Sunday, November 26, 2017
Presidential Memoranda: Sanctions, Syria, STEM
This is the continuation of the review of Presidential memoranda.
Saturday, November 25, 2017
Presidential Memoranda: Opioids, JFK, Unmanned Aircraft Systems
I will be covering recent Presidential Memoranda in a series of posts since some memoranda can be summarized in a couple of sentences, but others require a lengthier write up.
Combatting the National Drug Demand and Opioid Crisis
This memoranda was signed October 26, 2017 and is addressed to all Executive Branch heads. It has 3 sections and seems structured as if there had originally been a desire to issue this as an Executive Order.Section 1
This section defines the policy. In the first sentence it states that the US will do everything lawfully possible to combat drug demand and opioid addiction. The rest of the section summarizes many details as to why the drug crisis is truly a crisis. One thing that is interesting for me in this section is that it mentions that fentanyl is manufactured almost exclusively in China and yet, China is not included in the determination of drug countries such as Mexico.Section 2
This section directs the Secretary of Health and Human Services to declare a Public Health Emergency consistent with 42 USC 247. This provides additional resources to combatting the drug problems. However, there is another level of declaration above a Public Health Emergency and in the press, there was criticism that it was not used given the scope and deadliness of the scourge of opioid addiction.Section 3
This section includes certain fine print to assure the constitutionality of the memorandum.Temporary Certification of Certain Records Related to the Assassination of President John F. Kennedy
This memorandum was signed on October 26, 2017 and is addressed to all Executive Branch heads. It does not have any sections and 5 unnumbered paragraphs. There was quite some public excitement prior to the issue of this memorandum because of the large public interest in the records related to the actions that were taken after President Kennedy was assassinated. In the end, the next date to put on your calendar is April 26, 2018. Additional records should be released at that time and it is when another memorandum will have to be issued if not all records get release per the statute.Unmanned Aircraft Systems Integration Pilot Program
This Memorandum was signed on October 25, 2017. It has 7 sections. It does not note any specific citation of authority in the preamble. The term "Unmanned Aircraft Systems" (UAS) seems to be referring to drones including drones that might transport people.Section 1
This section defines the policy which is that UAS will need to be considered within the Federal Aviation Administration to ensure that there are rules on how UAS are controlled and how they interact with other aircraft.Section 2
This section states that within 90 days, a pilot program will be established.Section 3
This section describes how the program will be implemented. Through agreements with State, local and tribal governments, the FAA will set up zones which will use different models of FAA to local government interaction and have diverse environments so that data can be gathered as to what works and what is problematic.Section 4
This section has a lede line of "Coordination" and details how some agencies need to work together.Section 5
This section states that the program is to terminate after 3 years. This section also requires a report to be written annually and after the program is completed.Section 6
This section provides definitions for "unmanned aircraft system", "public unmanned aircraft system", and "civil unmanned aircraft system".Section 7
This section has the usual legal fine print to assure that as an executive action, it does not overstep the lines of the constitution.Friday, November 24, 2017
Presidential Determinations so far in the current administration
In some cases, there needs to be a determination made by the President. These determinations, when affecting public issues, are published in the Federal Register. In this post, we will review the determinations which have been made since the new administration has taken over. The determinations are numbered by year which is followed by a sequential number.
- 2017-06: Again this was published over a month after it had been signed and issued. It is entitled "Presidential Determination Pursuant to Section 1245(d)(4)(B) and (C) of the Nation Defense Authorization Act for Fiscal Year 2012." So the critical phrase in this determination seems to be "the United States is not pursuing efforts to reduce Iran's sales of crude oil at this time." This is referring to all sales, not just sales to the US (either directly or through an intermediary). The referenced section of PL 112-81 directs the executive branch to impose sanctions unless the President determines it would be better not to. This determination documents that it would be better not to.
- 2017-07: Although this determination was issued prior to -08 and -09, it was published only afterwards in the Federal Register. This one is entitled "Suspension of Limitations Under the Jerusalem Embassy Act." This determination suspends for a period of 6 months (until the end of November) the limitations in sections 3(b) and 7(b) of the Act which means that full funding of the State Department building budget is restored even though the US Embassy has not been moved to Jerusalem.
- 2017-08: Determination Pursuant to Section 4533(a)(5) of the Defense Production Act of 1950. This has to do with government support to industries which are involved in space equipment and satellites. The action was undertaken in accordance with the authority in 50 USC 4533.
