201801

January 29, 2018 4:49PM

ICE To Track License Plates

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Immigration and Customs Enforcement (ICE) has access to billions of license plate images that allow for the agency to engage in near real-time tracking of its targets. This surveillance capability should instill a sense of unease in us all, even if we aren't in ICE's crosshairs. 

Vigilant Solutions, the private company that reportedly collects the data ICE will query, owns a database with more than 2 billion license plate photos that produces 100 million hits a month. These photos come from toll roads, parking lots, vehicle possession agencies, as well as local law enforcement. According to ICE’s privacy impact assessment for the license plate tracking program, Vigilant Solutions’ data includes images from 24 of the US’ top 30 most populous metropolitan areas. ICE does not contribute license plate images to the database.

ICE policy does provide some privacy protections, but they fall far short of what the agency should impose on itself. ICE may only query the database for license plate numbers in order to find information about vehicles that are part of “investigatory or enforcement activities.” Given that ICE has been increasing the number of noncriminal undocumented immigrants it arrests, it’s safe to assume that ICE’s use of the license plate database will extend beyond investigations into undocumented immigrants who are wanted for violent crimes. 

ICE’s privacy impact assessment states that investigators with ICE’s Enforcement and Removal Operations, the agency responsible for deportations, will be able to access five years worth of license plate location data.

Those who believe that ICE should be dedicating significant resources to deporting non-violent undocumented immigrants may applaud the use of license plate location data. What they should consider is that they could be the targets of identical surveillance in the future. The federal government has conducted surveillance on a wide range of targets, and surveillance tools won’t change just because the target will.

The Constitution provides little protection when it comes to long-term warrantless tracking. In 2012, the Supreme Court unanimously held that the warrantless 28-day GPS tracking of a car violated the Fourth Amendment. However, the opinion of the Court, written by Justice Scalia and joined by his colleagues Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, is grounded in the physical intrusion of the GPS locator on the car rather than the GPS tracking violating the driver’s expectation of privacy.

Although Justice Sotomayor joined Justice Scalia’s majority opinion, she wrote her own solo concurrence highlighting the dangers of long-term monitoring that does not require tracking devices to be attached to property. She wrote, “physical intrusion is now unnecessary to many forms of surveillance.” Later in the concurrence, she described the information that location tracking can reveal: “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”

License plate readers are not the only tools that could be used to uncover intimate details of someone’s life. Police in Compton, Philadelphia, and Baltimore have used persistent aerial surveillance technology that enables analysts to use “Google Earth with TiVo” capabilities to track targets. Law enforcement agencies at the state, local, and federal level have been using so-called “Stingrays,” tracking devices that mimic cellphone towers. When merged with body cameras and CCTV cameras facial recognition technology will make it easier for officials to monitor people’s public movements. 

Until Congress or the Supreme Court imposes restrictions on ICE scouring through years of license plate location data without a warrant civil libertarians will have to wait for the Trump administration to adopt policies that restrict this kind of surveillance. The Trump administration’s rhetoric and policy announcements so far make hell freezing over seem more likely.

Those who agree with the Trump administration’s immigration policies are perhaps willing to overlook the significant civil liberties concerns associated with ICE being able to access five years worth of location information without a warrant. They shouldn’t. This technology won’t be put back in the box it came from after President Trump leaves the White House. It’s anyone’s guess who the next target of government surveillance will be. 

January 29, 2018 4:31PM

Infrastructure and Regulations

The other day, the Wall Street Journal looked at the Trump administration’s efforts to reduce the costs of building infrastructure:

The administration is hoping to roll back regulations in place for decades to reduce the period between project approval and construction, limiting environmental reviews and litigation in favor of getting big things built.

The effort is likely to face resistance from environmental groups and their Democratic allies in Congress. But the president’s advisers believe they can alter the permitting process in ways that change how the government builds roads, bridges, rails and pipelines for years to come. “ … I think one of the most important things this administration can do is take permit delivery times from what is now an average of 4.7 years down to two years,” said Alexander Herrgott, the lead infrastructure aide on the White House’s Council on Environmental Quality…”

… Previous presidents have tried to streamline the federal permitting process as a way to jumpstart rebuilding of the nation’s critical infrastructure. That includes President Barack Obama, who signed the FAST Act in 2015, a bipartisan transportation funding package that created a federal permitting improvement council aimed at speeding up the environmental review process.

