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The Source Documents Behind the News (A librarian reads the news...)

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Trump’s Budget Proposal: The source documents behind the news

The Primary Source Crusader (my own mashup of images)

The Trump administration has released its first federal budget proposal, America First: A Budget Blueprint to Make America Great Again. This proposal has sparked considerable controversy, so I got interested in how the federal budget even works. With my standard caveats,* here are some common questions and the source documents that help answer those questions.

It’s called a proposal. How much control does the President actually have over the Federal Budget? And how does that process work?

The History, Art & Archives site from the House of Representatives gives an overview of the “Power of the Purse,” which the Constitution grants primarily to Congress. The House further outlines the Budget Process and provides a timetable for that budget process. This process begins with the President’s budget proposal and proceeds with the Congress proposing appropriations legislation (12 “regular” appropriations bills emanating from 12 sub-committees of the House and Senate Appropriations Committees) which may or may not take the President’s suggestions. Some or all of these bills may be consolidated into an omnibus bill for passage. Appropriations legislation is just like most other legislation in that it must be passed by both the House and the Senate and then signed by the President. The President can veto the bills (in their entirety, not line-item), Congress can override the veto, etc.

In years where they can’t agree by October 1st (frequent) they can pass Continuing Resolutions to keep things funded at current rates until they can make a decision about the future.

The Budget and Accounting Act of 1921 requires the President to submit the initial budget proposal to Congress, and the budget process as a whole is governed by Title 31, Subtitle II, Chapter 11 of the United States Code. Prior to 1974, presidents were able to “impound” funds (not spend them even after they had been budgeted), but due to perceived abuses by Nixon the Congressional Budget and Impoundment Control Act of 1974 reorganized the budgeting process to place more control in Congress’ hands. This, too, has been amended several times, so if you want to read current law you can look at Chapters 17, 17A, and 17B of Title II of the United States Code.

For comparison, you can look back at previous White House budget proposals.

How will I know what Congress’ budget looks like?

You can track the various bills as they appear and move through the budget process. (Remember that Omnibus Bills can gather up many of the smaller bills, so just because a bill didn’t become law by itself doesn’t mean it didn’t become law as part of an omnibus bill.)

What does Trump’s proposal actually propose?

The President’s proposal is available online. Reading it as a message to Congress about this administration’s priorities, the most succinct articulation of Trump’s priorities occurs in the “President’s Message” at the beginning of the document. President Trump entitled this message “America First: Beginning a New Chapter of American Greatness.” Here is an excerpt:

One of the most important ways the Federal Government sets priorities is through the Budget of the United States.

Accordingly, I submit to the Congress this Budget Blueprint to reprioritize Federal spending so that it advances the safety and security of the American people.

Our aim is to meet the simple, but crucial demand of our citizens—a Government that puts the needs of its own people first. When we do that, we will set free the dreams of every American, and we will begin a new chapter of American greatness.

A budget that puts America first must make the safety of our people its number one priority— because without safety, there can be no prosperity.  (page 1)

Note that this proposal does not include everything that will be proposed:

The 2018 Budget is being unveiled sequentially in that this Blueprint provides details only on our discretionary funding proposals. The full Budget that will be released later this spring will include our specific mandatory and tax proposals, as well as a full fiscal path. (page 5)

Additional key statements providing policy guidance to Congress include:

  • “The Federal Government can—and should— operate more effectively, efficiently, and securely.” (page 13)
  • “Each year, however, Federal agencies issue thousands of new regulations that, taken together, impose substantial burdens on American consumers and businesses big and small. These burdens function much like taxes that unnecessarily inhibit growth and employment.”  (page 15)
  • The phrase “private sector” shows up 12 times in the document, signaling an emphasis on moving support for some activities out of the government and into the private sector.

Following these opening sections, the proposal covers 17 major areas of the federal budget. Below I’ve linked to each of those agencies’ budget pages:

When would any changes take place?

Assuming the legislative process wraps up on schedule, the new budget for Fiscal Year 2018 would swing into effect on October 1st, 2017.


Two caveats: 1) Not all knowable things are knowable using official, original published sources, but that’s the limit I’ve set for myself even when that’s inconvenient or frustrating, and 2) I am a librarian trained in tracking down and evaluating sources — nothing more or less than that. I’m doing my best to find the most authoritative version of the primary sources behind the news, and I welcome suggestions and corrections.

