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I previously reviewed the exceptionally poor arguments that the Trump administration used to defend its blanket ban on immigration from seven majority Muslim countries in the State of Washington v. Donald Trump. Now, in its appeal of the district court’s temporary restraining order to the 9th Circuit Court of Appeals, the government has added a new argument in favor of its position that is still fatally flawed. It claims:

The State continues to argue that Section 3(c)’s temporary suspension of the entry of aliens from seven countries contravenes the restriction on nationality based distinctions in [section 202(a)(1)(A) of the Immigration and Nationality Act (INA)]. But that restriction applies only to “the issuance of an immigrant visa,” Id., not to the President’s restrictions on the right of entry [under section 212(f)].

The government was right not to attempt this argument initially. Their argument is that a visa does not entitle the recipient to entry in the United States, but merely to travel to the United States. Therefore, they are free to discriminate at the border. To bolster the argument, INA 101(a)(4) does specifically distinguish between admission and visa issuance.  Essentially, they are defining “visa” in section 202 to include only the visa document that permits travel to the border, but does not grant status in the United States. And status is what grants a person the legal right to reside inside the country.

The problem is that the definition of a “visa” in section 202 includes “status” that grants a right to enter and reside in the United States. The State Department’s regulations define visa in section 202 to mean visa or status and have for as long as the INA has been around. Eligibility for status is either determined by an adjustment of status application for immigrants residing inside the United States or at the border for immigrants entering the United States on an immigrant visa for the first time. It is the act of granting entry that confers legal permanent residency status.

Thus, the government would be violating the prohibition on discrimination in section 202(a)(1)(A) just as much by denying entry as by denying visas. An immigration officer cannot deny entry based on nationality without also discriminating in the issuance of status to an immigrant at a port of entry.

Why “visa” cannot be interpreted narrowly

Not only is this interpretation based on the government’s own longstanding regulations, the interpretation of section 202 that the government offered during appeal would require it to adopt a variety of other positions that are at odds with the statute and regulations.

If “visa” in section 202 was interpreted to mean only the visa document, then adjustments of status applications for persons inside the United States would be exempt from the numerical limitations on visas in that section and in section 203. The clear intent of Congress was to control the number of persons who are entering the United States, not visa documents issued, and so the department has always held this view. Thus, the U.S. attorney in oral arguments before the district court admitted that per-country limits were about allocating how many people the United States allows “to come into the country.”

If the person is determined ineligible to enter, the visa is revoked at this point, and the State Department considers it not to have been issued at all. In other words, the department only counts “status” determinations against the visa caps, despite the fact that the section never mentions status. It is interesting to note on this point that the original version of the Immigration and Nationality Act of 1952 actually had consular officers grant immigrants “status” abroad, which could be revoked at entry if they were deemed ineligible.

Why the government cannot be biased in entry but not in visa issuance

This interpretation does not undermine the distinction between visa issuance and admission in section 101(a)(4) because a determination of inadmissibility under section 212 applies equally to admission at the border as it does to visa issuance abroad. Immigration officers inside the country rely on the same criteria to determine eligibility to enter that consular officials use to determine eligibility for an immigrant visa. A person granted an immigrant visa in an unbiased manner would not be entitled to enter at the border. He would just be entitled to similar unbiased treatment.

This proves that the law forecloses the idea that the government could be unbiased in visa issuance but not in entry. This is also why all presidential proclamations under 212(f) are immediately printed in the State Department’s Foreign Affairs Manual. The manual explains, “Aliens who have engaged in conduct covered by a Presidential Proclamation issued under the authority of section 212(f) may also be inadmissible under other sections of the INA or other statutes. These statutory inadmissibilities are to be considered prior to determining whether a Presidential Proclamation applies.”

The executive order itself admits that the State Department will be enforcing it by suspending visa issuance just as much as the Department of Homeland Security by suspending entry, and indeed, it has suspended visa issuance to nationals of those seven countries.

Another problem for the government’s view is that it implies that Congress intended to create a system in which it required non-discrimination for applicants abroad, but not applicants at ports of entry or inside the United States. Indeed, their argument would free the government to discriminate based on nationality in adjustment of status applications for immigrants who are residing inside the United States right now, even without a presidential determination that they are a “detriment.”

Not only is this plainly absurd, this would create the bizarre result that immigrants adjusting in the United States would have fewer protections against discrimination than immigrant applicants abroad. This leaves the government arguing that immigrants abroad have fewer constitutional rights than immigrants in the United States, while somehow also having more statutory rights.

This obviously cannot have been what Congress intended. In fact, as I have previously explained, Congress debated this very question of whether ending discrimination would allow unvetted individuals to enter the United States from certain countries where information is difficult to obtain. They rejected this argument. No member of Congress in 1965—whether they were for the bill or against it—believed that President Johnson could then have immediately undone their work with a presidential proclamation.

Last night’s CNN duel between Senators Bernie Sanders and Ted Cruz on the future of Obamacare was pretty illuminating for a recent arrival to the United States, with Senator Sanders’ playbook all-too-familiar to those of us from the UK.

Sanders wants a single-payer socialized healthcare system in the United States, just as we have in Britain. Any objection to that is met with the claim that you are “leaving people to die.” The only alternatives on offer, you would think, are the U.S. system as it exists now, or the UK system. Sanders did not once acknowledge that the UK structure, which is free at the point of use, inevitably means rationed care, with a lack of pre-screening. He also failed to acknowledge that lower health spending levels (indeed, even public spending on health is lower in the UK than the United States now) are not the same as efficiency—which is about outputs per input.

In the face of anecdote after anecdote about those saved by Obamacare and the virtues of a government-run health system, Cruz countered with some anecdotes from the UK showing the consequences of rationed care: a Scottish hospital turning away pregnant women, a woman in Wales waiting eight hours on the floor for an ambulance to arrive after a fall, and a hospital in Essex canceling life-saving cancer treatment because there were no free beds in intensive care. He could also have talked about the Mid-Staffs scandal, or a recent documentary showing doctors deciding between saving a cancer patient or a pensioner bleeding to death.

Anecdotes are powerful in helping to persuade people, and there are good reasons to use them in debates. Yet they are always susceptible to the charge that all health systems have extreme failures. Perhaps more powerfully then, the inadequacies of the UK system show up systematically in the data about how well conditions are dealt with (data from my former colleague Kristian Niemietz’s reports here and here):

  • In the United States, the age-adjusted breast cancer 5-year survival rate is 88.9 percent, compared with just 81.1 percent in the UK
  • The United States leads the world on the equivalent stat for prostate cancer (97.2 per cent) vs. 83.2 percent in the UK
  • Lung cancer: 18.7 percent in the United States vs. 9.6 percent in the UK; bowel cancer: 64.2 percent vs. 56.1 percent
  • Just in case you think I am cherry picking: U.S. survival rates are also better for leukemia, ovarian cancer, stomach cancer, and liver cancer—all of those for which I can find comparisons
  • The age- and sex-standardized 30-day mortality rate for ischaemic stroke is just 3.6 per cent in the United States vs. 9.2 per cent in the UK; for haemorrhagic stroke, the figures are 22 percent vs. 26.5 percent

I could go on. All of which is to show that your probability of dying from a range of common conditions is much higher in the UK than here. Perhaps that’s why (with no hint of irony) The Guardian’s write-up of a Commonwealth Fund Report suggesting the UK’s health system was “the best in the world” said “the only serious black mark against the NHS was its poor record on keeping people alive.”

President Donald Trump has repeatedly complained that the United States carries too much of the economic and military burden in NATO. He has even gone so far as to call the European alliance “obsolete” and to suggest that his administration might not fulfill the treaty’s Article 5 obligation that commits NATO countries to come to the defense any member that is attacked (Note: administration officials have repeatedly sought to reassure NATO allies that we remain committed to the collective defense of Europe, and Trump has contradicted himself on this score).

