201801

January 19, 2018 1:22PM

America’s Foreign Policy Attention Deficit

We Washingtonians rightly get criticized for being hyper focused on politics. While D.C. natives gossip about the ups and downs of the powerful elite, most Americans are worrying about their marriages and mortgages. The disjuncture is even greater when it comes to foreign policy, an area in which public interest and knowledge are particularly limited. As many scholars have pointed out, to some degree this dynamic is the result of “rational ignorance” on the part of the public. Given the many other priorities citizens have in their private lives, the benefits of following policy debates closely is quite limited so long as people are generally confident that more knowledgeable people are paying attention. 

Taken too far, however, public apathy toward foreign affairs could become a problem for a democratic system. A central pillar of democratic politics is the ability of the marketplace of ideas to foster debate and produce sound policy. Without a certain level of public engagement, the marketplace of ideas cannot function effectively. If no one is paying attention, how can we have a meaningful debate over U.S. military operations in the Middle East and Africa, or what to do about North Korea’s nuclear arsenal, or China’s growing power? 

The traditional method for criticizing the public’s attentiveness to foreign policy is to note Americans’ astonishing lack of knowledge about the world. The June 2017 Pew Research “News IQ” survey finds, as usual, that most Americans know little even about events and people that have appeared regularly in the news. On the four questions most closely related to foreign policy, 60% of those surveyed knew that Britain is leaving the European Union, 47% could identify Robert Mueller as the person leading the investigation into Russian interference in the 2016 election, 44% could name Rex Tillerson as the Secretary of State, and just 37% could identify Emmanuel Macron as the president of France.

The public also typically lacks key facts informing specific foreign policy issues. Even as the Trump administration calls for new kinds of nuclear warheads, polls have routinely found that few Americans are aware that the United States already possesses thousands of nuclear weapons. And though 67% of Americans in 2014 knew that the Islamic State controlled territory in Syria, only half could identify the nation of Syria when it was highlighted on a map. In 2009, fewer than 30% knew that the United States had 70,000 troops in Afghanistan.

Thanks to Google we have another way to measure America’s foreign policy attention deficit. Google Trends gives us the ability to track how often people searched for a given term over a particular time period. If public ignorance is due to lack of interest, search activity on the Internet is a good way to measure that.

To illustrate what Google Trends data look like, Figure 1 displays people’s search interest in North Korea over the past year. The first spike reflects a series of North Korean missiles tests in April. The high point for Google searches on North Korea came in August when Kim Jong Un, after claiming North Korea now had the ability to hit the American mainland with nuclear weapons, threatened to fire missiles at Guam. President Trump responded that any North Korean provocation would be met with “fire and fury.” 

Media Name: nk_gtrends_fig.jpeg

Google Trends also gives us the ability to compare the popularity of different search terms across regions. Using Google Trends, I looked at people’s search interest in eleven important foreign policy topics during 2017. The exercise confirms the political junkie stereotype of Washington, D.C. but also provides a new way to measure the lack of public attention to foreign affairs elsewhere in the United States. 

Unsurprisingly, Washington D.C. ranked highest in search activity for eight of the 11 topics. The three issues Washingtonians searched for less often than their peers were refugees (2nd, behind Vermont!), North Korea (10th), and the border wall (43rd). Table 1 introduces what I’m calling the “Beltway Index,” a simple measure of how much more attention people inside the Beltway pay to foreign policy than the rest of America.

Google Trends reports results on a 0 to 100 scale, with 100 pegged to the maximum level of search interest. Washington D.C. scored 100 in eight of 11 cases. A score of 50, on the other hand, means that a search term was half as popular as the maximum. Table 1 ranks the issues by what I call their Beltway Index – calculated by taking Washington’s search interest score and dividing it by the average score for the 50 states.

