Trump’s Extended Executive Order

The Trump administration today issued a memorandum amending his travel ban in light of court decisions that have held up, and maybe permanently halted, its implementation.  Specifically, Trump’s memorandum delays the implementation of the provisions that the courts have halted:

In light of questions in litigation about the effective date of the enjoined provisions and in the interest of clarity, I hereby declare the effective date of each enjoined provision to be the date and time at which the referenced injunctions are lifted or stayed with respect to that provision.  To the extent it is necessary, this memorandum should be construed to amend the Executive Order.

President Trump’s executive order was supposed to temporarily limit the issuance of visas to nationals from six countries for 90 days and suspend decisions on refugee applications for 120 days in order to give time for immigration and security officials to plug visa vetting gaps.  Many of us thought that Trump would extend this ban indefinitely and expand it to more countries if the courts upheld his first order.

It has now been more than 120 days since Trump’s first executive order, which was supposed to be enough time for his administration to plug the supposed gaps in visa screening.  Instead of announcing success at plugging those gaps, unless you count some new potential TSA rules as a success, the administration is pushing off the start date so those 90 and 120-day clocks do not start ticking until the order goes into effect. 

The most charitable explanation for this is that the Trump administration wants to increase the odds that the Supreme Court will take up the case by removing the argument that the travel ban is now moot.  However, the administrative ease with which President Trump issued this memorandum also shows that we would always be on the precipice of a permanent or otherwise capricious immigration executive order extended to more countries for dubious reasons over an indefinite period of time.  Regardless of the constitutionality of the President’s executive order, the potential for abuse should be obvious to all.  Arbitrary visa bans for uncertain periods are no way for the government of a developed nation to run its immigration system.       

Critique of School Inc. Illustrates Why Airing It Is Right

Stalwart public schooling defender Diane Ravitch does not like what she saw in School Inc., a three-part documentary series created by former Cato education analyst Andrew Coulson. Of course, she is welcome to disagree with it. But her main complaint—that PBS dared show the documentary in the first place—is concerning from a public debate perspective, while her more substantive critiques of School Inc. illustrate precisely why we need to let all voices engage in debates, not just those with whom we agree.

From the outset, let’s be clear. Neither the documentary itself nor PBS hide one iota what is being presented: the views of Andrew Coulson. Heck, the subtitle of School Inc. is “A Personal Journey with Andrew Coulson.” It leaves it to viewers—not gatekeepers who may just dislike Coulson’s point of view—to decide if the case Coulson makes is persuasive. And if we are after open discussion and truth, what should matter is not who funded the documentary—Ravitch portrays School Inc. sponsors as frightening bogeymen—but the content of the documentary.

Ravitch does address some of the substance of School Inc., but in so doing reveals why it is so crucial that all sides of controversial issues get heard, not just those with which she agrees. Quite simply, many of her knocks on the substance are themselves highly questionable.

Miami-Dade Police Abandon Aerial Surveillance Plans

Image from PSSThe Miami-Dade Police Department (MDPD) is scrapping plans to test persistent aerial surveillance technology following criticism from privacy advocates. This kind of technology has prompted privacy concerns in others cities, with Baltimore being perhaps the most notable. One of the best-known aerial surveillance companies allows users to keep a roughly 25 square mile area under surveillance and comes with “Google Earth with TiVo” capability, The news from Miami-Dade county. while reassuring, underlines a number of issues concerning federalism, privacy, and transparency that lawmakers must tackle as aerial surveillance tools improve and proliferate.

MDPD Director Juan Perez was set to ask county commissioners to retroactively approve a grant application to the Department of Justice for the aerial surveillance testing. The fact that MDPD was seeking federal money for the surveillance equipment reminds us that federal involvement in state and local policing should be strictly limited.

The aptly-named Persistent Surveillance Systems (PSS), the Ohio-based company that made the sensor system deployed in Baltimore, uses technology originally designed for military operations in Iraq and Afghanistan.

Military equipment has an unfortunate tendency to make its way from foreign battlefields into the hands of domestic law enforcement, as my colleagues have been outlining for years. This is a trend that ought to be strongly resisted.

