White House Blocks Report Showing Societal Benefits of Refugees in the US

When the President released his second travel ban, it was accompanied by a Presidential Memorandum in which he called on the secretary of state to consult with the secretaries of Health and Human Services and Homeland Security and his White House budget director and — “[t]o further ensure transparency for the American people regarding the efficiency and effectiveness of our immigration programs in serving the national interest” — submit within 180 days “a report detailing the estimated long-term costs of the United States Refugee Admissions Program at the federal, state, and local levels, along with recommendations about how to curtail those costs.” As noted by the New York Times, the budget Trump released in May argued that refugees and other immigrants were a fiscal drain. “Under the refugee program, the federal government brings tens of thousands of entrants into the United States, on top of existing legal immigration flows, who are instantly eligible for time-limited cash benefits and numerous noncash federal benefits, including food assistance through SNAP, medical care and education, as well as a host of state and local benefits.” It would be less costly, it argued, if there were fewer refugees, since “each refugee admitted into the United States comes at the expense of helping a potentially greater number out of country.”  The White House apparently thought it was perfectly clear that the President was not interested in hearing about any benefits brought by refugees….

The internal (State, HHS, DHS) study, completed in late July but never publicly released, was obtained by The New York Times. The draft found that refugees “contributed an estimated $269.1 billion in revenues to all levels of government” between 2005 and 2014 through the payment of federal, state and local taxes. “Overall, this report estimated that the net fiscal impact of refugees was positive over the 10-year period, at $63 billion.” This report was spiked but, the Times notes, it was not clear who in the administration decided to keep the benefits-of-refugees information out of the final report. An internal email (shown to the Times), dated Sept. 5 and sent among officials from government agencies involved in refugee issues, said that “senior leadership is questioning the assumptions used to produce the report.” Continue reading

Happy Birthday, U.S. Constitution. Can We Talk about the Constitution Annotated?

By Daniel Schuman, Demand Progress

Yesterday was the 230th birthday of the U.S. Constitution, signed at the Constitutional Convention in Philadelphia on September 17, 1787.

More than a hundred years ago, Congress ordered its Library to publish an annotated Constitution that explains that important document. Each edition, starting in 1913, records how our founding document has been interpreted by the U.S. Supreme Court, with new print volumes published each decade and updates published every two years.

One hundred years later, after a lot of prodding (2009, 2010, 2011, 2012, 2013) from us, a 2009 letter from Sen. Feingold, and a 2010 letter from the Joint Committee on Printing, the Library of Congress and Government Publishing Office began moving on publishing the Constitution Annotated online. There had long been a version available on the Congressional intranet, with hyperlinks and regular updates and everything, and a very limited version on GPO’s site, but now — finally — there’d be an online version that everyone could read, reuse, and that would have timely updates.

Well, that didn’t quite happen as we hoped. Instead, the Library/GPO released a new app that published the document as a giant PDF. It’s pretty darn impossible to read that on your phone. And it isn’t updated all that often. Compare that to the internal website available to Congressional staff, with hyperlinks, frequent updates , and the information available in a user-friendly way.

So we’ve continued (2013, 2014, 2016) calling on the Library, GPO, and their oversight committees to release the Constitution Annotated as it’s updated and in a machine-readable format. At this point, all that’s necessary is for the Library of Congress to mirror the webpages that are available internally and publish that. We’ll figure out how to piece it together. (Federal law already requires that the Constitution Annotated be publicly available, so there’s no concerns about confidentiality.)

Wouldn’t it be great if every American could have at their fingertips an expert, non-partisan explanation of the U.S. Constitution? It’s be a great resource for everyone, from schoolchildren to scholars. If the Constitution Annotated were available in a slightly better format, it’d be easy to use that information to automatically update Wikipedia, or answer questions in a chatbot, or be put to a number of uses that raise our level of conversation.

It’s time. Let’s publish the Constitution Annotated online in a format that everyone can use.

Blocked federal tactic for discouraging FOIA lawsuits is being considered and amplified in states

According to a newly published review by The Associated Press and numerous state press associations,* during this year’s legislative sessions lawmakers across the country introduced and debated dozens of bills  that would close or limit public access to a wide range of government records and meetings. The sheer number of proposals, many of which did not become law, is worrisome, but one alarming trend is the practice of agencies suing those who seek access to public records.

The lawsuits by the governments name the requesters as defendants.  The suits do not seek damage awards, but even if agencies are ultimately required to make the records public, they typically will not have to pay the requesters’ legal bills.