According to the Beltway Index, Washingtonians exhibit twice as much interest in foreign policy, on average, as Americans living outside the Beltway. The variations are illuminating. The highest index score is for the North American Free Trade Agreement. Despite NAFTA’s importance, and Trump’s promises to renegotiate a deal he has roundly criticized, trade policy makes for dull fodder. Trade negotiations unfurl slowly, behind closed doors without any compelling visuals, and the arcane details involved hold little interest for most Americans. On the other end of the spectrum, the only issue less popular in Washington than in the average state was Trump’s favorite construction project, the border wall. The three states most interested in the wall include Illinois (100) along with California (81) and Texas (77). Curiously, both Arizona (47) and New Mexico (41) are among the less interested states on the issue.

Table 1. Attention to Foreign Policy and the Beltway Index

Topic

Washington D.C. Search Interest


50 States Average Search Interest


Beltway Index

(Washington Interest/Avg State Interest

NAFTA

100


27


3.7

Iran

100


39


2.6

Terrorism

100


40


2.5

Immigration

100


44


2.3

Iraq

100


50


2.0

Refugees

89


47


1.9

Syria

100


55


1.8

Russia

100


62


1.6

China

100


73


1.4

North Korea

59


55


1.1

Border wall

43


53


0.8

Given the relatively low comparative level of interest in foreign policy shown by Americans outside of Washington D.C., we should not be shocked that public knowledge on these issues is so low. But given the low level of confidence in the government these days, and the high number of Americans who believe the nation is on the wrong track, it is surprising that so few people outside Washington D.C. feel the need to monitor events more closely. Leaving politics to the professionals only makes sense if citizens feel they can trust their political leaders. If there were ever a time when citizens might be expected to be paying more attention 2017 would seem like an excellent time do so.

Combining the Google Trends data with the 2016 popular vote for each state we can, in fact, find evidence of the connection between trust and attention. The 24 states that voted for Trump had an average search interest score of 45.8 while the 26 states (and Washington D.C.) that did not averaged 54.3 (or 52.9 excluding Washington, D.C.). This result is in line with the idea that people who trust Trump feel more comfortable paying less attention to foreign policy, while those who trust Trump less feel compelled to pay more attention. Table 2 provides data for the states with the strongest and weakest support for Trump. The ten states with the highest popular vote percentages for Trump averaged 44.3, while Washington D.C. and the nine other states with the lowest vote percentage for Trump averaged 60 (or 57 excluding Washington D.C.).

Table 2. Trump Support and Foreign Policy Interest by State

10 States with Highest Trump Support
State Trump Popular Vote % Search Interest Score
Arkansas 60.6 42.2
Tennessee 61.1 43.5
South Dakota 61.5 45.1
Kentucky 62.5 43.5
Alabama 62.7 41.9
North Dakota 64.1 46.9
Oklahoma 65.3 46.7
West Virginia 68.6 43.7
Wyoming 70.1 45.5
10 States with Lowest Trump Support
State Trump Popular Vote % Search Interest Score
District of Columbia 4.2 90.1
Hawaii 30 54.2
California 31.9 59.7
Vermont 32.6 61.0
Massachusetts 33.3 57.1
Maryland 34.5 61.2
New York 36.8 57.7
Washington 38.1 53.9
Illinois 38.9 54.9
Rhode Island 39.7 52.0

By most accounts Trump’s first year as president has been unusually turbulent. Every day holds the promise of another destabilizing tweet, a juicy revelation in the Russia interference investigation, or news about critical developments abroad. True, a lot of the day’s news turns out to be white noise – compelling for D.C. insiders but of little value most Americans. But on the other hand, when the president increases U.S. military presence in the Middle East by 33%, cranks up airstrikes in Afghanistan, announces that the U.S. will keep 2,000 troops in Syria indefinitely, and trades insults with North Korea on a weekly basis, paying more attention to the news starts to sound like a pretty good idea.

January 19, 2018 12:44PM

Senator Lee’s Bill Would Eliminate Controversial HUD Rule

Last week I published an article critiquing Secretary Ben Carson’s disappointing first year at the Housing and Urban Development Department. It outlined some of the areas where Carson’s efforts have fallen short.