It’s not clear if the Department of Justice’s Office of Justice Programs would have approved MDPD’s grant application, but given the current attorney general’s record on civil liberties, as well as the president’s own enthusiasm for aerial surveillance, we shouldn’t be surprised if similar grants are approved during the Trump administration.

Statement on Refugee Program Integrity Restoration Act of 2017 – H.R. 2826

A pdf of this statement may be found here.

Statement for the Record
of David Bier of the Cato Institute
Submitted to
House Committee on the Judiciary
Markup of
“Refugee Program Integrity Restoration Act of 2017 – H.R. 2826”
June 14, 2017

The Refugee Program Integrity Restoration Act of 2017 (H.R. 2826) would restrict the liberty of Americans to welcome people fleeing violence and persecution around the world. It would enact a hard and inflexible limit on America’s generosity toward refugees. This arbitrary restriction has no basis in American tradition, individual Americans’ desire or ability to assimilate refugees, or the state of the world today. Indeed, it turns a cold shoulder toward the most severe refugee crisis in many decades.

The legislation adopts a flawed approach to refugee resettlement based on a fundamentally flawed premise: that refugees pose a significant threat to the lives of Americans. The facts cannot sustain the belief that widespread fraud has allowed the admission of large numbers of refugee terrorists. Only two refugees admitted since 9/11 have plotted or attempted attacks in the United States. Neither killed anyone. Looking over the last four decades, refugees have been far less likely to kill Americans in acts of terrorism in the United States than other immigrants or U.S.-born citizens, and none have since 1976.

Above all else, successful refugee integration requires a hospitable policy environment toward refugees. Yet this legislation would move America in the opposite direction: it politicizes refugee acceptance and imposes new constraints on integration for those few refugees that it would continue to admit. Rather than policies intended to promote rapid adoption of America’s way of life, this legislation would keep refugees in a state of long-term legal limbo without permanent status in the United States and allow certain localities to ban their resettlement in their jurisdictions. It notably lacks any provision for welcoming communities to accept refugees beyond its arbitrary cap.

These policies would have negative economic and fiscal effects on the United States. Refugees contribute significantly to the economy through employment, entrepreneurship, and consumption. While their upfront fiscal costs are higher than for other immigrants, studies have shown that they do eventually become net fiscal contributors. Rather than taking measures to reduce refugee dependence on welfare—such as relying on private sponsorship—or creating policies to encourage faster movement into the labor market—such as validating professional credentials prior to arrival—H.R. 2826 will actually make integration more difficult and costly.

Financial Alphabet Soup

On Monday, the Treasury Department released the first of four planned reports on the U.S. financial system. While the 150-page report, focusing on banks and credit unions, includes a number of observations and recommendations worth discussing, there is one page I’d like to highlight here. It’s a single chart. And yet it speaks volumes about the current state of regulation in the financial sector. Here’s the chart:

Those in Washington often talk about the “alphabet soup” of federal agencies. We do love our acronyms here. But this chart shows that the financial sector has a complete soup all of its own. There are nine federal regulators who oversee the financial sector. Additionally, each state has its own regulators, typically one each for securities, insurance, and banking. Plus, there are the self-regulatory organizations—quasi-private bodies whose decisions can have the effect of law on the companies and individuals they oversee. A single organization can be subject to as many as six regulators. An organization that does business in multiple states can potentially be subject to regulation in each of them, in addition to regulation at the federal level.

No NYT, the Public Doesn’t Need to ‘Pay and Pay’ for Private Infrastructure

The Trump administration’s proposal to repair and expand America’s roads, bridges, ports and airports includes the expanded use of public-private partnerships (P3s). Under P3s, state and local governments award franchises to private companies that agree to pay for and manage the infrastructure in exchange for the companies receiving toll payments from future users. A number of P3 projects currently operate in the United States, and they are common in other developed nations.

Despite the growing embrace of these projects by policymakers around the world, the Trump proposal is being met with skepticism. For example, the New York Times dropped this article last week ahead of Trump administration efforts to promote the proposal. According to the article, “experts agree” that “there is little hard evidence” that such projects produce long-term benefits to the public as compared to traditional government-provided infrastructure. (That “agreement” came as news to many transportation experts.)