Many think this provocative rhetoric is just a ploy to get our NATO allies, who habitually underspend on defense and free-ride on America’s security guarantees, to pay more of their fair share of the burden. At the Washington Post’s Monkey Cage blog, Andrea Gilli argues this approach is unlikely to jolt NATO allies into spending more on defense, though. Among other reasons, most NATO allies “face financial and political constraints to increasing military expenditure” in part because U.S. security assurances “have freed up state funds in Europe for other priorities, including a robust system of social services.” And since cutting welfare benefits is typically a political non-starter, we shouldn’t necessarily expect NATO countries to boost defense spending due to Trump’s abrasive rhetoric.

But the historical record seems to contradict Gilli’s argument. According to the RAND Corporation, Europe has historically spent between 43 percent and 78 percent of U.S. spending on defense. The ratio reached its peak in 1980, and then again in 2000 - years that were at the tail end of periods of defense budget cuts. And according to the RAND report, one of the the most successful techniques in getting NATO allies to share more of the burden was “threats by Congress to withdraw its troops from Europe.”

The only period of signficant real growth in European defense spending was during the 1970s; otherwise European defense expenditure has been remarkably flat in real terms…

Historically, efforts to create incentives or to manage the burden-sharing problem have taken four different approaches. The first approach (1966 to the mid-1980s) was based on the threat of U.S. troop withdrawals. With a series of resolutions and amendments from 1966 to 1975, Senator Mike Mansfield sought to use the threat of U.S. troop withdrawals to force Europe to contribute more and to lessen U.S. costs. As noted, that effort—plus other factors relating to economic growth and the Soviet threat—may have had a positive effect: European defense spending grew by 44 percent between 1970 and 1984.

Certainly other factors contributed to this period of growth in NATO burden sharing - higher rates of economic growth, increased perceptions of the Soviet threat, defense budget cuts as we withdrew from Vietnam, etc. But U.S. threats to pare back its commitment to the region seem to have had a significant impact.

That said, European defense spending may never reach the levels that the Trump administration, or for that matter the Washington foreign policy community generally, would prefer. And while U.S. security guarantees are surely one reason for this, it also may be the case that European countries aren’t boosting defense spending levels because they don’t face any major threats. Increasing defense spending to 2 percent of GDP or higher won’t do much about the terrorism problem European countries face. And the supposed geopolitical threat from Russia, meddling in Georgia and Ukraine aside, is consistently exaggerated

Kentucky Senator Rand Paul has weighed in concerning the rumors that Elliott Abrams could become the Number 2 person at the State Department. “Crack the door to admit Elliott Abrams,” Paul writes, “and the neocons will scurry in by the hundreds.”

He goes on:

Neoconservative interventionists have had us at perpetual war for 25 years. While President Trump has repeatedly stated his belief that the Iraq War was a mistake, the neocons (all of them Never-Trumpers) continue to maintain that the Iraq and Libyan Wars were brilliant ideas. These are the same people who think we must blow up half the Middle East, then rebuild it and police it for decades.

Paul continues:

I voted for Rex Tillerson for secretary of state because I believe him to have a balanced approach to foreign policy. My hope is that he will put forward a realist approach. I don’t see Abrams as part of any type of foreign policy realism.

And he concludes:

In a country of 300 million people, surely there are reasonable foreign policy experts who have not been convicted of deceiving Congress and actually share the president’s foreign policy views. I hope Secretary Rex Tillerson will continue the search for expert assistance from experienced, non-convicted diplomats who understand the mistakes of the past and the challenges ahead.

During an appearance on the Tucker Carlson Show on FoxNews last night (clip starts at 5:23), the Republican was asked about his concerns.

“Someone who was a Never-Trumper should never be in a Trump State Department,” Sen. Paul said, noting that “Elliott Abrams was one of the key architects of the Iraq war. We don’t need people with a failed policy back in.”

Host Carlson admitted to being “baffled by it.”

Elliott Abrams was one of the leading supporters of the Iraq War. He signed the original statement of principles for the Project for a New American Century, the organization founded by leading #NeverTrumpers William Kristol and Robert Kagan that was instrumental in making the case for regime change in Iraq. Abrams has since signed a number of other letters organized by PNAC and its successor organization, the Foreign Policy Initiative, concerning war with Iraq, Yugoslavia, Libya and Syria.

Why would Donald Trump want Abrams in the State Department? And why would Rex Tillerson want someone like Abrams as his deputy?

Like Carlson said: It’s baffling.

It is gratifying to see Betsy DeVos confirmed as the next U.S. Secretary of Education. This is not because the federal government should attempt to push school choice—it should not, except in the District of Columbia and for families connected to the military—but because the opposition to now-Secretary DeVos was so unfair to her, and to the research on educational freedom. The reality is that research indicates charter schooling works in Michigan, DeVos’s home state, and specifically in Detroit. It shows that families of students with disabilities, rather than somehow being victimized by school choice, are empowered and immensely satisfied with it. And logic and evidence show that private school choice, rather than imposing ideas on people, frees them to get what they want for their children without forcing it on others.

It is also gratifying to see DeVos approved because she stated repeatedly in her confirmation hearing that education decisions should be left to state and local governments. Constitutionally, that has things absolutely right: the Constitution gives Washington no authority to govern or “oversee” American education, as Sen. Patty Murray (D-WA) put it, which means such rights remain with the states, or with the people. And 50-plus years of increasingly intrusive federal meddling in education, with ultimately no visible academic improvement to show for it, brilliantly illustrates the wisdom of that decision.

Now let us hope that the Trump administration sticks to the constitutionally-constrained federal role—even on school choice—that Secretary DeVos has repeatedly endorsed. 

President Trump’s executive order is facing numerous court challenges, including a temporary restraining order.  My colleague David Bier has made a convincing statutory argument that Trump’s temporarily ban on issuing visas to the nationals of Iran, Iraq, Syria, Saudi Arabia, Sudan, Libya, and Yemen is unlawful.  The genesis of Trump’s executive order was his campaign promise of a Muslim ban which, although unpopular, is built on a sturdier legal foundation than a 21st-century national origins quota.  If the court challenges fail and Trump’s ban is legal then there is a high probability that the bans will be extended and expanded to additional countries.  Indeed, section 2, subsections e and f of the executive leaves open the possibility of extending the length of such bans and extending them to additional countries. 

The Trump administration will have to consider several points in order to place additional countries on the banned list.  The first is political.  Trump promised he was going to block countries that could send terrorists here after he called for a Muslim ban (that he later retracted).  He also seems committed to fulfilling his campaign promises through executive orders.  The other political consideration is avoiding the fierce criticism and mass protests that accompanied his first executive order.  Must of this opposition was based on the erroneous assumption that this executive order was a Muslim ban, although some opponents could be forgiven for thinking that.  To defuse the claim that his future actions will be a Muslim ban, Trump could include some non-Muslim countries on the banned list.  There are many non-Muslim countries in armed conflicts to choose from but I would place my bets on the swiftly disintegrating Venezuela. 

The second consideration is the risk of terrorism from foreign nationals.  As I’ve written elsewhere, the risk of foreign-born terrorism on U.S. soil is small and even smaller for foreigners from certain countries.  The Trump administration could target some countries that send few immigrants and tourists to the U.S. but have historically sent many deadly terrorists.  The most likely candidates there are Egypt, Lebanon, Saudi Arabia, and the United Arab Emirates – countries where the 9/11 hijackers came from.  Foreign nationals from those countries received a total of 17,835 green cards in 2015, about a third as many as the foreign nationals banned in Trump’s original executive order.  Afghanistan, Kuwait, and Pakistan are also possible – the latter mainly because one of the Saudi terrorists was actually born in Pakistan although she lived almost her entire life in Saudi Arabia.  Afghanistan hasn’t sent any deadly terrorists but it is a scary place. 