This tactic is similar to — but goes well beyond — one that federal agencies used to deploy — before it was blocked by the 2007 amendments to the federal Freedom of Information Act.  The federal FOIA provides for the payment, by the government, of attorneys fees and court costs if the requester “substantially prevailed” in the lawsuit. Prior to the 2007 amendments, “substantially prevailing” required a court order declaring release of the information.  Now, should an agency voluntarily release information — at any stage of the litigation or because of a court order — the requester/plaintiff is considered to have “substantially prevailed” and may recover fees.

Previously, agencies — when it became clear (or they internally acknowledged) the court was going to rule against them — would release at least some portion of the requested records.  This had the effect of mooting the case and leaving requesters stuck for attorney’s fees.  This was an effective deterrent to requesters who relied on pro bono representation: the requesters did not prevail in court, hence, no compensation for attorneys’ fees, hence, few attorneys able/willing to take on such cases.

As the AP review notes, freedom-of-information advocates say the tactic has become a new way for governments to hide information, delay disclosure and intimidate critics.

*The state press associations are not identified in the article.

Expanding Accountability to Private Prison Companies that receive federal funding

Private prison companies that receive federal funding currently claim they are exempt from Freedom of Information Act (FOIA) requests due to a loophole in the current law. The Private Prison Information Act of 2017 (S. 1728) recently introduced by Sen. Ben Cardin would ensure that non-federally run prisons are held to the same standard of information sharing and record keeping as federal detention facilities. The essence of the bill says:

(a) IN GENERAL.—A record relating to a non-Federal prison, correctional, or detention facility shall be—
(1) considered an agency record for purposes of section 552(f)(2) of title 5, United States Code, whether in the possession of an applicable entity or a covered agency; and
(2) subject to section 552 of title 5, United States Code (commonly known as the ‘‘Freedom of 13 Information Act’’), to the same extent as if the record was maintained by  an agency operating a Federal prison, correctional, or detention facility.

(b) WITHHOLDING OF INFORMATION.—A covered agency may not withhold information that would otherwise be required to be disclosed under subsection (a) unless—
(1) the covered agency, based on the independent assessment of the covered agency, reasonably foresees that disclosure of the information would cause specific identifiable harm to an interest protected by an exemption from disclosure under section 552(b) of title 5, United States Code; or
(2) disclosure of the information is prohibited by law.

(c) FORMAT OF RECORDS.—An applicable entity shall maintain records relating to a non-Federal prison, correctional, or detention facility in formats that are readily reproducible and reasonably searchable by the covered agency that contracts with or provides funds to the applicable entity to incarcerate or detain Federal prisoners or  detainees in the non-Federal prison, correctional, or detention facility.

The bill has been endorsed by major organizations committed to government openness and accountability, civil liberties, human rights, and civil rights, including Government Information Watch. In a letter to senators, the groups write that “[t]he Department of Justice Inspector General has found that federal prisons run by private companies are substantially less safe and secure than ones run by the Bureau of Prisons … the public is largely in the dark with regard to the functioning of the many of this country’s private prisons, and the industry operates with a lack of oversight and accountability mechanisms. This dynamic hinders the ability of the government and public to ensure private prison companies are living up to their contractual obligations and not wasting taxpayer dollars.”

Will CBO go the way of OTA? The push to remove non-partisan expertise from Congress

In an op-ed published on Who.What.Why., Celia Wexler points out a disturbing similarity between the effort to defeat the work of the Congressional Budget Office and a successful effort in 1995 to kill the Office of Technology Assessment (OTA):

…in 1995, another nonpartisan agency created to help Congress, bit the dust when then-Speaker Newt Gingrich found its fact-based work not worth even its tiny budget. Republicans and Democrats banded together to try to save the Office of Technology Assessment (OTA), formed to deliver advice to Congress on emerging scientific and technical issues. But their efforts failed.

The efforts to defend CBO succeeded – this time. As Wexler points out, Rep. Mark Meadows may have been surprised by the outrage his attack on CBO provoked.

Every living former CBO director, both Republican and Democratic, wrote a letter to congressional leaders defending the agency in no uncertain terms, pointing out its 42-year history of providing nonpartisan budget estimates to Congress.

Nonprofit advocates also weighed in. The Project on Government Oversight, which trains congressional staff to do more effective oversight, predicted that gutting CBO “would send a chilling message to all other independent offices, such as the Congressional Research Service or the Government Accountability Office.” R Street, a Republican-leaning free-market advocate, teamed up with Demand Progress, a progressive policy advocate, to urge Congress to fully fund the agency.