Last year, Senator Mike Lee introduced a bill addressing one of the issues Carson fell short on -- facing an Obama-era rule called Affirmatively Furthering Fair Housing (AFFH).[1] Congressman Paul Gosar later introduced companion legislation in the House. Both bills would eliminate the HUD rule if passed.

That’s good news for legislative process, since the Obama-era rule that makes HUD an overseer of local demographic information seems to be only loosely based on the 50-year-old Fair Housing Act it claims to interpret. The rule is probably an example of the agency getting creative about ways to expand its mission. 

In other words, if legislators like the rule they should pass new legislation rather than abdicate legislative authority to HUD. Conversely, if legislators don’t like the rule Congress should pass legislation to nullify it.

The latter is precisely what Senator Lee and Congressman Gosar’s bill does -- eliminate the controversial rule outright. And despite the bill’s rather unfortunate name, the “Local Zoning Decisions Protection Act,”[2] it is encouraging that Congress is taking deliberate legislative action.

After all, legislators are supposed to create laws, not agency professionals and not even political appointees. Regardless of how one feels about the HUD rule’s particulars, more legislating in Congress and less in the executive branch is a model everyone should be able to get behind.





[1] The rule makes HUD an overseer of local demographic information, with a special eye towards eradicating demographic segregation.



[2] Local zoning often erodes property rights and individual liberty and arguably is sometimes not in keeping with the U.S. Constitution’s takings clause. Property rights and individual liberty should be protected.

January 19, 2018 9:38AM

Much Ado About Yik Yak

Campus controversy is all the rage these days. Today’s installment comes from the University of Mary Washington, located in Fredericksburg, Virginia. Members of the local student affiliate of the Feminist Majority Foundation took public positions against fraternities and various other problems exemplifying what was, in their view, a toxic student culture regarding sexual assault (for example, the men’s rugby team singing a necrophilic drinking song).

Students who disagreed with the feminist activists went on Yik Yak, a now-defunct app that allowed anonymous users to post whatever they like. It turns out that the veil of anonymity encourages people to speak in an unvarnished way, so many of the comments on the app were aggressive, vulgar, and hyperbolic.

The activists demanded that the university administration take action -- and some actions were taken (including suspension of the rugby team) -- but the university could not very well punish anonymous postings because, well, they were anonymous. The administration pointed out that banning a public forum because of objections to the speech expressed there would be an affront to free speech, which the University of Mary Washington, a public institution, is obliged by the First Amendment to protect.

The activists were displeased and, backed by the national Feminist Majority Foundation, sued the school for failing to ban Yik Yak and otherwise crack down on offensive speech, in alleged violation of Title IX and the Equal Protection Clause of the Fourteenth Amendment. The federal district court granted the university’s motion to dismiss, so the case is now on appeal before the U.S. Court of Appeals for the Fourth Circuit.

Cato has joined an amicus brief alongside the Foundation for Individual Rights in Education, National Coalition Against Censorship, and former ACLU president Nadine Strossen, arguing that the Fourth Circuit should affirm the dismissal of FMF’s lawsuit. The “Yaks” in question are not to our taste, to say the least, but the values of free expression and free inquiry are meaningless if they protect only those things of which we approve. The university behaved reasonably in this instance, taking steps to address legitimate concerns while declining to abridge the most fundamental guarantee of the Bill of Rights.

College students, for all their foibles, are adults who must learn to engage with other adults who disagree, even those who disagree in repulsive ways. To make government officials the arbiters of our values is to invite the capricious judgement of those in power who would impose their own peculiar taste as to which ideas are and are not permissible within their particular jurisdiction.

In Western Europe, you can be prosecuted if you deny the Armenian Genocide; in Turkey, you can be prosecuted for affirming it. When it comes to the First Amendment, where you stand in the eyes of the law should not depend on the jurisdiction in which you sit.

The case is Feminist Majority Foundation v. University of Mary Washington.

