against him. Pickering had committed no crime, but was removed by the Senate in 1804 for the “high misdemeanor” of showing up to work drunk and ranting like a maniac in court. Such conduct was “disgraceful to his own character as a judge, and degrading to the honor and dignity of the United States.”

Nor was Pickering the only federal official to lose his post for erratic behavior demonstrating unfitness for high office. Others include judges Mark Delahay (1873), “intoxicated off the bench as well as on the bench,” and George W. English (1926), whose bizarre conduct included, among other things, summoning “several state and local officials to appear before him in an imaginary case,” and haranguing them “in a loud, angry voice, using improper, profane, and indecent language.” “By his decisions and orders he inspired fear and distrust” Article V summed up, “to the scandal and disrepute of said court.”  

Do precedents from judicial impeachments count when it comes to the presidency, an office with vastly greater powers and responsibilities? No doubt the attempted removal of an elected president is more serious and potentially disruptive than impeachment of one of hundreds of federal judges. But the argument that presidents are singularly important cuts both ways: it’s far more dangerous to leave an unfit president in office than an unfit judge. Judges don’t have the federal law enforcement apparatus or the massive destructive capacity of the US military at their disposal.

In any event, there’s presidential precedent available as well, from the 1868 impeachment of Andrew Johnson, whom Princeton political scientist Keith Whittington has called “the pre-modern Trump.” The 10th article of impeachment against Johnson charged the president with “a high misdemeanor in office” based on a series of “intemperate, inflammatory, and scandalous harangues” he’d delivered in an 1866 speaking tour. Those speeches, according to Article X, were “peculiarly indecent and becoming in the Chief Magistrate” and brought his office “into contempt, ridicule, and disgrace.”

Johnson, who’d been blotto for his maiden speech as vice president, was supposedly sober during the “Swing Around the Circle” tour, during which he accused Congress of, among other things, "undertak[ing] to poison the minds of the American people" and having "substantially planned" a race riot in New Orleans that July.

Much of the offending rhetoric cited in Article X wouldn’t be considered particularly shocking today, but at the time, it was a radical departure from prevailing norms of presidential conduct. Gen. Ulysses S. Grant, dragged along on the tour, wrote to his wife that “I have never been so tired of anything before as I have been with the political stump speeches of Mr. Johnson. I look upon them as a national disgrace.”

Article X never came to a vote in the Senate, having been abandoned after failure to convict on what were believed to be the strongest charges against Johnson. Nor was it uncontroversial at the time.

But according to Rep. Benjamin Butler (R-MA), a key impeachment manager in the Johnson case, the backlash against the president’s speeches made impeachment possible: “they disgusted everybody.” As Jeffrey Tulis explained in his seminal work The Rhetorical Presidency, “Johnson’s popular rhetoric violated virtually all of the nineteenth-century norms” surrounding presidential popular communication: “he stands as the stark exception to general practice in that century, so demagogic in his appeals to the people” that he resembled “a parody of popular leadership.”

Johnson’s behavior was, you might say, “not normal,” and what is “not normal” can sometimes be impeachable. On a number of occasions, the House has deployed that “indispensable” remedy against federal officers who, by their acts, revealed defects of intellect, character, and temperament “grossly incompatible with the proper function and purpose of the office.” Deliberate, criminal abuse of power may be “the heart of impeachment,” but our constitutional history suggests that the remedy is broad enough to reach “impulsive, ignorant incompetence” in an extreme case—should one happen to crop up.

Through all the chatter about Emoluments and Russian plots, “not normal” is at the heart of the fears evoked by the Trump presidency. That recurring lament, heard even from Republican Senators, often involves the president’s Twitter feed, his outlet for tantrums about bad restaurant reviews, Saturday Night Live skits “so-called judges” who should be blamed for future terrorist attacks, and the United States’ nuclear-armed rivals

In public appearances, Trump is equally incontinent. Whether he’s addressing CIA officers in front of the “Memorial Wall” at Langley or a gaggle of Webelos at the National Boy Scout Jamboree in West Virginia, the president rants about “fake news,” blasts his political enemies, and brags about the size of his Inaugural crowd. It’s a strange feeling when you find yourself almost relieved he didn’t take the opportunity to tell 30,000 Boy Scouts: “check out sex tape.”

Fans of the president’s speechifying praise him for “shaking things up” and “telling it like it is”—as if it’s only hypocritical Beltway pieties he’s skewering. Just as often, Trump tramples the sort of tacit norms that separate us from banana republic status, like: a president shouldn’t tell active-duty military to “call those senators” on behalf of his agenda, suggest that his political opponents should be put in jail, or make off-the-cuff threats of nuclear annihilation.

Still, in the current debate over impeachment, the conventional wisdom reigns. Even those who desperately want to repeal and replace the Trump presidency are convinced removal would be constitutionally illegitimate unless it can be shown that the president is a crook or a certifiable loon. 

As a result, they’re engaged in an awkward effort to shoehorn Trump’s ignominies into either a criminal or a clinical model. Impeachment advocates, like Rep. Sherman, emphasize obstruction of justice and tales of Kremlin conspiracies. Supporters of the “25th Amendment Solution,” like Ross Douthat and Rep. Jamie Raskin (D-MD) strain to categorize Trump’s verbal incontinence as some sort of mental disorder.

My guess is, if you put Sherman, Douthat, Raskin et al on the couch for a word-association test (“say the first thing that comes to your mind…”), “Trump” might elicit responses like “crooked” or “insane,” but you’d probably get a lot more along the lines of “reckless,” “juvenile,” “incompetent,” “clownish”—and perhaps a few unprintable epithets.  

Secretary of State Rex Tillerson used an epithet of his own, if you believe the recent reports. The original NBC News story had Tillerson referring to his boss as a “moron” at a Pentagon meeting this summer; one of the reporters, later said that according to her source, it was actually  “[expletive deleted] moron.”

Like they say, there really is “a tweet for everything.” After the Tillerson story broke, internet sleuths went hunting, and someone dug up this gem from Trump’s feed, when he was subtweeting then-president Obama in October 2014.

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The Framers are gathered at the Philadelphia Convention and one says: “I keep thinking we should include something in the Constitution in case the people elect a [expletive deleted] moron.”

Zing! But—just maybe—they did include something.