- 2017-09: Determination Pursuant to Section 4533(a)(5) of the Defense Production Act of 1950. This is very similar to -08 but affects different kinds of items: adenovirus vaccine production, aramid fibers, composite shipping containers, and special microelectronics.
- 2017-10: Entitled "Continuation of US Drug Interdiction Assistance to the Government of Columbia". This is related to section 1012 of 22 USC 2291-4 which has to do with immunity for agents who are combatting drug trafficking. As a part of the determination, a report has to be submitted. The latest one I found on the GPO website is here and discusses aerial interdiction in Columbia and Brazil.
- 2017-11: Entitled "Continuation of the Exercise of Certain Authorities under the Trading with the Enemy Act". This determination continues financial sanctions against Cuba as detailed in 31 CFR 515. This is an annual recurrence.
- 2017-12: Entitled "Presidential Determination on Major Drug Transit or Major Illicit Drug Producing Countries for Fiscal Year 2018." It goes to list Afghanistan, The Bahamas, Belize, Bolivia, Burma, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, India, Jamaica, Laos, Mexico, Nicaragua, Pakistan, Panama, Peru, and Venezuela. This simply identifies bad actors insofar as PL 107-228 is concerned.
- 2017-13: Entitled "Presidential Determination on Refugee Admissions for Fiscal Year 2018". This document defines some policy that is left to the discretion of the Executive Branch per 8 USC 1157. The key part here is that for Fiscal Year 2018, 45,000 refugees is the limit. At the end it mentions that certain countries and regions especially recognized for refugees: Cuba, Eurasia and the Baltics, Iraq, Honduras, Guatemala, and El Salvador. I note that this does not include anywhere in Africa where there is a very high amount of suffering going on currently.
- 2017-14: Entitled "Presidential Determination with Respect to the Child Soldiers Prevention Act of 2008". The determination waives the application of prohibitions against certain countries (Mali, Nigeria, DRC, Somalia and South Sudan) as is required in 22 USC 2370.
- 2017-15: Entitled "Presidential Determination with Respect to the Efforts of Foreign Governments Regarding Trafficking in Persons." The finding in this Determination are related to the Trafficking Victims Protection Act of 2000 (22 USC 7107) which calls for the President, as advised by the State Department and other relevant agencies, to name the countries which should have sanctions imposed on them because of actions in the area of trafficking of persons. The countries named herein are DRC, Equatorial Guinea, Iran, South Sudan, Sudan, Eritrea, DPRK, Russia, Syria, Belarus, Belize, Burundi, C.A.E., China, Comoros, Congo, Guinea, Guinea-Bisseau, Mali, Mauritania, Turkmenistan, Uzbekistan and Venezuela.
Thursday, November 23, 2017
Executive Order 13765:Prelude to ACA repeal
What the Executive Order Says
Executive Order (EO) 13765 is entitled "Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal" and was issued on January 20th, 2017. This was the first EO signed by the current administration and it has 6 sections.Section 1
This section defines the policy and frames the repeal of Obamacare as being motivated by individual freedom and States rights issues.Section 2
This section directs the Secretary of Health and Human Services (HHS) and other agency heads to exercise all and any discretion defined in the PPACA so as to "waive, defer, grant exemptions from, or delay the implementation" of the PPACA.Section 3
This section directs the Secretary of HHS and other agency heads to exercise all and any discretion available to them in the PPACA to push decisions on implementation to the States.Section 4
This section directs the Secretary of HHS and others to take actions, if possible to allow interstate commerce in the Health Care Insurance market.Section 5
This section indicates that the usual rules for rulemaking apply.Section 6
This section includes the usual legal fine print to assure the constitutionality of the EO.My Commentary
It was to be expected that the administration would make repealing Obamacare a priority. It was not expected that 11 months into the administration, we still have Obamacare in place and that there is discussion and debate amongst Republicans whether to include repeal of the individual mandate in the tax reform bill.I think that there is a bit of a contradiction between sections 3 and 4. If one considers that the efficiency and stability of insurance plans gets better as the pool of participants in the plan grows, then in reality, the larger the pool, the better it is for not only the participants, but also for health care providers. To get bigger pools, then one really needs to consider groups on a national level. However, as was discussed during some of the debates, each state is different and ultimately is their own unique marketplace and the health insurers would probably need to customize a plan for each state to take into consideration any State laws and regulations. So these two priorities conflict. If the States stipulate what they feel are the priorities of their citizens with respect to healthcare (exercising States' rights) then it largely makes interstate commerce impossible.
