Executive Order 13800: Cybersecurity

What the Executive Order says

Executive Order 13800 is entitled "Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure."  It has 5 sections and is unusually long, running 7 pages in the Federal Register.

Section 1

This section defines the policy which is described in the first subsection as risk management at both the agency and department level as well as at the overall executive branch level due to the interdependent nature of the Information Technology (IT) infrastructure.  The next subsection defines the rationale for needed action.  This consists of relatively vague criticisms of how poorly it has been done in the recent past.  Point (v) though is a good statement and this really should have been part of the policy statement.

1(b)(v) Effective risk management requires agency heads to lead integrated teams of senior executives with expertise in IT, security, budgeting, acquisition, law, privacy, and human resources.

IT exists at the nexus of technology, privacy and service delivery.  The listed aspects have all need to be balanced in a suitable way.  When something happens, it often generates scary headlines and there is a communications function to this EO to provide confidence to citizens that there is seriousness in government to assure that systems work and that they and the data they handle are secure.
The next subsection is entitled "Risk Management".  This provides some direction to heads of Agencies, first and foremost stressing that they are responsible for assessing risks and assuring that adequate resources are provided to be able to reduce the risks to acceptable levels.  There is a requirement for each Head to provide a risk management report within 90 days and then goes on to describe what is required to be in the report.  Upon receipt of the report, the Secretary of Homeland Security and the Director of the OMB shall review the report to see if the risk levels and mitigation plans are adequate.  A summary of the agency reports will be compiled into a report to the President.  This applies to classified systems as well as unclassified ones. 1(c)(vi)(A) implies that solutions need to be selected with the potential to deploy them across multiple agencies if possible.  1(c)(vi)(B) requests a second report to the President on whether we can just simply buy and deploy a new set of computers on a single huge network based on the assumption that newer is always better.
1(c)(vi)(C) gives "National Security Systems" an allowance for being exempt from the requirements of the EO if it can be justified in some way.

Section 2

This section discusses cybersecurity of critical infrastructure, for example the electrical grid and power stations.  This directs that it is considered how Government can support private industry and provide that in a report and update the report annually.  Subsection (c) calls for a review of policies and practices and the report could well suggest additional regulation.  The next subsection focus on Distributed Denial of Service attacks and a separate report on these is requested.  The next section specifically looks at vulnerabilities in the electrical distribution system and requests a report on that. The last subsection focuses on defense industries, their supply chain as well as military systems and yet another report is requested.

Section 3

This section starts with a policy statement that internet availability for all is good.  It then goes on to look at options for deterring adversaries, international cooperation and workforce development.  Various reports are generated on these topics.

Section 4

This section provides definitions for "appropriate stakeholders", "information technology", "IT architecture" and "network architecture".  It is not clear why this was not at the beginning of the EO and got stuck at the end.

Section 5

This section contains the usual legal fine print to assure the constitutionality of the EO.

My commentary

Reading through this, it strikes me that there is no one that has a big picture view of where we are.  I feel that a lot of what is mandated for reporting is fact-finding, but the kind that is trying to substantiate hunches which might be the kernel of a different plan already hatched but realized to be sufficiently controversial such that justification needs to be generated.  In the press, there has been much discussion of exploited vulnerabilities, often situations where it was the users rather than some system flaw that was exploited to gain access, read files and wreak the ensuing havoc.
Having or creating an overarching IT strategy for the government and using the tools available to government, including regulation, to have sufficiently secure, reliable and usable IT systems is a laudable goal.  However, reaching that goal, and if we are to infer things from this EO and media headlines, is going to take money, people, time and enforcement of rules to a much greater extent than what one might believe from the messaging so far: "It will be great, we'll get it done quickly and you will never have to worry about it again."
While diversity can be an obstacle in some senses, it also has to be recognized as a part of defense in depth for IT systems.  Common-mode failures can affect the entirety of a homogenous system.  If the interfaces can be constructed adequately, having a granular network structure that has firewalls between segments which contain some amount of diversity, diversity could be an effective way to contain issues provided the overhead of implementation does not break the usability or maintainability of the systems involved.
It seems to me that consideration should be given to the establishment of a new department of the Executive branch with overarching responsibility for IT deployment and support.  There is mention in the EO promoting information sharing.  This could be made unnecessary through a central function.  Ultimately, if no such Department of IT is established, it should be a major agency within one of the existing departments but with a branch level mission and sufficient authority to guide and direct all IT activities in the Executive branch, if not all three branches.
Dialogue and cooperation with the private sector, whether that is critical infrastructure or defense industry does have some risks.  For example, does it create moral hazard in private companies getting free consulting from the government on IT systems design, deployment and maintenance?  Alternatively, close cooperation with a large software or hardware firm can lead to corruption and the appearance of bias or favoritism for procurement.  Hopefully the appropriate people assure that these concerns are addressed during the report writing stage when they look at recommendations for any proposed cooperation with the private sector.

