Tag: executive order

Appeals Court Relies Heavily on Cato Work Against the Immigration Ban

Yesterday, in IRAP v. Trump, the Federal Court of Appeals for the Fourth Circuit—which handles appeals from district courts in Maryland, Virginia, West Virginia, North Carolina, and South Carolina—upheld a preliminary injunction against portions of President Trump’s Executive Order banning entry of individuals from six African and Middle Eastern countries. On critical points, the court’s opinion and the concurring opinions cite or rely upon Cato’s work about the order.

Ten of the 13 judges found that the plaintiffs were likely to succeed in showing that the order violates the Establishment Clause of the Constitution. The court’s opinion cites Cato’s amicus brief to resolve a preliminary matter: whether the executive order—it calls it “EO-2”—“injured” any of the individual plaintiffs. The plaintiffs argued that one man in particular would be separated from his wife due to the order’s ban on visas. The government admitted that this would constitute an injury, but argued that the injury would not be “imminent” because he has offered no reason to believe that the ban on entry “will delay the issuance of [his wife’s] visa.” To this, the court responded (p. 35):

But this ignores that Section 2(c) appears to operate by design to delay the issuance of visas to foreign nationals. Section 2(c)’s “short pause” on entry effectively halts the issuance of visas for ninety days—as the Government acknowledges, it “would be pointless to issue a visa to an alien who the consular officer already knows is barred from entering the country.” Appellants’ Br. 32; see also Brief for Cato Institute as Amicus Curiae Supporting Appellees 25–28, ECF No. 185 (arguing that Section 2(c) operates as a ban on visa issuance).

Indeed, that is exactly what we argued: The executive order was designed to discriminate in the issuance of immigrant visas based on nationality, and it would at the very least delay their ability to travel to the country.

Dire Fears of Trump Deregulation

Four decades ago, the United States began a dramatic change in domestic policy, repealing swaths of economic regulation and abolishing whole agencies charged with managing sectors of the U.S. economy.

 

If you mention this “deregulation” today, most people think it refers to wild Reagan administration efforts to undo environmental, health, and safety protections. In fact, the deregulation movement predated Ronald Reagan’s presidency, had broad bipartisan support, and had little to do with health, safety, or environmental policy. Rather, deregulation targeted regulations that directed business operations in different sectors of the American economy: which airlines could service which routes, what railroads could charge what amounts for their services, how telephone service would be billed and what technologies would be used, how the power industry was organized, and much more.

 

For decades, policy researchers had compiled evidence that those regulations harmed consumers and stunted economic growth by suppressing competition and innovation. With America mired in the stagflation of the 1970s, policymakers decided to stop sheltering (some) U.S. businesses from the demands of consumers and the competition of upstart and foreign rivals.

 

That policy change now seems obviously virtuous, but at the time some commentators predicted it would unleash mayhem and disaster: a crippled economy, spiraling prices, “ruinous” competition, frightened consumers, plane crashes, hobbled communications, and other horribles. Fortunately, those frightful predictions did not obstruct reform. Today, the 1970s–1990s deregulations are broadly recognized as having yielded great benefits to consumers and contributed to the two decades of American prosperity that ended the 20th century. (For more on deregulation, see the spring issue of Regulation, celebrating the magazine’s 40th anniversary.)

 

Which brings us to current criticisms of Trump administration efforts to launch a new wave of deregulation. Like yesteryear, the critics are predicting mayhem and disaster. But their arguments aren’t convincing.

 

Consider, for instance, Northwestern University law professor Andrew Koppelman’s warning that “Trump’s ‘Libertarianism’ Endangers the Public.” (Credit Koppelman for using scare quotes to indicate that President Trump isn’t a libertarian.) Specifically, he worries about Trump’s recent order on regulation, which instructs agencies to (temporarily) keep the nation’s aggregate cost of regulatory compliance at its current level and to repeal two regulations for every new one adopted.

Trump Justifies Executive Order by Citing Terrorists Who Were Not Planning a Domestic Attack

President Trump’s updated executive order used the Bowling Green terrorists as a justification for his policy changes even though they weren’t planning a domestic terrorist attack. His order states that “in January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses.” Those two Iraqi nationals were Mohanad Shareef Hammadi and Waad Ramadan Alwan and they were each convicted of multiple terrorism offenses—but they were not convicted or even charged with attempting to carry out a terror attack on U.S. soil despite some erroneous media reports to the contrary. 

