Executive Order 13828: Reducing Poverty

What the Executive Order says

Executive Order (EO) 13828 is entitled "Reducing Poverty in America by Promoting Opportunity and Economic Mobility" and has 5 sections.  It was issued in April of 2018.

Section 1

This section proposes the argument that many who are on public or government assistance of various kinds have been trapped there and are suffering because the government is giving them assistance to meet basic needs.

Section 2

This section starts by saying that the measure of success of assistance programs is to see how many people are able to find work such that they no longer need or qualify for the aid given by the program.  Fundamentally, the text presupposes and indirectly references that there are some large number of "free riders" that are taking advantage of the government aid who, as a result, are not working because the income/benefits received allow them to have a luxurious and idle life.  Also, "government waste" is also referenced.

Section 3

This section mandates that certain agencies make a review of federal laws and regulations to determine first if additional work requirements can be applied regarding the benefits being provided.  Second, to ensure that programs are not, as much as possible, providing benefits or assistance to illegal aliens.  And there are reports that have to be written and provided to the Director of the OMB.  Note that the President doesn't seem to want to get the reports himself any more.

Section 4

This Section includes definitions for the terms "individuals", "families", "persons", "work", "workforce", "welfare", and "public assistance".

Section 5

This section includes the necessary legal fine print to assure the constitutionality of the EO.

My Commentary

So it has been said many times that the Red rural counties, which are often the poorest parts of the US, is where the current President got a large part of the vote necessary to win the presidency.  So many liberal pundits have seized on the fact that so many executive branch policies and initiatives, not to mention legislation passed by the Republican controlled Congress have usually had depressive effects on the Red rural counties.  Here it seems that the President is finally trying to help the people who elected him by finally getting them off of government assistance so that only those that are worthy will survive by being able to find a way to earn money and those that are not will die of starvation or disease homeless in the streets.
I do agree that there is a need to measure outcomes of programs.  But in doing so, we also have to keep in mind that externalities such as the state of the economy, the prevailing wages and local cost of living do have a significant impact on whether people are able to rise back up so that they no longer need or qualify for the assistance program.  This is especially true of "re-training" programs.

Presidential Proclamations: Travel Ban 3.0

The following proclamations do not contain any new initiatives or policy decisions.

• Proclamation 9650: Child Health Day, 2017, issued September 29, 2017 as required by law.
• Proclamation 9649: National Domestic Violence Awareness Month, 2017, issued September 29, 2017.
• Proclamation 9648, National Cybersecurity Awareness Month, 2017, issued September 29, 2017.
• Proclamation 9647, National Breast Cancer Awareness Month, 2017, issued September 29, 2017.
• Proclamation 9646, National Disability Employment Awareness Month, 2017, issued September 28, 2017 as required by law.

Proclamation 9645: Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats

This Proclamation was issued on September 24, 2017.  Why this is a Proclamation and not an Executive Order, has to do with wording in EO 13780, but it has a preamble and 9 sections much like many EO's and the rest of this post is devoted to it.  This is effectively Travel Ban 3.0.

Preamble

This section references EO 13780 wherein an analysis of risks of people from different countries was requested.  Based on the information received, the President has issued this proclamation to put in additional restrictions, screening and vetting on citizens of certain selected countries.

Section 1

This section starts by discussing the report requested in EO 13780 and provided to the President on July 9, 2017.  The report determined that 7 countries should have restrictions and limitations imposed: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen.  It also mentions that Iraq was considered to have failed the tests, but was given a pass due to political exigencies.  It distinguishes between immigrant and non-immigrant visas where appropriate.  Finally is also adds Somalia to the list of countries that deserve restrictions or limitations on the basis of a September report to the President.

Section 2

This section goes through country by country as to what the restrictions are.  There is some merit to the arguments made.  The variance in the decisions show that some thought went into them and there has been learning from past mistakes.

Section 3

This section provides specific conditions and exceptions to the application of the entry restrictions to the citizens of the countries listed in Section 2.  It also provides for a fairly detailed process for seeking and obtaining waivers to the entry restrictions on a case by case basis.  In my opinion, the circumstances listed that might be appropriate for waivers are actual cases that were brought up during the time period when the first travel ban was implemented.  So in reality, if a person can make a strong enough case that not letting them go to the US would make the US government, and specifically the current administration, look bad enough in the media, they can probably get a waiver.

Section 4

This section asks for a report every 180 days to advise whether any adjustments to the proclamation need to be made.  It directs the heads of the departments to engage with the countries listed to improve on the deficiencies that lead to their placement on the list.  Any actions (that are non-classified) should be included in the 180 day reports.  Finally, it does state that if certain cabinet members determine that a change needs to be made to the list, they will take it to the President immediately.

Section 5

This section calls for even  more reports.  Subsection (b) is poorly worded in that it is not at all clear to what the "annually thereafter" applies to.  At face value, it appears to be the second report issued at 270 days after the proclamation, but that does not seem right to me.

Section 6

This section deals with enforcement.  This provides some guidance to CBP on how to administer the requirements of the Proclamation.

Section 7

This section defines when this Proclamation comes into force: September 24, 2017 for some parts and October 18, 2017 for the rest.

Section 8

This section includes an explicit severability clause because it was clear that there would be court challenges to this Proclamation.

Section 9

This section includes the usual legal fine print to assure the constitutionality of this executive branch document.

