Monday, January 30, 2017

Cruising the Web

Gee, if Trump had set out to prove people's criticisms of him correct, he could hardly have found a better way to do it. It is both appalling and dismaying to read of the incompetence that led up to the roll-out of his executive order on travel bans from seven countries and suspending all refugee admissions for 120 days. CNN reports that they put this together without the input from those who in the government who will have to administer the order.
The policy team at the White House developed the executive order on refugees and visas, and largely avoided the traditional interagency process that would have allowed the Justice Department and homeland security agencies to provide operational guidance, according to numerous officials who spoke to CNN on Saturday.

Homeland Security Secretary John Kelly and Department of Homeland Security leadership saw the final details shortly before the order was finalized, government officials said....

Before the President issued the order, the White House did not seek the legal guidance of the Office of Legal Counsel, the Justice Department office that interprets the law for the executive branch, according to a source familiar with the process.

White House officials disputed that Sunday morning, saying that OLC signed off and agency review was performed.
A source said the creation of the executive order did not follow the standard agency review process that's typically overseen by the National Security Council.
There's a reason why such leaders in an administration should be making these decisions instead of the President's political advisers. That accounts for the confusion as to whether the order applies or doesn't apply to holders of green cards
Friday night, DHS arrived at the legal interpretation that the executive order restrictions applying to seven countries -- Iran, Iraq, Libya, Somalia, Syria, Sudan and Yemen -- did not apply to people with lawful permanent residence, generally referred to as green card holders.

The White House overruled that guidance overnight, according to officials familiar with the rollout. That order came from the President's inner circle, led by Stephen Miller and Steve Bannon. Their decision held that, on a case by case basis, DHS could allow green card holders to enter the US....

Separately, a person familiar with the matter said career officials in charge of enforcing the executive order were not fully briefed on the specifics until Friday. The officials were caught off guard by some of the specifics and raised questions about how to handle the new banned passengers on US-bound planes.

Regarding the green card holders and some of the confusion about whether they were impacted, the person familiar with the matter said if career officials had known more about the executive order earlier, some of the confusion could have been avoided and a better plan could be in place.

Administration officials also defended the process Saturday. They said the people who needed to be briefed ahead of time on the plane were briefed and that people at the State Department and DHS who were involved in the process were able to make decisions about who to talk and inform about this.
What a mess. And, as we've been witnessing over the past week, people are leaking like crazy to expose the mess that Trump and his inner circle are making of their rollout of policies. And, as a result the communication folks are all over the place on what the order actually says..

Benjamin Wittes of Lawfareblog,
no squish on tough actions to protect national security, summarizes what was behind this executive order: "malevolence tempered by incompetence."
NBC is reporting that the document was not reviewed by DHS, the Justice Department, the State Department, or the Department of Defense, and that National Security Council lawyers were prevented from evaluating it. Moreover, the New York Times writes that Customs and Border Protection and U.S. Citizen and Immigration Services, the agencies tasked with carrying out the policy, were only given a briefing call while Trump was actually signing the order itself. Yesterday, the Department of Justice gave a “no comment” when asked whether the Office of Legal Counsel had reviewed Trump’s executive orders—including the order at hand. (OLC normally reviews every executive order.)

This order reads to me, frankly, as though it was not reviewed by competent counsel at all.
Wittes goes on to explain how the incompetent drafting of the order will make things easier for those who are bringing suits to challenge the order.
How incompetent is this order? An immigration lawyer who works for the federal government wrote me today describing the quality of the work as “look[ing] like what an intern came up with over a lunch hour. . . . My take is that it is so poorly written that it’s hard to tell the impact." One of the reasons there’s so much chaos going on right now, in fact, is that nobody really knows what the order means on important points.

Some examples:

Sec. 3(c) bans "entry"—which to the best of my knowledge has had no meaning in the Immigration and Nationality Act (INA) since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996. Pre-IIRIRA law did use the term “entry,” but that is no longer the case.

Section 3(g) talks of waivers on a case-by-case basis for people who are otherwise denied visas or other benefits under the immigration laws pursuant to the order. If a person needs a waiver to obtain "other benefits," does that mean that nationals of the seven countries are denied any benefit under the INA without a waiver, benefits such as naturalization, adjustment of status, or temporary protected status, even if they are already in the US?