In thinking about the healthcare issue, recognizing that the whole country is not going to suddenly wake up one day and say "We should just adopt the Canadian system", one rule that might shift the thinking on how health insurance works and should work is what I would call the Healthcare neutrality rule. Similar to Net Neutrality, it shouldn't matter if you are in or out of network, coverage, co-pays, etc. should be exactly the same. This will give consumers more choices and defining which doctors can be used has always been a rallying cry against government run health care. It would strongly promote transparency in pricing as well.
Executive Order 13766: Expediting Environmental Reviews
What this Executive Order says
This Executive Order (EO), No. 13766, is entitled "Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects" and was issued January 24th, 2017. It has 4 sections.Section 1
This section describes the purpose of this EO, in that there are delays to projects due to agency processes and procedures, one of the prime culprits that has been complained about is the EPA.Section 2
This section indicates that at the request of State Governor, or the head of an executive agency or at their own initiative, the Chair of the White House Council on Environmental Quality gets to decide what projects are considered "high priority".Section 3
This section explains who is responsible for keeping review deadlines and who is responsible for following up on these deadlines.Section 4
This section has the usual legal fine print required to ensure the constitutionality of the EO.My Commentary
So, someone on some TV program (I think) once had provided a rationale that predictability from the environmental review process would be a good thing and that in business, there are sometimes doubts as to whether or not to make an investment because it cannot be predicted whether (or when) something will get approval to start construction. We do need industry and I think it is reasonable that for any government service there is predictability of outcomes. The fear in looking at this EO is that there will be pressure to perform less rigorous or complete of a review in order to meet an arbitrary deadline.The goals stated in this EO were furthered with more detailed procedural prescriptions in EO 13807 which was issued on August 15th, 2017.
Sunday, November 19, 2017
Executive Order 13768: Public Safety
What the Executive Order Says
Executive Order (EO) 13768 is entitled "Enhancing Public Safety in the Interior of the United States" and was issued on January 25th, 2017. It has 18 sections.Section 1
This section defines the purpose of the legislation as directing Federal agencies to focus on removal of illegal aliens from the US and hints at reasons why this would be a good policy and some of the foreseen benefits to US citizens, e.g., they would be safer.Section 2
This section repeats section 1, but more succinctly.Section 3
This section references the reader to section 1101 of title 8, USC for definitions.Section 4
This section directs federal agencies to use any legal provisions granted in the laws to remove aliens or expedite the removal process.Section 5
This section is included to confuse the reader. This purportedly gives a list of priorities in terms of determining which illegal aliens should be focused on for deportation. However, (c) states "have committed acts that constitute a chargeable criminal offense." Well, being an illegal alien constitutes a chargeable criminal offense, so this really section is largely meaningless. In looking at reports of dragnets of illegal aliens in the news, authorities are not making distinctions between generally law abiding illegal aliens vs. gang members who happen to be illegal aliens.Section 6
This section says that in addition to deporting said aliens, we will also assess fines and penalties and make them pay. The Attorney General is to look into doing this and report back.Section 7
This section directs the Secretary of Homeland Security to hire and train an additional 10,000 immigration officers.Section 8
This section talks about section 287(g) if the INA. Under this provision of the law, local and state law enforcement can take on parts of the role of federal immigration officers.Section 9
This section discusses actions to be taken against sanctuary jurisdictions. These include withholding of monies such as grants as well as generating reporting of crimes committed by persons who should have been handed over to the feds for deportation, but were not, so as to shame the jurisdiction into compliance. Frankly, I've never seen the reports mentioned under (b). I don't know if they exist.Section 10
This section directs the Secretary of Homeland Security to change policy by rescinding "Priority Enforcement Program" and reinstituting "Secure Communities".Section 11
This section directs the Secretary of Homeland Security and the Attorney General to ensure both sides have enough resources to handle more immigration cases in the future as a result of implementing the policies in this EO.Section 12
This section directs the Secretary of State to impose sanctions provided for in law against countries who do not accept deportees.Section 13
This section seeks the creation of an office which will provide services to crime victims where the perpetrator was an illegal alien that should have been deported. There are to be quarterly reports. I have not heard anything in the news about what these reports say.Section 14
This section indicates illegal aliens are not protected by some provisions of the Privacy Act.Section 15