Altogether, foreign nationals from these additional seven Muslim countries and Venezuela were granted 54,260 green cards in 2015 – slightly more than nationals from the first list of seven nations banned in Trump’s original executive order.  Those nations all sent 1,344,337 non-immigrants to the United States, mostly tourists, in 2015.  That number is almost 16 times as great as the number who came from the banned countries on Trump’s original executive order.  The economic impact of a ban on these eight countries will be bigger than the original executive order.

Trump’s third consideration is foreign affairs.  The United States is allied with Iraq and has alliances with many of the other countries that could be subject to future visa bans.  Surely this must negatively affect America’s alliances just as the targeting of Japanese in the Immigration Act of 1924 caused a serious diplomatic row with that Empire.  The other foreign policy angle is how America’s adversaries view a ban.  After all, the U.S. immigration system was a source of anti-American propaganda for the Soviet Union and their Communist allies until the 1965 Act – passed partly in response to that international pressure during the Cold War.  Many commentators have already commented on how ISIS propaganda benefits tremendously from this ban.  Regardless, any extension or expansion of the migration ban will affect America’s foreign affairs, regardless of the wisdom of our existing alliances and policies, to such an extent that Trump must consider the effects.

A panel of judges in the 9th Circuit this evening will hear arguments on Trump’s migration ban.  The legal issues surrounding Trump migration ban will not disappear anytime soon but if the ban is legal then this administration will have to consider the factors I outline above when it seeks to extend and expand the ban.  

Today marks one year since the death of former Cato Center for Educational Freedom director, and later senior fellow, Andrew Coulson. Many friends and colleagues had wonderful things to say about Andrew upon his passing, and we invite you to read all the testimonials that we were able to assemble.

Today, however, is not only a day for looking to the past, but to the future. Because Andrew’s ideas are about to enter their biggest stage yet. The project to which Andrew devoted most of his final years, and that encompasses the heart of his thought on education, has been accepted by PBS. School Inc., Andrew’s three-part documentary series on how free markets bring transformative innovation to countless parts of our lives, and how to achieve such dynamism to the world of education, will air on WNET in New York in June, and may begin airing on PBS stations around the country as early as April. We’ll keep you posted on all stations and times as soon as they are available.

As a supplement to the documentary—and for anyone who wants to explore the ongoing debates about Andrew’s ideas on education—Cato will soon be publishing Educational Freedom: Remembering Andrew Coulson, Debating His Ideas, a free ebook that will be available on the Cato website, featuring essays by many education thinkers who knew Andrew and his ideas well.

As we said last year, “Andrew Coulson is no longer with us. Thankfully, his ideas remain, and they will always illuminate the pathway forward.” Indeed, they will.

Over at KiwiReport, a writer named Serena Carsley-Mann asks a good question: “Why do trains in America function so different from trains in Europe?” Unfortunately, she mistakenly thinks the problem is that “trains in America function so badly.”

In fact, America has the most efficient rail system in the world. It is European trains that function badly. I’ve discussed this before in my blog, but since writers like Carsley-Mann continue to get it wrong, it is worth repeating.

According to a Pew study, freight shipped by truck uses about ten times as much energy, and emits far more greenhouse gases, per ton-mile than freight shipped by rail (see page 2). Because rail cars weigh more, per passenger, than automobiles, rail’s comparative advantages for passengers are much smaller, and unlike trucks it will be very easy for cars to close the gap: a Prius with a average of 1.67 occupants, for example, is more energy efficient than almost any Amtrak train. Thus, to save energy, it is better to dedicate rail lines to freight rather than to passengers.

This is what the United States has done, but it is exactly the opposite of what Europe has done. According to a report from the European Union, 46 percent of EU-27 freight goes by highway while only 10 percent goes by rail, while in the U.S. 43 percent goes by rail and only 30 percent by road. Thus, we’re using our rail system far more effectively than Europe. This is not just from an energy view but also from a consumer-cost view, as rails cost less than trucks for freight but more than cars for passengers.

Carsley-Mann actually sees freight trains as an obstacle to effective use of the railroads because the freight trains slow and sometimes delay the passenger trains. But in reality, it is the nearly useless passenger trains that are the obstacle to an efficient freight system. Europe manages to carry 5 percent of passenger travel on intercity rail lines, at the cost of pushing a huge share of freight shipments onto highways. By yielding most of that 5 percent of passenger travel to highways and airlines, American manages to free up the railroads for a huge amount of freight.

To avoid the freight conflict, some European countries are building rail lines exclusively for passengers. For the most part, the cost is very high and the benefits low. To some degree, subsidies to those rail lines attract people from lower-cost forms of transportation. But overall, rail is losing market share to cars and, especially, low-cost airlines, so Europe is fighting a losing battle. As economist Charles Lave wrote in The Atlantic many years ago, the “law of large proportions” dictates that “the biggest components matter most,” so making the cars that move 85 percent of people a little more energy efficient is more effective than getting a tiny share of those people out of their cars and onto trains that are a little more energy efficient.

Carsley-Mann never does figure out why American trains are so different from European ones. The answer is simple: American railroads are private and based on the profit motive they operate as efficiently as possible. European railroads are public and based on the political motive they operate as visibly as possible. Passenger trains are more visible to the public than freight trains (which are almost invisible to people like Carsley-Mann, who see them only as obstacles), so European politicians give their constituents subsidized trains rather than an efficient rail system.

I love passenger trains, but I prefer an efficient private system to a visible but heavily subsidized public system. Now if only we could privatize our airports and highways.

On his first official trip as secretary of defense, Jim Mattis sent a signal to U.S. allies that American foreign policy in the region will feature more continuity than change. In South Korea, Mattis reaffirmed that the United States would react to a nuclear attack by North Korea with an “effective and overwhelming” response, and stated, along with the South’s defense minister, America’s commitment to proceed with the deployment of the THAAD missile defense system. Mattis also provided clarification on the administration’s position in the South China Sea. In a break with past rhetoric by other administration officials, Mattis said “At this time we do not see any need for dramatic military moves [in the South China Sea],” and emphasized the importance of diplomacy.

Mature foreign policy statements have been a rare commodity since Trump’s election, and Mattis’s reassurance tour brought a deep sigh of relief from friends and adversaries alike. Whether or not Trump will follow through on Mattis’s words is an open question, however.

Initial reporting on the Trump administration’s approach to decision-making reveals two things. First, while his outlook cannot be labeled “restraint,” Mattis has a relatively restrained or moderate outlook on foreign policy. Second, the ability of such moderate voices to influence Trump is challenged by a group of policy advisors centered on Chief Strategist (and National Security Council member) Steve Bannon that has a much more aggressive outlook.

Both Mattis and Bannon have had some success in shaping policy. Mattis was reportedly able to tone down the language that Michael Flynn, the national security advisor, used when putting Iran “on notice” after Iran conducted a ballistic missile test. Bannon’s major policy success was the executive order barring immigrants from seven Muslim-majority countries, which he oversaw the drafting of along with policy advisor Stephen Miller. Mattis was allegedly not consulted while the immigration order was being drafted. He also reportedly did not see the final version of the order until hours before its release. Additionally, the executive order that gave Bannon a seat on the National Security Council was reportedly signed by Trump without the president being briefed on the details of the order. The author of the order is unknown.

It is difficult to predict who will have the president’s ear on issues of foreign policy and national security, but the first few weeks of the Trump administration indicate that Bannon wields significant influence given his central role in the immigration executive order. This influence caused tension with Mattis, and the homeland security secretary John F. Kelly who sparred with Bannon over whether or not Kelly could issue a waiver for green-card holders affected by the immigration ban.

Of course, all administrations have some degree of internal division, and these recent disagreements come as new advisors are getting used to their roles in a new administration.