October 11, 2017 10:28AM

The Hydra‐​Headed Drug Business

divWith television cameras rolling and Attorney General Jeff Sessions on hand in San Diego, the Coast Guard announced late last month that it had set a new record for cocaine seizures at sea—more than 455,000 pounds through September 11, topping last year’s record.  

At last we've turned the corner in the war on drugs. Right? 

Don’t bet on it. When Americans read about ever-larger drug busts, or when we watch television shows about drug enforcement, we get the impres­sion that drug enforcement agents are clever and innovative, always staying one step ahead of the sinister pushers. But in reality the drug distributors are the innovative ones—because they have a financial incentive to be. 

That’s why we keep reading the same story. 

In 2015 the Coast Guard announced the largest submarine drug bust ever, $181 million worth of cocaine. 

In 2001 a Coast Guard crew seized more than 13 tons of cocaine in what authorities called “the largest cocaine seizure in U.S. maritime history.” 

Back in 1998 Attorney General Janet Reno and Treasury Secretary Robert E. Rubin announced more than 100 indictments and the seizure of some $150 million from Mexican banks, representing a successful conclusion to "the largest, most comprehensive drug money launde­ring case in history."

Indeed, it seems that not a week goes by without a report of  “one of the biggest drug busts in Utah's history,” “Brooklyn's biggest drug bust in history,” “one of the biggest drug busts in New York City history,” "the largest drug bust ever in the United States outside of Florida," or—drum roll, please—"the largest drug bust in history." Visit CBSNews.com for pictures of “17 massive drug busts.”

Law enforcement agents and journalists love those stories—they publicize the "success" of the war on drugs, and they offer the journalists great visuals and great numbers. Helpful police flacks always provide some sexy dollar figures—cocaine or heroin or meth with a street value of $3.3 million, $20 million, $73 million, $2 billion, $4 billion.

This has been going on forever. In a 1991 San Francisco case, billed as the biggest heroin bust ever, television cameras panned over 59 boxes containing 1,080 pounds of heroin—enough to supply each of the country's estimated 500,000 heroin addicts for a month. Drug war officials said the street value of the heroin was $2.7 billion to $4 billion. 

It's true that the drug warriors are interdicting more drugs at our borders all the time. Seizures of cocaine have risen dramatically since President Ronald Reagan revved up the drug war in the 1980s. But does that indicate success? More likely, it means that more drugs are crossing our borders, and officials are interdicting about the same percentage as before. The street prices of cocaine and heroin have been falling for years, a pretty good indication that plenty of both are still crossing our borders.

As Mark A. R. Kleiman, a leading drug policy scholar, said back in 1991 about the California raid, "For any shipment like this that you catch, you can assume that many more get through." 

Kleiman has a point. Drug distributors have to stay one step ahead of the cops in order to stay in business. 

The Drug Enforcement Agency and other law enforcement organizations are bureaucra­cies, and like all bureaucracies they tend to be inefficient. Police officers and drug agents are paid whether they slow drug traffic or not. In fact, they may receive more funding if the drug problem gets worse. Drug dealers, on the other hand, are entrepre­neurs. If they outwit the officers, they make big money. That economic incentive spurs creativity, innovation, and effi­ciency. 

When the Supreme Court in 1989 approved surveil­lance flights over private property to search for marijuana fields, marijuana growers began moving indoors and under­ground. Every week  brings reports of innovations in drug smuggling: people who swallow heroin and carry it into the United States in their stomachs; drugs placed in the luggage of unaccompanied children on international flights; cocaine implanted in a pas­senge­r's thighs; liquid cocaine; cocaine chemically modified to be odorless and pliable; tunnels, drones, and catapults to get across the U.S.-Mexican border—and those are just the methods police have discov­ered.

Around the world, drug enforcers face what Ethan Nadelmann of the Drug Policy Alliance calls the "push-down/pop-up factor": push down drug production in one country, and it will pop up in another. Since the stepped-up drug war in the 1980s, drugs have flowed into the American market at different times from Turkey, Mexico, Burma, Afghanistan, Colombia, Peru, and other places. As long as Americans want to use drugs, and are willing to defy the law and pay high prices to do so, drug busts are futile. Other profit-seeking smugglers and dealers will always be ready to step in and take the place of those arrested. 

"We've cut off the head of the dragon," said Robert Bender, head of the DEA’s San Francisco office, in announcing that heroin bust back in 1991. 

But in the decades since, the DEA has discovered that it had cut off the head, not of a dragon, but of a Hydra—the nine-headed monster in Greek mythology that couldn't be killed because whenever one of its heads was cut off, two more grew to replace it. Is there any reason to hope that this latest Coast Guard triumph will be any different? 

October 10, 2017 3:22PM

Some Promising Anti‐​SLAPP Legislation

Ohio Sen. Matt Huffman (R) has introduced anti-SLAPP legislation, titled the Ohio Citizen Participation Act, which includes novel protections of anonymous internet speech. If approved by the legislature, it will stand as a new gold standard for anti-SLAPP laws.

SLAPP suits, or Strategic Lawsuits Against Public Participation, refer to a category of vexatious libel or defamation lawsuits intended to chill unwanted speech by subjecting speakers to arduous and costly legal battles. In most cases, plaintiffs have little chance of succeeding on the merits of their claims, and instead hope to force a settlement or deter future criticism by using the legal process as a punishment in and of itself. In response to the censorious threat posed by these suits, twenty eight states, the District of Columbia, and Guam, have passed anti-SLAPP legislation.

Anti-SLAPP laws provide defendants with an expedited dismissal process, allowing them to forestall the often expensive and lengthy discovery process, and introduce extrinsic evidence demonstrating that the speech in question falls under the aegis of the anti-SLAPP statute. While not all statements protected by the First Amendment are shielded by anti-SLAPP laws, most are, and the protections guaranteed by the Citizen Participation Act are particularly expansive. After the introduction of the defendant’s evidence, the burden shifts to the accuser, who must provide admissible evidence that the defendants speech is unprotected, and his suit is likely to prevail. If the plaintiff succeeds, the suit continues as usual, if not, it is dismissed, and attorney’s fees are awarded to the defendant. In the absence of this expedited process, the authors of constitutionally protected statements routinely face years-long legal battles and attendant financial ruin before receiving merely pyric vindication.  

