Im-Politic: After Mueller/Barr, Can Trump Be Trump?

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America First, Attorney General, Betsy de, budgets, conservatism, conservatives, establishment Republicans, foreign policy, globalism, healthcare, Im-Politic, Immigration, impeachment, Kevin McCarthy, Obamacare, Populism, Republicans, Robert Mueller, Ross Douthat, seasonal workers, Special Counsel, Special Olympics, tax cuts, The New York Times, Trade, Trump, Trump-Russia, visas, William P. Barr

A week ago, I posted on the likely political impact of the end of Special Counsel Robert Mueller’s investigation of what have become known as the Trump-Russia scandals and of the release of Attorney General William P. Barr’s summary of its principal conclusions – which appear to put these charges and the threat of presidential impeachment they created behind Mr. Trump.

Now it’s time to think about a related and at least equally important subject: the policy effects. They could be profound enough to redefine the Trump presidency and the chief executive’s chances for reelection – even though the early indications seem to be saying exactly the opposite in ways that are sure to disappoint much of Mr. Trump’s political base. Here’s what I mean.

Ever since his administration’s opening months, I’ve believed that Mr. Trump’s policy choices have been strongly influenced by impeachment fears. Specifically, (and I have zero first-hand knowledge here) because President Trump feared that the Democrats and many mainstream Republicans were after his scalp, he concluded that he needed to appease his remaining allies in the latter’s ranks with policy initiatives they’ve long supported even though they broke with his own much less conventional and more populist campaign promises. 

In other words, it was the Russia and related scandal charges that were preventing “Trump from being Trump.”  

Moreover, this reasoning makes sense even if the President was certain that he faced no legal jeopardy. For impeachment ultimately is a political process, and although establishing criminal guilt is clearly helpful, it’s not essential.

The main evidence for my proposition has been the early Trump decision to prioritize Obamacare repeal over trade policy overhaul and infrastructure building; his almost libertarian-like initial budget proposal (at least when it comes to non-defense discretionary federal pending); his business-heavy tax cut; and numerous foreign policy moves that more closely resembled the globalist approaches he decried while running for the White House than the America First strategy his promised.

But although President Trump now seems certain to finish out his first term in office, he still seems to be currying favor with the Republican establishment. Just look at his latest budget proposal, and decision to go after Obamacare again – the healthcare move reportedly made despite the pleas of establishment Republicans like House GOP Leader Kevin McCarthy to move on from an issue now stamped as a major loser politically and threat to the party’s 2020 election prospects across the board.

It’s true that many of Mr. Trump’s trade and immigration policies still clash with the donor-driven agenda of the Republican establishment, and especially the party’s Congressional leaders. But even on these signature issues, the President arguably could be breaking even more sharply with the longstanding Republican and conservative traditions.

For example, Mr. Trump continues to keep suspended his threat of higher tariffs on many imports from China in apparent hopes of reaching a successful trade deal even though Beijing still seems determined to avoid significant concessions on “structural issues” (like intellectual property theft and technology extortion) and on enforcement.

On immigration, the President has just raised the 2019 cap on visas for unskilled largely seasonal foreign guest workers to levels never reached even during the Obama years. His administration also has permitted visas for farm workers to hit record levels and done little to stem the growth of work permits for foreign graduates of U.S. college and universities that critics charge suppress wages for high skill native-born workers.

One intriguing explanation for this continuing policy schizophrenia comes from New York Times columnist Ross Douthat. In a piece this past weekend, Douthat made the case that, although President Trump’s actual record has been largely heretical in mainstream conservative terms, when it comes to staffing (and especially key staff positions)

“there are effectively two Trump presidencies. One offers something like what the president promised on the campaign trail — a break with Paul Ryan’s green-eyeshade approach to entitlement reform, a more moderate tack on health care, an indifference to Obama-era conservative orthodoxies on fiscal and monetary policy.

“The other offers a continuation of the Tea Party’s insistence on spending cuts and Obamacare repeal, and appropriately its present leader is a former Tea Party congressman — Mick Mulvaney, the Zelig of the administration, whose zeal is apparently the main reason that the Obamacare lawsuit now has administration support.”