Nevertheless, there appear to be at least two cliques taking shape among Trump’s foreign policy and national security advisors: the relatively moderate and restrained professionals like Mattis, and the aggressive firebrands like Bannon. It remains unclear which advisors belong to which clique, but the struggle between these two groups will shape future policy decisions in the Trump administration for the foreseeable future. Since both have some small “wins” under their belt, it is also unclear which clique will end up winning the important policy decisions. Watching how these two groups develop and lobby for their policies will be essential to understanding the Trump administration’s approach to foreign policy and national security. 

President Trump’s testy telephone conversation with Australian Prime Minister Malcolm Turnball quickly produced a reaction from one ubiquitous U.S. player on foreign policy issues, Arizona Senator John McCain. He contacted Australia’s ambassador in Washington to assure him of Washington’s undying devotion to the U.S. alliance with Australia and to that country’s security and well-being. The implicit message was that Canberra should not take Trump or his actions seriously. In so doing, McCain basically anointed himself as America’s shadow president, with the right and obligation to bypass the elected president and conduct relations with foreign governments and other parties.

His actions were entirely inappropriate. Granted, Trump’s conduct toward Turnball deserves no praise. During the telephone call, a dispute arose over refugee policy, and an angry Trump reportedly berated the Australian leader and abruptly cut the scheduled one-hour session short after 25 minutes. Such behavior was that of a petulant adolescent rather than the expected behavior of a president of the United States.

Nevertheless, the Constitution empowers the president and his appointees to conduct America’s foreign policy. Even senators are not authorized to undercut their authority by engaging in direct, free-lance diplomacy with foreign leaders. Yet that is what McCain did.

Unfortunately, this was hardly the first time that he has engaged in such disruptive behavior. His record is that of an annoying, and sometimes dangerous, loose cannon. For example, during Ukraine’s political crisis in late 2013 and early 2014, McCain showed up in Kiev to urge on anti-government demonstrators in their bid to unseat President Victor Yanukovych’s elected government before the expiration of its term in 2016. America was on their side, he assured them.

McCain engaged in similar meddling in Syria’s civil war. In May 2013, he met with so-called moderate rebels who were trying to overthrow President Bashar al-Assad, and as in Kiev, conveyed America’s alleged solidarity with their cause. This intrusive action occurred at a time when the Obama administration remained wary of the United States becoming entangled in the bloody, complex conflict, and was at least trying to limit the extent of U.S. involvement. Not only were McCain’s actions complicating official U.S. policy, but they should have been embarrassing to the Arizona senator. The reality is that there were (and are) very few truly moderate Syrian rebels. Most of them are Islamists masquerading as moderates to gain support from gullible Westerners. Even McCain seemed unclear about the specific identities or the nature of his interlocutors in Syria.

Especially in light of his dreadful track record, McCain should tend to his senatorial duties and stop trying to be a shadow president or secretary of state. In fact, given his dreadful, ultra-hawkish views and his advocacy of, and often feverish lobbying efforts for, a lengthy series of ill-advised foreign policy ventures (ranging from the calamitous Iraq War to a new cold war with Russia), it might be better for all concerned if he just concentrated on domestic issues.

A federal judge in Seattle paused enforcement of President Trump’s executive order banning almost all immigration from seven countries in the State of Washington v. Donald Trump. The same judge will also hear a lawsuit brought by American Immigration Council (AIC), which makes the argument that I have made here and in the New York Times that the order is illegal as applied to immigrants coming to live in the U.S. permanently.

Washington’s main claims were constitutional, and it sought to have the entire order overturned. Nonetheless, the government did partially respond to the main argument in the AIC complaint, which is:

Section 202(a)(1) of the Immigration and Nationality Act [INA]…expressly provides for the non-discriminatory issuance of immigrant visas; it mandates that, with limited exceptions not relevant here, “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”

[INA section 202(a)(1)] was intended to protect the interests of both U.S. citizen and lawful permanent resident immigrant visa petitioners as well as immigrant visa applicants or holders. The EO discriminates against immigrant visa applicants or holders on the basis of their “nationality, place of birth, or place or residence,” and therefore is discriminatory and violates [INA section 202(a)(1)].

The government responded to these points by pointing to section 212(f) of the Immigration and Nationality Act, which reads:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Resolution of Conflict

There is an apparent conflict between the statutes. In the case of conflict, the rule of construction is 1) “to give effect to each but 2) to allow a later enacted 3) more specific statute to amend an earlier, more general statute,” Smith v. Robinson (1984).

On point 1, the government provided no argument that the section 202(a)(1) would still have “effect” as a prohibition if the president could choose to waive it at any time that he felt that a nationality was a detriment. It merely stated that it applies “in the absence of action by the President.” Judge Robart should have asked whether there is any circumstance in which the executive branch chooses to discriminate against a certain nationality in which they would describe those excluded nationals as not “detrimental” to the United States. Of course, no such case exists, meaning that the government’s argument would effectively nullify section 202(a)(1), which is naturally its intention.

On point 2, the government neglects to mention that 8 U.S.C. 1182(f) was enacted in the Immigration and Nationality Act of 1952, which was amended by 8 U.S.C. 1152(a)(1) in the Immigration Act of 1965. Judge Robart at oral arguments considered this point important, stating that this “Congress had to be aware of” 212(f) but chose to enact the sweeping prohibition anyway. On point 3, the government provides the following argument:

Section 212(f) is easily reconciled with section 1152(a)(1)(A): the latter sets forth the general default rule that applies in the absence of action by the President, whereas section 212(f) governs the specific instance in which the President proclaims that the entry of a “class of aliens” would be “detrimental the interests of the United States.”

This analysis cannot be taken seriously. Section 212(f) allows the authority to the president to ban any class of alien for any reason. 202(a)(1) limits this authority only for one small category of aliens, immigrant visa applicants. Moreover, 212(f) is in a general section of the law dealing with inadmissibility for all aliens, not just immigrants, whereas section 202(a)(1) is a section dealing only with immigrants. This argument from the government almost becomes humorous in light of its argument in the very next paragraph, that there is no general prohibition on discriminating based on nationality.

Section [202] generally establishes a uniform annual numerical limit on immigrant visas for nationals of each foreign country. Had Congress intended to enact a general bar against nationality-based discrimination, it would have enacted such a bar as a general provision of the INA, rather than as a subpart of a subsection speaking to the implementation of nationality-based numerical limitation for the issuance of immigrant visas. (Emphasis added)

In other words, the government is using the exact opposite argument here: that section 202(a)(1) is so specific that it cannot apply to the general authority to exclude aliens in section 212(f). The U.S. attorney at oral arguments repeated this line, stating that “we think [202(a)(1) is] a narrow section of the statute” as opposed to the “broader authority” under section 212(f). In other words, section 202 is both too general and specific. The government would like to have its discriminatory cake and eat it too.

The government also ignores a fourth rule applicable here. Inclusion implies exclusion. As Judge Robart said, section 202(a)(1) “makes a number of exceptions, but it doesn’t except” section 212(f). Section 202(a), which was enacted 13 years after 212(f), states that the government may not discriminate against immigrant visa applicants based on their nationality, place of birth, or place of residence “Except as specifically provided in paragraph (2) [allocating visas on equal per country basis] and in sections 101(a)(27) [special immigrants], 201(b)(2)(A)(i) [preferences for immediate family members], and 203 [visa distribution based on family and employment criteria]” (my emphasis). Section 212(f) was specifically left out of the exceptions, which demonstrates that Congress did not want to include it as an exception to the rule (whether the government wants it to be a “general” rule or a “specific” one).

Finally, for good measure, a fifth principle of construction states, as Justice Antonin Scalia stated in United Savings Association of Texas v. Timbers of Inwood Forest Associates, “Statutory construction, however, is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme.” In this case, as the government admits, the statutory scheme is to create a system of immigration that is unbiased, in which every country receives an equal apportionment of the visas for each year. Indeed, the entire 1965 act was written for that express purpose, which President Trump has now undone.