This section calls for 2 reports, one in April, 2017 and one in July, 2017. I don't know if these reports are intended to be public or posted on the agency website.Section 16
This section calls for more statistical reporting to be provided on an on-going basis.Section 17
This section directs the Office of Personnel Management to start the process to get those 10,000 new immigration officers hired.Section 18
This section includes the usual legal fine print to assure the constitutionality of the EO.My Commentary
Well, in hindsight, this was a prelude to the travel ban and clearly showed how the administration's focus was on immigration. The campaign had promised that 11 million illegal aliens would be removed from the US and that measures, such as the wall along the US-Mexico border, would stop other illegal aliens from entering the US.With regards to section 8 of this EO and Section 287(g) of the INA, this provision has been in law for some time including when the previous administration had used it to be able to achieve deportation rate of upwards of 400,000 illegal aliens a year in a couple of years. In a book I read (I cannot remember the name, but the book was largely an attack on Eric Holder for its 350 pages), there were some stories of people who really wished there was some path to legal permanent residence or citizenship but because no such path exists, if someone gets caught and deported, it basically destroys their life and family. This book also had some choice criticism that local law enforcement who had made agreements under 287(g) tended to use these powers capriciously and with bias and in some cases handing over bonafide US citizens who were then deported to Mexico.
There has been a lot of water under the bridge since the issue of this EO. But the motivation for this EO and the policies it espouses are those of paranoia, xenophobia and exclusion and these all make the world a smaller place rather than a bigger place when you try to include people. Do there need to be controls on entry into the US in place? Yes. Do immigrants create new and bewildering problems? Yes. But despite these issues, the US has always grown and become greater when immigrants have arrived on our shores.
Saturday, November 18, 2017
Executive Order 13769: Travel Ban 1.0
What the Executive Order Says
Executive Order (EO) 13769 is entitled "Protecting the Nation from Foreign Terrorist Entry into the United States" and was issued January 27th, 2017. It has 11 sections. Subsequently, it has been referenced in EO 13780 and Proclamation 9645. The Proclamation is effectively Travel Ban 3.0 and will be covered in the blog in the near future.Section 1
This section describes the purpose of the EO. This section states that US Citizens need to be protected by preventing others (non-citizens) from being able to enter the US. This marks a 180 degree turn in the prevailing philosophy towards immigration and the role of the US in the world. While the campaign foreshadowed these kinds of policies, this (and other policies) were a shock in seeing laid out in black and white rules and regulations stating certain kinds of people were no longer welcome.Section 2
This section simply states a policy that in order to protect its citizen, certain foreign nationsl will be prevented from being admitted into the US.Section 3
This section has numerous subsections. (a) orders a review of what information is required to make a determination that a person from a given country is security or public safety threat. (b) order a report created based on what is done in (a). (c) suspends entry for 90 days of nationals of certain foreign countries. These are not named in the EO, but references section 217(a)(12) of the INA. It was determined that this meant the countries of Iraq, Iran, Yemen, Somalia, Syria, Libya and South Sudan. In (d), it indicates that whatever information is required to be submitted by foreign governments in the report created in (b), then the Secretary of State is going to ask countries to provide that information. In (e), after 60 days of the request in (d), then the country will also go onto the black list if the foreign government does not comply with the request for information.Section 4
This section talks about developing a uniform screen standard across all immigration programs to determine the risks of admitting a person. In a way, this is probably a good thing to have although I would be surprised that there was any real inconsistency within the agency. There are supposed to have been reports submitted to the President on how to implement this. Unfortunately, with the court challenges and other events that had happened, I do not know if these reports were created and whether they were made public.Section 5
This section firstly suspends entry of refugees for 120 days. Additionally, it specifically prohibits Syrian refugees and limits the total number of refugees to 50,000 for 2017. Finally it asks that the Secretary of Homeland Security look into whether local authorities can have input into the settlement process for refugees. I don't know if this was meant to be able to give local authorities a veto to all, or just some refugees intended to be settled in a particular jurisdiction.Section 6
This section seems to revoke the ability for certain lower level employees to be able to make case by case determinations.Section 7