Steel Made in America: The source documents behind the news

The Primary Source Crusader (my own mashup of images)

I was recently asked about the often-repeated claim that all new oil pipelines will be made with American steel, whether this really meant all new pipelines, and specifically whether it meant the Dakota Access Pipeline and the Keystone XL Pipeline.

Will these specific pipelines be made from American Steel?

As usual, this turned out to be far more complicated than I anticipated. I’d thought it was easy because there’s an Executive Memorandum calling for American-made steel in pipeline construction from January 24th. But it turns out that this memorandum actually calls for the Secretary of Commerce to come up with a plan to use American-made steel “to the extent permitted by law.” Here’s the actual text:

The Secretary of Commerce, in consultation with all relevant executive departments and agencies, shall develop a plan under which all new pipelines, as well as retrofitted, repaired, or expanded pipelines, inside the borders of the United States, including portions of pipelines, use materials and equipment produced in the United States, to the maximum extent possible and to the extent permitted by law. The Secretary shall submit the plan to the President within 180 days of the date of this memorandum.

Meanwhile, the two Executive Memos dealing with the Keystone XL Pipeline and the Dakota Access Pipeline don’t mention American-made steel. And Deputy Press Secretary Sarah Huckabee Sanders said on March 3rd that in fact those two pipelines would not be covered under the American-made steel memo because steel was bought some time ago and is “already literally sitting there.”

Will any pipelines be made from American Steel?

Secretary of Commerce, Wilbur Ross, has to present a plan for making or repairing all new pipelines with American steel “to the extent permitted by law,” so it’s likely there will be pipelines made with American steel. However it turns out that the World Trade Organization has a say in this that complicates things.

Members of the WTO agree to certain fundamental principles, one of which is National Treatment. According to the WTO’s guide, this boils down to the following:

Imported and locally-produced goods should be treated equally — at least after the foreign goods have entered the market. The same should apply to foreign and domestic services, and to foreign and local trademarks, copyrights and patents. This principle of “national treatment” (giving others the same treatment as one’s own nationals) is also found in all the three main WTO agreements (Article 3 of GATT, Article 17 of GATS and Article 3 of TRIPS), although once again the principle is handled slightly differently in each of these.

National treatment only applies once a product, service or item of intellectual property has entered the market. Therefore, charging customs duty on an import is not a violation of national treatment even if locally-produced products are not charged an equivalent tax.

This means that foreign suppliers of goods and services can and do sue if there is preference given to domestic products (assuming equal price and quality) once everything is washing around in the domestic market. Most recently Japan lodged a complaint against India in early January, saying that the “minimum import price” that India imposed on imported iron and steel violates the principle of National Treatment (Article 3.1).

Sometime on or before July 23rd, 2017, we’ll see what the Secretary of Commerce presents as a plan for building pipelines using American-made steel. I’ll update this post as events unfold.

 

Health Care Reform: The source documents behind the news

The Primary Source Crusader (my own mashup of images)

Proponents and opponents alike have been waiting to hear what the plan will be for health care once the Affordable Care Act is repealed. There have also been a lot of statistics thrown around in the course of the public discussion on this topic, and a few people have asked me where some of the numbers they’re hearing are coming from.

Last updated: 6/12/2017

H.R.1628

First, the World’s Best Healthcare Act of 2017 is indeed a real bill, but it is not the same bill that people have been anticipating and debating for the last couple months. It’s the 2017 version of a 2016 bill that never made it out of committee. When the bill we’ve been expecting gets an actual number, I’ll add it here. Update 3/25/2017: The “real” bill under discussion was H.R.1628. and as of 3/24/2017 the bill has been pulled from consideration. The bill was pulled “pursuant to clause 1(c) of Rule 19,” which states that “when the previous question is operating to adoption or passage of a measure pursuant to a special order of business, the Chair may postpone further consideration of such measure in the House to such time as may be designated by the Speaker” (see the House rules, page 34). I wonder where this leaves the previous Executive Order (predicated on the idea of prompt repeal of the ACA) and its encouragement for states and companies to play fast and lose with ACA rules.

