With Presidential Emergency Orders, Who Needs Congress?

 By now, most are familiar with President Trump’s plethora of new Executive Orders relating to the economic crisis brought on by COVID-19. The four orders signed yesterday temporarily suspend student loan payments and set student loan interest rates to zero, reinstitute Congress’s moratorium on evictions for some renters and homeowners, reinstate the enhanced unemployment benefits provided by Congress in the CARES Act, and defer payroll taxes for employees whose gross income is less than $4,000 bi-weekly. There are two issues at play with the Executive Orders: whether the measures are beneficial in helping the country recover from the pandemic and whether President Trump has the authority to unilaterally decree such changes.

I have written in the past about the need for more economic relief, but today my larger concern is with the executive overreach by the president. The president cites his national emergency authority in the declarations but the bigger emergency than the pandemic seems to be that Mr. Trump could not get what he wanted from Congress.

There is a poster frequently seen around offices that proclaims, “Failure to plan ahead on your part does not constitute an emergency on my part.” That is where the Trump Administration is. House Democrats passed several relief bills in May and June, but Republicans didn’t negotiate or offer an alternative until late July By that point, Trump’s polling numbers were dropping, many provisions of the CARES Act were expiring, and there was little time to reach a deal with Democrats.

Neither side seemed to really want a deal anyway. Speaker Pelosi drew a hard line, betting that failure to pass the bill would make Trump look bad. For his part, Trump took the bait and threatened executive action, which poisoned the well and all but assured that there would be no deal.

The president’s Executive Orders are obviously intended to curry favor with voters but this attempt at pandering may fall short. The enhanced unemployment benefits decreed by King Donald are less than what the Democrats had been proposing. Unemployed voters who had been receiving $600 supplements are going to realize that their payments are going down. Indeed, the president fought to cut benefits for the unemployed.

At this point, bypassing Congress with declarations of emergency has become Trump’s go-to move. Elected on the basis of his deal-making prowess, Trump has had little luck in dealing with Democrats. The president pushed Mitch McConnell to eliminate the filibuster and, when that failed, he settled on the tactic of using national emergency declarations.

At this point, the president has used national emergencies to legislate what Congress denied him no less than three times. The first was to secure funding for the border wall in February 2019. A few months later, in May 2019, the president declared another emergency to facilitate the sale of arms to Saudi Arabia after Congress balked in the Kashoggi murder. The COVID relief emergency orders are President Trump’s third trip to the well, but, if he is re-elected, we can be sure it won’t be the last. Why should he stop when Congress does nothing?

The same Republicans who rightly criticized President Obama’s abuses of executive authority in very harsh terms have little to say about President Trump’s even more blatant abuses of power. Not negatively anyway. Sen. Lindsey Graham (R-S.C.) and Sen. Kelly Loeffler (R-Ga.), both of whom are facing tough re-election campaigns this year, are among the Republicans who tweeted praise for the Executive Orders.

I wrote recently that burning down the Republican Party was not a good plan, but when the party doubles down on Trump’s abuses of power even as the president crashes and burns in the polls, it makes it very difficult for a constitutionalist to support any of them. Loeffler and Rep. Doug Collins, my two Republican choices in the upcoming Senate special election, seem to differ only in how loudly they proclaim fealty to President Trump.

Whether you agree with Trump’s policies or not, the danger is in the precedent that he sets in his “unpresidented” actions. His tendency to legislate by emergency orders is one that can be easily adopted and expanded by the next Democrat in the White House. You may like Trump handing out money and managing the economy by executive fiat, but you probably won’t like it when President Biden or some other president declares a national emergency to combat climate change or gun violence.

And with the congressional partisans backing their tribe’s president, Republicans won’t be able to stop them. President Trump has shown that our institutions are insufficient to stop a president of poor character who has no respect for the rule of law. The last line of defense is voters who should rebuke, rather than reward, abuses of power, no matter which party the president belongs to.

There is a line in “Revenge of the Sith” where Senator Amidala opines, “This is how liberty dies… To thunderous applause.” That doesn’t seem to be totally correct.

What we are seeing is how democracy dies and authoritarianism rises. It is a slow and gradual process as executives encroach ever further into the role of the legislature. Democracy dies when the legislators don’t fight back and the courts do nothing to uphold the constitutional balance of powers.