Mr. Trump and his aides have cited studies suggesting that environmental review can often take a decade, and calling for that period to be reduced to two years. A Government Accountability Office study of the environmental review process in 2014 cited third-party estimates that reviews average 4.6 years.

We will hear more about Trump’s infrastructure approach in his State of the Union message tomorrow night. So far it appears the approach combines:

  1. government spending increases, as I noted,
  2. deregulation, as the WSJ noted,
  3. privatization, as with Trump proposals for air traffic control and federal electricity assets, and
  4. corporate tax cuts to boost private-sector infrastructure investment.

Approaches 2, 3, and 4 are very positive. Approach 1 is not.

More on permitting here. More on infrastructure policies here. More on privatization here.

January 29, 2018 1:23PM

Distance Makes Trump’s Heart Grow Fonder for the TPP?

Picking up on Simon Lester’s reaction on Friday to President Trump’s near 180-degree rhetorical pivot on the Trans-Pacific Partnership, I agree with the implication that one would be ill advised to set his watch to the man’s words. However, there are plenty of good reasons for Trump to change his mind and seek to rejoin the TPP, so maybe—just maybe—the president is beginning to see the bigger picture.

Before the 2016 election, I wrote a piece in Forbes explaining why any president would want the tools of the TPP at his or her disposal and predicted that the next president (despite both major party candidates disavowing it) would ultimately support it:

The TPP is a blueprint for securing U.S. geoeconomic and geopolitical interests now and into the future by updating the rules and institutions of international trade that facilitated 70 years of global economic expansion, poverty reduction, and relative peace. As an agreement that includes countries on four continents, the TPP is well-suited to fill the void created by the breakdown of the multilateral negotiating “round” approach to global trade liberalization. The TPP is open the new members and the fact that it has achieved critical mass (40% of global GDP represented) means that the cost of remaining outside the deal will rise with every new accession, so most eligible countries will choose to join.

As investment has begun to shift from TPP outsiders to TPP members in anticipation of implementation, non-members have been implementing various domestic reforms to improve their prospects for eventually joining. And with China’s most important trade partners joining TPP, Beijing with have no better alternatives than to embrace the TPP, as well—and accept the new rules that will rein in some of the abusive trade practices of which China is so frequently accused.

After Trump won the election, I remained unconvinced that he'd pull out. I wrote in Foreign Affairs:

The TPP offers the last best chance to achieve a fresh round of comprehensive global trade liberalization under U.S. leadership. It reasserts the primacy of the rule of law in trade and expands its coverage to aspects of global commerce that didn’t even exist when the current rules were last updated, 22 years ago. As an agreement that includes countries on four continents and is open to new members that qualify, the TPP could evolve into a vehicle for achieving a much more broad-based round of multilateral trade liberalization.

Economies accounting for nearly 40 percent of global output and one-third of trade are among the TPP’s charter members, so the deal has achieved critical mass. That heft allows the TPP’s terms to be offered to prospective new members on a take-it-or-leave-it basis. If regional investment shifts from TPP nonmembers to TPP members, the incentive to join the agreement would only grow. Many countries, including Indonesia, South Korea, Taiwan, and Thailand, have already expressed interest in joining and have begun to undertake the domestic reforms necessary to qualify for the TPP.

With each new accession to the deal, the cost of remaining on the outside would only increase. That applies to China, too, which could watch some of its most important trade partners join TPP and, at some point, concede to having no better alternatives than to embrace the TPP, as well-and to accept the new rules that would rein in some of the abusive practices for which it is so frequently criticized.

Well, the costs of remaining outside the agreement have begun and will continue to mount and be borne by the United States unless we move quickly to change course. By bailing out of TPP, which will set sail without us as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP-11) in March, U.S. exporters will be at a disadvantage when it comes to foreign market access, U.S. consumers will be deprived of lower-priced goods, and the U.S. economy will be a less attractive destination for investment. 