This section mentions that there is a project to capture biometric data on every traveler entering and exiting the USA. This project is not complete, although personally, I have had to get fingerprinted and photographed every time I arrive by airplane into the US for the last couple of years. Nonetheless, someone will have to prepare a status report every 180 days and send it to the President until it is fully rolled out.Section 8
This section revokes waiving Visa Interviews. For example, for Canadians, very often Visa interviews are waived. And this make sense, but now this will insert an extra step for Canadians seeking any kind of Visa for entry into the US.Section 9
This section directs the Secretary of State to review what other country's requirements for US Citizens to enter into them and compare it with what the US does. If the other country imposes bigger controls, then the US shall adjust the controls for admittance to be similar.Section 10
This section details additional reports that need to be provided. These reports are advertising or marketing information that is intended to justify why the travel ban should be imposed.Section 11
This section includes the usual legal fine print to assure the constitutionality of the EO.My commentary
This was the original Travel or Muslim ban which, when there were huge protests against it and when it ruled unlawful and unconstitutional, it surprised the administration because they had been living in this bubble where everyone thought that keeping people out of the USA was a good thing. The politics of inclusion would never allow such actions to be taken. There are a number of accounts of events that happened after the announcement of the ban including protests at airports and emergency hearings at circuit courts which finally resulted in striking down some number of sections of this EO. This resulted in the second travel ban which ultimately was also partially struck down until finally the third travel ban was created which I believe had been watered down a sufficient extent that people could no longer find constitutionality issues with it, but as well, it also lost a lot of its ability to actually stop people coming to the US.Overall, this EO is heinous and it is clear that principles that produced such a document are anchored in paranoia about the world and fear of the "other". Immigration can cause problems, but one has to believe that the benefits in the long term outweigh short term problems which could be solved with relative ease, if one simply listens attentively.
Executive Order 13770: Ethics Pledge
What the Executive Order Says
Executive Order 13770 is entitled "Ethics Commitments by Executive Branch Appointees" and was issued on January 28th, 2017. It has 6 sectionsSection 1
This section provides the ethics pledge that has to be signed by every appointee in the executive branch. There are 8 subclauses of requirements and following that language that binds the signatory to committing to the requirements.Section 2
This section provides definitions for "Administration", "Appointee", "Covered executive branch official", "Executive agency", "Foreign Agents Registration Act of 1938, as amended", "Foreign government", "Foreign political party", "Former client", "Former employer", "Gift", "Government official", "Lobbied", "Lobbying activities", "Lobbying disclosure act", "Lobbyist", "On behalf of another", "Particular Matter involving specific parties", "Participate", "Pledge", "Post-employment restrictions", "Registered lobbyist or lobbying organization". And where these definitions reference definitions and requirements in laws, then it means those laws as written as of January 20th, 2017.Section 3
This section provides for waivers. However, there appears to be no requirement to make the waiver public.Section 4
This section defines who is responsible for administration of the pledge and retention of the records such as signed pledges and waivers granted under section 3.Section 5
This section gives guidance to heads of agencies as well as the Attorney General on how to deal with violations to the pledge and what the penalties for violation are.Section 6
This section first revokes EO 13490 which was the Pledge of Ethics for the prior administration. It also goes on to state that where there are conflicts between this EO and prior EO's, then this EO prevails. Finally, there is the standard legal fine print to assure the constitutionality of the EO.My commentary
There were a number of criticism issued at the time and these have by and large been wholly forgotten give the number of other firestorms that have plagued the administration. First, it was pointed out that the language in (1) of section 1 allows appointees to lobby government, just not one out of the many executive branch agencies. (3) of section 1, does seem to strengthen the lobbying restrictions, but it depends very much on specific interpretations of the words used. (4) of section 1 is a good thing. This restricts former government employees from becoming lobbyists for foreign governments. I am just not sure if this is restating what is already in law like (2) or if it is new. Similarly (5) and (8) of section 1 are simply affirmations to follow current law.With regards to section 5, one issue with this is that there are no provisions for criminal penalties. In other words, no one can be sentenced to jail for the violation of the ethics pledge. Of course, any egregious act such as accepting bribes is a criminal offence that carries criminal penalties of its own, but there is clearly an incentive to game the system such that after the end of employment, actions which violate no laws, but violate the pledge can be done with impunity, especially if the current administration is no longer in power.