The establishment of these protections alone would be a great boon to the residents of Ohio, however, the Citizens Participation Act goes further in its protection of their liberties. Unlike other anti-SLAPP bills, it protects the privacy of anonymous and pseudonymous speakers by requiring ISPs to notify their customers of any unmasking requests, and allowing speakers to contest attempts to piece their veil of anonymity. Furthermore, when anonymous internet speakers are sued for alleged defamation or libel, they may take advantage of the expedited dismissal process without revealing their identities.

These provisions allow those in vulnerable or sensitive positions to fully exercise their First Amendment rights without fear of censure or reprisal. While anonymous speech has long played an important role in the American public discourse, the internet has simultaneously strengthened and weakened the ability of citizens to speak anonymously. It has all but eliminated the financial barriers to anonymous speech, however, internet communication relies on a group of private intermediaries who have little incentive to weather lawsuits to protect the anonymity of their users. The Ohio Citizen Participation Act ably remedies this situation by providing statutory basis for the contestation of unmasking requests, shielding both the speech and the anonymity of 21st century Silence Dogoods.

October 10, 2017 1:29PM

Tax Reform Goals

The Trump administration and congressional Republicans are refining their tax reform plan and ramping up their marketing efforts. It is a good plan so far, but comments by some GOP leaders suggest that reforms may veer off-course as more details emerge.

To keep policymakers focused on true reform, the table below summarizes five tax reform goals and the policy changes needed to achieve each.

Tax reform is sometimes portrayed as a balancing act with various goals in conflict. But the table indicates the opposite. By adopting a lower, flatter rate structure and a more neutral tax base, policymakers would further multiple objectives at once: growth, simplification, fairness, and the strengthening of support for limited government.

Tax Reform Goals

Goal  Policy Change Comments
1) Economic Growth Low flat rate.    

Neutral Base.
Lower, flatter tax-rate structures cause much less damage because distortions rise with the square of marginal tax rates. Also, higher earners respond more strongly in their working, investing, and avoidance activities than do lower earners.  Eliminating deductions, credits, and other breaks would create a more neutral tax base that allowed resources to flow to the highest-valued uses. Reforms should also reduce the income-tax bias against saving and investment.
2) Simplification Low flat rate.       

Neutral Base. 
A simpler rate structure and more uniform base without narrow breaks would reduce costs of tax administration, compliance, and enforcement, and it would make economic decisionmaking easier.
3) Fairness Low Flat Rate.     

Neutral Base. 
People differ on their views about fairness, but one approach would be for everyone to pay tax at the same rate above a large exemption amount.  Fairness also means that the government does not micromanage society with deductions and credits that favor some people over others.
4) Limited Government Low Flat Rate.      

Neutral Base Visibility. 
Taxes that are simple, visible, and spread equally best convey the large cost of government to voters. H. L. Mencken said, “Democracy is the theory that the common people know what they want, and deserve to get it good and hard.” Pressure groups are always demanding higher government spending, but that needs to be countered by taxes that common people feel good and hard.
5) Starve the Beast Slash Revenues.  Slashing revenues is a dubious way to shrink the government because deficits have not induced policymakers to cut spending. That said, tax reforms should aim for a revenue loss in official scoring to grease the skids for passage and to compensate for scoring methods that undervalue the dynamic benefits of reform.


For more on …

Principles of tax reform, here.

Advantages of consumption-based taxes, here.

Reforms to boost saving, here.

Reforming the corporate tax, here.

International tax competition, here.

October 9, 2017 2:07PM

Travel Ban Is Based on Executive Whim, Not Objective Criteria

President Trump’s travel ban proclamation states that the Department of Homeland Security (DHS) developed a global baseline for visa vetting that all governments must meet before their nationals can travel to the United States. The proclamation states that the president then applied DHS’s baseline to all countries and then restricted travel to all those that failed them. This explanation is untrue.

DHS created nine baseline criteria grouped into three categories (see the Appendix for a detailed explanation of each one). Here they are:

  • Category 1: Identity management: 1) Use of electronic passports embedded with data; 2) Reports lost and stolen passports; 3) Makes available upon request identity-related information.
  • Category 2: National security information: 4) Makes available terrorist and criminal information upon request; 5) Provides identity document exemplars; 6) Allows U.S. government’s receipt of information about passengers and crew traveling to the U.S.
  • Category 3: Risk indicators: 7) Is a known or potential terrorist safe haven; 8) Is a participant in the Visa Waiver Program that meets all of its requirements; and 9) Regularly fails to receive its nationals subject to final orders of removal from the U.S.

The proclamation states that the president then applied the DHS baseline to every country and banned all those—and only those—that fail its criteria. This never happened.

Despite statements to the contrary, the proclamation admits that the president did not ban all countries that failed the requirements and did ban others that met them. It applies higher-than-the-baseline criteria to the countries on the list, but never applies those more stringent criteria to other countries that remained off the list. The president’s proclamation also applies mitigating factors to avoid banning every failing country but then didn’t apply those new mitigating factors to the other banned countries. Even when applying all of these additional criteria, no set of failed or met factors can explain the proclamation’s choices of which countries to ban. The travel ban simply lacks an objective grounding.

The presidential proclamation did not apply the DHS baseline to every country.

The proclamation states that Iraq failed the baseline, but it did not ban Iraqis. It is the only country that it claims to have failed yet not banned. By itself, this proves that the baseline is not automatically applied, but we know that many other countries also failed.

At least 86 countries did not issue electronic passports in 2017, and many others had nationals still using older non-electronic passports. At least 16 countries never report lost or stolen passports and, as of mid-2014, about 150, including large countries China, India, and Indonesia, rarely did. In May 2017, 12 countries regularly refused to accept U.S. deportees—only one of which was a travel ban country—and on September 13, 2017, just before the travel ban came out, the U.S. sanctioned four non-travel ban countries for this reason. None of those four were travel ban countries. In 2017, 153 countries did not participate in the Visa Waiver Program, and as of December 2015, a third of participating countries did not meet its requirements. In 2016, the State Department identified 13 terrorist safe havens—only four made the list.