But just as important, being outside the TPP deprives U.S. negotiators of meaningful leverage to address, curtail, and reverse China's objectionable practices in the realm of forced technology transfer, intellectual property theft, discrimination, and state intervention—especially those practices that might not be adequately restrained by WTO rules. Standing shoulder-to-shoulder, resolutely, with other trade partners who face similar problems in China is probably the best—maybe the only—way to get Beijing to change course short of a deleterious trade war.

Although it's far from clear whether Trump has really changed his mind about the TPP, I think he's probably learned over the past year that his decision to withdraw came at a pretty steep cost. He may have a case of buyer's (returner's) remorse. Let's hope so. Let's encourage him to make amends. But Trump’s off-the-cuff conditionality for reentering the deal assumes a degree of negotiating leverage the United States probably doesn’t have anymore. As humbling as this may be, joining the TPP as a non-charter member is likely to mean the United States would have to give more and get less than what Obama’s USTR was able to do.

(Link to Cato Trade's Comprehensive Assessment of the TPP.)

 

January 29, 2018 10:52AM

White House Plan Bans 22 Million Legal Immigrants over 5 Decades

The White House released another immigration framework Thursday. Like its past efforts, this plan calls on Congress to enact draconian restrictions on legal immigrants. Members of Congress will have to flesh out the details, but in the most likely scenario, the new plan would cut the number of legal immigrants by up to 44 percent or half a million immigrants annually—the largest policy-driven legal immigration cut since the 1920s. Compared to current law, it would exclude nearly 22 million people from the opportunity to immigrate legally to the United States over the next five decades.

The White House Plan: Full Changes

The language in the framework is vague enough that members of Congress have some flexibility in its implementation. The most vocal supporters of the new plan in Congress are Senators Tom Cotton (R-AR), David Perdue (R-GA), James Lankford (R-OK), Thom Tillis (R-NC), and Charles Grassley (R-IA). This group has previously introduced the SECURE Act (S. 2192), legislation that would make many similar changes to legal immigration as those called for by the White House. This analysis will take the SECURE Act as the initial blueprint for a bill implementing the White House ideas.

The president’s new plan adds two major elements that distinguish it from the senators’ current bill. First, it would immediately end the diversity visa lottery and, before eliminating its 55,000 visas completely, reallocate them toward reducing the current family- and employer-sponsored backlogs. Second, it would end—like the SECURE Act—most family-sponsored visa categories, but the White House would apply the changes only “prospectively, not retroactively, by processing the backlog.” This means that the number of legal immigrants would drop more gradually than under the senators’ current bill.

Table 1 provides the fully implemented changes. The White House plan—enacted as an amended and narrowed version of the SECURE Act—would reduce the number of legal immigrants by more than 490,000 people annually, or 44 percent. The final column shows the estimated timing for the entire category to have fully phased out. (See below for a full explanation of these estimates.)

Table 1: Legal Immigrants Under Current Law & White House Framework

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Sources: Authors’ calculations based on White House; S. 2192; Department of Homeland Security (FY 2018 based on FY 2016 figures, accounting for the FY 2018 cut to refugees); *Category would continue but under the SECURE Act, no visas would likely be issued (see text); **Plan provides for a temporary increase



The White House plan would end the categories for parents and siblings of U.S. citizens as well as those for adult children of citizens and legal permanent residents. Based on the SECURE Act, the “minor child” category would be limited to those under the age of 18, rather than 21. The White House framework calls on Congress to end “loopholes exploited by smugglers”—language that the GOP has used to refer to a bill to restrict asylum, elements of which are included in the SECURE Act.

While spouses and minor children of residents are theoretically preserved under both the SECURE Act and the White House plan, the SECURE Act reduces their allotment by the number of parolees—foreigners granted temporary admission for humanitarian or public interest reasons—who stay in the United States for more than a year. Because the number of parolees appears to be greater than the allotment, this category would likely never issue any green cards in practice. The other White House-endorsed bills that cut legal immigration included this formula on parolees, but if legislators do not include it, then spouses and children of permanent residents could continue to access the category. Without knowing what provision would take its place, however, we cannot estimate an alternative scenario.