Other Authorities

Perhaps believing their argument on this point insufficient, the government turns to other statutes as providing the president the authority to discriminate against immigrant visa applicants:

Section 202(a)(1)(B) clarifies that subsection (A) is not to be “construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.” The clarification suggests that the Executive Order, in part or in whole, may not be covered by the restrictions of subsection (A) because the Executive Order governs the procedures for pausing then resuming visa applications.

Even the government could not get this argument out with a definitive “it is not covered” but rather a “suggest that maybe.” Subparagraph (A) pertains to, if nothing else, the decision to issue or not issue a visa, and the decision to not issue is at the heart of this executive order. If subparagraph (B) is read to allow the president the ability to not issue or to revoke a visa based on nationality, then subparagraph (A) has no effect. Aside from ignoring the first rule of construction, this obviously cannot be the case because subparagraph (B) was added to allow President Clinton to require Vietnamese asylum seekers to apply for immigrant visas in Vietnam. Congress specifically chose to leave subparagraph (A) rather than repeal it, demonstrating its intent to have it constrain the executive.

The government further claims that the last Congress’s visa waiver program changes requiring that nonimmigrant nationals of these seven countries travel to the United States only with a visa proves that Congress has approved this discrimination.

The 2015 amendment to the INA…has drawn the exact same nationality-based distinctions as the Executive Order. 

First of all, this is simply incorrect. The amendment specifically included people who had visited those countries. Thus, it was broader than simply nationality. Second of all, these procedures had no impact on immigrant visa applicants who are protected from discrimination. Moreover, the fact that barely a year before the executive order Congress specifically created procedures under which these nationals can enter the country shows that Congress does not agree with the president that these nationals are a “detriment” to the United States. Indeed, it shows just the opposite: that Congress wanted them to have an opportunity to come if they obtained a valid visa.

Finally, the government turns as a last gasp toward its inherent national security powers:

Indeed, under the State’s view, the United States could not suspend entry of a country with which the United States is at war. The INA plainly does not require that result. 

The United States is not at war with any of these countries, so the court need not reach a conclusion about how the INA would impact such a case. But it goes without saying that the government would not be relying on its statutory authority in such a case, and so the question would be irrelevant to such a situation. This is likely what provoked Judge Robart’s eye-rolling response, “You’ve shaken those bones just about as much as you can get out of them.”

Moreover, the Executive Order does not label these immigrants actual threats to the United States. Rather, it claims that the inability to vet them makes them a “detriment,” a seemingly much lower threshold, and the argument is that the INA makes an exception for “detrimental” aliens. This is nowhere expressed in the INA itself and, as previously demonstrated, flies in the face of the plain language of section 202(a)(1)(A), which specifically lists the only exceptions to it.

Importantly, the discriminatory pre-1965 act system was justified partially on this exact claim, that immigrants from certain countries may be threats and thus discriminated against. As Sen. Fisher said on the Senate floor in 1965:

There is a serious security threat which would result in the expected substantial increase in Asiatic migration to these shores. At the present time, the flow of Asiatics to this country is checked by the simple device of quota limitation to which all Asiatics are chargeable. With a substantial increase in immigration of Asiatics, coming not only from the Orient, but from every country in which they reside, the problem of procuring background information to screen out subversives becomes increasingly difficult.

Moreover, most of the background information regarding Communist activities would be located in oriental Communist countries; and hence unavailable to our security officials. Furthermore, the language barriers, with the many dialects unfamiliar to our immigration officers, would only compound the danger inherent in an attempt to screen out security threats; and I have no doubt that the international Communist conspiracy will avail itself of the opportunity to increase its penetration of our country.

The passage of this bill will present an inviting opportunity. It has been argued that because some European countries now have a larger annual quota than others, this country regards the people of the larger quota nations as being better people than those in countries with the lower quotas. That is a ridiculous argument. Immigration laws, like trade laws and the like, come under the normal exercise of sovereign power. (My emphasis).

Sen. Celler, the bill’s author, responded to this concern:

There can be no fear of Communists or subversives entering this country. The same safeguards that are in the law with reference to internal security are maintained. They are not changed one iota; therefore, there should be no fear in that connection.

The idea that President Johnson could have signed the act and then, on the basis the government asserts here, ban all Asian immigrants to the United States flies in the face of the letter of the law and its intent. Yet that is exactly what is being asserted here. The passage of time and the change in the targets of discrimination does not make what would have been illegal then legal now. President Trump is violating the law, and Judge Robart was clearheaded enough to see it. 

Unless something unexpected happens, tomorrow the United States Senate will vote on Betsy DeVos to be the next U.S. Secretary of Education. And if you are a Democrat sweating through nightmares over what a Trump administration will do to education, you should be pretty comfy with what DeVos has said she’d like to see happen under her watch. As she stated repeatedly in her confirmation hearing, she would not use federal power—and certainly not secretarial power—to impose anything, including school choice, on unwilling states and districts.

But isn’t the vote expected to be as close as last night’s Super Bowl at the end of regulation, with all Dems voting against DeVos and Vice President Mike Pence delivering the final, overtime vote for her? Yup.

You see, over the decades, Democrats, with copious help from Republicans, have tried to make the U.S. Department of Education what it was not originally intended to be, and what with absolute certainty it cannot constitutionally be: a national school board. This vision was exposed in a comment by Senator Patty Murray (D-WA), ranking member of the Health, Education, Labor and Pensions committee, when she warned all who were suffering through the festival of misinformation and grandstanding that was DeVos’s confirmation hearing, that if approved DeVos would “oversee the education of all of our kids.”

This did not elicit the manufactured giddiness that met DeVos’s suggestion that a school with a grizzly fence might have a gun, and that such decisions should be left to states and communities who know their needs better than Washington. But Murray really ought to know that the Constitution and several laws give the feds no authority to “oversee” American education. Moreover, she had only about a year earlier voted for a law—the Every Student Succeeds Act—intended to cage the education secretary after the Obama administration had employed the position to illegally micromanage American education.

Sen. Murray was, though, soon outdone in her hyperbole. Senate Minority Leader Chuck Schumer (D-NY) took his rightful position in the front of the overstatement pack, declaring that DeVos “would single-handedly decimate our public education system if she were confirmed.”

How, exactly, would she do that?

Some have argued that the apocalyptic scenario Schumer invoked was inconceivable because Washington supplies less than 10 percent all K-12 funding. That’s a dubious conclusion: Washington has called lots of shots with that level of funding because while it may look small in percentage terms, try being the state representative who says “I voted to turn down $500 million federal dollars—your tax dollars, dear constituents—so we could keep control.” $500 million looks like a lot of money, which is why, though some threatened, no state ever just abandoned No Child Left Behind.

What Dems appear to fear most is school choice, in particular private choice that enables people to attend truly independent schools that make their own decisions on everything from staffing to curricula. But here’s why the decimation accusation is nonsensical. First, DeVos said that she would not attempt to expand choice unilaterally, but through Congress, where laws are supposed to be made. Suppose, though, somehow the Trump administration on its own was able to make good on its promise to furnish $20 billion for choice, and it was all directed to private rather than charter or traditional public schools? Divide $20 billion by the roughly 50 million kids in public elementary and secondary schools and you get a voucher of $400 per student. Not nothing, but far from enough to move many kids to private schools.

Of course, giving students real choice—but not through Washington—is what we should want, and that includes for children with disabilities. On that front, the attack on DeVos has been that she somehow did not know about the Individuals with Disabilities Education Act. But there was no meaningful indication of that. DeVos said that governmental decisions about students with disabilities are better made at state and local levels, and the IDEA does not disagree: it only applies when federal dollars are involved. More important, choice, such as through Florida’s McKay scholarship program, empowers families to meaningfully advocate for themselves by giving them control over education funds, rather than forcing them into bureaucratic and legal battles that favor the well-to-do. And it does not make sense to subject to IDEA’s rules any private school a family might choose. Having to attract and keep business is the very real, immediate accountability that such a school faces, which may be why McKay is so darn popular with families who use it.