Executive Order 13799: Election Integrity

What the Executive Order says

Exective Order (EO) 13799 is entitled "Establishment of Presidential Advisory Commission on Election Integrity."  It has 7 sections.  This Executive Order establishes a commission to look at the election process "to promote fair and honest Federal elections".

Section 1

This section is simply a statement that the commission is established.

Section 2

This section defines the membership of the commission.  It is chaired by the Vice President.  up to an additional 15 members can be added to the commission by appointed of the President.  Essentially anyone whomsoever is deemed appropriate by the President can be appointed.

Section 3

This section defines the mission of the commission and there are three aspects relating to the areas of voter registration and the voting process for Federal elections.  The report to be submitted to the President is advisory and as such any and all recommendations made by the commission can be ignored without any justification.  The three aspects to be considered include what the rules are which "enhance the American people's confidence in the integrity of the voting process"; what rules undermine that confidence; and what vulnerabilities there are in the registration and voting systems that could lead to fraudulent registration and voting.

Section 4

This section defines 4 terms: improper voter registration; improper voting; fraudulent voter registration; and fraudulent voting.

Section 5

This states that the commission shall hold public meetings and will be staffed, although it does not state out of what budget, but likely it is to be inferred that it is the budget of the Executive Office of the President.

Section 6

This section states that the commission will be disbanded 30 days after the submission of the report.

Section 7

This section includes the usual legal fine print to ensure that the EO is constitutional.

My Commentary

As many readers know, the whole idea of this commission was spawned from the debacle of some early morning tweeting about how 3-5 million fraudulent or improper votes were cast and this was the only reason the President lost the national popular vote in the November 2016 Presidential election despite willing a  majority of electoral college votes.  No known evidence has ever been put forward that would substantiate that such a large number of fraudulent or improper votes were cast.  There have been proven isolated cases, but to the best of my knowledge these total less than 100 votes across the nation.
Months ago, there had been discussion of the establishment of this kind of commission and in fact, the Vice President had been named as the chair some time ago.  This EO is only making the entire exercise official.  There have been sporadic press reports on the non-progress of the investigation.  It is assumed that there will now actually be some activity on the subject.
There is a balance that needs to be achieved between making voter identification sufficiently rigorous to prevent fraud and preventing citizens who are entitled to vote from doing so.  One option is to have adequate government records of people, especially poor and indigent people who often do not obtain or keep any kind of identification documents.  This tends towards intrusion when attempting to be as inclusive as possible.  The other option is a policy where if the voter does not possess certain kinds of official documents, they are unable to exercise their right to vote.  This can be crafted to target, in a political way, certain populations either for enhancement or for suppression.  Any form of ID that is acceptable also has to be evaluated for the possibility of fraud.
Each state administers their voting system differently and the votes for Federal elections are implemented by each state.  Changes to voter laws may be impossible to do at the Federal level.
An opportunity is presented to this commission which is to review the voting processes in each state and to gather best practices that best balance between verification and empowerment to vote.  Conversely, it can be cynically supposed that the commission will look for ways that successfully impede the ability to vote of certain demographics in the populations.  It will be determined by whether the focus is on the Republic or the Republicans.

Executive Order 13788: Hire American and Buy American

What the Executive Order says

Executive Order (EO) 13788 is entitled "Buy American and Hire American" and has 6 sections.

Section 1

This section provides definitions for "Buy American Laws", "Produced in the United States", "Petition beneficiaries", "Waivers" and "United States workers".

Section 2

This section defines the policy which has two parts, one is about directing government procurement to use domestically manufactured goods and services as much as possible.  The second part is to restrict immigration of workers so that citizens will have more opportunities to find a job.

Section 3

This section has 6 subsections.  The first two subsections directs the agencies and the heads of those agencies are to review their compliance with the Buy American laws and to take measures to minimize usage of waivers.  The next subsection calls for guidance to be written for the review and implementation by the agencies of the Buy American laws.  The next subsection mandates a written report by each agency on the finding pursuant to the review of practices that was stipulated.  The next subsection, which does not seem to make a lot of sense in the context, calls for a review of free trade agreements and the WTO agreement and how that impacts domestic procurement preferences.  This seems to be out of place here because it is asking a leading question.  The last subsection is asking for a report to be submitted to the President summarizing all of the other reports provided.