The proclamation tells us that some countries decided to share information or passport samples, but it makes no mention of countries complying with the above criteria. It tells us that DHS initially identified 16 failing countries, but then settled on nine and exempted Iraq, implying that seven countries moved from failing to passing. Even if all of these seven countries initially failed each criterion above and then corrected the failure, 75 non-travel ban countries would still not be issuing e-passports; six would still not be reporting passports; and four would still not be accepting deportees. The number of terrorist safe havens appears to have remained the same.

Either the proclamation misrepresents how the baseline applies to each country (i.e. countries don’t need to meet all of its requirements) or the proclamation misrepresents how the president applied the baseline (i.e. he didn’t apply it to each country).

The proclamation did not apply the DHS baseline to travel ban countries.

Not only do many of these countries meet most of the baseline requirements, the proclamation did not actually apply the baseline to them. The administration applied something else entirely. Here are a few examples:

  • Somalia issues e-passports but fails this requirement because “the United States and many other countries do not recognize it.” This is a much higher standard than the baseline.
  • Libya and Venezuela do not “regularly refuse to receive their nationals” whom the United States deports—which is why Immigration and Customs Enforcement does not list either as offenders in this regard—but we are told that they are “not fully cooperative with respect to receiving their nationals,” and so they are banned. Here, the baseline allows some refusals, but when the proclamation then applies this criterion, it requires total or full cooperation.
  • Chad is not a “terrorist safe haven,” according to the State Department, and actively partners with the United States against terrorists, but apparently still fails this requirement because terrorists “are active within Chad or in the surrounding region.” Under the DHS criteria, a country must be a terrorist safe haven or potential safe haven. But according to the proclamation, the mere presence of “active” terrorists nearby can ban nationals from a nation even if the terrorists are outside of the country. This is moving the goalposts to an entirely different field.
  • Somalia “satisfies the information-sharing requirements of the baseline” but its “lack of territorial control… compromises Somalia’s ability… to share.” In other words, Somalia shares what it can, but due to its limitation, it cannot collect the information that the United States wants. Thus, this is about capacity, not cooperation, in terrorist surveillance. This higher-than-baseline standard also appears to apply to Libya which “faces challenges” to sharing. Again, the ability to collect is substantially different than the baseline requirement to share upon request.
  • Iran is not a safe haven for terrorists, but the proclamation justifies its inclusion by stating that it is a State Sponsor of Terrorism. This is a very different standard than a “terrorist safe haven,” which requires “ungoverned, under-governed, or ill‑governed physical areas where terrorists are able to organize, plan, raise funds, communicate, recruit, train, transit, and operate in relative security.” Iran does not fit this description, yet the proclamation still found it to have failed the baseline.

The point here is that the proclamation did not actually apply the DHS standards. It applied wholly different requirements that are not part of the baseline.

The proclamation did not apply its own criteria to every non-travel ban country.

Applying the proclamation’s additional criteria to every country adds no more clarity. Indeed, if these more stringent requirements become part of the baseline then more countries would fail and be banned. Thus, the selection of these eight countries becomes even more arbitrary than it already is. Another 125 non-travel ban countries don’t have e-passports or have e-passports that many countries don’t recognize. Like Syria, Sudan is also a State Sponsor of Terrorism. Active terrorists “in the surrounding region” would add at least the 31 non-travel ban countries where Foreign Terrorist Organizations are based and probably a half dozen more. The same must also be true for the higher-than-baseline deportee acceptance requirement. 

Yet even if we apply these higher-than-baseline criteria, still not all of the travel ban countries fail them. Iran issues an internationally recognized electronic passport. North Korea has no terrorist groups in its vicinity. 

The proclamation did not apply his own criteria to every travel ban country.

The proclamation explains that it did apply the baseline to Iraq because Iraq meets four mitigating factors and that it did not ban any Venezuelans, except for a few bureaucrats, because they meet a fifth mitigating factor. Yet meeting any or even all of these mitigating factors does not mean that the country is off the list. Here are the mitigating factors:

  • One mitigating factor is having a “cooperative relationship” with the United States. This would apply to Chad, Libya, Yemen, and Somalia. The first three the proclamation itself describes as “counterterrorism partners,” and Somalia is a member of the U.S. Global Coalition to Defeat ISIS.
  • Another mitigating factor is having a “commitment to combating” ISIS. This factor would apply to six of the travel ban countries, all of the counterterrorism partners listed above as well as Syria and Iran, both of whom are committing significant resources to defeating ISIS in Syria and Iraq.
  • Another mitigating factor is the presence of U.S. troops. This would apply at least to Chad, Syria, Yemen, Libya, and Somalia, and possibly even Venezuela.
  • Another mitigating factor is the presence of U.S. diplomats. This would also apply to Chad and Venezuela.
  • Finally, the existence of “alternative sources of information” about Venezuelan travelers mitigates against their governments’ failure to meet the baseline. But this mitigating factor would also apply to some travelers from every other country. The fact that sources of information exist about some travelers and immigrants from these countries is precisely why there was not already a ban in place. Travelers face the burden of proof in the process. If someone cannot prove their eligibility, the government simply denies their application.

Every travel ban country meets one of the mitigating factors. Chad meets all of them. Libya, Yemen, and Somalia meet four of the five, every factor except the presence of U.S. diplomats. Syria meets three of the conditions. Iran and Venezuela meet two of them. Thus, we have no idea how these mitigating factors matter, when they are applied, or what they can compensate for.

No combination of factors explains the proclamation’s travel ban selections.

Not all travel ban countries fail all of the baseline criteria, and not all of the other non-banned countries meet the baseline criteria. The next most logical explanation is that some combination of factors explains the list. The proclamation hints at this possibility, asserting that these eight countries “have ‘inadequate’ identity-management protocols, information-sharing practices, and risk factors.” At a minimum, this means that each country on the list has failed at least one criterion in each of the three baseline categories. Yet once again, the proclamation then admits that this is not true.

It states that DHS “determined that Somalia satisfies the information-sharing requirements of the baseline and states that Venezuela met “the baseline standards identified,” except for those relating to public-safety and terrorism-related information sharing and risk criteria. In addition, Iran appears to meet the identity management requirements. It uses an electronic passport that is recognized by other countries, and according to INTERPOL, Iran’s cooperation with lost or stolen passports is “quite strong,” and that it is “able to get information from Iran” on criminals. North Korea and Chad don’t appear to fail any of the risk criteria (except for complying with the rules of the Visa Waiver Program, which at least according to the State Department only applies to VWP countries).