In comparison between the pledge is EO 13490 vs. the one in this EO, it looks like there is more in this EO, but yet what seems to have been added are perhaps more holes than substance.
Saturday, November 11, 2017
Executive Order 13771: Regulatory agenda
What the Executive Order Says
Executive Order (EO) 13771 is entitled "Reducing Regulation and Controlling Regulatory Costs" and was issued on January 30th, 2017. It has 5 sections. This Executive Order also gets referenced in several subsequent EO's such as EO 13777, EO 13783 and EO 13790.Section 1
This section defines the purpose of the EO which essentially is a statement that endorses a "small government" approach to policy making within the executive branch. The center piece of this EO is the rule that for any new regulation, two regulations have to be rescinded or eliminated.Section 2
This section discusses the concept that new regulations also have to be cost-neutral. Subsection (d) states that the Director of the Office of Management and Budget (OMB) is to provide guidance on how to make these determinations. One exception to this rule is where it is justified that laws do not allow for such cost-neutrality to be achieved.Section 3
This section discusses that the costs of regulation need to be considered during the annual executive branch budgeting process. The process is intended to be driven by targets set by OMB for each agency. This EO is modifying the process defined in EO 12866. Again, the Director of the OMB is to provide additional guidance on the details of how this is going to work.Section 4
This section provides a definition for the terms "Regulation" and "Rule".Section 5
This section includes the necessary legal fine print to assure the constitutionality of the EO.My Commentary
At the time this was released, it was noted that other countries have had similar regulatory reduction measures in place and one notable example was the United Kingdom.It should be noted that EO 12866 has been amended several times by different administrations. There were 21 hits in my search on the Federal Register website and due to the age (it was issued in 1993), there may be additional documents that need to be pulled from the national archives.
It is acknowledged that over-regulation can occur. Regulations can be written in such a way that they include circumstances to which they apply that were never intended and can simply not make any sense. As a part of my job, I sometimes have to look into the Code of Federal Regulations. It is often written by lawyers for lawyers. And since the amount of regulations is so large and even though they try to keep things together, there are cross-references that one needs to know about for which a lay person casually reading the regulation is completely unaware. For me this raises the philosophical question as to how can one create a society of 300 million in a way that maintains all the member's rights and freedoms justly? In a village of 1000 people or a small town of 10,000, there can easily be a sense of inclusion such that people generally understand how to behave, a shared agreement on what one's moral compass should tell them to do in undefined cases. But scaling that up to the size of 300 million seems difficult. As brilliant as the constitution is, and there have been a few existential questions that have been overcome, one does have to wonder if it will be victorious once again.
Limitations placed on individuals through regulation are usually to prevent issues that have the character of the tragedy of the commons. Burning trash or leaves in one's back yard is an example here. If everyone were to do so, it would significantly raise air pollution and that would be bad for everyone even though any one person's contribution would be small. I think that most people can understand such arguments and do not mind that regulation and enforcement mechanism exist.
Other kinds of regulations, along the lines which provide for fiduciary responsibility, are ones where there is a significant asymmetry in power between participants to a transaction. Many regulations are limitations placed on government itself. Other regulations are directed at businesses which are monopolies or oligopolies and as a result can force terms of contract which are very one-sided and the less powerful participant does not realistically have the option to walk away.
In conclusion, I've never really seen anything more than anecdotal stories that there is over-regulation. I can understand that starting a small business can be a daunting endeavor, especially for someone who did not grasp that the business has a much larger set of regulations to which they have to comply than an individual who might be pursuing a hobby that incidentally earns beer money. There is merit in reviewing obstacles to starting small businesses, but using such a situation to slash requirements on large businesses or government such that they could potentially harm citizens is wrong.
Executive Order 13772: Principles of Financial Policy
What the Executive Order Say
Executive Order (EO) 13772 is entitled "Core Principles for Regulating the United States Financial System." and it was issued on February 3, 2017. It has 3 sectionsSection 1
This section defines the policy and gives 7 distinct goals.Section 2
This section directs the Secretary of the Treasury to prepare a report within 120 days to present to the President.Section 3
This section includes the necessary legal fine print to ensure the constitutionality of the EO.My Commentary
So I would have probably just sent an email rather than issued an executive order. Granted it gets the 7 goals into the media to some extent, but this EO does not get anything done. The report required by this EO is here. I find it ironic that Steve Mnuchin was appointed Secretary of the Treasury on February 13th, 10 days after the issue of this EO.Let's look at the policy goals one by one. First, it states that the administration wants citizens to make informed and independent decisions about their finances. This requires transparency in markets.
