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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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