In the table below, I mark failed criteria with Ns and those that the countries meet with Ys. Each country has two columns, the left (P) for what’s in the proclamation itself, and the right (R) for what I was able to identify independently or where I have no reason to doubt the proclamation (see the Appendix for a full explanation). Question marks signify that either the proclamation is unclear or, in the case of the (R) column, the answer is unknown or uncertain. The blanks indicate that the proclamation is silent on the issue. See the annex for an explanation of each factor. “Total fails” in the last column refer to all countries in the world failing that criterion.

Other than not complying with the requirements of the Visa Waiver Program—which appears to only apply to VWP countries—there is no single factor that all eight countries fail. That’s true even if you focus only the statements that the proclamation itself makes or add in the higher-than-baseline requirements. Even if we combine all the terrorism requirements into one criterion, not all the countries on the list would fit that requirement. Introducing the mitigating factors only muddies the picture even further, as there is also no consistent application of those.

Table: Inclusion Criteria for Each Country Mentioned in the Travel Ban Proclamation

Media Name: travelbancriteria2.png

Sources: International Civil Aviation Organization; White House; U.S. Department of State; Immigration and Customs Enforcement; Department of Defense; U.S. Department of State; Customs and Border Protection; See Appendix


For countries on the list, and for any country wishing to remain off the list, it is vitally important that they understand which factors led to their inclusion or exclusion. If the United States is acting in good faith—seeking to change behavior as opposed to looking for an excuse to ban people—its criteria should be clearly explained and understood. The Iran nuclear deal, for example, has very precise requirements for Iran to avoid sanctions, down to the exact percentage of purity for its enriched uranium. This is very far from the case here.

No consistent combination of factors or mitigating factors triggers the ban. Not every country needs to meet the baseline requirements, and while certain mitigating factors can protect a country from the ban, meeting some or all of them doesn’t always result in exclusion. The travel ban simply lacks an objective standard of application. 


Nine Primary Baseline Requirements

Category 1: “Identity management information”/“Integrity of documents”

1) “Use of electronic passports embedded with data”: The International Civil Aviation Organization is a United Nations agency responsible for tracking travel documents. According to the ICAO, 86 countries fail to issue an electronic passport embedded with data. Of the travel ban countries, Venezuela, Iran, Libya, and Somalia do issue electronic passports. This criterion lacks even a vague quantification aspect, so we cannot know what share of passports must possess these capabilities. For example, certain nationals of the United Kingdom still rely on non-electronic passports, despite the country now issuing such passports.

2) “Reports lost and stolen passports to the appropriate entities”: This criterion lacks a quantification aspect—what share of lost or stolen passports must be reported and how regularly must the country report? According to INTERPOL on whose database the U.S. government relies on for this information, 174 countries share this information, meaning that 16 INTERPOL member states and at least one other do not. (The U.S. admits travelers from 191 countries.) Of the 174 sharing countries, as of mid-2014, only a small minority were regularly contributing to the database, and the most populous countries in the world—China, India, and Indonesia, contribute few. In 2014, at least India did not participate at all.

In December 2015, DHS reported that all 38 Visa Waiver Program countries shared lost or stolen passport information. INTERPOL itself doesn’t report on individual member participation in a systematic way, but it did release data in 2011 to researchers, showing that 101 countries, including Syria, were using INTERPOL’s passport screening system in some fashion. In 2014, INTERPOL described Iran’s reporting compliance as “very strong.” Somalia is said to have met all information sharing requirements, and Venezuela is described as lacking only one of the information sharing requirements. Syria also appears to report lost or stolen passports. Libya also uses INTERPOL’s Stolen and Lost Travel Document database.

3) “Makes available upon request identity-related information not included in its passports”: There doesn’t appear to be any systematic reporting on this requirement, and again, there’s not even vague quantification aspect to this criterion. However, the order indicates that Somalia met all information sharing requirements and that Venezuela only failed one information sharing requirement. I assumed that the counterterrorism partner countries—Yemen, Libya, Chad—also share this information as Somalia does. Chad and Yemen utilize the U.S. Personal Identification Secure Comparison and Evaluation System (PISCES), which is a border control screening system that the U.S. created to aid information sharing between itself and countries with porous borders. At least 32 countries use PISCES.

Category 2: “National security and public-safety information”

4) “Makes available, directly or indirectly, known or suspected terrorist and criminal-history information upon request”: This requirement focuses on the willingness of a government to share information with the United States unlike secondary baseline criterion #2 below, which requires an ability to collect. We know this because Somalia is said to have met this requirement despite being said to be unable to share as much information as the U.S. would like. As far as criminal history information goes, all 192 INTERPOL member countries, including all travel ban countries except North Korea, share information regarding felons via “red notices” to INTERPOL that all members, including the United States, receive. This has been the case for all countries except Somalia since 2007. All 38 Visa Waiver Program countries have entered into agreements to share information directly with the U.S. Terrorist Screening Center, though more than a third of them were not doing so as of December 2015, according to DHS. DHS officials told the GAO, however, that some countries report this information through other means.

Other countries also share this information, but there does not appear to be systematic reporting on it. According to section 1(f) the proclamation, 11 countries agreed to share this information in response to U.S. requests. Libya does contribute to INTERPOL’s databases for criminals, terrorists, and war criminals. Somalia does as well. The proclamation asserts that six travel ban countries—Chad, Iran, Syria, Yemen, North Korea, and Venezuela—fail this requirement.

We know, however, that Yemen and Chad are misclassified because, as counterterrorism partners, they do share when they can, and both countries utilize the U.S. Personal Identification Secure Comparison and Evaluation System (PISCES), which the U.S. has funded and introduced specifically for watch-listing purposes. At least 32 countries use PISCES. According to INTERPOL, only 52 countries last year reported individuals to its foreign terrorist fighter database. The State Department’s embassy cable about the proclamation asks specifically about participation in this.

It’s also unclear whether Iran, Syria, and Venezuela never share this information. The U.S.-backed Iraqi government is coordinating with both Iran and Syria against ISIS, and Iran is helpful in sharing information about its passport abusers. But again, there’s not even vague quantification aspect to this criterion: how much information or how often.