This is how democracy ends. Not with a bang but with a whimper.

Originally published on The Resurgent

Trump Tackles TikTok; Here’s How It Might Be Legal

Yesterday, President Trump issued an Executive Order that prohibits “to the extent permitted under applicable law: any transaction by any person, or with respect to any property, subject to the jurisdiction of the United States, with ByteDance Ltd,” the Chinese company that owns TikTok or its subsidiaries and associated companies. The ban takes effect on September 20, which is 45 days from when the order was signed. A second Executive Order targeted the Chinese company Tencent and its WeChat app.

The obvious question is whether and how President Trump has the authority to unilaterally ban one of the most popular apps in the country. The answer that the president offers in his Executive Order is through the “International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.), and section 301 of title 3, United States Code.”

The International Emergency Economic Powers Act regards the president’s ability to “investigate, regulate, or prohibit… any transactions in foreign exchange… transfers of credit or payments… [and] the importing or exporting of currency or securities” during an “unusual and extraordinary threat.” In the past, the Act has been used to block the assets of terrorist organizations.

The National Emergencies Act is a general law giving the president the power to declare emergencies. The law gives the president additional powers during an emergency but is not a blank check and imposes additional duties as well, such as notifying Congress and publishing the emergency proclamation in the Federal Register.

Similarly, Section 301 of Title 3 is a general law allowing the president to delegate authority. In this case, the Executive Order delegates authority to the Secretary of Commerce to identify prohibited transactions and take steps to implement the Order.

Whether the Executive Order is legal depends on whether courts could be persuaded that TikTok’s presence on American computers and electronic devices presents a national emergency. Courts are generally deferential to executives in an emergency but Donald Trump has shown an alarming tendency to use his emergency powers to legislate when he cannot persuade Congress to go along with his policies.

President Trump had declared at least eight national emergencies before his TikTok ban. Some were legitimate, such as the emergency regarding the pandemic declared on March 13 and the September 2018 emergency providing for automatic sanctions against foreigners who interfere in a US election. Others, such as the February 2019 emergency on the Southern Border after Congress refused to fund the wall and the May 2019 emergency that allowed a massive arms sale to Saudi Arabia against the wishes of Congress, are more questionable.

Aside from the question of legality, the other obvious question about the TikTok ban is why now? The Administration and TikTok had been in negotiations for months and Microsoft was already exploring the possibility of buying the app to break the connection with China’s communist government.

The timing of the move has not been discussed by the Administration but there is speculation that it might relate to a Trump campaign rally back in June. There was disappointing attendance at the rally and, along with the pandemic, much of the blame was assigned to TikTok users who reserved seats and then did not show up. Would the president ban an entire app because its users embarrassed him? Only Mr. Trump and his closest advisors know for sure.

Finally, there is the question of how the ban can be implemented. The Order bans “transactions” and not the use of the app. The focus seems to be on demonetizing the app and keeping it out of American app stores. The real goal may be to interfere with TikTok’s ability to make money and force a sale of the app to an American company. Mr. Trump has already said that the ban would be lifted if Microsoft or another American company bought the app.

President Trump has also suggested that the US should get a cut of any sale, telling reporters, “It’s a little bit like the landlord/tenant; without a lease the tenant has nothing, so they pay what’s called ‘key money,’ or they pay something, but the United States should be reimbursed or should be paid a substantial amount of money, because without the United States they don’t have anything, at least having to do with the 30 percent [Microsoft had been considering purchasing a 30 percent stake in the company rather than buying it outright].”

“What’s appalling is the bundling,” Dr. Nikolas Guggenberger, Executive Director of Information Society Project at Yale Law School, told Engadget. “Even if there were some sort of toll or some sort of tax that they could levy on the transaction, bundling that to a threat to ban something, then nudging a US company into buying the foreign entity, and then levying a tax… even if you found a legal basis for doing so, bundling that is beyond anything that’s even halfway legally sound.”

Guggenberger also questioned the First Amendment implications of the case, saying, “Shutting down TikTok as a medium does chill free speech in an area that is a crucial tool for young Americans to express themselves and [you could see] how impactful it is, whether you agree with what happened or not in Tulsa.”