And the main reason for this confusing mix? The President has relied “on personnel who are associated with 2010-era G.O.P. orthodoxy, rather than elevating the kind of conservatives who have actively theorized for a more populist right.”

It’s so hard to argue with Douthat’s facts that I won’t. But they still leave the main puzzle unexplained – why so many of the President’s personnel picks have been so un-Trumpian. And much of the answer points to a problem that was clear to me ever since Mr. Trump’s presidential candidacy achieved critical mass and momentum, and that doesn’t seem solvable for the foreseeable future.

Specifically, as I’ve previously noted, conservative populists (I’m never been thrilled with this description of “Trumpism,” but for the time being it’s convenient) have never created the institutions and therefore cohorts of first-rate policy specialists remotely capable of staffing a conservative populist administration. Even if you want to identify immigration as an exception – where organizations like the Center for Immigration Studies put out top-flight studies – it’s clear that nothing of the kind has ever existed on the trade and foreign policy fronts.

And even worse, because of the long lead-times needed to achieve these goals, Mr. Trump appears doomed to dealing with shortages of competent true-believers as far as the eye can see. In fact, he’ll face a special challenge in the next few months, as the second halves of first presidential terms tend to see the departures of many early, often burned out appointees. And of course, the Trump presidency has already experienced much more than its share of turnover.

So I’m expecting an indefinite continuation of the eye-popping sequence of events of the previous week – in which Trump Education Secretary Betsy deVos announced an end to federal funding of the popular Special Olympics program, a public outcry ensued, and the President abruptly reversed her decision.

It’s hard to imagine that this kind of zigging and zagging can win President Trump reelection. But it’s also conceivable that the post-impeachment situation will “Let Trump be Trump” just enough – especially if the Democrats err in picking an overall strategy for opposing him.  After all, nothing has been more common in recent American political history than completely off-base predictions of Mr. Trump’s demise.

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Following Up: That Latest (Disgraceful) Court Decision on Trump’s Immigration Order

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Congress, Constitution, due process, Elena Kagan, executive order, Following Up, Immigration, Muslim ban, national security, presidency, refugees, Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer, Supreme Court, terrorism, travel ban, Trump, U.S. Court of Appeals Ninth Circuit, visas, Washington State

The decision last Thursday by a federal appeals court to uphold blockage of President Trump’s recent Executive Order on immigration and refugee policy exemplified the challenge I noted when I started blogging here at RealityChek: “So much nonsense out there, so little time….” Just as I often struggle each day to decide which outrage in the public policy world against fact-based, adult thinking should be addressed, I’ve struggled to decide which sad excuses for a legal argument made by three appellate judges in the Ninth Circuit to focus on in this post.

But two groups of contentions stand out as especially dangerous and disingenuous. Both decisively influenced the judges’ determination to keep the Executive Order from being enforced on procedural grounds pending a further judicial decision on the merits of the case.

The first is the panel’s unanimous ruling on how much due process to protect Constitutionally guaranteed rights is legally deserved by foreigners outside America’s borders who have not been awarded legal resident status. That is, how many boxes do the relevant U.S. officials need to check in order to reach a legally valid decision to deny a refugee applicant admission? In these refugee cases, the Supreme Court has held that the only such obligation is providing a “facially legitimate and bona fide” reason for a judgment reached by a State Department consular officer.

The Ninth Circuit panel, however, claims that this standard (and the already established appeals process) is insufficient when refugee applicants “have a relationship with a U.S. resident or an institution that might have rights of its own to assert.” And it has ruled that the Trump Executive Order failed to meet this standard.

Even leaving aside the convincing argument that existing law denies judges jurisdiction over immigration policy (which the panel rejected in a “preliminary” sense), just consider the precedent this conclusion would set. It would mean that unless a terrorist connection could be proved conclusively, a suspected ISIS fighter or adherent who applies for refugee or other immigration status from Iraq or Yemen or wherever could be entitled to enter the United States if he or she was a relative of a non-citizen legal U.S. resident. What would conclusive proof be? Heaven knows, since the case referenced by the Ninth Circuit panel only alleged that the rejection in question wasn’t sufficiently “detailed.” And who would decide how much detail is enough? Perhaps a U.S. court? Perhaps after looking over intelligence findings that are often unavoidably judgment calls? It’s hard to imagine a better way to start turning making a sieve of screening procedures vital in an age of transnational terrorism for protecting national security.