On its face, the order bars entry of both immigrants and non-immigrants. Again, as entry is not defined, and no one was given any time to draft implementing guidance or to clarify any points, it’s no surprise that Customs and Border Protection doesn’t seem to know how to apply it to lawful permanent residents (LPRs). The INA, at section 101(a)(13)(C), says that green card holders will not be deemed as seeking admission absent the factors enumerated therein—factors that do not include an executive order banning entry. Yet Reuters and The Guardian are both reporting quotations from a DHS public relations official, stating that the order does apply to LPRs. If that interpretation lasts, look for DHS to get its ass handed to it on a platter in federal court—a defeat it will richly deserve.
That's what happens when an order tis put together without consultation with those who have some expertise in the matter.
NBC is reporting that the document was not reviewed by DHS, the Justice Department, the State Department, or the Department of Defense, and that National Security Council lawyers were prevented from evaluating it. Moreover, the New York Times writes that Customs and Border Protection and U.S. Citizen and Immigration Services, the agencies tasked with carrying out the policy, were only given a briefing call while Trump was actually signing the order itself. Yesterday, the Department of Justice gave a “no comment” when asked whether the Office of Legal Counsel had reviewed Trump’s executive orders—including the order at hand. (OLC normally reviews every executive order.)
Jonathan Adler rightly contrasts this incompetence with Trump's constant bragging during the campaign that he'd only hire the best people.
Think about that for a moment. An EO that is ostensibly issued for the purpose of protecting national security was not properly vetted, nor did anyone make any meaningful effort to ensure that those government officials tasked with executing the Administration’s policy understood what it was they were doing. Indeed, as drafted, the EO didn’t even cite the right provisions in federal law. In the words of Charles L. Black Jr., in these actions “the curves of callousness and stupidity intersect at their respective maxima.” (Hat tip: Walter Dellinger)
Adler goes on to explain why he things that "under normal circumstances" this policy would be lawful and survive legal challenges.
I stress “under normal circumstances” because these are not normal circumstances. The cavalier and reckless manner in which this specific EO was developed and implemented will likely give judges pause — and with good reason. Courts typically give a degree of deference to executive branch actions under the assumption that polices are implemented after serious consideration of relevant legal and policy questions. Indeed, the more serious the government interest allegedly being served, the more serious one expects the government’s internal review to be (unless, of course, there are exigent circumstances necessitating immediate action, but that was not the case here).

When Department of Justice attorneys go into court to defend the policy, they will not be able to maintain that this policy reflects careful review of the relevant security concerns or that administration lawyers gave due consideration to potential objections and relevant legal or constitutional constraints on the executive branch’s conduct. They won’t be able to say those things because they are not true — and judges will notice. Issuing orders that can upend people’s lives without conducting the most basic review is practically the definition of “arbitrary and capricious” government action. To quote Wittes again:”it is most emphatically not good news to have a White House that just makes decisions with no serious thought or interagency input into what those decisions might mean. In fact, it’s really dangerous.” This is not how you “make America great again.”
This mess should give Trump's supporters pause in their arguments that a man with his business background can just stroll into government and take over the levers of the government. Normally, we might blame the fact that so few of his nominees have been approved and in place, but if they're not going to pay attention to any of the people who are in office, that wouldn't make a difference. As Will Baude wonders, we don't really know if the Office of Legal Counsel or DOJ reviewed the order as they're supposed to. Perhaps the administration just doesn't trust these offices full of Obama holdovers and career appointees whom they know wouldn't support their policy.

They better get their act together if they want to preserve other executive orders against legal challenges.
If the drafting and implementation of this EO is any indication of how the Trump Administration plans to conduct its affairs, this is good news for those who wish to oppose Administration policy. Many of the things the Trump Administration wishes to do to reverse Obama Administration policies, particularly those embodied in duly promulgated regulations, will require careful and patient lawyering. The failure to properly vet and flyspeck administrative actions will leave them vulnerable to legal challenge. This may be small consolation to those who may be affected by the Administration’s actions in the meantime, but it is something to keep in mind.

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Timothy Carney has a good explainer of what is in the executive order. He points out that the Immigration and Nationalization Act gives the president very broad authority to limit just about anyone he finds dangerous.
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.
However, the Trump administration would have to demonstrate that they performed due diligence to find that these groups are indeed a detriment to the country. With the hectic drafting of this bill, it's not clear that they will be able to do so. Carney also points out that those seven countries were the ones listed in the "Visa Waiver Program Improvement and Terrorist Travel Presentation Act of 2015 and its 2016 update.
That Obama-era law (passed with overwhelming Democratic support) added extra scrutiny to anyone travelling into the U.S. from those countries.
And President Obama did barr Iraqi refugees from entering the country for six months in 2011. We didn't hear all these howls of protest from those Obama actions. As Twitchy points out, the Washington Post's Glenn Kessler acknowledges that the media just ignored the Obama administration's banning of Iraqi refugees.