Section 4

This section gives some additional guidance for the use of waivers which result in procurement from non-domestic sources.  It adds complications and additional required justification for use of waivers.

Section 5

This section directs that new guidance is issued for the administration of the immigration system to further restrict immigrants from coming to work in the USA.  Specifically targeted is the H-1B visa program and there has been some backlash from the technology sector regarding this issue.

Section 6

This section contains the usual fine print to assure that the EO is constitutional.

My Commentary

It is good policy that government procurement favors domestic sources for a variety of reasons.  I would be surprised if government procurement has not actively tried to support domestic manufacturing always.  There is a lot of reports and facts that need to be gathered, it will unlikely find any real big hitters with regards to inappropriately awarded foreign contracts.  Further, the reality of the current supply changes in the manufacturing industry is that they are global in nature already and there is little hope for and little real value in trying to put that genie back in the bottle.
The second prong of the offensive is simply a sign of the vitriolic xenophobia that this administration has expressed since day one.  I honestly feel that this is offensive and thankfully really significant changes would require Congress to pass legislation, although guidance and changes to regulations are probably going to have some effect although it will be mostly due to reputation rather than because of the effectiveness of the change in policy.  The end result here is that the best and brightest will not come to America and then go somewhere else.  This will hurt competitiveness in the long run.

Executive Order 13798: Religious Liberty

What the Executive Order says

Executive Order (EO) 13798 is entitled "Promoting Free Speech and Religious Liberty" and has 6 sections.  Unfortunately it does not concretely answer who's free speech and who's religious liberty.

Section 1

This section defines the policy of the administration with regards to religious freedom and the freedom of speech regarding religion.  This is enshrined in the Bill of Rights.

Section 2

There is a long standing agreement from the 1960's that churches should not involve themselves in partisan politics.  This section of the EO kind of hints that if they were to do so, then the IRS and other agencies who might be inclined to apply penalties should look the other way.

Section 3

This section specifically refers to the mandatory requirement for health plans to cover contraception and the fact that certain religious groups are opposed to the use of contraception.  Essentially this directs various agency heads to look at the issue and certainly does not mandate a hardline position.

Section 4

This section directs the Attorney General to issue guidance on the application of religious liberty protections to Federal Law.

Section 5

This section has a severability clause.  In many cases, this is assumed, but only where there is anticipation of any kind of legal challenge would one want to put this explicitly.  In fact, if you look at previous EO's, there have been a few which have had it included and many others that did not.  To some extent this clause could be an indication as to the origin of the EO but of course, better sleuths than me would be needed to confirm that.

Section 6

This section has the usual fine print to assure that the EO is constitutional.

My Commentary

So where all of this starts to fall apart is the fact that in the Bill of Rights there is also mandated the separation of church and state.  It then further falls apart in that there is a pro-Christian undertone to all of this and in reality, every religion should be entitled to the same protections.  While some of the specifics such as Section 2 and 3 are issues that Christian groups specifically have lobbied for, the reality is that if further actions and documents that are issued do not adequately reflect the freedoms for all religions, then the administration opens themselves up to charges of religious based discrimination and hypocrisy.
The freedom of religious practice and freedom of religious belief are bound to conflict with the other rights and freedoms given in the constitution.  Religious beliefs, after all, are beliefs about what an ideally structured society should look like and how people should behave.  While any given church can mandate the structure within its organization, it can only try to affect the larger society through the political process.  And here, given the required separation of church and state in the constitution, there has to be clear limits to the extent of what political involvements a church can exercise lest it start to give an appearance of a preferred religion.
The behavior of members can to some extent be defined and even controlled, but with respect to non-members, do rights of conscience exist?  That is, if a member of a church (or religion) that holds a specific belief based on their faith have the right to intervene with non-members of the church or does that violate the rights of the non-members?  This question has been answered as "depends on how controversial the belief is".  If we go with "thou shalt not kill" as it might apply to the average person on the street, it is pretty much agreed that killing is wrong and punishable under the law and action on this belief is acceptable.  But take "thou shalt not kill" in the context of abortions or of capital punishment, you can start a bar fight in the right parts of the country and ultimately the justification of actions taken is unlikely to be considered defensible in a court of law.
This EO is much more of a political statement rather than anything change to law or regulation set in motion.  There are potential unintended consequences floating around in the background such as someone using this as a justification to promote Sharia law.  It should be reversed at the soonest opportunity.