Next, it states the administration wants to prevent tax-payer funded bailouts. This is a laudable goal, and there is a definite argument to be made for moral hazard in some of the dealings with Wall Street that have occurred over the years. It is not only moral hazard for the financial companies, but also moral hazard for the investors. However, an average Joe going to try to invest $25,000 that a rich uncle might have left him is going to struggle to find any investment outside of a Treasury bond or bill that has the transparency needed for an individual to make any sort of informed decision on how much risk the investment entails. The lack of transparency has turned financial markets into a bit of a casino and bailouts have been made out of political expediency. How do you run an election campaign and defend a decision not to bail out General Motors and cause 60,000 people to lose their jobs? As much as I agree that we have ended up in a situation where we have privatized profits and socialized losses, I can also see that the politicians have made the choices required for re-election, pure and simple.
The next item is to enhance regulation to reduce systemic risk, moral hazard and information asymmetry. However, the signature piece of this administration has been deregulation (see a number of EO's that were issued) whereas what is really required is enhanced transparency in markets. Transparency is how you fight systemic risk. It's how you fight moral hazard. It's how you fight information asymmetry. If the investors can't find out what is going on, they will game the system as best as they can to protect against losses through mechanism that benefit the insiders and create losses for those not in the club.
The next point is regarding trade. There is some validity to the notion that foreign companies operating off-shore are able to cut corners that domestic firms operating domestically cannot. But to think that it can be solved with the stroke of a pen or just by changing some regulations is a fantasy. Domestic manufacturing must compete using advantages of efficiency, automation and cutting edge technology rather than the cost of labor. And yet, how has the current administration supported that?
The next point is in regards to negotiation of international terms of trade. I will have to concede that I do not know whether the US is disadvantaged or not in the currently held terms of trade with all the trading partners that we have financial transactions with.
The next point hints at reduction regulation which is nearly the opposite to where the President want to ensure that regulation prevented systemic risk, moral hazard and information asymmetry.
Finally, we get to an item that is within the control of the executive branch: public accountability within the Federal financial regulatory agencies and rationalizing the Federal financial regulatory framework. And frankly, this goal is one that clearly the current administration has been trying to achieve. In line with repealing regulations, the administration has also pulled back on oversight of market players. Going back to the example of the average Joe who wants to invest a modest, but personally important, windfall: while the administration would argue that they want to give him the freedom to chose how to invest their money, I would draw an analogy to a rural rube who goes to the county fair and has the freedom to pick which of the rigged midway carnival games he is going to lose his money on because he simply does not know enough to model the risks of losing.
Overall, this EO is a piece of marketing rather than any kind of attempt to stand up for the average tax payer and investor.
Friday, November 10, 2017
Executive Order 13773: International Organizations
What the Executive Order Says
Executive Order 13773 is entitled "Enforcing Federal Law with respect to Transnational Criminal Organizations and Preventing International Trafficking" and was issued on February 9th, 2017.It has 4 sections.
Section 1
This section defines the purpose of the EO which is to restore the safety of the American people from the threat of transnational criminal organizations.Section 2
This section defines the policy. This calls for strengthening enforcement, giving a high priority and resources to enforcement, share information to effect enforcement, cooperate with foreign counterparts to achieve enforcement, develop strategies for enforcement and use ancillary criminal offenses such as immigration fraud and visa fraud in pursuit of additional enforcement.Section 3
This section directs that the existing Threat Mitigation Working Group work at improving enforcement through coordination, information collection and sharing, assessment of resources and present a report within 120 days and annually thereafter.Section 4
This section includes the legal fine print to ensure the constitutionality of the EO.My commentary
This EO has a strong emphasis on drug cartels drawing a connection between the current opioid epidemic and Mexican drug cartels (note the reference to immigration and visa fraud). But this is a false argument. Part of what drove many to drug addiction was overprescription of legal narcotics. This EO reads much more like a campaign promise than an implementation of a policy.The report by section 3(g) is available here.