What is really disturbing is the interpretation that this order encompasses green-card holders. Charles Cooke, who is a green card holder himself, explains why, no matter what you might think of the essential policy of the travel ban, it makes no sense whatsoever to extend it to green-card holders.
Green card holders are not citizens — depending on the card and how it was obtained, that honor comes three or five years later. But they’re not bog-standard visa-holders either. Unlike, say, H1B-carriers, permanent residents are expected to live in America by default, and are in fact penalized if they don’t. By law and by expectation, this country is their home; their base; the ground in which their roots are planted. Because of this, permanent residents are able to purchase, own, and carry firearms; they are required to register with the selective service; and they are treated for tax and welfare purposes as are U.S. citizens. They can’t vote or serve on a jury, but, other than, they effectively enjoy all the liberties that natural born Americans enjoy. When they re-enter the country, the agent says “Welcome Home,” which is a big change from their visa days. They are not Americans, and they mustn’t pretend to be. But they are as close as one can get without being one.

And that’s fine. As a permanent resident myself, I don’t expect to be handed a passport or treated like a citizen (for what it’s worth, I like Josh Marshall’s conception of “thick citizenship”). But I do expect to be treated differently than a guy who just got off a plane for the first time — and not least because the process of obtaining a green card is tough. It took me a year from application to acceptance, and the vast majority of that time was taken up by the FBI....

I can’t work out how applying Trump’s rule to the holders of green cards makes any logical sense. As I have noted, these are people who have already gone through the vetting process; people who have been granted permanent residency; people who have made their lives here on the understanding that to fail to do so will incur penalties. What possible sense can it make to temporarily restrict their travel? If Trump is arguing that the vetting process wasn’t any good then he should be proposing far more than a temporary limitation; he should be proposing a wholesale revisitation of the system. But he’s not. In three or four months, the people who are being turned away today will be let in again. And what will Trump have achieved? Certainly not the same things as declining to allow new applications will.
Cooke also points out how trouble in court defending the extension of the order to green-card holders.
Indeed, in recent years, both Congress and the courts have taken steps toward rendering permanent residents as no less than “citizens who can’t vote.” Under current law, green card holders are treated as “U.S. persons” in both Congressional statutes and by the Supreme Court – see U.S. v. Verdugo-Urquidez for more details, and look also at the tendency of modern judges to accord terrorist aliens who cannot call upon the American right of habeas corpus the right to challenge their detentions — and I see no evidence whatsoever that this is about to change. Is Trump really going to upend the green-card status quo with an ill-drafted executive order? I doubt it.

Instead, he seems intent upon poking the hornets’ nest, and possibly at the expense of his agenda in this realm. Had he stuck to his predecessors’ precedents, he would today be on safe ground. Had he submitted his plans to Congress, for debate and dissent and redrafting, the teething pains might have been significantly lessened. Had he involved his departments before the crisis hit, he would have been able to provide answers that sounded credible to the ear. But he didn’t. He went for broke, regardless of the law and the consequences. And now will come the fallout.
Arguments that only 109 people who were slowed down, as Sean Spicer argued yesterday djust doesn't hack it as an excuse. A presidential order should not be done in such an overbroad, slipshod manner even if the numbers, as a percentage of all international air travelers, are relatively low. Competence matters when you're affecting people's lives. Reince Priebus claimed on TV yesterday that the order didn't apply to green-card holders. Well, it would have been nice if that distinction had been made clear in the instructions to the agents who had to carry out this order. The confusion continued over the weekend due to the shoddy crafting and implementation of the order so that finally, Homeland Security Secretary John Kelly had to finally issue a clarification of what should have been made clear in the first place. That contradicted an earlier ruling by the department.
The department said on Saturday Trump's action did apply to people with green cards who were returning to the United States from the seven nations, while a White House official said green card holders who had left the United States and wanted to return would have to visit a U.S. embassy or consulate to undergo additional screening.

And the bonfire of Trump's policy is, as the WSJ writes, his own fault.
The White House legal review was also slipshod. The President has wide discretion over refugee policies, and the overall Trump order is no doubt legal. But surely someone in the executive branch knew that anyone who touches down on U.S. soil is entitled to some due process before summary removal.

Opponents of the policy pounced to sue in several jurisdictions, and no fewer than four judges have rebuked the order in some way. One government lawyer who had to defend the White House position couldn’t explain why those detained were a security threat or why they weren’t at risk if they were sent back to their native countries.