January 18, 2018 1:57PM

Solid Foundation? The (Flawed) Assumptions Underpinning Trump’s Nuclear Posture Review

A call for new low-yield nuclear weapons in the Trump administration’s Nuclear Posture Review (NPR) has generated a good deal of controversy and debate among American experts, and for good reason. However, there has been little attention paid to the assumptions that undergird the arguments made in the NPR to justify such capabilities. Flawed assumptions lead to flawed policy prescriptions, and the NPR’s assumptions are shaky at best. Congress should not move forward on the administration’s wish list of low-yield nuclear weapons without rigorously questioning the faulty assumptions made in the 2018 NPR.  

The first key assumption in the new NPR is that the international threat environment facing the United States has worsened considerably since the last review was released in 2010. Unlike the last NPR, which downplayed the role nuclear weapons played in U.S. strategy, the new NPR argues that the growing nuclear capabilities and sharp elbows of America’s adversaries create a compelling need for a tailored and flexible nuclear arsenal. Low-yield nuclear weapons are not intended for “nuclear war-fighting,” the NPR argues, but are meant to bolster deterrence by convincing adversaries that they will not gain a decisive advantage from their own nuclear weapons.

The chief problem with this assumption is that it views deterrence as a contest of capabilities while ignoring the role of interests. In other words, the new NPR implies that capability gaps in the U.S. nuclear arsenal encourage bad behavior from other countries while downplaying the role stakes play in an adversary’s cost-benefit calculation. Credible deterrence requires the United States to make an adversary believe that it will face higher costs than benefits if the target takes an action that the United States is trying to prevent. U.S. nuclear capabilities are one part of this equation, but if the target believes that it has vital interests at stake then it may act regardless of U.S. threats. Low-yield nuclear weapons will impact the cost-benefit calculation of U.S. adversaries, but they probably won’t deter the kinds of actions that have vexed Washington in recent years. For example, the United States was unable to deter China’s island-building activities in the South China Sea and Russia’s annexation of Crimea because in both instances the other countries had greater interests at stake than the United States.

Nuclear weapons are useful tools for deterring things like a nuclear attack against the United States or a Russian attack against NATO, but such actions can be deterred without more low-yield nukes. However, nuclear weapons—regardless of their yield—are poorly suited for preventing other nuclear states from pursuing interests that are much more important for them than the United States.

Another faulty assumption in the NPR is related to Russia’s nuclear strategy. The NPR states that Russia’s “escalate to deescalate” nuclear strategy is a serious threat that requires new U.S. nuclear capabilities to solve. Under the “escalate to deescalate” strategy, Moscow would use or threaten to use low-yield nuclear weapons in a conflict with NATO in order to end the conflict on favorable terms. Therefore, the United States must have new low-yield nuclear weapons of its own in order to prevent Russia from using the threat of limited nuclear escalation to coerce the United States or its allies.

The NPR’s assumptions about “escalate to deescalate” ignore recent developments in Russian military capabilities that suggest “escalate to deescalate” no longer reflects Russian nuclear thinking. Moscow’s economic and military weakness following the end of the Cold War led to greater reliance on nuclear weapons and lower thresholds for nuclear use in order to deter a much stronger NATO. While Russia still lags behind the United States and NATO in military technology, Moscow’s conventional military power and asymmetric capabilities—such as cyber and electronic warfare—have grown much strong over the past decade. Russia has not abandoned the possibility of using nuclear weapons first in a conflict, but U.S. fears over “escalate to deescalate” gloss over the changes that Russia has made to reduce its dependence on nuclear weapons in recent years.

The Trump administration’s NPR makes nuclear strategy based on important assumptions about the state of the world and the nuclear strategies of U.S. adversaries. These assumptions—and the policy solutions that flow from them—must be rigorously questioned in order to craft an effective U.S. nuclear strategy. The case for new low-yield nuclear weapons made in the NPR rests on shaky assumptions about what nuclear weapons are capable of deterring and the characteristics of Russia’s nuclear strategy. 