TikTok doesn’t plan to take Trump’s ban lying down. In a statement, the company said that it was “shocked” at what it said was “no due process or adherence to the law.”

“We will pursue all remedies available to us in order to ensure that the rule of law is not discarded and that our company and our users are treated fairly – if not by the Administration, then by the US courts,” the statement said.

The controversy may impact the election. Per Omnicore, the average age of TikTok users is between 16 and 24, a demographic that already dislikes President Trump. Slightly more than half of TikTok users are male. A ban on the popular app may spur more younger voters to get to the polls.

While there is a lot of evidence that TikTok is a security risk and is in bed with the Chinese government, the precedent of a unilateral ban on a commercial app is troubling. A better course would have been to take the case for a ban to Congress, but Mr. Trump’s toxic relationship with Democrats makes that difficult.

Whether the TikTok ban is legal depends largely on how you view the threat that TikTok presents. US law does give the president authority to take economic action in a national emergency but the law does not define what constitutes a national emergency.

Congress has given presidents a lot of latitude – too much – in their ability to make unilateral decisions for the country. A second timely example is Mr. Trump’s decision to impose new tariffs on Canada despite the ink not being dry on the USMCA. The only real solution is for Congress to exert its constitutional authority and take back the power that it has delegated to the president, but with great power comes great responsibility. Until Congress acts, voters need to make sure that we elect presidents who will use that power responsibly and not another executive who will abuse his authority.

Originally published on The Resurgent

Why Trump’s Social Media Executive Order Is Both Illegal And Unwise

Today Donald Trump signed an Executive Order punishing social media companies for the way they moderate online content. The order was specifically aimed at Twitter, which has embarrassed the president this week by add fact-checks to several Trump tweets.

The meat of the Executive Order attacks Section 230 of the Communications Decency Act of 1996, saying, “When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct. It is the policy of the United States that such a provider should properly lose the limited liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and publisher that is not an online provider.”

Here is what subparagraph (c)(2)(A) says:

No provider or user of an interactive computer service shall be held liable on account of—(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected

Communications Decency Act, subparagraph (c)(2)(A)

The law gives social media companies, “interactive computer services,” wide latitude to moderate a wide variety of objectionable content. The law specifically says that even constitutionally protected material can be restricted if the action is taken in good faith.

Another relevant portion of the law is subparagraph (c)(1) which is literally one sentence before the paragraph cited by the president’s Executive Order. That line says:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

In other words, the law specifically says that social media companies cannot be treated as publishers of information that they do not produce. Despite the plain language of the law, the president’s Executive Order calls on social media companies to be treated like “any traditional editor and publisher that is not an online provider.” Since laws passed by Congress have more weight than an Executive Order, President Trump’s decree is illegal on its face.

Beyond the illegality of the order, its premise is also wrong. In contrast to many Republicans who claim that Section 230 gives special protections to social media companies, the law actually offers protection based on activity rather than status. When Twitter moderates or removes tweets published by its users, it is protected from liability under the law but, when it produces its own content, it is legally a publisher.

“In plain English, this means that my comments on Twitter or Google or Yelp or the comments section of my favorite website are my comments, and my comments only,” David French explained in Time back in January, adding that Section 230 “allows websites to take down racial slurs – all without suddenly also becoming liable for all the rest of their users’ speech.”

This is exactly what Congress intended when it passed the law. In response to several court cases in the 1990s, Congress designed Section 230 to encourage internet providers to moderate and remove offensive content from their platforms rather than allowing the internet to continue to be a cesspool of insults, pornography, and fake news. Well, even more of one anyway.

As Jeff Kosseff, author of The 26 Words That Created The Internet, explained, “For Congress, the motivator for Section 230 was that it did not want platforms to be these neutral conduits, whatever that means. It wanted the platforms to moderate content.”

The rub is that if the government leaves it up to the internet providers to moderate content then there will be as many different versions of what is offensive as there are internet providers. However, the alternative is that the government become the arbiter of what is fair and what is offensive for all companies.

That is where President Trump wants to go. Trump’s Executive Order calls on the Secretary of Commerce, the Attorney General, the National Telecommunications and Information Administration (NTIA), and the FCC to issue regulations determining when internet providers are not acting in good faith, act inconsistently with terms of service, and without a meaningful explanation or allowing users to be heard.