Think I’m kidding? Here are the actual circumstances of the immigration denial decision that the Ninth Circuit apparently finds so objectionable (and which was upheld in 2014 by the Supreme Court): An Afghan-born legal resident of the United States petitioned for her husband’s entry from Afghanistan, and asserted he deserved “priority (and judicially reviewable) status” like other “immediate relatives.”

And the basis for her claim that this application was unjustly turned down – i.e., that her petition was denied due process because the rationale wasn’t sufficiently detailed? A consular official told her husband that he would be kept out of America because by his own admission, he had been an official in Afghanistan’s former Taliban government, and that U.S. law aims to exclude foreigners who have engaged in “terrorist activities” – a description that certainly applies to the Taliban.

It gets better: The federal court that did decide that a former admitted Taliban official’s application deserved (unspecified) further consideration, which resulted in the case being appealed to the Supreme Court? It was the Ninth Circuit. And four Supreme Court Justices (Stephen Breyer, who wrote a dissent, and Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, who joined with him) agreed.

The second especially disturbing aspect of the appellate court’s decision was the panel’s claim that it had, in accordance with “an uncontroversial principle that is well-grounded in our jurisprudence,” paid “substantial deference to the immigration and national security policy determinations of the political branches” – that is, the presidency and the Congress. The only such deference apparent in this decision is at the level of brazen tokenism.

Specifically, the three judges claimed to agree that “the Government’s interest in combating terrorism is an urgent objective of the highest order.” But they also stated that the judiciary has a responsibility to balance this interest with other legitimate considerations, namely the public’s interest in “free flow of travel, in avoiding separation of families, and in freedom from discrimination.”

The “freedom from discrimination” threat of course pertains to repeated charges – also made in court by plaintiff Washington State – that the Executive Order’s refugee provisions create a “Muslim ban.” The Order’s failure to include most countries with Muslim majorities renders that charge inexplicable. Moreover, as my previous post observed, religious persecution is one of the forms of persecution that must be demonstrated by successful refugee applicants. But what’s simply jaw-dropping is the nature of the specific balancing act the appellate court identified involving national security concerns on the one hand, and freedom of travel and keeping families together on the other.

Because here’s what the three-judge panel asserted could nullify national security judgments made by the president and Congress (in the 2015 law identifying the seven countries subjected to the travel ban as “countries of concern” requiring special screening). And P.S.: It’s also what the judges agreed (in line with claims by Washington State and Minnesota) constituted enough “damage” to the State’s “economy and public universities” even to rise to the level of adjudicability in the context of immigration policy:

>”two visiting scholars who had planned to spend time at Washington State University were not permitted to enter the United States”:

>”three prospective employees from countries covered by the Executive Order for visas [for whom the University of Washington] had made plans [to arrive] beginning in February 2017”;

>”two medicine and science interns who have been prevented by the Executive Order from coming to the University of Washington”; and

>”an unspecified number of “students and faculty at Minnesota’s public universities [who] were similarly restricted from traveling for academic and personal reasons.”

If this is a balancing act, it’s one with a heavy Ninth Circuit thumb giving critical mass to laughably marginal considerations – even assuming that any of these temporarily inconvenienced students and teachers have any preexisting right to crossing American borders.

It’s true that lawyers and judges often insist that “no issue is decided finally until it is decided correctly.” But the Trump Executive Order’s treatment so far in the judiciary, and the current make-up of the Supreme Court, tell me that national security could suffer greatly until this result is finally reached.

Im-Politic: Establishment Answers Voter Anger with…Immigration Hikes

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2016 election, Barbara Mikulski, Cheap Labor Lobby, Donald Trump, George W. Bush, H-1B visa, H-2B visa, Im-Politic, immigrants, Immigration, L-1 visa, Obama, OPT, Optional Practical Training, productivity, technology companies, technology workers, Thom Tillis, visas, wages

Several times recently I’ve reminded America’s political establishment (and its journalistic enablers) that if they were really serious about eliminating the Trump-ist threat to their hold on power, they’d respond seriously to the legitimate security and economic grievances animating his growing legions of supporters. And just as often I’ve noted that the establishment keeps ignoring this advice.