The “real” health care plan, called the American Health Care Act, was originally available to us in the form of two committee prints:

It was pulled from consideration on 3/24/2017, but then ultimately passed the House on 5/4/2017. The Congressional Budget Office released their report on the ultimate economic impact of this version of the bill.

The Senate has said that they do not plan to move forward with this bill, and there are reports that they have their own bill but that it’s still secret.

For comparison, here’s the Patient Protection and Affordable Care Act from 2010 (also known as Obamacare). And here are all the health-related bills introduced by the current congress.

What will things cost under the new plan? (section added 3/14/2017)

Update 3/14/2017: The Congressional Budget Office has released its official assessment of the American Health Care Act. This includes estimates of future costs, future numbers of insured Americans, and future market stability. A couple of questions I have about this report are:

  • Because it was deemed “impracticable” the requirement to investigate the macroeconomic impact of the bill is no longer required (see page 4 of the report, which refers to section 402 of the Congressional Budget Act of 1974 – page 40). So that means that a couple of the major questions I had (effects on jobs, effects on uncompensated care ripples) aren’t covered in this report.
  • The “Basis of Estimate” section includes:
    • Effects of Repealing Mandate Penalties (page 8)
    • Major Changes to Medicaid (pages 8-10)
    • Changes to Subsidies and Market Rules for Nongroup Health Insurance Before 2020 (pages 10-13) — employer-based insurance is a group insurance, so this is about individual insurance
    • Changes to Subsidies and Market Rules for Nongroup Health Insurance Beginning in 2020 (pages 13-18)
    • Market Stability (pages 18-19)
    • Other Budgetary Effects of Health Insurance Coverage Provisions (pages 19)
  • The “Net Effects on Health Insurance Coverage” (pages 19-21) section starts “CBO and JCT expect that under the legislation, the number of people without health insurance coverage would increase but that the increase would be limited initially, because insurers have already set their premiums for the current year and many people have already made their enrollment decisions for the year.”
  • The “Net Effects on Health Insurance Premiums” (pages 21-22) section starts: “The legislation would tend to increase average premiums in the nongroup market prior to 2020 and lower average premiums thereafter, relative to the outcomes under current law.” Prior to 2020 premiums could go up by 15-20%, and after 2020 premiums could go down for the younger population, but go up by an additional 20-25% for people over 65.
  • Page 22 includes the “Revenue Effects of Other Provisions,”
  • “Direct Spending Effects of Other Provisions” includes
    • “Prevention and Public Health Fun,” and Community Health Center Programs” sections (page 22)
    • The “Provisions Affecting Planned Parenthood” section (page 23)
    • “Repeal of Medicaid Provisions,” “Repeal of Reductions to Allotments for Disproportionate Share Hospitals,” “Safety Net Funding for States That Did Not Expand Medicaid,” and “Reductions to States’ Medicaid Costs.” (pages 23-24)
  • “CBO has not completed an estimate of the potential impact of the legislation on discretionary spending, which would be subject to future appropriation action.” (page 25)
  • Pages 25-26 lay out “Uncertainty surrounding the estimates”
  • The “Increase in Long-Term Direct Spending and Deficits” section is one sentence long: “CBO estimates that enacting the legislation would not increase net direct spending or on-budget deficits by more than $5 billion in any of the four consecutive 10-year periods beginning in 2027” (page 26).
  • The final page of content (page 27) analyzes “Mandates on State, Local, and Tribal Governments” and “Mandates on the Private Sector,” which measures new legislation against the Unfunded Mandates Reform Act of 1995.
  • All the charts and tables are at the end of the document, pages 29-37. Most of these provide costs over time.

The CBO has written about its methodology on this topic in some detail.

What about the statistics and numbers that have been tossed around lately? Well…

I wrote previously about data that the federal government released about historical and projected health care spending, including both the price tags for the government and for individuals.

Many state senators and representatives have been talking about numbers from their own states, though, so what about the more local numbers? The people who have asked me about these numbers have been interested in Minnesota information, so that’s what I’ll present here, but each state will have something similar. If these numbers look useful to you and you want to know about a state other than Minnesota, the strategies I use for most of this kind of work should work for you. Look especially for state departments of commerce and of health.