While censorship on social media platforms is not currently a First Amendment issue since the Bill of Rights restricts the government and not private companies, Trump’s plan could make it more difficult to moderate offensive content on the internet by inserting the government into the equation. Twitter has the right to remove content as a private company but if the government directs Twitter to remove or moderate content then it could constitute a First Amendment violation.

Allowing the government to make subjective decisions about the management of content on the internet is never a good idea, but the summer of 2020 is a particularly bad time for Republicans to make such a move. Aside from the strategic fact that Trump’s proposal is an expansion of government into policing free speech on the internet, there are tactical considerations as well.

As we head into the 2020 elections, it looks increasingly likely that Republicans will lose both the presidency and the Senate. If Trump and company act now to set up an infrastructure for micromanaging speech on the internet, it is very possible that a Joe Biden Administration will put that policy fully into place. That fact alone should have been enough to slam the brakes on the Executive Order.

Regardless of the outcome of this year’s election, whatever bureaucratic restrictions the Trump Administration puts on free speech will one day be administered by Democrats. When that happens, it is very likely that the Democrats will use those rules against conservatives. When Republicans give the government a new weapon to brandish, they should remember that sooner or later it will be turned against them.

Originally published on The Resurgent

Trump Order On College Censorship Is A Nothingburger (But That’s A Good Thing)

President Trump recently promised an Executive Order targeting the suppression of free speech on college campuses and yesterday he delivered. The president followed up on his pledge to conservatives at CPAC, but whether the new Executive Order will actually change the situation is doubtful.

Compared with the president’s strong promise that “If a college or university does not allow you to speak, we will not give them money. It's that simple,” the text of the Executive Order is much less strident. In fact, Inside Higher Education calls the actual content of the Order “modest.”

In preparing for this article, I read through the seven-page order, which was reportedly in the works before Mr. Trump’s CPAC speech, and found very little about restricting funds from colleges that abridge the speech of their students. It does say that “it is the policy of the federal government to… promote open, intellectually engaging, and diverse debate,” but the Order then veers into counseling students about choosing a beneficial degree and avoiding default on federal student loans.

With respect to free speech, the president orders the Office of Management and Budget to “take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.” The Order then establishes new reporting requirements, but these deal more with student loan debt and whether students complete their degrees in a “timely and affordable” fashion.

In other words, the president is telling the OMB to enforce current law. In other words, the Executive Order is a nothingburger.

With President Trump, that’s a good thing. The likely alternative would be that the president would declare a national free speech emergency and use it to seize funds from colleges that are accused of restricting free speech. As an added bonus, the president might even try to divert those funds to the construction of the wall.

The reality is that when Congress appropriated grants to colleges, it placed certain restrictions on the use of those funds. The Executive Order does nothing to place new restrictions on the money that has already been designated by Congress. To do so would most likely be unconstitutional.

Free speech – or the lack of it – is definitely an issue on many college campuses, but the solution is not unilateral action by the president. Presidential action that violates existing law would be a particularly bad idea, but the general idea of getting the federal government involved as the arbiter of free speech is not a small government solution. Having the federal government play the referee is only a good idea as long as the head of the federal government is a free speech proponent. Few conservatives would be comfortable with the idea of Bernie Sanders or Kamala Harris as the defender of their First Amendment rights and with good reason. However, that might be what they get if they seek a larger federal role in policing campus speech.

There is already a remedy for college students whose free speech rights are abridged. Students have successfully sued to force public colleges to uphold their First Amendment rights on a number of occasions. Last December, a student of the Los Angeles Community College District won the right to pass out copies of the US Constitution on campus. As part of the settlement, the school dismantled its designated “free speech zones.” The same month, UC Berkeley settled another lawsuit filed by   Berkeley College Republicans and the Young America’s Foundation. The conservative groups alleged that Ann Coulter and David Horowitz were forced to cancel events because Berkeley restricted when and where they could speak. The plaintiffs also said that Berkeley placed different restrictions on conservative speakers and groups than it did for liberals. The settlement included $70,000 to pay attorney fees for the plaintiffs and prohibits the school from charging security fees based on concerns that the “viewpoints, opinions, or anticipated expression” of the speakers or their sponsors “might provoke disturbances.”