5) “Provides passport and national-identity document exemplars”: The Department of Homeland Security’s Immigration and Customs Enforcement Forensic Laboratory accepts and analyzes foreign passport samples to identify fraudulent documents and alert immigration inspectors to them. Other than Visa Waiver Program countries, all of which do so, there does not appear to be systematic reporting on this criterion. According to section 1(f) the proclamation, 29 countries provided samples in response to the U.S. request. The proclamation itself does not describe any travel ban country as failing this requirement, except for perhaps North Korea.

6) “Impedes the United States Government's receipt of information about passengers and crew traveling to the United States”: DHS vets the biographic information (19 data fields) of travelers to the United States using its Advance Passenger Information and Passenger Name Records system. Airlines, not governments, must provide this information to fly to the United States. Foreign governments may “impede” the delivery of this information through privacy laws or other measures that bar its transfer. The European Union entered into protracting negotiations with the United States on this point. However, according to DHS, by mid-2013, compliance was “near 100 percent.”

Category 3: “National security and public-safety risk assessment”/”National security risk indicators”

7) “Is a known or potential terrorist safe haven”: The idea of a “potential” terrorist safe haven is not a phrase that appears in any of the State Department’s Country Reports on Terrorism from which the idea of a “safe haven” originates. I considered any country a “potential safe haven” if the State Department at any time in the last decade has considered it a safe haven. In 2016, there were 13 “safe havens”: 1) Somalia, 2) Egypt, 3) Iraq, 4) Indonesia, 5) Malaysia, 6) the Philippines, 7) Lebanon, 8) Libya, 9) Yemen, 10) Afghanistan, 11) Pakistan, 12) Colombia, and 13) Venezuela. Additionally, Mali was a safe haven in 2015. No other country was removed from the list in the last five years. The State Sponsors of Terrorism are automatically not included on this list, and it appears that the reasons for Iraq’s inclusion—the existence of the Islamic State—would apply to Syria. The other two state sponsors, Sudan and Iran, do not meet the definition of a terrorist safe haven.

8) “Is a participant in the Visa Waiver Program that meets all of its requirements”: The United States must invite a country to participate in the Visa Waiver Program, which allows for visa-free travel to the United States. Only 38 countries out of 191 fulfill this requirement. As of December 2015, 13 or 14 countries didn't fulfill the requirements of the program. The State Department cable implies that this requirement actually only applies to Visa Waiver Program countries, which would make more sense, but the proclamation itself doesn’t say that and, given how much else has changed, we can’t know for sure that it means that.

9) “Regularly fails to receive its nationals subject to final orders of removal from the United States”: According to Immigration and Customs Enforcement (ICE), 12 countries failed this requirement as of May 2017: Cuba, Burma, Cambodia, Eritrea, Guinea, Iran, Laos, Morocco, South Sudan, Vietnam, China, and Hong Kong. In September 2017, four countries—Eritrea, Cambodia, Guinea, and Sierra Leone—were sanctioned for it. In May, Sierra Leone was not on the list but was sanctioned in September. Iran is on the May 2017 list. It is the only travel ban country listed as uncooperative by ICE.

Six Higher-Than-Baseline Requirements

Category 1: Identity systems

1) “Issues an electronic passport the United States, and many other countries, recognize”: The proclamation states that Somalia fails this higher-than-baseline requirement. It is unclear how many countries would also fail this requirement. However, according to the ICAO, only 58 countries participated the ICAO’s Public Key Directory as of 2017, which “ensures that border authorities around the world can validate ePassports.” The State Department’s cable asks about the country’s use of this directory. Of the travel ban countries, only Iran is a participant.

Category 2: Security sharing

2) “Compromised ability… to share information about its nationals who pose criminal or terrorist risks”: The proclamation tells us that Somalia and Libya fail this higher-than-baseline requirement. As distinct from criterion #4 above, it focuses on the inability to collect and then share information, not the willingness to share it. It is too vague to assess in any particularly rigorous way. Of the travel ban countries, Libya, Chad, and Yemen are counterterrorism partners. This implies that although the proclamation describes Chad and Yemen as failing criterion #4 above, they actually fail this higher-than-baseline requirement.

Category 3: Other risks

3) “Designated as a state sponsor of terrorism”: Iran and Syria are said to have failed this unlisted requirement. Sudan is also a State Sponsor of Terrorism, but after being on prior versions, this new version of the travel ban removed it.

4) “Terrorist groups are active within [the country] or in the surrounding region”: Chad is said to have failed this higher-than-baseline requirement. This requirement is much broader than baseline criterion #7, regarding terrorist safe havens. This criterion appears to have been added by the president or White House officials because it does not appear in the State Department cable instructing U.S. embassies to request certain information from foreign governments related to the proclamation. It brings in activities of terrorists outside of the borders of the country. The terrorist groups listed as threats from Chad are neither based in Chad nor composed of Chadians.

According to the U.S. Department of State, terrorist groups in 2016 based their operations in 37 countries. Here they are in order of most groups to least groups: Pakistan, Afghanistan, Palestine, Lebanon, Syria, Libya, India, Iraq, Israel, Mali, Niger, Algeria, Burkina Faso, Colombia, Egypt, Indonesia, Iran, Nigeria, Philippines, Tunisia, Turkey, Bangladesh, Cameroon, Cote D'Ivoire, France, Greece, Ireland, Japan, Nepal, Peru, Russia, Somalia, Spain, Sri Lanka, United Kingdom, Venezuela, and Yemen. The first 22 countries have at least two terrorist organizations operating in their country. In addition, it mentions groups that sometimes threaten, cross into, operate on the borders of, or have in the past made attacks, or host individual leaders in Malaysia, Ivory Coast, Mauritania, Brazil, Ecuador, Qatar, and “European countries.” Of the travel ban countries, only North Korea is not on this list.

5) “Not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States”: Libya and Venezuela are said to have failed this higher-than-baseline requirement, which is more stringent than baseline criterion number #9 that stipulates that must “regularly” fail to respect removal orders, while this criterion requires “full” or complete compliance. The government does not report how many countries are not fully cooperative with deportees, but back in May 2016, DHS listed 23 countries as uncooperative—perhaps some of the 11 that dropped from the list by May 2017 are now not “fully” cooperative. It’s noteworthy that Sierra Leon was on the list in May 2016, off in May 2017, and then separately sanctioned in September 2017. The same was true for Libya, but Venezuela has not appeared on any of the lists. In any case, this more stringent category would sweep in several more non-travel ban countries.