Two collections of data and statistics that might be useful to you regardless of state are:

  • SHADAC – State Health Access Data Assistance Center
    In addition to their useful reports, their data center lets you build your own charts based on various official sources, and each chart will tell you which group or agency first published the data so that you can track that group or agency down to see more detail.
  • If you have access to something like ProQuest Statistical Insight, you can find federal and local government information there as well as industry reports that are hard or impossible to find other places.

And for Minnesota, here are some of the reports that answer the major questions I’ve heard:

  • MN Department of Commerce: 2016 Rate Summary
    This includes such things as:

    • Includes percentages of people in the individual market (the marketplaces for ACA plans) vs other types of plans.
    • Which companies participate in the health care market in the state (and you can also see their rate filings individually here) and how many options are available in each county of the state.
    • What the essential health benefits are that are required of every company
    • And some basic statistics on health care rates (this one does not include annual out-of-pocket numbers, but the next link link does)
  • Minnesota Department of Health: Minnesota Health Care Markets Chartbook
    This is a collection of several reports, and they include such things as:

    • Total health care spending by source and by uses of funds.
    • Comparisons of state to national trends.
    • Trends in health care premiums, deductibles, and out-of-pocket expenses, overall and by type of insurance
    • Variations in coverage and costs for three groups: employment-based insurance, small group insurance, and individual insurance.
    • Amount of competition in the health care market by region.
    • Characteristics of those who have no insurance and what the safety net for those people looks like (including a spreadsheet of uncompensated care.
    • Service availability in the different regions of the state.
    • And state-wide service quality reports.
  • Minnesota Department of Health: Health Economics Program
    Does research on and produces reports about health care markets in MN.
  • Minnesota Department of Human Services: Health care programs – initiatives, reports, and advisory committees.

The New Travel Ban: The source documents behind the news

The Primary Source Crusader (my own mashup of images)

39 days after the first travel ban, Trump signed his second one. This second order takes effect on March 16th, and at that point it will rescind the first order and start the clock on new temporary bans and new permanent procedures. Plenty of news sources give interpretations, but as usual I wanted to see the source document for myself and trace the documents it references. Here’s what I found…

[Update 6/8/2017: There are 28 court cases pending on this topic.]

[Update 3/9/2017: The first court case challenging this Executive Order has started: Hawaii v Trump.]

[Update: 3/9/2017: added links to the newly published Federal Register version of the document.]

Legal Challenges (section added 3/14/2017)

Some of the legal challenges from the original travel ban are carrying over, and Hawaii v Trump started after the new travel ban was signed.

All three cases have hearings scheduled for Wednesday 3/15/2017, and all three are seeking to block the new travel ban from going into effect on 3/16/2017.

Update 3/15/2017: Judge Watson (Hawaii) has issued a nation-wide Temporary Restraining Order, halting the implementation of Section 2 and Section 6 of this Executive Order. This mirrors the TRO that halted the last Executive order. The ruling is… pointed:

  • “Because the Executive Order at issue here cannot survive the secular purpose prong, the Court does not reach the balance of the criteria.” (page 29)
  • “The illogic of the Government’s contentions is palpable.” (page 30)
  • “It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.” (page 33)
  • “When considered alongside the constitutional injuries and harms discussed above, and the questionable evidence supporting the Government’s national security motivations, the balance of equities and public interests justify granting the Plaintiffs’ TRO.” (page 42)

Update 3/16/2017: Judge Chuang (Maryland) has issued a nation-wide Temporary Restraining Order, halting the implementation of section 2(c) of this Executive Order. This ruling is less pointed than Judge Watson’s. Here is the rationale for the section of the Order that is blocked:

  • INA arguments:
    Plaintiffs pointed out that 8 U.S. Code § 1152(A) prohibits immigration discrimination based on nation of origin, but the Judge says that prohibition probably doesn’t apply in this case: “They have not shown a likelihood of success on the merits of the claim that § 1152(a) prevents the President from barring entry to the United States pursuant to § 1182(t), or the issuance of non-immigrant visas, on the basis of nationality.” (page 24)
  • Establishment Clause arguments:
    Plaintiffs argue that religiously based bans violate the Establishment Clause of the First Amendment. The Judge agrees that they are likely to succeed with that argument: “But while the travel ban bears no resemblance to any response to a national security risk in recent history, it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban.” (page 37)
  • The result:
    “Plaintiffs have asked the Court to issue an injunction blocking the Executive Order in its entirety. The Court declines to grant such broad relief. The Plaintiffs’ Establishment Clause and INA arguments focused primarily on the travel ban for citizens of the six Designated Countries in Section 2(c) of the Second Executive Order. The Court will enjoin that provision only.” (page 40)