If Democrats fear what a Trump administration might try in education, they ought to be encouraged by Betsy DeVos, who made one thing clear in her confirmation hearing: she does not think she should be calling the shots. But the Dems may fear Washington losing power even more than Trump, though they tremble at the thought of chickens coming home to roost.  

Despite both the recent release of a set of “GSE reform principles” by the Mortgage Bankers Association and Treasury Secretary Designee Steven Mnuchin’s promise to prioritize reform of Fannie Mae and Freddie Mac, as matters stand such reform seems likely to remain stalled for some time: while there may be a consensus to “do something,” there is far less agreement concerning what that something should be.

To jump start the debate, protect taxpayers, and encourage a more private mortgage market, Mr. Mnuchin, if confirmed, should strongly consider reviving a plan developed by his predecessor, John Snow. That plan would take advantage of the Treasury’s authority to place limits on Fannie and Freddie’s debt issuance to reduce those agencies’ indebtedness. The reduction can and should be done in a controlled manner that could be easily reversed if necessary; a 5 percent monthly reduction, for instance, should work smoothly.

The Treasury’s Authority

Some may be surprised to learn that the Treasury Secretary has such broad, unilateral authority. For those in doubt, the authority is found in the largely identical charters of Fannie Mae and Freddie Mac. According to Section 306(j)(1) of Freddie Mac’s charter, for example,

Any notes, debentures, or substantially identical types of unsecured obligations of the Corporation evidencing money borrowed, whether general or subordinated, shall be issued upon the approval of the Secretary of the Treasury and shall have such maturities and bear such rate or rates of interest as may be determined by the Corporation with the approval of the Secretary of the Treasury (emphasis added).

Section 306(k)(1) of the same document allows for similar Treasury authority over the GSE’s issuance of mortgage-backed securities. In short, neither Fannie Mae nor Freddie Mac can issue debt without the approval of the Treasury. (Those who still doubt this broad interpretation of the Treasury’s powers under Section 306 may wish to consult the Congressional Research Service” (CRS) independent legal analysis supporting the interpretation offered here.)

Under then Treasury Secretary John Snow, the Bush Administration announced its intention to more fully implement this authority. It’s position, as expressed by the Office of Management and Budget in the fiscal 2008 budget (page 75), was that

Fannie Mae and Freddie Mac fund their portfolios by issuing debt, and the U.S. Department of the Treasury has the responsibility to review and approve these GSEs’ debt-issuances. The Treasury Department’s debt approval authority is contained in Fannie Mae’s and Freddie Mac’s Charter Acts, and the Department has approved Fannie Mae and Freddie Mac’s debt on a regular basis. Treasury is developing a more formalized approach to their debt approval authority. As part of that approach, Treasury is developing new debt approval procedures to enhance the clarity, transparency, standardization, and documentation of Fannie Mae’s and Freddie Mac’s debt issuances.

The powers granted to it in Section 306 also allow the Treasury to increase the percentage of GSE debt that is in the form of mortgage backed securities, rather than unsecured debt. By taking this further step, the Treasury would help to reduce the interest rate risk carried on the GSE’s balance sheets.

No Serious Disruptions Likely

Some might be concerned that such a move would cause disruptions in the GSE debt markets.

The primary objection to these suggested reforms relates to a concern about mortgage rates. But one should keep in mind that by reducing the flow of GSE debt, all else equal, the Treasury would be pushing up the price of GSE debt, which, of course, will result in lower interest rates. Given that jumbo mortgage rates are currently very similar to conforming rates, other market players should be able to take any reduction in GSE market share with little impact on overall mortgage rates. The excess reserves in the commercial banking system alone could fund the entire mortgage market for at least a year or more. It is also helpful to note that when the original Snow plan was contemplated no disruptions to the GSE debt markets occurred.

Despite this and the CRS’s favorable review that the Snow plan was an acceptable interpretation of the law, John Snow resigned before it was implemented. Alas, his replacement, Hank Paulson, shelved Snow’s effort. We, of course, know the rest of that story. But if the next Treasury Secretary wants to 1) protect the taxpayer, 2) protect the financial system, and 3) motivate Washington (especially Congress) to do the hard and much needed work of reforming our mortgage finance system, he should take the Snow plan back off the shelf.

[Cross-posted from Alt-M.org]

The House Republican tax plan would cut the federal corporate tax rate from 35 percent to 20 percent, but it would broaden the tax base in a misguided way. It would deny businesses a deduction for their imported inputs to production, but exempt exports from their taxable income.

This base change would raise tax revenues by about $100 billion a year, which is causing major blowback in the business community. It would be a radical change in the structure of business taxes and cause large disruptions in the supply chains and tax liabilities of many firms. No other nation that I am aware of structures their income tax base that way.

I’m for radical change in the tax system, but not radical change that would increase taxes on so many businesses and make the system more complex. Yes, border adjustment would reduce tax avoidance and cut compliance costs related to transfer pricing, but it would create other avoidance and compliance issues by spurring manipulation of imports and exports on tax returns.

Most supporters of border adjustment know that the economics of it are dubious, but support it anyway because it would limit the deficit impact of tax reform. That’s an understandable goal, but there are three better solutions than broadening the tax base in a way that would harm companies.

1) Match a corporate tax rate cut with corporate welfare spending cuts. Romina Boccia, Tom Schatz, and I identify $50 billion in corporate welfare cuts in a new op-ed. And it’s easy to find another $50 billion in cuts in tables 1 and 2 here to match the $100 billion from border adjustment. Unlike the proposed tax base broadening, spending cuts would boost growth by reducing microeconomic distortions caused by federal programs.

2) Limit individual tax cuts. The GOP tax plan is generally excellent, moving in a pro-growth direction on many fronts. I’ve lauded the great work of Chairman Brady and his team in assembling the plan. However, the individual portion of the plan could be tweaked to limit revenue losses and increase the focus on growth, for example, by reducing the mortgage interest deduction and not expanding the child credit.

3) Slash the corporate rate without a legislated offset. The corporate income tax is the most damaging tax in the government’s revenue arsenal, and so cutting it would generate the most growth. Trump’s 15 percent corporate rate should be the goal. Canada’s federal corporate income tax at 15 percent generates as much revenue as ours at 35 percent—about 2 percent of GDP—partly because of the positive dynamic effects that a low rate has on growth and tax avoidance.

It is true that Canada is a smaller economy and so the dynamic effects are more powerful. But as globalization intensifies, and as corporate tax rates elsewhere fall further, the more economic growth and less revenue loss the United States would experience as it reduces its tax rate.

In sum, America must cut its corporate tax rate, but boarder adjustment is creating a major political barrier to reform. The economics of it are not good, and our trading partners may retaliate by denying their companies income tax deductions for U.S. products.

Spending cuts are a much better offset to tax cuts, and they would generate growth benefits of their own.

Dan Mitchell examines border adjustment here. Alan Reynolds here.

I’ve written previously on this blog regarding stingray devices: powerful surveillance tools which allow law enforcement agents to spy on the cell phones of unsuspecting Americans, often without judicial or legislative oversight.

For a deeper dive into the subject, I’ve put together a policy analysis detailing the past history, present issues, and future prospects of stingray devices and police surveillance more generally.

From the executive summary:

Police agencies around the United States are using a powerful surveillance tool to mimic cell phone signals to tap into the cellular phones of unsuspecting citizens, track the physical locations of those phones, and perhaps even intercept the content of their communications.

The device is known as a stingray, and it is being used in at least 23 states and the District of Columbia. Originally designed for use on the foreign battlefields of the War on Terror, “cell-site simulator” devices have found a home in the arsenals of dozens of federal, state, and local law enforcement agencies.

In addition, police agencies have gone to incredible lengths to keep information about stingray use from defense attorneys, judges, and the public. Through the use of extensive nondisclosure agreements, the federal government prevents state and local law enforcement from disclosing even the most elementary details of stingray capability and use. That information embargo even applies to criminal trials, and allows the federal government to order evidence withheld or entire cases dropped to protect the secrecy of the surveillance device.