Executive Order 13797: Office of Trade and Manufacturing Policy

What the Executive Order says

Executive Order (EO) 13797 is entitled "Establishment of Office of Trade and Manufacturing Policy" and has 4 sections.

Section 1

This section establishes the Office with a Director and staff as determined by members of the Executive Office of the President.

Section 2

This section states that the basic mission of the Office is simply to advise the President on policy that will increase economic growth, decrease the trade deficit, and strengthen the manufacturing base and as a result help American workers.

Section 3

This section describes the Office's responsibilities.  This does not include any really specific on-going programmatic tasks.  It appears logical that the Office might be given tasks to implement actions from the previous EO on trade review (13796) and the text does explicitly reference EO 13788.

Section 4

This section includes the necessary fine print in every EO to assure its constitutionality.

My Commentary

This is just a step and in itself, not good or bad.  It is entirely possible that the President's team could have made decisions during the transition to lead with these kinds of EO's right after inauguration.  It would be possible they could have garnered some goodwill.  Now with the non-specific nature of just restating a goal of making things better for American workers without being specific as to what is going to change, this appears to be at best, belated, and at worst, an attempt to distract from the news of the day.
There is a definite feeling that there was never any concrete policy behind the campaign promises.  In fact there is a paradox behind this issue that is not being addressed by the administration.  In a nutshell, it is this: the changes required to make American manufacturing competitive with that of the places such as China and India mostly come down to paying workers less or raising prices of goods; both choices reduce the purchasing power of American consumers.  There are some arguments about greater overheads and productivity levels, and I will go into that at some time in the future, not here and today.  Nonetheless, to the extent that government has effective tools to address prices of imported goods, trade agreements and tax law are just about the only ones.  It is not like you can mandate productivity increases.
Anyway, my conclusion on this EO is that it is just window dressing for the moment.  Maybe in a year this office will have churned out some substantive and actionable  recommendations and draft legislation and proposed rules, but only time will tell.

Executive Order 13796: Trade Agreements

What the Executive Order says

Executive Order (EO) 13796 is entitled "Addressing Trade Agreement Violations and Abuses" and has 5 sections.

Section 1

This section defines the administration's policy.  In keeping with the rhetoric from the campaign, it has been repeated over and over again that the trade deals which are currently in place are not equitable and that America has suffered because of these trade deals.  One of the sentences here references that trade deals should "contribute favorably to our balance of trade."  That's not how it works.  Trade deals should contribute to the amount of trade but should be neutral as to the balance of trade.  In an ideal world, every country imports as much as it exports.  For America, we are out of balance importing much more than we export, and this is a problem, however, it has been a problem for 30 or more years and this simple EO will not solve that problem.
There is a description of the "results" of trade policy as was implemented by previous administrations and this is a litany of complaints about the economic decline of the manufacturing industry in America.  It is simplistic to blame the entirety of decline on trade deals.  There are many additional factors involved.

Section 2

This section directs the US trade representative to review all trade agreements with other countries as well as the trade with countries for which no such deals exist and provide a report on how it is going.

Section 3

This section defines the parameters of the report of performance required in section 2, above.  These parameters include documented violations, unfair treatment by trade partners, and situations where the trade agreement has not fulfilled the expected positive economic impact for that trade agreement.    Finally, the report shall also include recommendations on how the issues can be remedied.  The reports are due in 180 days after the date of the EO.

Section 4

This section direct the US trade representative and others to take the recommended action from the reports of performance of the trade agreements.

Section 5

This section includes specific legal statements required to assure that the EO is constitutional.