My commentary

On the face of it, the proclamation seems defensible in court (but that may just be because of comparison to EO's 13769 and 13780).  The original charges against the previous EO's was that they were religiously charged, and clearly, given what has transpired, they were at least badly enough written so as to give the appearance of discrimination based on religion.  For what it is worth, this Proclamation does take measures to make the US safer.  The real question is whether we should be going down this route (limiting entry of people) or not.
So the biggest problem with the Proclamation is that it is the wrong immigration policy.  We strengthen the US through immigrants.  Companies search and find the top scientists and engineers and bring them to the US.  Canada has been complaining about this "brain drain" for 50 years as one of the reasons why manufacturing in Canada declined.  National security is enhanced through a welcoming immigration policy.  War is largely possible only because you can define an "enemy".  You cannot define differences in jurisdictions that are sufficiently homogeneous.  We are, because of technological advances in transport and communication, in the final stage of achieving a global homogeneity after which, war will become a thing of the past (although it might take 4-5 generations to achieve).  Restricting movement of people is going against the global currents.  And that is why the administration is wrong to pursue this kind of policy.

Presidential Memoranda: Nuclear Proliferation, VISA's, Pipelines

Delegation of Authority Under the National Defense Authorization Action for Fiscal Year 2017

This memoranda is dated March 19th and is addressed to the Secretary of State.  The memo delegates functions and authorities of the President listed in section 3132 of PL 114-328 to the Secretary of State.  The require has to do with updated plans for the proliferation of nuclear weapons and fissile material and providing these to appropriate congressional committees.

Memorandum of March 6th

The official title of this memorandum is "Implementing Immediate Heightened Screening and Vetting of Applications for Visas and Other Immigration Benefits, Ensuring Enforcement of All Laws for Entry Into the United States, and Increasing Transparency Among Departments and Agencies of the Federal Government and for the American People" which just rolls off the tongue.  It was issued on March 6th, 2017 and is addresses to the Secretaries of State and Homeland Security and the Attorney General.  It is written similar to many Executive Orders and has 5 sections.

Section 1

This section defines policy.  It references an executive order and indicates that this memo is part of the implementation of that executive order.  It additional states that given the risks, additional heightened screening and vetting has to be implemented immediately even though the executive order asks that some studies be done to determine what is reasonable.

Section 2

This section directs the addressees to take any measures that they can that are consistent with current law to increase the level of screening and vetting of applications.

Section 3

This section directs various Executive branch heads to enforce using as strict interpretations as possible laws regarding inadmissibility of migrants.  Also, to the extent allowed by law, this section directors the Secretary of Homeland Security to create and amend rules to be as restrictive as allowed by law through the usual rulemaking process.

Section 4

This section directs that a monthly report be published regarding the number of visas that have been issued from each consular office.  Additionally a quarterly report is to be published detailing the number of adjustments of immigration status that have been made.  Finally, there is a report to be generated discussing the full costs of supporting refugees.

Section 5

This section includes the usual legal fine print necessary to assure that the memorandum does not overstep the constitutional limits imposed on the executive branch.  Finally, it also directs the publishing of the memo in the Federal Register.

Construction of the Dakota Access Pipeline

This memorandum was signed January 24, 2017 and is addressed to the Secretary of the Army.  This was published in the Federal Register twice owing to a correction required in the first published edition.  It has three sections.

Section 1

This section discusses the importance of the Dakota Access Pipeline and the fact that the permitting process is stalled in one area.

Section 2

This section directs that necessary reviews for the Dakota Access pipeline be completed on an expeditious schedule.  Further, it asks that if it can be done, previously reviews be discarded where they are viewed as being too conservative in their approach or are considering potential effects that are not politically correct.

Section 3

This section includes the usual legal fine print necessary to assure that the memorandum does not violate the constitutional limits imposed on the executive branch.

Presidential Memoranda: Foreign Assistance, ISIS

Delegation of Authority Under the Foreign Aid Transparency and Accountability Act of 2016

This memorandum is dated November 21st, 2017 and is addressed to the Director of the Office of Management and Budget.  This memorandum delegates the functions and authorities related to PL 114-191 to the Director.  The functions involved are the generation of a report regarding measurable goals, performance metrics, and monitoring and evaluation plans to certain foreign assistance.

Delegation of Authority Under the Consolidated Appropriations Act, 2017

This memorandum is dated June 21, 2017 and is addressed to the Secretary of Defense.  It delegates to the Secretary of Defense the functions and authorities given in section 10005 of PL 115-31.  The referenced section obliges that the President provides a report to Congress on the strategy to defeat ISIS.

Delegation of Authority Under the National Defense Authorization Act for Fiscal Year 2017

This memorandum is dated April 12, 2017 and is addressed to the Director of the Federal Bureau of Investigation.  This delegates the submittal of a report to Congress required by PL 114-328.  This report encompasses determining how US citizens can be stopped from joining or supporting terrorist organizations.

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.

These determinations are required by law and relatively few of them have any significant amount of politics attached to them.  Nonetheless, the times being what they are, the were discussions about the American embassy in Israel, the level of refugees for the coming year and questions as to whether Russia deserved more serious sanctions that what is being applied.  These are issues about which I personally don't have any strong opinions.  Nonetheless, some people will care deeply about the choices that have been made.

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.

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 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.