January 18, 2018 1:09PM

Fear and Mass Surveillance: Our Constitutionally Toxic Political Cocktail

At 12:51pm on January 18, 2018--just a day before it was set to expire--the Senate followed the House's lead and reauthorized the Foreign Intelligence Surveillance Amendments Act (FAA) Section 702 mass surveillance program for another six years by a vote of 65-34.

Writing for JustSecurity.org in October 2017, I made this prediction about the then-looming debate over extending the mass surveillance authority embodied in Section 702: 

Absent another Snowden-like revelation, Section 702 of the FAA will be reauthorized largely without change, and any changes will be cosmetic, and almost certainly abused. Whether it has a “sunset” provision or not is now politically and practically meaningless.

As it turns out, that prediction was optimistic. But first, a recap of the events of this week.

The real drama took place Tuesday evening, when Senate Majority Leader Mitch McConnell (R-KY) held open the procedural vote to end debate on the underlying Section 702 bill, S. 139, by some 90 minutes. The last two holdouts--John Kennedy (R-LA) and Claire McCaskill (D-MO) were worked over by anti- and pro-Section 702 forces on the Senate floor, with Senate Intelligence Committee Chairman Richard Burr (R-NC) calling in reinforcements in the form of Director of National Intelligence Dan Coats to help strong-arm Cassidy and McCaskill into voting to end debate on the bill. The pressure worked, with McCaskill providing the key vote to kill any chance of amending a bill that Senators Ron Wyden (D-OR) and Rand Paul (R-KY) declared was a direct threat to the Fourth Amendment rights of Americans.

Speaking after the procedural vote to kill debate on S. 139, Kennedy told reporters, "I was undecided when I walked on the floor, but the program expires Friday, and I don't want to play with fire. This is an important program."

Kennedy's "playing with fire" reference was a clear manifestation of the political fear he felt. After admitting he was undecided, he elected to be swayed by that fear--fear that the program would lapse without his vote. Fear stoked by the presence of DNI Coats, hovering just off of the Senate floor. Fear that if anyone died in a Salafist-initiated domestic terrorist attack in the period of time between the program's alleged expiration and renewal, he (Kennedy) would be blamed for it. His Missouri colleague, McCaskill, who is up for reelection this year in what will no doubt be a tough fight in a state Trump won in 2016, probably went through exactly the same things in her mind before casting the deciding vote to end debate and move S. 139 forward--with no chance to amend it. 

But would the Intelligence Community have have "gone dark" if the Senate had elected to continue debate beyond January 19 and allow amendments to the bill? No.

FISA Court orders issued under Section 702 are generally a year in length, which means that any orders issued prior to the technical legal expiration date would've been valid for another 12 months. Additionally, Section 702 is not the only authority under which the National Security Agency (NSA) can collect foreign intelligence information. Executive Order 12333, originally issued during the first Reagan administration, provides sweeping overseas intelligence collection authority that, at present, is not subject to any judicial review.

Indeed, it's EO 12333 that makes possible programs like RAMPART-A, as revealed in the Snowden Archive and reported by The Intercept in 2014:

It has already been widely reported that the NSA works closely with eavesdropping agencies in the United Kingdom, Canada, New Zealand, and Australia as part of the so-called Five Eyes surveillance alliance. But the latest Snowden documents show that a number of other countries, described by the NSA as “third-party partners,” are playing an increasingly important role – by secretly allowing the NSA to install surveillance equipment on their fiber-optic cables.

The NSA documents state that under RAMPART-A, foreign partners “provide access to cables and host U.S. equipment.” This allows the agency to covertly tap into “congestion points around the world” where it says it can intercept the content of phone calls, faxes, e-mails, internet chats, data from virtual private networks, and calls made using Voice over IP software like Skype.

Not surprisingly, Senator Burr failed to mention these facts during his pitch to his colleagues to renew the Section 702 program on Tuesday or today.