Sunday, November 5, 2017
Executive Order 13774: Preventing violence against law enforcement
What the Executive Order Says
Executive Order 13774 is entitled "Preventing Violence Against Federal, State, Tribal and Local Law Enforcement Officers" and was issued on February 9th, 2017. It has 3 sections.Section 1
This section defines the policy which is that the protection and safety of law enforcement officers needs to be enhanced through enforcement of current laws, development of new strategies and recommend new laws.Section 2
This section defines how this policy will be implemented. This will include strategy on prosecuting individuals who commit violence against law enforcement, make recommendations to changes in law, and look at grant funding programs and whether these support or detract from violence against law enforcement.Section 3
This section includes the usual legal fine print to assure the constitutionality of the Executive Order.My Commentary
So part of the thinking behind this is that if the punishment for any act that could harm the safety, etc. of a law enforcement officer is so huge, then people will try not to do those things. I doubt that it will work. If memory serves, one of the motivating incidents was the July 2016 shootings in Dallas where 5 law enforcement officers were killed. This was a signature theme by the Republican candidate during the election and it was also mentioned during the inaugural address.Violence against police is a real issue and it is exceedingly complicated. As things are today, law enforcement takes significant measures to assure their personal safety and to some degree, are so conservative that there are criticisms of over-application of force in the name of safety. Solving this problem is a cultural issue and one that needs to generally de-escalate the existing polarized attitudes in society today. There are two sides, both sides have some work to do if the level of violence is going to come down. Additionally, issues such as racism and organized gangs will have to be solved as a part of the process, not to mention drug addiction and mental illness.
Fundamentally, there is an unstated assumption of us vs. them in how this EO was written. The problem will not be solved unless that attitude changes.
Saturday, November 4, 2017
Executive Order 13775:DOJ Succession
What the Executive Order Says
This Executive Order (EO) is entitled "Providing an Order of Succession Within the Department of Justice". It was issued on February 9th, 2017 and has 4 sections. Note that this EO has been superseded by EO 13787 about which I have written here.Section 1
This section lists 3 individuals who are US Attorneys that would succeed the Attorney General in case the existing list is exhausted.Section 2
This section mentions exceptions to the rules of succession that might prevent a person who is in the role mentioned in subsection 1 to be able to fulfill the role of acting Attorney General. There are some laws about it such as section 3345 of USC 5.Section 3
This section revokes EO 13762.Section 4
This section includes the regular legal fine print to ensure the constitutionality of the EO.My Commentary
This is a regular kind of administrative thing for which Executive Orders or Memos are a good way of executing tasks. I am sure that there was a lot of internal Republican party politics that went into the selection of the 3 individuals who hold the positions listed in Section 1, but they won the election so they are able to make these kinds of choices.Having read somewhat into 5 USC 3345, it looks like there has been some history of this kind of order of succession. And there are definite limits as to who can act as an interim and how long this can go on. It does make me wonder if for some of the positions lacking Senate approved appointments in the executive branch, are we getting anywhere close to the statutory limits for acting interim appointments?
Executive Order 13815: USRAP Changes
What the Executive Order Says
Executive Order (EO) 13815 is entitled "Resuming the United States Refugee Admittance Program with Enhanced Vetting Capabilities". It was published on Oct 24th, 2017 and has 4 sections.Section 1
This section defines the policy in subsection (a). The rest of the subsections provide some historical background and reference EO 13780 (see my post here). As well, there is reference to Proclamation 9645 entitled "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats." It was issued on September 24th, 2017.Section 2
This section simply states that the 120 day "pause" that was initiated by EO 13780 is over and that entry by suitably vetted refugees may once again start.Section 3
Subsection (a) sets up a recurring 90 day review of whether there are changes required to USRAP. Subsection (b) requires that a report is delivered to the President within 180 days.Section 4
This section has the standard legal fine print to ensure the constitutionality of the EO.My Commentary
There is a lot of sound and fury signifying very little in this EO. In Section 3(a)(i), you can parse the statement (without really distorting its meaning) to just "...the Secretary of Homeland Security...shall determine...whether any actions should be taken...and, if so, what those actions should be." At some point, I will want to do a review of proclamation 9645 since it seems to have had some significance in the immigration debate. In 1(c), it mentions that the Attorney General reported that more than 300 persons who had entered the US as refugees were then the subjects of FBI counterterrorism investigations. This does not provide a time frame. 300 out of how many refugees? Also, did all 300 investigations result in convictions? It's a meaningless factoid.
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