The controversy around police stingray surveillance challenges our antiquated Fourth Amendment jurisprudence, undermines our cherished principles of federalism and separation of powers, exposes a lack of accountability and transparency among our law enforcement agencies, and raises serious questions about the security of our individual rights as the government’s technological capability rapidly advances.

The full analysis can be found here.

The interaction of law enforcement and surveillance technology promises to be one of the most important civil liberties issues of the near future. Our current privacy jurisprudence is sorely outdated and often inapplicable to the issues presented by modern technology and law enforcement practices.

Whether we’re talking about cell phone tracking, persistent aerial surveillance, or nationwide biometric databasing, the ability of the government to invade and regulate the most intimate spheres of our lives continues to grow. It is incumbent on policymakers and jurists to ensure that our legal framework and constitutional principles keep pace with these growing threats to our privacy.

 

For more on stingray surveillance, Cato will be hosting a policy forum on February 15, including remarks from Rep. Jason Chaffetz (R-UT), who has authored legislation attempting to rein in surveillance abuses.

The flawed implementation of President Trump’s executive order banning immigration from seven majority Muslim countries brings to mind then-Speaker of the House Nancy Pelosi quip about Obamacare that “we have to pass the bill so that you can find out what is in it.” Now it seems President Trump had to sign the order to find out what was in it.

Every day, the president and the administration appears to be discovering new implications of the vague order, and laws are being made up on the fly with press releases and emails, rather than through our country’s democratic process. The executive order purports to “suspend entry into the United States, as immigrants and nonimmigrants… aliens from [seven] countries.” Nearly every word choice leaves room for uncertainty, creating the inevitable confusion and chaos that followed.

Suspend

Consider the first word, “suspend.” Because the order allowed for case-by-case exceptions, no one knows who is actually “suspended” from entering. The administration is only slowly revealing some criteria for these waivers in press conferences and press releases. The exceptions are also apparently not being applied at consulates where a categorical ban on all visa applications and interviews is in effect.

Entry

The second word, “entry,” would seem not to apply to those already inside the United States, yet the administration is applying the ban to them anyway, formulating the policy in an unpublicized email to employees—many of whom were shocked by the announcement.

In a way, this decision makes legal sense, even if it is not apparent in the order, because a person must be “admissible” or legally allowed to enter to receive “status” in the United States. But it turns out that the ban is actually being applied to “any petition or application” for any benefits, including those that do not confer new status, such as green card renewals. Right now, the administration has said it is still “evaluating” whether it would cancel the status of foreign students who are not even applying for anything and are in the United States. It is a shutdown far beyond anything called for in the order itself.

Immigrants

Then there is the word “immigrants,” which refers to people who come to the United States to live permanently. This could refer to those who have not yet received an immigrant visa overseas, those who have received one but not yet come, to people who have both come and already received their “green cards” to become legal permanent residents (LPRs), or to all three groups.

On day 1 of the order, the State Department publicly announced a moratorium on immigrant visa applications barring the first group, and on day 2, it issued a secret memo to “provisionally revoke” all immigrant visas for those who had received them outside the country. This is more expansive than simply a ban on entry since everyone who had a visa—which could be valid for entry after the 90-day ban ends—would have to reapply now.

For LPRs, security officials on the first day determined that the order would not apply to them and told the airlines to allow them to board. But White House officials secretly overruled them on day 2, leading to chaos for arriving immigrants. In the morning of day 3, White House Chief of Staff Reince Priebus told NBC that it both did and did not apply to LPRs. Finally, by late in the day on day 3, Secretary of Homeland Security Kelly issued a two sentence press release stating that the ban did apply, but that he would allow LPRs to enter using his case-by-case exception authority.

From

We find no more clarity with the word “from,” which could mean residence, birth, nationality, or citizenship. It could potentially include people who have even visited the countries. The 2015 statute from which the president drew his list of seven countries required visa interviews and visa documents for certain tourists who had simply visited Iraq or Syria, making this one plausible view.

On day 1, the State Department announced that “citizenship” would be the determining factor. Then, in another statement on day 2, it said that the person’s “nationality” would determine their eligibility. Then, in an email to its employees, Citizenship and Immigration Services, the agency adjudicating non-visa immigration applications, stated that it applied to any “citizen or national.” In an FAQ online, Customs and Border Protection currently states that “travelers are being treated according to the travel document they present.”

Seven countries

To add to this confusion, someone with two nationalities may or may not be able to apply for a visa and enter. The State Department initially answered that they could not. But then the administration subsequently stated that people with dual citizenship or nationality can enter under their non-banned nationality.  Yet the State Department still has a notice flatly denying any citizen the opportunity to apply for a visa, so it is unclear if this policy applies to applicants for new visas or benefits. The distinction between nationality and citizenship is also relevant here because Iranians, even if they are born abroad, cannot give up their nationality.

Everything about the Trump executive order works against America’s traditions and rule of law. Laws should be made after public debate through a democratic legislature. Americans should not have to discover the meaning of laws days after they are enforced. Conservatives rightly objected to Ms. Pelosi’s comment, but processes that keep the American public in the dark are the problem, whether done by a Democrat or a Republican.

I recently testified at a joint subcommittee hearing held by the House Foreign Affairs Committee about prospects for a US - UK free trade agreement (my written statement is here).  I focused on the possible content of the agreement.  In my view, the lengthy – and so far unsuccessful – US trade negotiations in the Pacific region (the TPP) and with the EU (the TTIP) are an indication that perhaps we have expanded trade agreements to cover too many issues.  If we want the US - UK trade negotiations to be completed any time soon, we need something more modest, focusing on trade liberalization and doing less global governance.

One issue I did not cover in my written statement, but which came up in the questions during the hearing, was how the US should approach its trade negotiations with the EU after Brexit.  Everyone seemed to agree that the US should pursue a free trade agreement with the UK as soon as permitted (although there are disagreements about when that can occur).  But what should happen to the ongoing trade negotiations with the EU?

The Trump administration has not made any official statement on its view of the TTIP, but there are a couple worrying signs.  First, the Financial Times notes the Trump administration’s preference for bilateral trade deals, and quotes Peter Navarro, the head of the White House National Trade Council, saying that he thinks the TTIP is a multilateral deal:

The new president says he prefers bilateral trade deals rather than the broad multilateral accords pursued by Barack Obama, his predecessor. Mr. Trump last week also withdrew from a 12-country Pacific Rim deal negotiated by Mr. Obama. 

“A big obstacle to viewing TTIP as a bilateral deal is Germany, which continues to exploit other countries in the EU as well as the US with an ‘implicit Deutsche Mark’ that is grossly undervalued,” Mr. Navarro said. “The German structural imbalance in trade with the rest of the EU and the US underscores the economic heterogeneity [diversity] within the EU — ergo, this is a multilateral deal in bilateral dress.”

While this is not a definitive statement of US policy, it may suggest reluctance among some people in the Trump administration to continue the negotiations with the EU.

In addition, Inside US Trade reports that someone in the White House has been contacting individual EU member states about bilateral trade talks:

Several EU member states believe that Trump administration requests to negotiate bilateral deals with individual countries – requests that have been rebuffed in deference to the European Commission – stem from White House advisers acting without secretaries and full staffs at key agencies that might have influenced the U.S. approach, EU sources said.

Because member states have ceded the competence to negotiate trade deals to the Commission, they have told the Trump administration they cannot work on bilateral deals, these sources said.

Member states have greeted the Trump administration’s requests in mixed ways, with some chalking them up to the administration’s unfamiliarity with the EU system of government and others viewing them as an affront to the European Commission’s competence over trade policy.

This may be a simple misunderstanding, but it also may be a conscious effort to undermine the EU.