In the end, the pressure worked. The House defeated these attempts to gut the CBO. For now.

DOJ Task Force on Crime Reduction and Public Safety Remains Closed and Unaccountable

On February 28, 2017, Attorney General Jeff Sessions announced the formation of the U.S. Department of Justice Task Force on Crime Reduction and Public Safety, pursuant to the President’s Executive Order.  Chaired by the Deputy Attorney General (now Rachel Brand), Task Force members were said to be drawn from relevant Department components, and will include the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Administrator of the Drug Enforcement Administration (DEA), the Director of the FBI and the Director of the U.S. Marshals Service (USMS).

The task force is charged with developing strategies to reduce crime; identifying deficiencies in existing laws and policies that have made them less effective in reducing crime and proposing new legislation and policies to improve public safety and reduce crime; evaluating the availability and adequacy of crime-related data and identifying measures to improve it; and conducting any other relevant studies.  In conducting its work, the task force will consult with federal, state, tribal and local law enforcement, law enforcement organizations and victims’ and community advocacy organizations, among others, to learn about successful local efforts and how they can best be supported at the federal level.

A publicly-available April 5 Memorandum  to Head of Department Components and United States Attorneys from Sessions directed the Task Force to “submit initial recommendations from the Task Force no later than July 27th”…  The Memo indicates that the “Task Force will accomplish its work through a variety of subcommittees, and those groups are already hard at work, benefiting from the expertise of many offices throughout the Department.”  The subcommittees were described as identifying, reviewing, making recommendations on:

…  overall violent crime reduction strategy, which will include focused enforcement against violent offenders. This subcommittee will also examine ways in which we can support local partners engaged in enforcement, prevention, and reentry efforts; leverage existing law enforcement efforts; and measure the effectiveness of our work;

…  existing policies in the areas of charging, sentencing, and marijuana to ensure consistency with the Department’s overall strategy on reducing violent crime and with Administration goals and priorities;

… use of asset forfeiture and make recommendations on any improvements needed to legal authorities, policies, and training to most effectively attack the financial infrastructure of criminal organizations;

…  the Hate Crimes Subcommittee will develop a plan to appropriately address hate crimes to better protect the rights of all Americans;

…  immigration enforcement and human trafficking to ensure that the federal government has an aggressive and coordinated strategy to deter those who violate our borders and subject others to forced labor, involuntary servitude, sex trafficking, and other forms of modern-day slavery.

In the Memorandum, Sessions directed the Task Force to “hold a National Summit on Crime Reduction and Public Safety within 120 days [August 3], so that we can learn from federal, state, local, and tribal law enforcement agencies, victims’ advocacy organizations, and community advocacy organizations about how we can best support and replicate successful local violent crime reduction efforts.” It further indicated that “In addition, as part of the important work the Task Force is undertaking to combat hate crimes, the Department’s Civil Rights Division will be reaching out to affected communities to hear directly what strategies and support are most needed to help reduce this particularly pernicious crime.”

A July 26 story in The Hill indicates that, while the Justice Department did not provide details on what recommendations the task force has provided,  Sessions signaled that he has been receiving and implementing recommendations from the task force: Sessions said in a statement that he has been getting recommendations on a “rolling basis…”  and that he has “been acting on the Task Force’s recommendations to set the policy of the Department. I will continue to review all of the Task Force’s recommendations…”

Five-plus months later, despite repeated requests from journalists and others federal officials have refused to officially disclose the identities of those on the panel, its meeting agendas, or what recommendations it is handing to the attorney general.

On August 1, Senator Ron Wyden sent a letter to AG Sessions asking that the recommendations of the Task Force “immediately be made public” and posing specific questions to the AG.

New FBI final rule — the biometrics we have on you are none of your business & not subject to the Privacy Act

On August 1, the FBI issued a “final rule to amend its Privacy Act exemption regulations for the system of records titled, “Next Generation Identification (NGI) System,” JUSTICE/FBI-009, last published in full on May 5, 2016. Specifically, the FBI exempts the records maintained in JUSTICE/FBI-009 from one or more provisions of the Privacy Act. The FBI asserts that “[t]he listed exemptions are necessary to avoid interference with the Department’s law enforcement and national security functions and responsibilities of the FBI.”  The final rule is effective on August 31.

The FBI’s Next Generation Identification system stores the biometric records of people who have undergone background checks for jobs, volunteer positions and military service, as well as of those who have criminal records.  The new rule will prevent millions[1] of people from finding out if their fingerprints, iris scans and other biometric information are stored in a massive federal database. The rule asserts that this is because it could “specifically reveal investigative interest by the FBI or agencies that are recipients of the disclosures.”