My Commentary

We have seen this kind of thinking from this administration time and time again in these EO's.  There is an ideological talking point which was distilled into a campaign slogan which was believed on faith.  These points were not debated or argued or examined because of the fact that they were accepted by the President and those with whom he had chosen to surround himself as articles of faith.  Now that the administration is asked as to how they are going to actualize these campaign promises, suddenly there is a need to actually study the question in the context of the regulations, laws, facts and such to see what can be done without actually just breaking the system and causing everyone to lose everything.
In a few cases, there are specific legislative or regulatory recommendations which are given by lobbyists mostly although in a few cases, there have been other policy experts actually inside government who simply had been waiting for the opportunity to advance a long standing project that simply had not been in vogue during the last Democratic administration.
This simply underscores the point that there is no coordinated plan or scheme, everything is reactive, everything was said in a cynical ploy to get votes.  There was never any serious thinking on how the promises could actually be implemented.  There was going to be an EO directing staff to start the process to exit NAFTA as had been promised during the campaign, until it was explained that this would cause an incredible amount of economic pain and result in large job losses.
This EO kicks the can down the road.  It will be interesting to see what the reports in 180 days recommend for action.  If they tell the truth, then good, but if they end up being an exercise in selecting and twisting facts to accommodate pre-conceived notions, then frankly we have to get rid of this administration by any legal means possible.

Executive Order 13795: Offshore energy

What the Executive Order Says

Executive Order (EO) 13795 is entitled "Implementing an America-First Offshore Energy Strategy" and has 13 sections.

Section 1

This section provides the rationale for accelerating off-shore drilling.

Section 2

This section states the policy.  The focus is on expanding exploration for oil and gas, including off-shore resources.  It does state that this is to be done in ways that "any such activity is safe and environmentally responsible."  Clearly what is meant by "safe and environmentally responsible" is the topic of interest.

Section 3

This section outlines that the goal here is to explore off-shore regions for potential mining and/or drilling for gas or oil.  This means that the government needs to try and make the areas available for exploration and also provide the permits required to do this exploration in a way that does not overly burden industry with regulations.

Section 4

This section has several subsections.  There is first a prohibition against the expansion of any Marine Sanctuary.  Second, there is a review of existing Marine Sanctuaries and National Monuments.  Note that this review is somewhat different that that which was announced in a recent EO.  And finally, there is a revocation of a previous EO signed under the former President to reduce the regulatory requirements.

Section 5

This section re-defines previous memos to read something different.  I cannot really make out what the difference is because I am not able to look at the originals.

Section 6

This section directs the review of two different items, one being a notice so lessees, the other being BOEM's financial regulatory policy.  Again, all of this is to reduce the regulatory burden on oil and gas companies drilling offshore.

Section 7

This section directs the Secretary of the Interior to review with the intent to revise or withdraw a rule regarding safety systems to prevent wells from blowing out and spewing oil and stuff all over the place such as the large spill in the Gulf of Mexico many years ago.

Section 8

This section directs the Secretary of the Interior to review with the intent to revise or withdraw a rule regarding air quality of off-shore oil and gas operations.

Section 9

This section directs the Secretary of Commerce and Secretary of the Interior to expedite certain kinds of requests that have to be controlled which deal with effects of human activity on the marine environment.  In other words, the EO is directing that the government agencies simply rubber stamp the requests.

Section 10

This section directs the Secretary of Commerce to review a technical report from NOAA.  This document defines limits on how loud human activities can be before becoming dangerous to the hearing of marine mammals such as whales.  The point of this EO is that if the cost of being able to have the large oil companies exploit off-shore oil fields is some deaf whales, then the administration is ok with that.

Section 11

This section directs the Secretary of the Interior to review and issue a notice with regards to changing a rule on drilling in the Arctic.

Section 12

This section includes a definition for "Planning Areas" which references a 2015 BOEM document which had been developed and approved under the previous President's term.

Section 13

This section has the usual legal clauses required to assure the constitutionality of the Executive Order.

My Commentary

I disagree with the direction that this EO is attempting to take the country.  This EO smacks of a returned favor to the Oil industry who have supported Republicans for a long time.  There is a need for oil and gas in the economy.  From a national security perspective, it would be good to be independent from foreign oil, especially that which comes from Canada, so that these foreign countries cannot use energy supplies as leverage such as what happened in the 1970's at the time of OPEC's establishment.  However, because of the fragility of the environment, the scale of potential impacts in the case of a single accident, and the non-transparency of the administration, the safeguards are in place for very good reasons.  They are in place such that responsibility is taken to assure that all phases of resource extraction are done with a minimal amount of impact to the environment, especially when this environment is pristine such as off the west coast, especially near Alaska.
One thing that strikes me is that some of the directives made in this EO seem to be saying effectively "just pretend that document doesn't exist".  Fundamentally, we are trusting that the civil servants who should be subject matter experts in these fields are able to look at the science around a specific requirement and come to a conclusion as to whether the science is valid or not.  Wishing reports and/or evidence away does not change facts.  I trust that regardless, the civil servants will work with facts to the best of their ability.