Update 3/17/2017: Judge Robart (Washington State) has issued an order denying the request to extend the Temporary Restraining Order imposed on the first executive order and apply it to the second executive order. The defendants in this case appear to have asked that the old TRO be applied to the new executive order rather than asking to have a new TRO applied to the new executive order.

  • “In this instance, the court agrees with Defendants that the court’s preliminary injunction should not automatically extend to [the new Executive Order, EO2].” (page 7)
  • “The court does not say, however, that Plaintiffs are not entitled to a temporary restraining order or preliminary injunction with respect to certain aspects of EO2. The court makes no ruling on that issue, and notes that Plaintiffs have now filed a motion for a temporary restraining order with respect to EO2.” (page 8) And here is that motion.

Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States [full document]

Quote: “By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq. [remember, those are two ways of citing the same set of laws], and section 301 of title 3, United States Code, and to protect the Nation from terrorist activities by foreign nationals admitted to the United States, it is hereby ordered as follows:…”

Section 1: Policy and Purpose

Quote: “I am imposing a temporary pause on the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to categorical exceptions and case-by-case waivers, as described in section 3 of this order.”

This section does three things:

  1. It lays out the history of the previous Executive Order (which I previously wrote about) in some detail, including reasons that the White House felt the first order was justified.
  2. It lays out country-by-country justifications for increased scrutiny of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen (as well as reasons that Iraq is now left off of the list). Unlike last time, this time it actually names each country.
  3. It lays out justification for the current ban, including a paragraph listing several immigrant criminals from recent history.

Let’s take the main paragraphs in order.

The Order says that the descriptions of each of the countries is “taken in part from the Department of State’s Country Reports on Terrorism 2015.” This is part of a suite of reports put out regularly by the Department of State as required by Title 22 Section 2656f of the United States Code. (The report refers to ISIL rather than ISIS, so if you go searching through it keep that in mind.) The reports include general Country Reports on 87 countries (4 of which are included in this order, and 3 of those 4 are also included in the specialized sections on State Sponsors of Terrorism or Terrorist Safe Havens), plus reports on 3 countries that are “State Sponsors of Terrorism” (all of which are mentioned in this order), and 13 countries that are “Terrorist Safe Havens” (4 of which are mentioned in this order, though one of those 4 is Iraq, which is not banned).

The order gives these descriptions, which I’ve quoted and then added links to sources:

  • Quote: Iran has been designated as a state sponsor of terrorism since 1984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq.  Iran has also been linked to support for al-Qa’ida and has permitted al-Qa’ida to transport funds and fighters through Iran to Syria and South Asia.  Iran does not cooperate with the United States in counterterrorism efforts. (All contained in the State Sponsors of Terrorism chapter of the report.)
  • Quote: Libya is an active combat zone, with hostilities between the internationally recognized government and its rivals.  In many parts of the country, security and law enforcement functions are provided by armed militias rather than state institutions.  Violent extremist groups, including the Islamic State of Iraq and Syria (ISIS), have exploited these conditions to expand their presence in the country.  The Libyan government provides some cooperation with the United States’ counterterrorism efforts, but it is unable to secure thousands of miles of its land and maritime borders, enabling the illicit flow of weapons, migrants, and foreign terrorist fighters.  The United States Embassy in Libya suspended its operations in 2014. (This information comes from the Terrorist Safe Havens chapter of the report.)
  • Quote: Portions of Somalia have been terrorist safe havens.  Al-Shabaab, an al-Qa’ida-affiliated terrorist group, has operated in the country for years and continues to plan and mount operations within Somalia and in neighboring countries.  Somalia has porous borders, and most countries do not recognize Somali identity documents.  The Somali government cooperates with the United States in some counterterrorism operations but does not have the capacity to sustain military pressure on or to investigate suspected terrorists. (This information comes from the Terrorist Safe Havens chapter of the report.)
  • Quote: Sudan has been designated as a state sponsor of terrorism since 1993 because of its support for international terrorist groups, including Hizballah and Hamas.  Historically, Sudan provided safe havens for al-Qa’ida and other terrorist groups to meet and train.  Although Sudan’s support to al-Qa’ida has ceased and it provides some cooperation with the United States’ counterterrorism efforts, elements of core al-Qa’ida and ISIS-linked terrorist groups remain active in the country. (All contained in the State Sponsors of Terrorism chapter of the report.)
  • Quote: Syria has been designated as a state sponsor of terrorism since 1979.  The Syrian government is engaged in an ongoing military conflict against ISIS and others for control of portions of the country.  At the same time, Syria continues to support other terrorist groups.  It has allowed or encouraged extremists to pass through its territory to enter Iraq.  ISIS continues to attract foreign fighters to Syria and to use its base in Syria to plot or encourage attacks around the globe, including in the United States.  The United States Embassy in Syria suspended its operations in 2012.  Syria does not cooperate with the United States’ counterterrorism efforts. (All contained in the State Sponsors of Terrorism chapter of the report.)
  • Quote: Yemen is the site of an ongoing conflict between the incumbent government and the Houthi-led opposition.  Both ISIS and a second group, al-Qa’ida in the Arabian Peninsula (AQAP), have exploited this conflict to expand their presence in Yemen and to carry out hundreds of attacks.  Weapons and other materials smuggled across Yemen’s porous borders are used to finance AQAP and other terrorist activities.  In 2015, the United States Embassy in Yemen suspended its operations, and embassy staff were relocated out of the country.  Yemen has been supportive of, but has not been able to cooperate fully with, the United States in counterterrorism efforts. (Most of this information comes from the Terrorist Safe Havens chapter of the report.)

Travel from Iraq is not banned in this Executive Order like it was in the previous one. It is listed as a Terrorist Safe Haven, but the EO says that Iraq has been working closely with the U.S. and will therefore be allowed visas.

The justifications section concludes with a statement that requires some sourcing, which I’ve provided in footnotes within this section:

Quote: (h)  Recent history shows that some of those who have entered the United States through our immigration system have proved to be threats to our national security.  Since 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States.*  They have included not just persons who came here legally on visas but also individuals who first entered the country as refugees.  For example, in January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses.**  And in October 2014, a native of Somalia who had been brought to the United States as a child refugee and later became a naturalized United States citizen was sentenced to 30 years in prison for attempting to use a weapon of mass destruction as part of a plot to detonate a bomb at a crowded Christmas-tree-lighting ceremony in Portland, Oregon.***  The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.****

* This appears to be referring to a 2016 Justice Committee list, prepared by its then-chairman Jeff Sessions, of 580 people convicted of terrorist activities since 9/11. Of these, the committee determined that 380 were foreign-born, 39 of which were from countries named in this ban. These numbers are complicated because there’s no formal definition of the word “terrorism” or how closely a conviction has to be tied to terrorism in order to be included on these lists. The Cato Institute determined that 40 of those 580 were terrorist activities, for example, and they published an extensive report in September 2016 on the topic of terrorism convictions. The New America group has studied the demographics and other characteristics of terrorists convicted since 9/11 (in the footer of the page you can download a spreadsheet of their data). They list 181 foreign-born people convicted of terrorist activities since 9/11, but none of these came from the 6 countries that are currently banned. The Migration Policy Institute cites both of those reports in their own work.

** This appears to refer to the Bowling Green incidents. Iraq, these convicts’ country of origin, is not covered under this ban.

*** This appears to refer to Mohamed Osman Mohamud.

**** This appears not to be a published statistic. The statement also mentions suspects rather than convicts, so it would be interesting to know the ratio of suspects to convicts in this sort of crime — of all the people accused of a connection to terrorism, how many are ultimately found to have committed the crime. But I haven’t found a study on that yet. The only context we can really build for this number is in relation to the number of refugees in the country, which we can do using Refugee Processing Center data or the annual reports of the Office of Refugee Resettlement. If we count entering refugees since 2001, that would make it about 0.15% of refugees under investigation. If we go back farther, that percentage gets smaller.