Whatever you think of the EU as a force for trade liberalization (you may like its internal free trade; you may not like its agriculture subsidies), I think it is clear that the US government should let the EU and its member states decide how they want to participate in world affairs.  If the UK wants to leave the EU, and negotiate its own trade agreements, that is fine.  If all of the other EU members want to stay in the EU and participate in trade negotiations as a single entity, that is also fine.  Thus, the US should definitely negotiate a trade agreement with the UK.  But the US should also continue its negotiations with the EU, and not get hung up on the question of whether a deal with the EU would be “bilateral” or “multilateral.”

The leaders of the University of California at Berkeley lacked power to prevent Milo Yiannopoulos from speaking on their campus yesterday. A subset of the university’s faculty urged their Chancellor to do just that. His spokesman replied, “Our Constitution does not permit the university to engage in prior restraint of a speaker out of fear that he might engage in even hateful verbal attacks.

Most protesters opposed the event peacefully. Some did not: “security officials claim about 150 ‘masked agitators’ joined the demonstration, setting fires, throwing molotov cocktails and rocks and attacking some members of the crowd.” Yiannopoulos’ speech was cancelled in the interest of public safety.

The faculty members seeking to censor Yiannopoulos did not cover themselves with glory, but the people resorting to violence were the true villains in this narrative. They achieved through violence what could not be achieved by law.

Of course, it is possible the university did not try very hard to hold the event. But the Chancellor faced down a part of his own faculty, and the Berkeley College Republicans thanked the university police and the administration “for doing all they could to ensure the safety of everyone involved.” It does not appear the administration came up short. To the contrary, they appear to have fulfilled their obligations. They deserve praise.

This morning President Trump tweeted “If U.C. Berkeley does not allow free speech and practices violence on innocent people with a different point of view — NO FEDERAL FUNDS?”

Notice U.C. Berkeley is the subject of both actions. But the Berkeley Chancellor supported the speech, and we have no evidence that he or any other person acting on behalf of Berkeley incited violence yesterday.

I do not see how attacking people who have observed constitutional norms will encourage others to also respect free speech.

Walter Olson has more on the federal funds aspect of all this.

On Friday, February 3, at noon, Cato will host a discussion of President Trump and free speech. You can register here or walk in tomorrow.   

A President may not find it simple or straightforward to use direct executive orders to cut off funds to universities that tolerate disruption of speech or exclude speakers based on the content of their speech. (That’s this morning’s Presidential tweet story, if you slept in.) But the power that the Department of Education and allied agencies have gathered to themselves over university life has steadily mounted, often against feeble resistance from the universities themselves, as in the Title IX instance. That gives an administration plenty of handles to make its will known, a process previewed in October, as to Trump, by Chronicle of Higher Education correspondent Steve Kolowich, who also spoke to me for the story. He quotes Alexander Holt, an education-policy analyst at New America, saying: “I could see a Trump administration going crazy on these ‘Dear Colleague’ letters.”

Two years ago I cited several examples of rule by Dear Colleague letter, as I called it, in this area. (More here.) And I noted one big problem with invoking judicial oversight to check the federal government’s power:

It may be difficult to persuade a college to serve as a test case, given the annihilating possibility of a federal funds cutoff as the penalty of its presumption.

University administrators have submitted meekly for years now to rule by federal “Dear Colleague” letter. Now it will be Trump appointees writing those letters. If the administrators wish to retain some measure of independence from control by Washington, D.C., they may need to grasp that the hour is growing late – and that it wasn’t such a good idea to grow dependent on the federal dollar in the first place. (adapted from Overlawyered). 

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).

Support Changes with Global Events We find that support for accepting refugees and immigrants varies with what’s happening in the news and the level of threat Americans perceive. For instance, support for banning refugees jumped from 24% in September 2015 to 38% in December 2015 after the San Bernardino attack, two NBC/WSJ telphone surveys found.

Support for a Temporary Immigration Ban Varies by Country of Origin A Morning Consult survey found that majorities of Americans support a “temporary ban on immigration” from Syria (56%), Iraq (55%), and Libya (53%). However, less than half support such a ban on immigrants from Egypt (46%), and Mexico (46%). This indicates that security fears associated with particular countries are an important factor behind people’s attitudes.

Longstanding Opposition to Accepting Refugees Frank Newport has shown using Gallup data over the past 80 years that Americans have a longstanding opposition to accepting refugees. Back in 1939, about two-thirds of Americans opposed accepting German children refugees. In 1947 after World War II, 57% opposed accepting 10,000 European refugees. A similar share in 1979 also opposed accepting Vietnamese refugees. A rare exception was a majority (66%) who supported bringing in a couple hundred refugees from Kosovo in 1999.

Americans are Conflicted A new report published by Democracy Fund Voice, Stranger in My Own Country, finds that Americans are conflicted over immigration. Longform interviews and a national survey (conducted online) found that Americans believe that our country is a melting pot, a nation of immigrants, but at the same time expressed concern that immigration from certain regions could pose a security threat and could also risk changing the culture of America.

For instance, looking at President Donald Trump’s core supporters, we find that 66% agreed that “we should follow the Golden Rule and treat others as we’d like to be treated, including people of different races, and countries.” Moreover, 4 in 10 also expressed concern that anti-immigrant sentiment could lead to violence against immigrants residing in the U.S. At the same time 58% feared that “America’s culture has been influenced by other cultures too much” and 78% felt the US was far less safe from foreign threats compared to when they were growing up.

Similarly among Americans overall, a Marist Apr 2016 survey found that a plurality (50%) of Americans thought the U.S. was morally obligated to take in refugees. But in the same survey, 53% also revealed they thought the US should “take in fewer refugees than it does now.”

Education Changes Attitudes We find that concerns over immigration tend to decline as people attain higher levels of education. For instance, the Democracy Fund Voice report found that Americans with more education were far less likely to agree that the US should “stop or strictly limit Syrian refugees coming to the US.” Among those with high school diplomas, 57% thought the US should limit or stop accepting Syrian refugees, compared to 49% of those with some college experience, and 40% with college degrees.

In a media experiment I ran for the Democracy Fund Voice report, I found that videos and print media that conveyed the following significantly reduced fears over immigration and increased support for accepting Syrian refugees: showing that immigrants want to join the American way of life rather than change it, are relatable, and once they get here think of themselves as patriotic Americans. Furthermore, showing the harmful consequences of prejudice also calmed fears over immigration. For instance, this video of Muslim American millennials reading mean Facebook comments increased favorability toward Muslim Americans from 34% in the control group to 52% in the treatment group, an 18-percentage point change. Among strong Trump supporters, favorable attitudes increased from 11% to 38%, a 27-percentage point change.

The chart to the right presents more results from the experiment finding a variety of different digital and print media significantly reduced nativist attitudes among respondents.

Implications

In sum, online surveys reveal Americans are concerned about the national security risks they believe might result from the U.S. accepting refugees and immigrants from Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen. However, Americans are unlikely to support a permanent ban on accepting refugees into the US. Support for immigration restriction increases when the issue is framed around national security risks and giving the government additional time to enhance security measures. However, support declines if such a policy is framed as a religious test for entry into the country.

The difference between telephone and online polls should trouble both journalists and policymakers alike. If Americans feel they cannot express their true opinions on important policy matters it makes it difficult for journalists, policy experts, and lawmakers to respond to these opinions, and at times push back. People won’t have a chance to change their minds if they keep their opinions to themselves and thus no one can provide countervailing evidence.

In addition, political elites would be unwise to assume that these views are simply due to nativism, xenophobia, or some other label. Some people are driven by such concerns, but others are unclear of the risks posed by refugees and immigrants from war-torn countries. Evidence suggests that respectfully explaining the risks, benefits, and showing that immigrants assimilate into US society can effectively persuade people (although not all people) to consider a more liberalized immigration policy.

For more public opinion analysis sign up here to receive Cato’s upcoming digest of Public Opinion Insights and public opinion studies. You can follow Emily Ekins on twitter @emilyekins.

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