The effects of the White House immigration framework are similar only to two notorious pieces of legislation: the Emergency Quota Act of 1921 and the Immigration Act of 1924, which reduced the number of legal immigrants by 495,672 and 412,582, respectively. Congress saw these bills as preventing the degradation of America’s racial stock—by Italians and Eastern Europeans, specifically Jews.

The White House Plan: Phase-Out Period

The State Department records 3.7 million applicants waiting abroad in the categories that the SECURE Act would eliminate, and Department of Homeland Security figures indicate that between 6 and 9 percent of family-sponsored immigrants, depending on the category, adjust to permanent residency inside the United States. This would imply another quarter of a million applicants waiting inside the United States (presumably in temporary statuses).

Adding half of the 55,000 green cards from the diversity visa lottery to the combined quota for the eliminated family-sponsored categories would allow 165,566 green cards to be issued annually to those in the backlog. Simple division would lead to a full implementation date of the White House plan 24 years from today.

But this is not the most likely method of implementation. Under current law, each category has a separate annual quota, and within the categories, each nationality has a quota of no more than 7 percent of the total number in that category. For example, the sibling category quota is 65,000, and Mexicans can use no more than 4,550. This means that if the senators leave all other aspects of current law the same, the categories will expire at radically different times for each nationality. For several reasons, the senators are more likely to adopt this staged implementation.

First, it delays or prevents the entry of the greatest number of legal immigrants, which is the bill’s goal. Second, the framework states that the changes would apply “prospectively, not retroactively,” implying that the legislation would allow the current system to continue without any changes. Finally, the SECURE Act already allows the categories to continue unchanged for a single year, so the simplest amendment would be to replace “for one year” with something like “until all current beneficiaries receive visas.” Similarly, the easiest and most restrictive way to implement the diversity visa reallocation would be to distribute them equally among the four eliminated categories.

White House advisor Stephen Miller in his press call explaining the framework indicated that both the employer-sponsored and family-sponsored diversity reallocation was temporary and could be accessed only by green card applicants in line as of 2018. Only employer-sponsored applicants from India would be taking advantage of this increase by 2029 or 2039. While some family-sponsored Mexican applicants would be technically still eligible more than 100 years from now, this analysis assumes 2069 as the date of final implementation (i.e., the date when all applicants who have yet to immigrate are likely to be dead).

As Table 1 shows, 61 percent of the cuts would occur immediately and 71 percent within a decade. From 2019 through 2028, nearly twice as many immigrants—3.6 million—would be banned as would potentially receive residency through the Dreamer legalization—at most 1.8 million—under the White House plan. By the end of the second decade, the number of banned immigrants would rise to 7.6 million. By final implementation, the White House plan would exclude almost 22 million legal immigrants.

Table 2: Legal Immigrants Admitted Under Current Law & White House Framework Phase-Out

 

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Sources: See Table 1; *Category would continue but under the SECURE Act, no visas would likely be issued (see text)

Figure 1 provides the phase-out schedule for the four eliminated family-sponsored preference categories that have a backlog. The implementation occurs in large jumps as the backlog for nationalities that are not at their per-country limits disappears all at once. The more gradual drops happen as the backlogs for individual nationalities are eliminated. 

Figure 1: Number of Family-Sponsored Preference Immigrants under White House Framework By Year

 

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Sources: Authors’ calculations based on White House; S. 2192; Department of Homeland Security (DHS)

As Figure 1 shows, even in 2069, some legal immigrants are still scheduled to receive green cards. These immigrants are entirely from Mexico and the Philippines. Therefore, assuming 2069 as the final implementation date implies that up to 706,665 family-sponsored Mexican and Filipino applicants would die or make alternative plans before they received their green cards under this plan as well as under current law.

This does not mean most people in the current family-sponsored categories typically wait this long to immigrate. Instead, it reflects the impact exerted by the per-country limit in some of the categories, particularly affecting Mexicans and Filipinos in particular. Modifying the per-country limit and increasing quotas in the categories would shorten the family wait times under current law or in the backlog reduction plan.