Also on Tuesday, Burr made the following assertions:

Let me just say from the start, this is the single most reviewed program that exists in the Federal Government. This is reviewed congressionally--it is reviewed by the courts, it is reviewed by the DNI, it is reviewed by the inspector general and the Department of Justice--because, on the committee, we realize this requires not just the stamp of approval from Congress but the assurance by the Intelligence Committee and by every branch of government that it lives within the parameters we set.

Let's examine each of these claims in turn.

Congressional review: Because House and Senate Intelligence Committee proceedings take place in secret, the public has no access to the committee hearing transcripts. We don't how exacting the questioning is, whether a committee had to employee a subpoena to get documents or witness cooperation, or what independent inquiries--like the Senate Intelligence Committee investigation into the CIA's torture program--have actually been conducted into Section 702 or any other program. This secrecy is only partly necessary. It should be possible to at least get declassified summaries of the issues and problems involving these programs that have actually been examined in depth without compromising any legitimately classified sources or methods. That we are not is a red flag.

FISA Court review: How effective is the FISA Court in preventing Fourth Amendment violations of Americans rights under the Section 702 program? Not very, as the activist group Demand Progress noted in a report issued in 2017. As the Demand Progress press release stated, "The report identifies overreaches by the Intelligence Community. These include Constitutional problems, unauthorized information collection, failure to comply with FISA Court orders, failure to provide notice to defendants, and mismanagement of acquired data."

Neither Senator Burr or any other Section 702 supporter referenced these violations during debate over S. 139.

DNI review: The DNI is a program proponent, not an objective overseer. DNI Coats' presence just off the Senate floor was designed to ensure ultimate passage of the underlying bill. Burr's assertion here does not pass the "laugh test."

IG review (including DoJ): The last Section 702 Department of Justice Inspector General compliance report was issued in 2012, and was only declassified in part due to litigation by the New York Times. Thus, the public has no idea whether additional compliance reports have actually been produced, much less what they've found. Moreover, recent reporting by investigative journalist Jenna McLaughlin at Foreign Policy raises disturbing questions about the very integrity of Inspector General offices across the Intelligence Community, including the Intelligence Community Inspector General office itself. Not only is Burr not on the letter requesting a Government Accountability Office (GAO) review of the allegations, he made no mention of the controversy during his remarks on Section 702 reauthorization.

The fact that Burr does not appear to be interested in ensuring that IC whistleblowers can come forward to safely report problems with Section 702 or other surveillance programs makes a mockery of his claims that any IG examination of Section 702 can be trusted.

I began this piece by noting that my prediction last October that Section 702 would be reauthorized with minimal or cosmetic changes had proved optimistic. The Brennan Center's description of the actual effects of S. 139 tell the tale:




When Congress reauthorizes Section 702 of FISA—a law intended to authorize surveillance of foreigners only—it should take the opportunity to shore up privacy protections for Americans. S. 139 does the opposite. It codifies the government’s practice of “backdoor searches” without any meaningful restriction. It also authorizes an expanded form of “abouts” collection. It thus leaves Americans’ privacy more vulnerable, not less. 

Burr and other Section 702 reauthorization proponents have also asserted that the program does not deliberately target Americans--that any communications of Americans swept up in Section 702 dragnet are "incidentally" collected. But there's nothing "incidental" about deliberately targeting people--including Americans at home or abroad--who use the Tor anonymity tool for online browsing--something NSA has been doing for at least a decade. And as the Section 702 "minimization" procedures approved by then-Attorney General Eric Holder in 2009 make clear, NSA can keep and analyze any domestic U.S. communications acquired that employ any form of encryption:

Extract of FISA Section 702 NSA minimization procedures

With the growing number of Americans utilizing apps like Signal, Wickr, and similar encrypted messaging apps, it means the total number of Americans NSA can target for simply using encryption to protect their privacy will grow.

And if NSA can't figure out for sure if you are, in fact, a U.S. citizen, they will target you until they can prove otherwise:

FISA Section 702 NSA minimization procedures extract 2

The bill the Senate just passed and that President Trump will sign makes all of these problems worse. It's another tragic example of the triumph of fear over liberty in the Digital Age. 