Hammadi and Alwan were arrested in an FBI sting operation. Hammadi pled guilty to a 12-count indictment on multiple charges of providing material support to foreign terrorists, material support for a designated terrorist organization, exporting a missile system that could destroy aircraft, and fraudulently procuring a U.S. passport. Alwan pled guilty to a 23-count indictment that included engaging in terrorism against Americans overseas, teaching someone how to make a bomb, providing material support to foreign terrorists, material support for a designated terrorist organization, and exporting a missile system that could destroy aircraft. The FBI rendered all of the weapons inert before allowing Hammadi and Alwan to handle them so nobody was ever in any real danger.

Alwan did show a confidential informant how to build bombs but, according to the Department of Justice, those lessons were provided “with the intent that they be used to train others in the construction and use of such IEDs for the purpose of killing U.S. nationals overseas, including officers and employees of the United States.” The press release that announces Hammadi’s guilty plea doesn’t mention any support for domestic terrorist attacks. Additional court documents show neither Alwan nor Hammadi was charged or convicted of planning a domestic terror attack.

Upon their indictment, David J. Hale, U.S. Attorney for the Western District of Kentucky said, “Whether they seek shelter in a major metropolitan area or in a smaller city in Kentucky, those who would attempt to harm or kill Americans abroad will face a determined and prepared law enforcement effort dedicated to the investigations and prosecutions necessary to bring them to justice.”

Upon their sentencing in 2013, Assistant Attorney General Monaco said, “These two former Iraqi insurgents participated in terrorist activities overseas and attempted to continue providing material support to terrorists while they lived here in the United States. With today’s sentences, both men are being held accountable.” 

Neither of those statements by U.S. attorneys, the numerous press releases I linked to above, nor the court documents show that Alwan or Hammadi was convicted or charged with planning a domestic terrorist attack. The sting operation was designed to show the two terrorists shipping weapons and money abroad to support insurgent operations against American forces in Iraq, not against Americans on U.S. soil. Alwan and Hammadi thought they were providing material and money for insurgents to kill Americans abroad—a serious crime but not one targeting Americans on U.S. soil. The overarching purpose of Trump’s new executive order is to protect the “nation from terrorist activities by foreign nationals admitted to the United States.” The convictions of Alwan and Hammadi do not support the supposed overarching purpose of Trump’s executive order.  

42 Percent of “Terrorism-Related” Convictions Aren’t for Terrorism

The reason for President Trump’s reissued executive order is to “protect the Nation from terrorist activities by foreign nationals admitted to the United States.” A further justification buried in the executive order is that “[s]ince 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States.” 

What exactly is a “terrorism-related crime”? There is no definition in U.S. statutes. The phrase “terrorism-related” does appear but mostly in reference to actions of government officials in response to terrorism such as a terrorism-related travel advisory. One use of the phrase “terrorism-related” that makes the most sense in this context comes from the anti-terrorism Information Sharing Environment (ISE) that integrates information which the GAO defined as relating to “terrorism, homeland security, and law enforcement, as well as other information.” That’s so broad that a reasonable person can’t possibly see “terrorism-related” as synonymous with “terrorism.”

If the people counted as “terrorism-related” convictions were really convicted of planning, attempting, or carrying out a terrorist attack on U.S. soil then supporters of Trump’s executive order would call them “terrorism convictions” and exclude the “related.” After all, when people are convicted of murder we don’t call it a “murder-related conviction.” We call it murder.

The most famous list of terrorism-related convictions is that published by Senator Sessions in 2016 that shows 580 convictions from 9/11 until the end of 2014 (the link isn’t working now for some reason). Sessions’ list appears to be the source of the worry that “hundreds of person born abroad have been convicted of terrorism-related crimes in the United States.”   

Only 339 of the 580 terrorism-related convictions on Sessions’ list were actually convicted of a terrorism crime. The other 241 (42 percent) were not convicted of a terrorism crime. “Terrorism-related” apparently includes investigations that begin due to a terrorism tip but then ended in non-terrorism convictions. My favorite examples of this are the convictions of Nasser Abuali, Hussein Abuali, and Rabi Ahmed. An informant told the FBI that the trio tried to purchase a rocket-propelled grenade launcher but the FBI found no evidence of that. The three individuals were instead convicted of the non-terrorist crime of receiving two truckloads of stolen cereal—which is not terrorism.