Conclusion

Restricting legal immigration will unnecessarily deny opportunity to many people and have far-reaching negative consequences for economic growth in the United States. Labor force growth is one of the most important growth factors. Cutting the number of new legal immigrants by about 50% would initially reduce the rate of economic growth in the United States by an estimated 12.5% from its projected level, according to Joel Prakken, senior managing director and co-founder of Macroeconomic Advisers. This penalty would increase in later years as America becomes even more dependent upon immigrants for the country’s labor force growth due to our aging population.

The National Academy of Sciences has estimated that the average immigrant contributes, in net present value terms, at least $92,000 more in taxes than they receive in benefits over their lifetime, so banning them would harm government finances. Diversity and family-sponsored immigrants—who the White House framework would ban—are better educated than the average immigrant (and Americans), so the effects of the White House ban could be even more negative.

The United States needs legal immigrants to maintain a strong rate of current economic growth and stay competitive internationally. America already has an immigration level as a share of its population near the bottom of OECD countries. Real “merit-based” immigration reform would focus on increasing the number of immigrants at both ends of the skill spectrum to fill difficult manual labor jobs as well as contribute to technology, science, and finance. The White House proposal is the opposite of the reforms that would lead America toward prosperity.

January 29, 2018 9:21AM

Immigration Week on the Cato Daily Podcast

Starting today and throughout this week, the Cato Daily Podcast (Subscribe!) will drill down into issues related to immigration. First up, Alex Nowrasteh and I discuss the persistent myths surrounding immigrants and crime. Put simply, if you're going to worry about crime rates among groups, worry relatively more about your fellow Americans and relatively less about immigrants, both legal and illegal.

January 29, 2018 7:55AM

Arizona Governor, Legislature, Rush Through Flawed “Emergency” Opioid Legislation

Late on the night of January 25, the Arizona legislature unanimously approved “The Arizona Opioid Epidemic Act,” introduced at the urging of Governor Doug Ducey (R) just 3 days earlier. The Governor and legislature were in such a hurry that they took no time to request testimony from representatives of the medical profession or from any other experts that might have differing views about the best ways to approach the overdose crisis. The overdose crisis is such an “emergency” that there was no time for that. Yet, most of the Act’s provisions are not scheduled to take effect until 2019.

Among the harmful features of the Act are strict restrictions on the amount and dose of opioids doctors can prescribe to new and postoperative patients. Prescriptions may be for only 5 days, and the dosages are capped. Doctors wishing to exceed these limits must first consult a board-certified pain management specialist which, of course, might take several days. This policy is not evidence-based. It will cause injured patients and those recovering from surgery to suffer needless and agonizing pain. In December, the Arizona Medical Association and the Arizona Osteopathic Medical Association wrote the state Department of Health Services warning of harmful “unintended consequences” that may ensue from one-size-fits-all 5-day limits on prescriptions and dosages for patients in acute pain.

This policy is not just inhumane, it’s dangerous. Desperate patients might seek to get better relief for their undertreated pain by supplementing their prescriptions with alcohol and/or other drugs, or by obtaining drugs through the illegal market, increasing the risk of overdose or death.

Another provision requires all providers to use a state-approved E-prescription system to prescribe opioids, placing a burden on health care providers in remote and rural areas of the state, where broadband internet access is inadequate and where some practitioners lack technological sophistication in their practices.

A “Good Samaritan Law” was a feature of the legislation. This law, a good idea already on the books in over 40 other states, is intended to encourage witnesses of overdoses to call first responders with the rescue antidote naloxone. In many cases, witnesses are afraid to call for help out of fear they might be arrested for possession of an illicit substance or some other offense. A “Good Samaritan Law” assures them they will not be arrested. However, in some states, the laws contain loopholes that have resulted in witnesses being arrested and charged with non-drug related offenses, or even with manslaughter if the overdose victim dies.

Unfortunately, in the rush to pass Arizona’s Good Samaritan Law, such loopholes were included. They allow law enforcement first responders to confiscate any drugs or drug paraphernalia they find on witnesses, and to arrest witnesses for non-drug related crimes. It won’t take long for word to spread after the first such arrest or confiscation. Don’t look for this Good Samaritan Law to reduce many overdose deaths.