Viewpoint censorship on college campuses is a serious issue and President Trump’s heart seems to be in the right place, but proclaiming the new Executive Order is a solution to the problem is dishonest. There is very little new ground broken in the Order, but that isn’t a bad thing since the president lacks the authority to do much more. At best, the Executive Order shines a light on the problem.

Originally published on The Resurgent

Why Trump's Birthright Order Would Be Blatantly Unconstitutional

Less than 10 years ago, Barack Obama wanted to change the law by Executive Order. Conservatives were rightly outraged when then-President Obama changed immigration law after saying more than 20 times that he didn’t have the authority to do so. Fast forward to 2018 when President Trump proposes to amend the Constitution by Executive Order. If there are any constitutionalists left in the Republican Party they should be similarly outraged by Trump’s proposed executive action, which is unconstitutional on its face.

The idea of birthright citizenship has become unpopular with many on the right due to the number of “anchor babies,” children born in the US to noncitizens. Under US law, these American-born children are native-born American citizens with all the rights and privileges that citizenship entails regardless of whether their parents are legal immigrants to the US or not.

Birthright citizenship, also referred to as “jus soli,” or “right of the soil,” has been US law and tradition since the ratification of the 14^th amendment in 1868. The amendment states in part, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The proposed text of Trump’s Executive Order has not been released, but the president told Axios that he planned to release the order despite the fact that most legal scholars say that a new constitutional amendment would be needed to change the 14^th amendment, which has been upheld by the Supreme Court.

“It was always told to me that you needed a constitutional amendment. Guess what? You don't,” Trump said.

“It's in the process,” Trump added. “It'll happen ... with an executive order.”

Trump’s strategy is likely to order a new interpretation of the phrase, “subject to the jurisdiction thereof.” For several years, some conservatives have argued that illegal immigrants are not subject to the jurisdiction of the United States because they are in the country illegally.

The Supreme Court has upheld the birthright citizenship clause of the 14^th amendment. In 1898, the Court ruled in US v. Wong Kim Ark that the son of Chinese immigrants who had been born in the United States was a US citizen based on a plain language reading of the amendment.

“To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States,” the decision said. “Whatever considerations, in the absence of a controlling provision of the Constitution, might influence the legislative or the executive branch of the Government to decline to admit persons of the Chinese race to the status of citizens of the United States, there are none that can constrain or permit the judiciary to refuse to give full effect to the peremptory and explicit language of the Fourteenth Amendment.”

The glimmer of hope that the anti-birthright citizenship faction sees comes from the fact that the Supreme Court has never addressed whether the 14^th amendment applies to illegal immigrants. At the time of Wong Kim Ark, there were few restrictions on immigration other than the Chinese Exclusion Acts. The Immigration and Nationality Act that established immigration and citizenship laws as we know them today was not passed until 1952.

Even though the Supreme Court has not directly addressed the question of birthright citizenship for illegal immigrants, the argument made by those on the right, and presumably by President Trump as well, that illegals are not under the jurisdiction of the United States is nonsensical on its face. This can be proved easily with a simple thought experiment.

Can illegal aliens be arrested and prosecuted for breaking US laws?

Of course, they can. Illegal immigrants can be and have been prosecuted for murder, theft, fraud, illegally entering the country and many other offenses. Illegal immigrants can be prosecuted for breaking any US law. They are therefore under the jurisdiction of the United States by definition.

So, why did the framers of the 14^th amendment include the jurisdiction clause? The answer is that they wanted to exclude certain people such as foreign diplomats and soldiers of invading armies from birthright citizenship. Diplomats have immunity from US laws and invading soldiers would be subject to the laws of their country and the rules of their army. Until the passage of the Indian Citizenship Act in 1924, members of Indian tribes were also excluded from birthright citizenship under the theory that they were citizens of independent Indian nations.

If the illogical nature of the anti-birthright citizenship argument weren’t enough, there is also Supreme Court precedent on who is under US jurisdiction. In 1982, Texas officials argued that illegal immigrants were not subject to the jurisdiction of the state and that education funding could be withheld from illegal immigrant children. In Plyler v. Doe, the majority ruled against Texas’ interpretation of the law, saying, “Use of the phrase ‘within its jurisdiction’ confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory.”