Section 2: Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period. [This section is currently blocked by 2 Temporary Restraining Orders]

This section says essentially four things:

    1. The Secretary of Homeland Security (in consultation with the Secretary of State and the Director of National Intelligence), will conduct a worldwide review to find out what information is needed from each country when making decisions about granting visas.
    2. Once that’s done, and everyone has agreed on which countries need which kinds of information, they’ll ask countries to start providing us with whatever information was deemed necessary for visa processing.
    3. While all of this is being worked out, there is a temporary travel ban: “I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) [the relevant words] and 1185(a), that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States.  I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.”
    4. Once these 90 days are over, there will be a new proclamation that would “prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means.”

As a side note, I’m still curious how Section 1182 referenced above works with Section 1152.

8 U.S. Code § 1182 – Inadmissible aliens (enacted in 1952) reads:

(f) Suspension of entry or imposition of restrictions by President Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

8 U.S. Code § 1152 – Aliens and Nationality (enacted in 1965) reads:

1) Nondiscrimination
(A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

Update 3/16/2017: Judge Chuang (Maryland) has given an opinion on this apparent conflict in the law. He says:

At first glance, President Trump’s action appears to conflict with the bar on discrimination on the basis of nationality. However, upon consideration of the specific statutory language, the Court finds no direct conflict. Section 1182(f) authorizes the President to bar “entry” to certain classes of aliens. 8 U.S.C. § 1182(f). Section 1152(a) bars discrimination based on nationality in the “issuance of an immigrant visa.” … Accordingly, an executive order barring entry to the United States based on nationality pursuant to the President’s authority under § 1182(f) does not appear to run afoul of the provision in § 1152(a) barring discrimination in the issuance of immigrant visas. (pages 20-21 of the TRO from 3/16/2017)

Section 3: Scope and Implementation of Suspension.

Unlike last time, this EO lays out some details about which people are and are not covered by this order. Here are the relevant words:

  1. Quote – This order shall apply only to foreign nationals of the designated countries who:
    1. are outside the United States on the effective date of this order;
    2. did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017; and
    3. do not have a valid visa on the effective date of this order.
  2. Quote – This order shall not apply to:
    1. any lawful permanent resident of the United States;
    2. any foreign national who is admitted to or paroled into the United States on or after the effective date of this order;
    3. any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document;
    4. any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country;
    5. any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or
    6. any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

This section also lays out 9 examples of times when a case-by-case determination may result in a waiver for certain individuals from these 6 countries, including returning to work or study, visiting a close family member in the United States, has worked for the U.S. government and can document faithful service, or is an infant, young child, or adoptee.

Section 4. Additional Inquiries Related to Nationals of Iraq.

This section boils down to “Iraqis aren’t banned, but they’ll be vetted extremely.”

Section 5. Implementing Uniform Screening and Vetting Standards for All Immigration Programs.

The Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence will work together to come up with minimum vetting standards for all immigrants who want to enter the United States, ideally screening out people who try to get into the country fraudulently or who “may commit, aid, or support any kind of violent, criminal, or terrorist acts after entering the United States”

Section 6. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. [This section is currently blocked by the Temporary Restraining Order from Hawaii]

For 120 days after March 16th, the Secretary of State will suspend all new travel of refugees to the United States and all new decisions about applicants for refugee status in the United States.

Unlike last time, this time the ban does not apply to refugees who are already scheduled for travel to the United States (or who get their travel schedules before March 16th), and unlike last time there is room for case-by-case waivers of the ban.

During Fiscal Year 2017 the United States will accept no more than 50,000 refugees. This revises Obama’s order for FY 2017 which allowed 110,000 refugees, an unusually high number compared with previous years. Here are the orders Obama signed for 2016 (85,000), 2015 (70,000), 2014 (70,000), 2013 (70,000), 2012 (75,000), 2011 (80,000), and 2010 (80,000).

The Secretary of State will work with state and local jurisdictions to see if there are ways for local government to have more say over which refugees get settled in their jurisdictions.

Section 7. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility.

Quote: “The Secretary of State and the Secretary of Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority permitted by section 212(d)(3)(B) of the INA, 8 U.S.C. 1182(d)(3)(B) [the relevant words], relating to the terrorism grounds of inadmissibility, as well as any related implementing directives or guidance.”