6) “Lack of territorial control”: This unlisted criterion justifies the inclusion of Somalia. It is duplicative, however, because Somalia is a terrorist safe haven and part of the definition of a safe haven is ungoverned or under-governed areas. For this reason, this would also apply to all 12 of the known or potential terrorist safe havens listed in criterion #4. There are, however, several other areas in various countries around the world that are not under the control of the central government. These include 1) Central African Republic, 2) Colombia, 3) Democratic Republic of Congo, 4) India, 5) Mexico, 6) Myanmar, 7) Nigeria, 8) South Sudan, 9) Sudan, 10) Thailand, 11) Ukraine, 12) Honduras, 13) El Salvador, 14) Panama, 15) Nicaragua, and 16) Guatemala.

BONUS #7) “Fails to satisfy at least one key risk criterion”: The proclamation repeats the phrase that six countries fail “at least one key risk criterion” without specifying which one. “Risk criterion” relates only to the category #3 national security risk factors. It does not use this phrase for Somalia and North Korea, but it appears that they would each fail two of these criteria. It becomes even more difficult to figure out which criteria the other governments failed given the vague phrase “at least one”—meaning that it could be more than one—and the fact that we know that the order is not applying the risk factors as actually detailed in section 1(c).

The proclamation throws in additional uncertainty by saying that the security risks “include” the three listed, implying that there could be more. But the fact that the proclamation lists these three risks implies that it considers them to be the “key” risks. It would be very strange—but not out of character for this strange proclamation—to list non-key risks and not key ones. In any case, the State Department cable to embassies requesting information about each country for this proclamation lists slightly different versions of these three as the “three security risk indicators,” so this does appear to be comprehensive list (in the cable, the Visa Waiver Program requirement applies only to the Visa Waiver Program countries).

If it is true that this criterion doesn’t apply to non-Visa Waiver Program countries, then there are only two risk criteria that each country could fail. In this case, Chad, Libya, and Venezuela don’t fail any risk criteria, even though the proclamation claims that they do.

Five Mitigating Factors

1) “Commitment to combating the Islamic State of Iraq and Syria”: Section 1(g) of the proclamation explains that this factor mitigates the fact that Iraq failed the baseline, keeping it out of the ban. This phrase would also apply to Somalia and Chad, each of which are members of the U.S.-led Global Coalition to Defeat ISIS, as well as Syria and Iran. Syrian government forces are the primary opposition forces to ISIS in Syria, and according to the Pentagon, Iran is backing almost 100,000 troops in Iraq.

2) “Close cooperative relationship”: This factor also is also said to have mitigated the fact that Iraq failed the baseline. A total of 69 countries have defense agreements with the United States, though some of these include countries like Cuba and Venezuela. There are also 72 coalition partners in the U.S.-led Global Coalition to defeat ISIS. The State Department describes a large number of countries as counterterrorism partners. The United States certainly has “cooperative relationships” with travel ban governments in Chad, Libya, Yemen, and Somalia. The first three the order itself describe as “counterterrorism partners,” and Somalia is a member of the U.S. Global Coalition to Defeat ISIS as is Chad. Mitigating factor #3 further highlights the cooperation between these four governments and the United States. The United States does not have cooperative relationships with the other travel ban governments: North Korea, Iran, Syria, or Venezuela.

3) “Presence of United States forces”: This factor also mitigates the fact that Iraq failed the baseline. According to the Defense Department, the United States has military personnel in 178 countries, including six travel ban countries: Chad, Libya, Somalia, Venezuela, Syria, and Yemen. Only North Korea and Iran have no U.S. troops. The Pentagon has underreported the true numbers of U.S. troops in countries, and there are some 51,490 troops reported as occupying an “unknown” location, so identifying the exact number of troops in any particular country is difficult. But it lists 112 countries with double-digit personnel figures. For the purposes of the table below, I considered only these 112 as having a U.S. “military presence.” It also has military “bases” in 74 countries. These include bases in Libya, Iraq, Chad, Yemen, and Somalia.

  • In Chad, the U.S. has held annual military “exercises” in Chad since 2005, has conducted special operations in Chad for several years, and has a drone base there. About 2,000 U.S. special forces and Chadian soldiers conducted counterterrorism raids together in April 2017.
  • In Yemen, U.S. troops are on the ground fighting with the Yemeni government against militants there, and in August, they engaged in a joint operation against al Qaeda. U.S. soldiers were seriously wounded there in May, and in January, one died. From 2009 to 2017, the U.S. has carried out 214 drone attacks in Yemen.
  • The U.S. has involved itself militarily in Somalia for decades. In Somalia, U.S. forces have carried out 24 counterterrorism raids and 32 drone strikes. In April 2017, the Trump administration sent “dozens” of new soldiers there.
  • In Libya, U.S. forces were instrumental in the overthrow of Libyan dictator Muammar Qaddafi in 2011. U.S. forces are still carrying air strikes in the country and also carry out special operations on the ground. President Trump is considering increasing the ground presence.

4) “United States diplomatic presence”: This factor also mitigates the fact that Iraq failed the baseline. The United States also has a diplomatic presence in Chad and in Venezuela. The United States maintains limited or no diplomatic presence in Antigua and Barbuda; Dominica; Grenada; St. Kitts and Nevis; St. Lucia; St. Vincent and the Grenadines; Guinea-Bissau; Bhutan; North Korea; Iran; Yemen; Syria; Libya; Netherlands Antilles, Curaçao; and Belarus.

5) “Alternative sources for obtaining information to verify the citizenship and identity”: Once again, there is absolutely no doubt that this factor applies to all eight travel ban countries. As mentioned at the top, no one can receive a visa to travel to the United States without proving their identity and eligibility, so if no one from these countries could do so, there would already be a travel ban. This is why the basic premise of the travel ban is wrong.

This post was updated on 11/7/2017.

October 9, 2017 12:48PM

Seven of the Many Problems with Trump’s Immigration Principles

The White House released a list of immigration priorities for Congress yesterday. These ideas would render a broken immigration system even more dysfunctional, and the president’s team justifies these expensive and unnecessary proposals with distortions and falsehoods. President Trump may never have reviewed them, so we should not necessarily view these ideas as set in stone, but they do demonstrate how far certain members of the administration are willing to go to undermine the growing bipartisan consensus on allowing young undocumented immigrants to stay.