The larger problem with the order is its breadth. Contrary to much bad media coverage, the order is not a “Muslim ban.” But by suspending all entries from seven Muslim-majority nations, it lets the jihadists portray the order as applying to all Muslims even though it does not. The smarter play would have been simply to order more diligent screening without a blanket ban.

The order does say the government should “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion” in that country.

That could apply to Christians, whom the Obama Administration neglected in its refugee admissions despite their persecution in much of the Middle East. But it could also apply to minority Sunni Muslims in Iraq who have fought with the U.S. Yet that wasn’t explained, and in an interview with a Christian broadcast network Mr. Trump stressed a preference for Christian refugees.

The order also fails to make explicit exceptions for Iraqis, Afghans and others who have fought side by side with Americans. These include translators and others who helped save American lives and whose own lives may now be at risk for assisting GIs. The U.S. will fight wars in foreign lands in the future, and we will need local allies who will be watching how we treat Iraqis, Kurds and other battle comrades now.

The U.S. is in a long war with jihadists that is as much ideological as military. The U.S. needs Muslim allies, while the jihadists want to portray America as the enemy of all Muslims. Overly broad orders send the wrong signal to millions of Muslims who aren’t jihadists but who might be vulnerable to recruitment if they conclude the U.S. is at war with Islam, rather than with Islamist radicals.

As Taylor Millard argues, despite the president having the power to issue executive orders, President Obama stretched that power beyond recognition and Donald Trump is following in that model instead of going to Congress to pass legislation.
Trump is acting as CEO of the government (which he’s not), meaning he’s so used to doing things his way, without having to have others sign off on his actions. He’s taking another page out of former President Barack Obama’s playbook, but promising he’ll do it right....

Who decides what’s good and what’s bad? The person in power? Obama sure tried to defend his own executive actions as good for the government. Via ABC News in 2014:
“Congress has a responsibility to deal with these issues and there are some things that I can’t do on my own,” the president told ABC News’ chief anchor George Stephanopoulos during an interview in Las Vegas on Friday. “What I do have is the legal authority to try to make the system better. Given the resource constraints that we have, we have to prioritize.”
See the problem? It’s relying on the opinion of the executive, without even bothering letting the Legislature do its constitutional duties. It’s not surprising because the government has consistently gone outside the rules set in the Constitution, and allowed bureaucrats make policy. Is this not an almost monarchy with Congress as merely advisers to the throne?

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John Hinderaker, who would like for a complete revision of immigration laws, argues that the entire goal of the President's executive order is doomed to failure since the supposed "extreme vetting" can't ever catch a determined terrorist.
This is mostly pointless, for two reasons. First, there is no conceivable way to effectively “vet” immigrants and other travelers from the Middle East and Africa. It would require more resources than we can possibly assign to thoroughly investigate all such travelers. Second, and as to immigrants more important, there is no way to vet the immigrant’s descendants. This is one reason why the current liberal theme that relatively few terrorist attacks have been carried out by Islamic immigrants is so silly. Frequently, perhaps usually, the terrorist doesn’t appear until the second generation, like Omar Mateen.

What will happen when the current travel ban runs out in just a few months? Most likely, the administration will announce some additional security measures and it will be back to business as usual. This will be seen as a defeat for President Trump, even though his order is, by its terms, time-limited. Little or nothing will be accomplished, at considerable political cost.

The Washington Post has a chart of how Democratic senators have voted so far on the four nominations so far of Donald Trump who have received votes on the Senate floor: James Mattis for Defense, John Kelly for DHS, Mike Pompeo for CIA, and Nikki Haley for UN ambassador. These are the non-controversial appointments yet there are still senators who are voting against one, or two, or three of these nominations. If some senators can't bring themselves to vote for the least objectionable of those nominees, it's clear that they won't vote for any of his nominees. They've made up their minds to be as obstructionist as possible and have basically made it clear that there is no one a Republican president could have nominated that would have satisfied them.

Remember all the sturm und drang over Scott Walker's reforms of collective bargaining for teachers five years ago? Well, the results are in and it's clear that it accomplished even more than its advocates could have hoped and its vocal opponents could have feared.
Wisconsin Gov. Scott Walker’s collective-bargaining reforms have saved taxpayers money, and now a study finds that by rewarding the best teachers they are also improving student learning.

The 2011 Wisconsin law, known as Act 10, limited collective bargaining to base wages while letting school districts negotiate pay with individual teachers based on criteria other than years on the job and education level. Some districts like Green Bay have used the law to reward teacher performance while others such as Racine have adhered to seniority-based salary schedules.