This week, the situation changed fundamentally. Republicans and Democrats in Washington have decided to change their approach. Unfortunately, the new strategy apparently is to squeeze the struggling middle class and working class harder by bringing in more job- and wage-killing legal immigrants.

Keep in mind that the moves I’ll be describing have nothing to do with the debate over stronger curbs on illegal immigration, or over the fate of the country’s current illegal immigrant population (currently estimated at roughly 11 or 12 million). Instead, they concern measures to pump up the supply of workers available to domestic employers still higher at a time when wages for the typical household have stagnated for decade, meaning that business still occupies the labor market’s commanding heights. Moreover, the new legal immigrants won’t simply be coming into the worst-paying industries and occupations. A higher labor supply seems in order for “industries of the future” as well.

And also keep in mind: With a single exception I’ve found, none of these decisions appears to have been covered by the Establishment Media.

So I’m sure none of you read that when President Obama just signed Congress’ big omnibus spending bill into law, thereby ensuring no government shutdown for the medium-term future, he enacted into law a potentially huge increase in the numbers of unskilled immigrants sought on a seasonal basis by parts of the economy ranging from manufacturing to tourism. Visas for these foreign workers (called H-2Bs) had been capped at 66,000 annually, but evidently the Cheap Labor Lobby convinced legislators from both major parties that they faced crippling shortages of such employees, and persuaded (outgoing) Democratic Senator Barbara Mikulski of Maryland and a Republican counterpart, Thom Tillis of North Carolina, to introduce a measure that felt their pain, and that was stuck into the spending bill at the last minute. According to their Alabama Republican colleague Jeff Sessions, the Senate’s leading immigration policy critic, and the AFL-CIO, the changes could triple or quadruple admissions.

As I’ve explained before, the labor shortage claim is patent nonsense, if only because the kinds of wage increases basic that economic tells us result from real labor shortages are nowhere in sight. Moreover, it seems that no one else on Capitol Hill or in the Obama administration thought to suggest to these employers that often in American history, business has responded to labor shortages perceived and real by improving their management acts to boost efficiency or to develop or invest in new machinery and technologies that could substitute for increasingly expensive labor. The latter approach, incidentally, was so common that it largely explains why the United States so quickly grew into a global science, technology, and manufacturing leader. Further, the productivity improvements that resulted keyed the nation’s longstanding world-beating performance on this score.

Nor did the Cheap Labor Lobby hear the equally obvious counter-argument that an industry or company that can’t raise productivity enough to offset higher wages simply doesn’t have a viable business model, and doesn’t deserve an immigration subsidy from Washington.

Another provision in the spending bill seems to limit the use of cheap immigrant labor by high tech companies by doubling the fees charged for using one category of foreign workers with supposedly special skills (the H-1B category), and more than doubling it for another category (L-1s). But there’s much less to these requirements than meets the eye, mainly because firms don’t have to pay the fees if they have fewer than 50 employees, or if they’re larger but fewer than half their workers already hold these visas. As a result, the fees will be highly concentrated in Indian-owned tech firms who make unusually heavy use of H-1Bs and L-1s. But their big American-owned counterparts, like Intel and Google and Microsoft, which also employ many of these foreign workers, will continue getting off scott-free.

In addition, the Obama administration has in the works a stealth increase in the supply of foreign tech workers. The Optional Practical Training (OPT) program has long permitted foreign students to work in the United States for twelve months after graduation. Since employers who use them don’t have to pay payroll taxes on them and since the program includes no minimum wage requirements, many technology firms have found these employees cheaper and therefore more attractive than American workers. At least as important, OPT workers can substitute for H-1Bs, whose use is capped at 65,000 annually.

In 2008, President George W. Bush extended the time-frame to 17 months for graduates with science and technology degrees (Congress’ approval wasn’t needed), but last year, a federal court overturned this policy on the grounds that the Bush decision taken without adequate public notice and comment. Nonetheless, the court also gave the government itself a six-month extension for the 17-month policy, and the same amount of time (until February) to seek the longer OPT period the right way. The Obama administration has not only decided to do so, but has submitted a draft proposal to extend the total time-frame to three years.