 

January 18, 2018 11:56AM

Haitian Guest Workers Overstayed Their Visas Because the Government Cancelled the Program for Them

The Trump Administration recently ordered the Department of Homeland Security (DHS) to stop issuing H-2A visas for temporary agricultural work to Haitians.  One of the reasons given for not allowing Haitians to use the visas was their high overstay rate of about 40 percent in 2016, meaning that about 40 percent of Haitian workers on the H-2A did not leave at the end of the season as they were supposed to.  Depending exactly how overstay rates are calculated, they normally range from about 1 to 3.5 percent for workers on H-2A visas. 

One reason the H-2A overstay rate is so low is that workers have an excellent chance of coming back year after year if they abide by the rules of the program but, if they overstay or otherwise break the rules, then their chance of earning the visa in the future drops to near zero.  However, if the chance of coming back in future years is low because the government could cancel the program then many rational Haitian workers would choose to overstay.  That is likely what happened in the example of the Haitian H-2A visa workers.

Economists Michael Clemens and Hannah Postel wrote a preliminary impact evaluation in February 2017 of allowing Haitians to use the H-2A visa.  The government granted only a handful of Haitians visas to work in the United States in 2015 and 2016.  Clemens and Postel report that all of the workers in 2015 returned to Haiti as scheduled.  They wrote:      

As they vetted potential participants, association leaders were aware that continued participation in the program would be jeopardized if a substantial number of workers overstayed their visas. In the event, all of the workers who traveled returned as scheduled.       

Clemens and Postel didn’t mention the overstay rate for the Haitians who entered in 2016 as that data wasn’t available yet (they were writing the paper in 2016).  But if the reports are true that the Haitian H-2A overstay rate jumped to 40 percent in 2016, then it is likely that the workers suspected that the program was going to be canceled under the next administration and that this was their only chance to stay in the United States.  The expected loss in lifetime income from the possibility that Trump would win and shut down the program was so great that 40 percent of them decided to take their chances in the black market and scuttle any future chance that they would receive another legal guest worker visa.

This is a wonderful example of how government actions have unintended consequences.  Haitians are rational economic actors.  If the goal is to keep overstay rates low, then the government needs to make it easy for migrants to earn visas today and to credibly commit to issuing them in the future.      

January 18, 2018 11:47AM

Securing America’s Future Act Is a Net Negative for the Immigration System

President Trump is backing the Securing America’s Future (SAF) Act drafted by key House Republicans. The SAF Act is a comprehensive immigration reform bill posing as a DACA fix. It is 414 pages long and touches on every major area of the immigration system—family, employment, and diversity legal immigration, humanitarian programs, workplace enforcement, temporary visas, interior enforcement, border security, criminal penalties, and much else. Comprehensive immigration reform is fine, but this massive, complex bill expands the scope of the debate so far from DACA that it cannot seriously be considered an answer to this relatively small immigration issue.

In any case, SAF’s negative provisions outweigh its positive ones. The good leaves much to be desired, and the bad is about as bad as it gets.

Positive Provisions

DACA recipients receive a nonimmigrant status that can be renewed indefinitely (p. 384). The failure to grant them permanent residency with a pathway to citizenship refuses to recognize them for what they are: Americans. But it is still better than the Senate Republican proposal that would grant just a three-year visa that is not renewable, and SAF would also allow them to adjust to permanent residency if sponsored by an employer. This is good, but because the bill does nothing about the per-country limits, sponsorship will just end up creating a huge backlog for green cards for Mexican workers, like the H-1B has for Indian workers. The bill also fails to allow legal immigrant Dreamers—the children of H-1Bs in temporary statuses—to apply for the provisional status, requiring all applicants to have violated the law, which is also an issue with DACA and other bills.