President Trump’s proposed Executive Order is an ill-considered Hail Mary intended to bypass Congress and have the Supreme Court issue a friendly ruling. The scheme capriciously ignores the plain language of the Constitution as well as Supreme Court precedent. This strategy is typically used by the left and is unbecoming of a party that purports to support the rule of law.

Using a re-interpretation of the Constitution that depends on twisting the meaning of the words would set a dangerous precedent. The left has already bandied about the idea of interpreting the Second Amendment in a way that would read “arms” as “guns.” Under this interpretation, ammunition could be taxed and regulated out of existence while not infringing on the right to keep and bear then-worthless arms.  

If Republicans want to reverse the birthright citizenship policy -  and there is a strong case to make that they should – the Constitution gives them the tools to do so. Embedded within the founding document are the steps to change it. These same steps were followed by the framers of the 14^th amendment. Trump-era Republicans don’t get a pass on adhering to the Constitution. Some, such as Lindsey Graham who has announced plans to introduce a bill to amend the Constitution, realize this.

Some proponents of the redefinition of “jurisdiction” argue that President Trump is playing 4D chess by kicking the issue to the courts. In reality, Trump is setting his base up for a humiliating and demoralizing defeat. The timing of the announcement is likely meant to stoke his base’s excitement prior to the midterms as well as discourage the migrant caravans, but the result is more likely to enshrine birthright citizenship with a clearly defined Supreme Court ruling. When Trump’s order is ultimately struck down, it will further deepen the national divide.

Ironically, when – not if – the president’s Executive Order is challenged and gets its hearing at the Supreme Court, President Trump’s own appointees may be instrumental in overturning his abuse of executive authority. A good constitutionalist justice owes his allegiance to the law as it is written, not to the president who appointed him.  

Allowing a president to arbitrarily redefine the Constitution is not smart policy and it certainly is not conservative. The reaction of conservatives and Republicans to President Trump’s proposed abuse of power will say a lot about what principles now guide the GOP.  

Originally published on The Resurgent

Is Trump's Obamacare Executive Order Constitutional?

There has been a lot of discussion about President Trump’s healthcare Executive Order. Most of the discussion centers around the likely effects of the order while little has been said about the constitutionality of Trump’s executive action. For a party that roundly condemned President Obama’s abuse of executive authority, a big question should be whether Trump has the legal authority to make the changes that he proposes.

The bottom line is that Trump’s Executive Order doesn’t actually make any changes to the Affordable Care Act. What it does do is to order cabinet secretaries to “consider proposing regulations or revising guidance, consistent with law.” In other words, Trump isn’t proposing changes to laws passed by Congress, he is considering changes to regulatory laws enacted by bureaucrats. These changes will be “considered” in three main areas.

First, the president wants to expand access to association health plans (AHPs). Health Affairs notes that these plans are more loosely regulated than traditional insurance plans. They are normally regulated by the states, but can be regulated by the federal government in the case of some national associations. The order instructs the Secretary of Labor to “consider” expanding the definition of “employer” under ERISA to allow more groups to sell AHPs and to “promote AHP formation on the basis of common geography or industry.” To purchase insurance, consumers would have to be a member of the association.

Second, the Executive Order moves to expand Short-Term, Limited-Duration Insurance (STLDI) policies. The order notes that STLDIs are “exempt from the onerous and expensive insurance mandates and regulations” of the Affordable Care Act, but that “the previous administration took steps to restrict access to this market by reducing the allowable coverage period” to less than three months. “To the extent permitted by law and supported by sound policy,” the president directs cabinet members to “consider allowing such insurance to cover longer periods and be renewed by the consumer.”

STLDIs are not considered to be individual health insurance policies and do not fall under the insurance policy requirements of the Affordable Care Act. The policies are governed by rulemaking agencies of the Department of the Treasury, Department of Labor, and Department of Health and Human Services. Therefore, these departments can amend the rules for STLDIs without going through Congress.