The clause referenced here grants the Secretary of State and the Secretary of Homeland Security the ability to decide that someone or some group connected with terrorism may enter the country.

It looks like this authority has been used 43 times in the past to exempt people who gave aid under duress or gave medical aid or the like. The current Executive Order says to consider rescinding these actions.

Section 8. Expedited Completion of the Biometric Entry-Exit Tracking System.

This section of the Executive Order says to complete the implementation of biometric entry-exit tracking quickly.

In 1996 Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act (big PDF), which required the institution of biometric entry-exit tracking for non-citizens (section 104(a), page 556). Every president since then has signed laws requiring this tracking, and last year the Congressional Committee on the Judiciary held a hearing to determine why the systems were not yet in place (chaired by current Attorney General Jeff Sessions).

Here are the laws I could find that were signed into law since 1996 and that dealt with biometric entry-exit screening:

  • Omnibus Consolidated Appropriations Act, 1997 (104 H.R. 3610)
  • Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (105 H.R. 4328)
  • Immigration and Naturalization Service Data Management Improvement Act of 2000 (106 H.R. 4489)
  • Aviation and Transportation Security Act, 2001 (107 S. 1447)
  • Enhanced Border Security and Visa Entry Reform Act of 2002 (107 H.R. 3525)
  • Machine-Readable Passports and Visas for Foreign Visitors Extension – 2004 (108 H.R. 4417)
  • Intelligence Reform and Terrorism Prevention Act of 2004 (108 S. 2845)
  • Implementing Recommendations of the 9/11 Commission Act, 2007 (110 H.R. 1)
  • Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 (110 H.R. 2638)

Section 9. Visa Interview Security.

Quote: The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1202, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.  This suspension shall not apply to any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; traveling for purposes related to an international organization designated under the IOIA; or traveling for purposes of conducting meetings or business with the United States Government.

Because there will no be no automatic waiver for all the qualified travelers from the 38 countries in the Visa Waiver Program, there will be a lot more work to do at U.S. Consulates, so the Secretary of State is also directed to expand the Consular Fellows Program so that Fellows can help with the work of vetting visa applicants.

As a side note, I was curious how an Executive Order could cancel an enacted law, but if I’m reading it correctly it turns out that the law states that it authorizes the Secretaries of State and Homeland Security to create this program, and it sets out parameters for the program, but the law does not actually create the program.

Section 10. Visa Validity Reciprocity.

Quote: “The Secretary of State shall review all nonimmigrant visa reciprocity agreements and arrangements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment.”

Section 11. Transparency and Data Collection.

This section calls for the collection and publication of statistics on the number of non-citizens charged or convicted of terrorism, radicalized, gender-based violence against women, and “any other information relevant to public safety and security.”

Section 12. Enforcement.

The Secretary of State and the Secretary of Homeland Security will consult with “appropriate domestic and international partners” to make sure that the roll-out of this Order is smooth and effective.

There are 4 points of specially called out or clarified in this section:

  1. The Secretaries should still allow for the “credible fear” provisions covered by section 235(b)(1)(A) of the INA, 8 U.S.C. 1225(b)(1)(A) [the relevant words].
  2. “No immigrant or nonimmigrant visa issued before the effective date of this order [March 16th, 2017] shall be revoked pursuant to this order.”
  3. “Any individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry.  Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility.”
  4. “This order shall not apply to an individual who has been granted asylum, to a refugee who has already been admitted to the United States, or to an individual granted withholding of removal or protection under the Convention Against Torture.  Nothing in this order shall be construed to limit the ability of an individual to seek asylum, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.”

Section 13. Revocation.

Executive Order 13769 of January 27, 2017, is revoked as of the effective date of this order [March 16th].

Section 14.  Effective Date.

This order is effective at 12:01 a.m., eastern daylight time on March 16, 2017.

Section 15.  Severability

This section says that if any part of this executive order is found to be invalid, the rest of the order is still in effect. And if any part of the order can’t be accomplished because an agency doesn’t have procedures in place, that agency should put procedures in place.

Section 16.  General Provisions

This wording goes at the end of every executive order, I think, and says that the Executive Order does not reduce any other agency’s lawful authority, it should be implemented in ways consistent with current law, and it doesn’t give rights to anyone working against the United States or any person.