Prior research on Washington, D.C.’s teacher-tenure reforms and merit pay has found that financial incentives improved the performance of highly rated teachers while dismissal threats led to attrition among ineffective ones. Student achievement has risen as a result. Act 10 provides an opportunity to evaluate how changes in contract negotiations affect teaching quality.

As Stanford University economic researcher Barbara Biasi explains in a new study (which is awaiting peer review), Act 10 created a marketplace for teachers in which public-school districts can compete for better employees. For instance, a district can pay more to recruit and retain “high-value added” teachers—that is, those who most improve student learning. Districts can also cap salaries of low-performing teachers, which might encourage them to quit or leave for other districts....

Ms. Biasi found that better teachers gravitate to districts where they can negotiate their own pay while lousy teachers tend to migrate toward those where salary scales are regimented. The study found “a 34 percent increase in the quality of teachers moving from salary schedule to individual-salary districts, and a 17 percent decrease in the quality of teachers exiting individual-salary districts.”

“These sorting patterns,” Ms. Biasi concludes, “lead to a small increase in average quality of the teaching workforce in individual-salary districts.” Student math achievement rose significantly in individual-salary districts relative to salary-schedule districts due in part to improvements in the teacher workforce.

She adds that the increase in student achievement in these districts was too large to attribute merely to the inflow of high-quality teachers. Individual-salary negotiations might also encourage incumbent teachers to improve their skills and boost the quality of new teacher applicants.

The lesson is that incentives matter in education as in the rest of American life. Giving schools the ability to reward the best teachers produces better results for students. The evidence grows that Act 10 may be the most successful public-policy achievement since welfare reform.
Just imagine that. Incentives matter to employee performance.

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Katherine Timpf points to a student column from Louisiana State University worrying about how white women are performing cultural appropriation through the ways they style their eyebrows.
“Current American eyebrow culture also shows a prime example of the cultural appropriation in the country,” Lynne Bunch writes in a piece for the Daily Reveille, the school’s official student newspaper. “The trend right now is thick brows, and although a lot of ethnic women have always had bushy, harder-to-maintain eyebrows, it has only become trendy now that white women have started to do it.”

(Yes — she really said “eyebrow culture.”)
Now, first of all, I have certainly seen white women who have naturally thick eyebrows without the use of any kind of makeup. Second of all, they’re eyebrows. If you want to paint your eyebrows to look thicker, fine! If you want to bleach them or dye them pink or shave one or both of them off, fine! Who cares?

Well, apparently Bunch does, and it’s not just thick brows that she has a problem with. In the piece, she also complains about women who bleach their brows or go for what she calls the “no eyebrow look,” because it’s offensive to women who have light or no brows “because of sickness, disorders or their natural eyebrow hair color [appearing] nearly invisible.”

Bunch offers model and Kardashian-clan member Kendall Jenner as an example of someone who has been guilty of numerous eyebrow-related microaggressions — including sporting the no-brow look “on the runway,” despite being “uneducated on what it’s like to live without eyebrows on a long term basis,” and making a comment that she once “plucked out all of [her] eyebrows” “on a totally weird whim,” which Bunch considers insensitive to people who suffer from trichotillomania and compulsively pull out their own hair.

“Eyebrow culture is too intense and too unforgiving, and a person’s beauty should be defined by the individual, not by what society considers trendy,” Bunch concludes.

This conclusion is, of course, laughably ironic. After all, if, as Bunch says, “a person’s beauty should be defined by the individual,” shouldn’t people be allowed to decide what to do with their own damn eyebrows, without having to worry about a citation from the PC police?
It's nice that all other problems have been resolved so that we can worry about eyebrow culture.

And now we find that political correctness has gone so far as lead the British Medical Association to frown on calling pregnant women "expectant mothers" because it might offend transgenders.
nstead, they should call them "pregnant people" so as not to upset intersex and transgender men, the union has said.

The advice comes in an internal document to staff outlining a raft of common phrases that should be avoided for fear of causing offence.

"The elderly" should be referred to as "older people", "disabled lifts" called "accessible lifts" and someone who is "biologically male or female" should be called "assigned male or female".

The BMA said the document was purely guidance for its staff on effective communication within the workplace, not advice to its 156,000 doctor members on how to deal with patients.

On pregnancy and maternity, it says: "Gender inequality is reflected in traditional ideas about the roles of women and men. Though they have shifted over time, the assumptions and stereotypes that underpin those ideas are often deeply-rooted."
Ya think?