Here are some problems with the priorities:

1) Not a single pro-immigrant plank: When the White House first announced that it would put together this list, it explicitly tied it to a deal with the Democrats on DACA. Yet these new principles fail to mention anything about DACA or the Dreamers, despite President Trump’s public endorsement of legalization for them and his personal efforts to obtain a deal on the issue. Legislative DACA—which is the only humane outcome for people who are Americans in every sense that matters—would increase tax revenue, grow the economy, and lower enforcement costs. Beyond DACA, the proposals also will not fix any of the infuriating and irrational aspects of America’s legal immigration system. Indeed, it will make them all worse.

2) An expensive ugly border wall: President Trump’s top priority is the “construction of a wall along the southern border of the United States.” This gigantic expenditure of taxpayer dollars will do little, if anything, to secure the already secure border. More importantly, while the proposal will not make Mexico pay for it, it would make legal immigrants pay for it through taxes on immigration applications. Beyond being exceptionally unfair, these new taxes—which the proposal erroneously calls “processing fees”—will make legal immigration and tourism more expensive, reducing foreign investments, expenditures, and work in the United States, all of which would harm the U.S. economy.

3) Criminalizing nonviolent civil offenses: The priorities would create a new misdemeanor offense for overstaying a visa. Immigration fraud is already a crime. This would criminalize the technical violation, regardless of the reason. It would also create new criminal penalties for filing “baseless” asylum applications and increase penalties for those who recross the border after a deportation.

Bills containing these ideas are already moving through Congress. They would gut much of the progress America has made on criminal justice reform over the last decade, finally decreasing the federal and state prison populations for the first time in decades. Immigration offenses already make up half of all federal criminal arrests. At any particular time, the federal government has 23,000 immigrants incarcerated for immigration offenses. The priorities would also allow state and local governments to pass their own enforcement laws, which—if they included criminal penalties under state law—would vastly expand America’s capacity to pointlessly lock up immigrants for these offenses. This idea could be what the drug war once was to America’s over-incarceration problem.

4) Penalties for visa overstays that will backfire: The priorities would bar all visa overstays from any immigration benefits for a certain period. Immigration law already does this for those who overstay their visas and then leave the country. In such cases, immigrants cannot apply for a visa to return for three years if they overstayed for 180 days or ten years if they overstayed for a year, and so are known as the three and ten-year bars. Those who cross the border illegally cannot apply for any benefits in the United States and are subject to the same restrictions if they leave. Rather than encourage lawful behavior, these laws backfired after Congress imposed them in 1996. When people broke the law, they didn’t seek to correct their mistakes because the law prohibited them from doing so. Instead, they stayed illegally. The likelihood of a new unauthorized immigrant leaving within one year after an initial trip to the United States dropped from about 50 percent in 1996 to about zero in 2008.

5) “Merit-based” immigration that doesn’t reward merit and punishes immigrant families and refugees: Congress should allow more high-skilled immigration, but the White House describes the following reforms as rewarding merit: reducing the number of refugees; eliminating the ability of U.S. citizens to sponsor parents, adult children, or siblings; and eliminating the diversity visa lottery. None of these proposals actually help skilled immigrants, whom America treats terribly.

Moreover, they do not propose increasing the availability of visas for high-skilled immigration. Instead, they propose—like the White House-endorsed RAISE Act—to replace the existing employer-sponsored visas with a “points system.” In other words, it would not increase skilled immigration. The “replacement” aspect of the RAISE Act would throw hundreds of thousands of skilled immigrants who have waited for many years out of line and require them to reapply under its nonsensical point system. Because many of the family-sponsored immigrants are skilled, the administration priorities would have enormously negative fiscal and economic impacts.

6) Unnecessarily cruel asylum policies: The administration proposes increasing the threshold even to simply apply for asylum. I have written before about Republican efforts to impose a high evidentiary standard for asylum seekers at the border or ports of entry. The administration blames America’s generous asylum system for a surge in asylum cases (rather than violence abroad and a worldwide refugee crisis). Yet in 1996, Congress adopted a much less harsh policy in response to a similar surge of asylum seekers, requiring them to state a plausible claim of asylum and then giving them time to gather evidence and prove their claims. This system weeded out people who obviously were not asylum seekers without risking turning back people to violence and persecution. Now the administration wants people to have to prove their claims before they even apply, and as soon as they arrive. This is simply impossible for people fleeing for their lives.

7) E-Verify’s electronic national ID system: E-Verify is the federal government’s attempt at a card-less national identification system. Some employers currently use it either voluntarily or under threat of sanction under state law to screen employees against federal databases for immigration status. But it contains no restrictions on its use and could be used to screen Americans participating in almost any activity. Gun sales seem like a likely target given that the law already prohibits unauthorized immigrants from possessing a firearm, but once it is mandated for gun sales, the argument against its use for housing, bank accounts, DMVs, etc. diminishes greatly and a comprehensive system of surveillance and government pre-approval is likely.

Other problems with E-Verify abound. System errors already have delayed or cost a half a million jobs for legal workers since 2006, and over the next decade, would delay or cost another 1.7 million jobs. Mandatory E-Verify would be one of the largest labor market regulations in the history of the United States, applying to every employer and worker in the United States. It would increase the costs to hiring and so lower overall employment at the margins. It has not been shown to decrease unemployment or reduce the incentive to immigrate illegally.

So many other aspects of the priorities deserve mention. Combining various proposals, the administration wants to 1) create a deportation force to round up large numbers of immigrants, 2) place these immigrants in expensive detention centers and deport them 3) without any due process to 4) countries where they are not even nationals. It wants the ability to deport legal immigrants whose convictions were vacated or who were never even convicted of a crime. It wants to deport unaccompanied child border crossers without a court hearing to countries where their parents may not even live.

All of these ideas are expensive and unnecessary. Illegal immigration has fallen to a trickle and increases in legal immigration would eliminate the remaining flow. These ideas would make nearly every portion of America’s immigration system less rational, less humane, and more costly. Congress should not even debate them and move immediately to consider real proposals to fix the system.