Nonetheless, legal status would allow Dreamers to increase their earnings and encourage them to invest in skills that benefit the United States. Keeping the immigrants here will benefit taxpayers because they will pay more in taxes than they receive in benefits over their lifetimes.

The bill’s guest worker program for 500,000 agricultural workers would reduce illegal immigration while providing a source of legal labor for farms (p. 22). I have previously explained and praised this specific proposal here. Still, the fact that the bill fails to provide any work visas for other industries is a shortcoming.

The 55,000 new employment-based green cards will benefit the economy and provide some small relief for skilled immigrants waiting in the decades-long backlog for green cards (p. 21). It also allows children of green card applicants to remain in line until they are 25 (p. 7), partially resolving the problem of “aging out” for some young immigrants—a phenomenon I’ve written about here. Increasing the number of CBP officers to screen travelers at ports of entry (p. 319) and modernizing ports of entry (p. 350) are overdue changes and benefit the economy by easing trade with Mexico and Canada. From a fiscal standpoint, giving parents of U.S. citizens nonimmigrant visas without the opportunity to obtain federal benefits instead of green cards is positive, but the bill senselessly bans the parents from working.

Negative Provisions

By far the worst aspect of the SAF Act are the cuts to legal immigration overall (pp. 5-21). The bill authors claim that it would cut immigration by 25 percent—some 2.6 million people per decade—but in reality, it would be closer to 430,000, almost a 40 percent decline. This would be the largest policy-driven reduction in legal immigration since the awful, racially motivated acts of the 1920s.

SAF also changes asylum law to make it more difficult for asylum seekers to apply by greatly increasing the standard of proof to apply for asylum (p. 23). I have previously written about how these changes will make it virtually impossible for asylum seekers who don’t already have attorneys waiting for them and evidence gathered to prove their claims to even apply for asylum.

The worst enforcement provision is criminalizing simply being in the United States without status or violating any aspect of civil immigration law (p. 170). This would turn millions of unauthorized immigrants into criminals overnight. It would also criminalize legal immigrants who fail to update their addresses, carry their green card with them at all times, or otherwise abide by the million inane regulations that Congress imposes on them. Take, for example, the status provided to Dreamers in this bill. It requires them to maintain an annual income of at least 125 percent of the poverty line (p. 396). If they fall below that level for 90 days—not only are they subject to deportation again—they would be criminals. This bill literally criminalizes poverty among Dreamers. This legislation would immediately undo much of the progress that the Feds have made on criminal justice reform and reducing its prison population.

Several other security provisions are also problematic. Mandatory E-Verify (p. 87) will impose massive regulatory costs on small businesses, establish a federal national identification system that includes all U.S. workers, and cause hundreds of thousands of Americans to have their jobs delayed or lost entirely due to database errors—all while having a track record of failure in every state that has tried to use it to prevent illegal employment. My detailed comments on this specific E-Verify proposal are here.

Biometric exit (p. 356) is a multi-billion dollar boondoggle that would add absolutely nothing to security while imposing huge costs of travelers and intruding into Americans privacy. Increasing the number of Border Patrol agents by 25% at a time when each agent is already catching less than two crossers per month makes no sense (p. 319). Authorizing states to use the National Guard along the border on the U.S. taxpayer dime is another proven waste of money (p. 286)—even Border Patrol says so.

The bill authorizes spending of $124 billion over five years on border security alone (p. 348). The bill makes little effort to find a means to pay for this gargantuan sum. For comparison, the entire Border Patrol budget last year was $3.8 billion.

An infeasible trade

Republicans are essentially asking Democrats to trade the legalization of 700,000 unauthorized immigrants for the criminalization of all others, banning 2.6 million legal immigrants over the next decade, the elimination of almost all family sponsorship preference categories and the diversity visa lottery, deporting tens of thousands of asylum seekers, huge increases in border security spending, a massive new regulatory program that applies to every employee and employer in the country (“E-Verify”), and so much else. This bill has no chance of becoming law, but it is a remarkable illustration of how far apart the parties are on this issue.