Some members of Congress have pushed back, but given the views not only of Trump supporters, but the public at large, it’s amazing (or not?) that such steps are even being contemplated. After all, polls consistently show that when it comes to levels of immigration (again, this has nothing to do with illegal immigration), Americans want them stabilized, or lowered – not increased.

So expect the current Election 2016 dynamic to continue. Growing numbers of voters will become angrier and angrier about their diminished economic prospects and threatened security, establishment politicians in both parties will ignore or actively reject the messages they’re sending, and both they and the equally establishment-oriented media will even more self-righteously condemn the rise of demagoguery in America.

Im-Politic: The New York Times Loses It on Trump and Immigration

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2016 elections, deportation, Donald Trump, E-Verify, H1B, ICE, illegal immigration, Im-Politic, Immigration, Immigration and Customs Enforcement, Jobs, Republicans, September 11, tech workers, The New York Times, visa overstays, visas, wages

The New York Times‘ recent editorial trashing of Donald Trump’s immigration proposals was so over the top and intellectually dishonest that you’d think the paper’s editorial board members and owners’ main worry was losing access to the super-cheap illegal nannies and gardeners that support their one percent-er lifestyles. Certainly nothing else about Trump’s policies can possibly justify the vehemence with which The Times attacked him.

Predictably, the editorial focused on Trump’s position on deporting America’s huge illegal immigrant population, and the related issue of birthright citizenship. Trump does deserve some criticism on this score. As I’ve argued, aside from criminal aliens, he should be focusing not on active deportation but on a policy of attrition – discouraging illegals from remaining in the country by denying them both employment opportunities and government benefits. And although I agree with Trump (and many others) that the anchor babies problem is unacceptable, it does seem that Constitutional issues will prevent any solution for many years.

But as I’ve also pointed out, mass deportation wasn’t even a part of Trump’s plan, although he did endorse the idea in a media interview. Completely indefensible, by contrast, is the paper’s charge that every plank of Trump immigration platform is “despicable,” “cruel,” “racist,” and “xenophobic.” If anything’s despicable, its much of The Times’ own tendentious analysis.

Take the editorial’s treatment of Trump’s call to make mandatory the E-Verify system that was developed to enable employers to check the legal status of job-seekers. It’s currently a crime for businesses to hire applicants residing illegally in the country, but many illegals find work anyway largely because the documents needed to prove legal status are so easy for forge, and because so many businesses simply don’t care and believe that the government really doesn’t, either.

E-Verify is a federally created “internet-based system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility.” The good news is that it’s free to use, it produces results quickly, and its accuracy rates are not only astronomically high, but improving, according to independent auditors of this program. Moreover, E-Verify enjoys overwhelming bipartisan Congressional support. The only significant problem associated with it is that in most of the country, its use is voluntary.

So here’s how The Times characterizes Trump’s view that every U.S. employer should be brought into E-Verify to ensure that a law that’s on the books, and that the paper apparently does not oppose, is effectively enforced: It would “impose a national job-verification system so that everyone, citizens too, would need federal permission to work.”

Only somewhat less inane is The Times‘ description of Trump’s plan to “triple the number of [immigration enforcement] officers”: It would “flood the country with immigration agents….” What the paper doesn’t tell readers is that this “flood” would amount to 10,000 new employees for the Enforcement and Removal Operations branch of the Homeland Security Department’s bureau of Immigration and Customs Enforcement (ICE). Talk about crying wolf.

Also falling into The Times‘ category of “despicable” Trump proposals:

>ending the phony “catch-and-release” practice applied to illegals crossing the border and detaining them until they are sent home;

>establishing criminal penalties for legal visitors to the United States who overstay any of the wide variety of visas offered by Washington (a group that has included at least two of the September 11 hijackers);

>stepping up ICE’s cooperation with local law enforcement authorities to increase the chances that illegals belonging to criminal gangs will be deported;

>and addressing employer violations and other abuses of the H-1B visa system for workers supposedly possessing special skills in technology or other areas, practices which needlessly cost American workers both jobs and wages;

The Times of course wasn’t content to savage Trump. It castigated other GOP presidential hopefuls who haven’t repudiated all of his proposals for “racing to the bottom” on immigration. But if the paper’s editorial writers are looking for demagogues on immigration, they should try a mirror instead.