An additional 92 (16 percent) convictions were of U.S.-born citizens whose plots would not have been prevented by Trump’s executive order. 

That leaves 247 (43 percent) who were foreign-born and actually convicted of a real terrorist offense. Of those, 180 were convicted of material support for foreign terrorists, attempting to join foreign terrorist organizations, planning a terrorist attack abroad, or a similar offense taking place abroad. Twenty-seven were extradited to the United States and tried here for any one of the offenses listed abroad. Only 40 were convicted of planning, attempting, or carrying out a terrorist attack on U.S. soil. Future immigrants and non-immigrants who are similar to those 40 terrorists are the intended focus of Trump’s executive order.  They only comprise 6.9 percent of the 580 “terrorism-related” convictions listed by Senator Sessions.

At most, only 58 percent of the “terrorism-related” convictions given as the likely justification for this executive order can be classified as actual terrorism. The other 42 percent were not convicted of a terrorism offense. Only 6.9 percent were convicted or attempting, planning, or carrying out a terrorist attack on U.S. soil.

As a note, Stanford University associate professor of law Shirin Sinnar recently received an answer to a FOIA that showed 627 convictions to the end of 2015 but I have not been able to parse them by terrorism or non-terrorism convictions.    

Huge Net Costs from Trump’s New Executive Order Cutting Refugees

President Trump today issued a revised version of his infamous executive order to temporarily ban the issuance of new green cards and visas for nationals from Iran, Syria, Yemen, Libya, Somalia, and Sudan. The new order dropped Iraq, which eviscerated Trump’s argument that the list of banned countries is based on an existing list in U.S. law. The order also cuts the number of refugee admissions by about 37 percent compared to the post-1975 average number of annual refugees admitted—from 79,329 per year to just 50,000. However, there were 110,000 refugees scheduled to be admitted in 2017 so the actual decrease in refugees this year is a whopping 55 percent under this executive order. The Trump administration thinks this new order addresses many of the legal challenges made against the first version.

Introduction

When the first version of this order was signed at the end of January, Cato’s research showed that the actual domestic terrorism risk from nationals of those six countries was minor and that the order stands on shaky legal ground. For this iteration of the executive order, I intend to show that the permanent decrease in refugees costs native-born Americans more than we’d save from fewer terrorism deaths. This cost-benefit analysis does not look at the cost of temporarily reducing green cards and other visas.

Results

If Trump’s refugee reduction eliminated all deaths from refugee terrorists then it will cost native-born Americans about $159.4 million per life saved, which is about 10.6 times as great as the $15,000,000 per statistical life estimates if the average number of refugee admissions had stayed at 79,329 going forward (Figure 1). In other words, such a policy would reduce your annual chance of dying a terrorist attack committed by a refugee on U.S. soil from one in 3.64 billion per year to zero at a cost of $159.4 million per life saved. 

However, President Trump’s executive order is not decreasing refugee flows by 37 percent in 2017. The Obama administration slotted 110,000 refugee admissions for 2017, so this year’s reduction is actually 55 percent. If I assume that the new 110,000 annual admission figures would have been the new normal in the absence of Trump’s executive order, the economic costs increase to $326 million per life saved for a 100 percent reduction in your chance of dying in a refugee terrorist attack on U.S. soil. The economic costs incurred are about 21.7 times as great as the cost for a single death by refugee terrorist in this scenario (Figure 1). 

Conflicted Public Reaction to Trump’s Immigration Executive Order

Last Friday, President Trump issued an executive order temporarily barring entry of refugees, visitors, and immigrants—including those with green cards—from Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen. During this delay, the government is tasked with making its screening process more extensive. The order indefinitely bans refugees from Syria.

As Henry Enten notes, we’ll have to wait until we have more polling data to ascertain how the public will judge the action, but polling over the past year gives us some clues.

Slim but Shy Support Most polls throughout 2015-2016 found about 56% of Americans opposed Trump’s call to temporarily ban Muslim immigrants from entering the United States. However, these polls tended to be conducted by live telephone interviewers. In contrast, polls conducted online by reputable firms like YouGov and Morning consult, find a plurality of Americans in support.