At heart, the article charges that P3 programs are “win/no lose” proposals for the private firms: if the projects prove popular, the firms profit—sometimes handsomely, to the detriment of consumers. But if the new infrastructure doesn’t get many toll-paying users, the financial losses from the projects fall on taxpayers.

To illustrate this, the NYT cites California State Route 91, one of the first P3s in the United States. Initially intended to reduce congestion, the project awarded a private company the right to build and operate a special four-lane toll road in the middle of the highway. The road was “congestion priced,” meaning the tolls fluctuated in order to limit use just enough to guarantee the free flow of traffic.

The original lease on the road included a noncompete clause that limited the state’s ability to add additional lanes to the non-P3 part of SR-91 or to build parallel infrastructure. This resulted in heavy congestion on the old lanes, pushing motorists onto the toll lanes and producing a financial windfall for the toll company. That ultimately prompted Orange County to buy out the toll company for $207 million in 2003.

However, the SR-91 problem is not inherent to P3s. It arose as a result of the conditions under which the franchise was arranged. Traditionally, P3s have been awarded through negotiations between private companies and transportation authorities, leading to high initial private investments and uncertainty about demand for the road. That risk, in turn, encourages toll road companies to want protections like the noncompete clause.

Emoluments Lawsuits Are a Monumental Distraction

Multiple organizations, businesses, taxpayers, and now the District of Columbia and state of Maryland have sued Donald Trump for violating the Emoluments Clause by not sufficiently separating himself from business holdings that benefit financially from foreign patronage. These lawsuits are a waste of time and resources, having been orchestrated by certain elites who can’t reconcile themselves to the election results and are doing their best to #resist Donald Trump to the point of denying the legitimacy of his presidency. To put a finer legal point on it, the charge that President Trump’s hotels, because they benefit from foreign business, constitute a kind of corruption that the Framers explicitly sought to prevent is, to be blunt, frivolous.

Article I, Section 9, of the Constitution provides that “no Person holding any Office of Profit or Trust under [the United States] shall, without the Consent of Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” This Emoluments Clause was passed unanimously by the Constitutional Convention, based on the young nation’s own recent diplomatic history – namely, gifts given by foreign kings to Ambassador Benjamin Franklin and other diplomats, which they promptly reported to Congress. Under President Bill Clinton, the Justice Department’s Office of Legal Counsel explained that “those who hold offices under the United States must give the government their unclouded judgment and their uncompromised loyalty… . That judgment might be biased, and that loyalty divided, if they received financial benefits from a foreign government.”

In other words, the Emoluments Clause is a stopgap against the risk that foreign powers will try to curry favor by bribing U.S. officials with gifts and other baubles. (Maybe even titles of nobility, which are prohibited for all Americans by another constitutional provision.) To be sure, a politically motivated decision by a foreign government to give preferential permitting or land acquisition terms to a Trump construction project could be a favor worth millions of dollars. 

But is booking suites at a Trump hotel or holding a conference at another Trump facility really a bribe? So long as payments are made at market rates – not “here’s 100 million dollars for a room with a view” – I don’t see how they could. Whatever the Emoluments Clause protects against, arms-length business transactions ain’t it.

Indeed, to hold to the contrary would be to disqualify businessmen with a diversified portfolio from the White House. That can’t be the case; George Washington himself was a wealthy landholder who engaged in business with foreign nationals. There’s even an academic debate about whether the clause applies to the president in the first place, as distinct from those ambassadors and other officials.

In short, while scholars can disagree on legal and policy grounds about many of the Trump administration’s doings – from the travel ban, to renegotiating trade treaties, to various deregulatory initiatives – no serious person should spend time on this emoluments nonsense. They’re a distraction from the important issues our divided nation faces and the debates over how to solve them.

For an elaboration of my thinking on this matter, see Kyle Sammin’s excellent analysis, which I’ll “incorporate here by reference,” as the lawyers say.

Update: This post has been revised slightly for clarity.