It’s not as if the legislators weren’t aware that they were acting in haste and might be making matters worse. Senator Sylvia Allen (R) expressed concerns about the costs of second opinion consultations and how long it may take to obtain them. She also questioned the state’s micromanagement of medical practitioners. She told a reporter for the Arizona Capitol Times, “Here’s a doctor who’s practiced for years, knows that patient, and now they have to get a second opinion. It’s kind of an insult to them. So I don’t like that at all.” Similarly, Senator Steve Smith (R) was unhappy with imposing a new regulatory scheme on doctors, pointing out that only a few “bad doctors” overprescribe, and that adding this new burden is “still not going to solve the problem.” Republican Senator Warren Petersen agreed. 

Senators Rick Gray (R) and Regina Cobb (R) worried about the burden the new E-prescribing requirements place on rural providers. Senator Gray worried that “some of this software isn’t even developed yet.” And Senator Cobb, pointing out that rural doctors might have to lay out $20,000 to set up their systems, called it an “unfunded mandate” on rural doctors.

Senator Sonny Borrelli (R) openly worried about the Act’s potential harm to patients. The Arizona Capitol Times reported him saying, “I don’t want to restrict the ability of good doctors to do their job and force that patient (who needs painkillers) to black tar heroin.”

Along with many of his colleagues on the other side of the aisle, Senator Borelli lamented the fact that barely any attention was given to harm reduction measures that have a proven record of saving lives and preventing the spread of disease. Short shrift was given to Medication Assisted Treatment, and Senator Borelli was unhappy that nothing was done to promote needle-exchange programs. Safe Syringe Programs have been long supported by the Centers for Disease Control and Prevention.

Even Republican Senate Majority Leader Kimberly Yee was unhappy with the rush to action: “If we’re not implementing this until 2019 I don’t know why we’re voting on this this afternoon…Sometimes when we rush through legislation there are consequences.”

Despite the objections raised by these and many other legislators, they voted for the bill along with everyone else— the bill passed unanimously later that day. It is based on the false premise that the opioid overdose crisis is the result of doctors and pharmaceutical companies teaming up to ensnare unsuspecting patients in the web of drug addiction. Yet all the evidence shows that, to the contrary, the overdose crisis is the result of nonmedical users seeking drugs in the illicit market. And in recent years the majority of overdose deaths are due to heroin and fentanyl.

This Act will not cause any intravenous heroin users to pull the needle out of their arm. But it might add to the growing number of deaths from drug abuse.

This sloppy, ill-conceived, and hasty piece of legislation is best understood as a bipartisan act of political grandstanding by the Governor and the legislature in a year when the Governor and most lawmakers are up for re-election. They have until 2019 to fix it before its harmful effects begin to appear.

January 26, 2018 3:40PM

Happy Ending for Bombardier

In its final ruling issued just minutes ago, the U.S. International Trade Commission determined that the U.S. industry (Boeing) was NOT threatened with material injury by reason of dumped or subsidized imports of 100- to 150-Seat Large Civil Aircraft from Canada (Bombardier). This is big news in the trade world for a variety of reasons.

Typically, domestic industries seeking relief under these statutes (the U.S. Antidumping and Countervailing Duty laws) are successful because the evidentiary thresholds are so low. The antidumping law was changed in 2015 to lower the thresholds even further, which helps explain the near record number of trade remedy case filings in 2017.  Boeing seemed to be testing how low that threshold was. As I wrote a few months ago, "The language in the statute would seem to preclude an affirmative threat of material injury finding if there haven’t been any import sales." 

I’m glad the ITC seems to have agreed.  It's important that a case as meritless as Boeing’s, which was predicated on the notion that the domestic industry was “threatened” with material injury by reason of sales by Bombardier to Delta that haven’t even happened, of airplanes that haven’t even been built, which are of a class of aircraft that Boeing doesn’t even produce, was found wanting by the ITC.  Seems like common sense, but the AD/CVD statutes accord very little room for common sense to prevail. It's good to see some a crucial check on the system working.

But there's still a lot of work to do to rein in the routine abuses and to make these laws more compatible with economic reality.