Aggregating over 40 telephone and online polls conducted over the past two years finds Americans opposed to the ban 56% to 39% in surveys conducted by phone, but a plurality in support 49% to 39% in surveys conducted online. This suggests that people taking surveys by phone feel uncomfortable sharing their true feelings and thus fib to the live interviewers. But, privately taking a survey online encourages people to share what they really think. In the polling world, this is called “social desirability bias” evoked by social pressure to not appear prejudiced to the live interviewer.

Of course, the difference cannot be entirely attributed to survey mode since the questions weren’t worded the exact same way. Nonetheless, it’s suggestive that there is a “shy immigration restrictionist” effect going on. (Remember the shy Trump voter?)

Americans Don’t Support an Outright Ban on Refugees Existing data suggest Americans do not support a permanent ban on refugees. Most telephone and online surveys found that Americans oppose not taking any refugees at all and a plurality (46%) say the “US should open our borders to refugees of foreign conflicts” according to an Ipsos/Reuters Jan 2017 online survey. At the same time, Americans tend to support taking fewer refugees rather than more, when given the option. For instance, both an Ipsos/Reuters Jan 2017 online survey and a Marist Apr 2016 telephone survey found 53% of Americans want the US to take in fewer refugees.

Wording Impacts Support Strength As you can imagine, survey question wording impacts responses. Support for immigration restriction increases when refugees and immigrants are described as coming from “terror prone regions” or when respondents are told that government needs time to enhance security measures. For instance, Rasmussen, measures the highest degree of support (57%) when it asked if respondents support or oppose a “temporary ban on refugees from Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen until the federal government improves its ability to screen out potential terrorists from coming here.” This question presupposes the government screening system is already poor and the new administration could meaningfully improve it. If these are the assumptions going in, support will be higher. When national security concerns are invoked and at the top of people’s minds they are more supportive of immigration restrictions.

Support for immigration restriction decreases, however, when the described policy implies a religious test. Surveys register lower support (48%) if the policy is described as a “temporary ban on all Muslims traveling to the United States” (from Morning Consult).

President Trump’s “One-in, Two-out” Rule: Lessons from the UK

Monday saw President Trump force through another executive order - “Reducing Regulation and Controlling Regulatory Costs. The headline was the introduction of a new “one-in, two-out” rule for new regulations:

for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.

Anything that can be done to focus regulators’ minds on the costs imposed on private businesses and groups of new regulation is probably, on net, positive. But the UK has had a policy like this since 2005, first adopting a “‘one-in, one-out” rule, then a “one-in, two-out” rule and now a “one-in, three-out” variant. The results are widely acknowledged to be mixed. Here are 4 lessons from the UK the Trump administration should bear in mind.

1. Focus on costs, not counting regulations

What really matters is not the number of regulations but the costs imposed on private businesses and civil society organizations. A “numbers” approach could be gamed: a department could introduce a new regulation, and remove a defunct one, while imposing new business costs. Thankfully, both the UK government and Trump’s executive order now recognize this. Section 2, part c) of the order says:

any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations

In the UK though, “one-in, one-out” eventually meant that for every new regulation introduced with a net cost to business, regulations up to an equivalent net cost would be eliminated. It would be better named a “pound-for-pound” rule. When upgraded to “one-in, two-out” every new regulation with net costs to business had to be compensated for by regulatory removal or revision at double the monetary cost of the new regulation. And so on. Whether badly drafted or otherwise, Trump’s version reads more like the “one-in, one-out” rule on cost, albeit having to find the cost compensation across two regulations. If implemented in this way, it could become messy to implement for many agencies. Judging regulation by pure cost rather than numbers, as the UK has done, would be a stronger constraint.

2.  Judge by net costs rather than gross costs

Any new measure, whether regulatory or deregulatory, will generate some costs to private businesses and civil society. If Trump is serious about deregulation, it therefore makes much more sense to assess “net” costs, rather than “gross” costs as a target for the new rule. This was recognized in Britain which now carries out the net cost methodology. Otherwise perverse incentives are created: departments or agencies will be cautious about ever proposing deregulatory measures where benefits to business exceed new costs, because they would still have to find gross cost savings elsewhere. As Stuart Benjamin outlines, steps taken to make pipeline construction easier, for example, otherwise might end up delayed as the agency scrambles around finding existing regulations with gross costs to remove to compensate for the very small costs of a deregulating measure. This might seem an obvious point, but at the moment the order is ambiguous – simply stating that the Director of the OMB will provide guidance “for standardizing the measurement and estimation of regulatory costs.”