Third, the Executive Order instructs relevant cabinet secretaries to “consider proposing regulations or revising guidance, to the extent permitted by law and supported by sound policy, to increase the usability of HRAs, to expand employers' ability to offer HRAs to their employees, and to allow HRAs to be used in conjunction with nongroup coverage.”

HRAs are health reimbursement accounts. They allow employers to contribute money on a pre-tax basis to reimburse employees for health insurance premiums and out-of-pocket expenses. HRAs were created by Congress, but executive branch agencies have leeway in how to regulate them.

President Trump’s decision to halt Obamacare subsidies to insurance companies is not part of the Executive Order, but is on firm legal ground. House Republicans sued the Obama Administration over the subsidies in 2014. In May 2016, a federal judge ruled that Congress had authorized the payments, but had never appropriated money for them. The Obama Administration appealed the ruling, but the decision by President Trump seems to be merely accepting the court’s initial decision.

This doesn’t mean that the Trump Administration will be able to stop making the payments. Several states ultimately joined the appeal, claiming that the Trump Administration was not adequately defending their interests. Now 18 states have filed a new lawsuit seeking an injunction against President Trump’s decision.

Because the President Trump’s Executive Order does not change existing law and only instructs cabinet members to “consider” making changes to bureaucratic regulations within the framework of the law, the order is constitutional. It remains to be seen what regulatory changes the various cabinet secretaries will propose, but the changes will probably be much less sweeping than claimed by either right or left-wing pundits.

President Trump’s Executive Order is legal in large part because it doesn’t do much. The president simply does not have much authority to change laws that have been passed by Congress. The decision to stop insurance company subsidies is a more serious threat to Obamacare, but even this is unlikely to take effect until the lawsuit by the states is settled. 

Originally published on The Resurgent

More than 1800 from banned countries entered US since travel ban was struck down

Since a federal judge suspended the enforcement of President Trump’s Executive Order temporarily halting the refugee resettlement program and immigration from seven countries, more than 1,800 refugees from the listed countries have immigrated to the United States. However, the number is consistent with figures prior to the Executive Order and does not indicate a stampede to immigrate before the ban is restored.

A Pew Research analysis of State Department data found that the largest numbers of refugees from banned countries came from Syria, Iraq and Somalia. There were 5,490 Syrians, 5,378 Iraqis and 4,480 Somalis. Only nine refugees were from Libya or Yemen. Admission of refugees from the seven countries almost totally halted after the Order was signed and then resumed after the federal court decision.

The total number of refugees from nations restricted by the Executive Order was not higher after the ban was reversed. The total number of refugees from the seven countries for Trump’s entire first month in office (Jan. 21 through Feb. 17) was 2,733. The number who arrived from those nations in Barack Obama’s last month in office was 2,883.

Refugees from the seven nations made up 45 percent of the total 6,095 refugees during Trump’s first month. Forty-three percent of these immigrants were Christian while 46 percent were Muslim. Each of the countries singled out has a Muslim majority, but several have significant Christian populations that have faced persecution from radicals.

So far, 36,217 refugees have been admitted during the current fiscal year, which began last October. Refugees from the restricted nations make up 49 percent of those immigrants.

The federal court order did not rescind the portion of the Executive Order that lowered the number of refugees allowed annually from 110,000 to 50,000. If this provision remains in place, only 14,000 additional refugees will be admitted until the next fiscal year begins.

The approval process for the recent refugee arrivals began 18 to 24 months ago. Before being admitted to the United States, they were screened and vetted by several federal agencies including the State Department, the Department of Homeland Security and Citizenship and Immigration Services.

Since 2001, at least 72 immigrants from restricted countries were convicted on terror-related charges. Nevertheless, none of the successful terror attacks in recent years was carried out by citizens from the countries on the list. Many Iraqis have fought alongside American soldiers against al-Qaeda and ISIS. A leaked report from the Department of Homeland Security showed that the agency found citizenship to be an “unlikely indicator” of terrorist threats.

Since shortly after the ban was suspended, the White House has been considering rewriting the Executive Order to address the legal setback after initially vowing to prevail in court on appeal. So far, no revised Order has been forthcoming in spite of the president’s tweet on Feb. 9, more than two weeks ago, saying, “The security of our nation is at stake!”

  

Originally published on The Resurgent