Moreover, according to the final rule, because most of the criminal records in the NGI System are obtained from state and local agencies at the time of arrest, the FBI cannot always collect information directly from the individual and “[i]t is not feasible” to notify them that their records are being included.

Jeramie Scott, EPIC’s Domestic Surveillance Project director, told Nextgov that a person might become the subject of investigation without being notified because that person’s image may be erroneously called up in a search for a different individual.

[1] Electronic Frontier Foundation estimated in 2014 that it could contain up to 52 million facial images by 2015.

“State of Emergency” — Is the US walking slowly across the line?

writes in Just Security that the United States is already being ruled under a state of emergency. “It began under President George W. Bush and continued under President Obama. President Trump just has to ice the cake.”

She notes that ‘when people think of emergency rule, they usually picture Hitler’s declaration in Germany after the Reichstag fire or Colombia, which spent 37 out of 40 years in a state of emergency from 1952 to 1992. But Colombia got a new constitution in 1991, as did Germany after World War II.”

But these are exceptions, because “Their experience with severe emergency actually created a strong public reaction against the experience that helps to safeguard these countries.”

Kleinfeld points to a series of emergency cases compiled by the International Commission of Jurists from around the world, out of which Kim Lane Scheppele, has compiled “an ’emergency script’ that gets trotted out nearly every time, with remarkable stability in the actions and their order in various countries. Emergencies aren’t usually declared at the outset with a capital E – instead, they walk across the line slowly.

In the early stages of emergency, legislatures and publics pay attention – no one wants to let democracy erode too much. But then, they get used to things. What was exceptional becomes normal. It gets normalized in ordinary law, which sets a new benchmark.”

Kleinfeld points to a recent example: “the U.S. Congress was careful to insert a five-year sunset clause into the Patriot Act. Five years later, Congress removed the clause and made fourteen of the sixteen clauses permanent.”

Following the  “slow creep starts when the Executive branch slowly centralizes power:

Gradually, the courts are marginalized; this is often not abrupt, and the main actor isn’t always clear:

Over time, legislatures and courts both take themselves out of the loop and choose to opt out of the most political decisions, rather than being pushed by the Executive.

Militarization comes next, in that the military starts to perform jobs formerly done by civilians. Under President Obama, our nation’s cyber security was placed under military control, so that civilian sites had no governmental watchdog or protection, while all effort focused on protecting the .mil and other security domains. Trump’s placement of military brass in what are normally high-level, civilian positions is more public, but possibly less dangerous.

Other actions follow, such as reducing the openness of government to free information flow.

Banning assembly is another common tactic. Consider the bevy of  anti-protest bills being considered by 18 states that make it harder to protest, create harsher penalties for arrested protestors, and in two cases, remove liability from drivers who accidentally hit protestors.

Procedural shortcuts such as governing through executive orders are another step.

Counter-intuitively, executive orders and Presidential memoranda were most used when partisanship in Congress was at its lowest point in the middle of the century, according to The American Presidency Project (cited by Kleinfeld). In recent administrations, Obama issued fewer than George W. Bush who issued fewer than Clinton who issued fewer than Reagan.

“Deconstructing” the Administrative State – Part Two

In a post explaining what conservatives mean by the ‘deconstructing’ phrase — and why they are so excited by the Trump administration’s personnel choices — Jonah Goldberg wrote on National Review (in February 2017):

Deconstructing the administrative state is a kind of nightingale’s song for many intellectual conservatives, particularly my friends in the Claremont Institute’s orbit. It’s been great fun watching mainstream journalists, who are not fluent in these things, talk about the administrative state as if they understand what Bannon means. The “administrative state” is the term of art for the permanent bureaucracy, which has come untethered from constitutional moorings (please read Phillip Hamburger’s Is Administrative Law Unlawful?, or Charles Murray’s By the People..). Most of the law being created in this country is now created on autopilot, written by unelected mandarins in the bowels of the government. It is the direct result of Congress’s decades-long surrender of its powers to the executive branch. The CIA is not the “deep state” — the FDA, OSHA, FCC, EPA, and countless other agencies are.

Goldberg goes on to note that “… any attempt to simply move the unlawful arbitrary power of the administrative state to the political operation of the West Wing will not be a triumph for liberty, it will simply amount to replacing one form of arbitrary power with another.”

Which, for me, raises the question if the power of the unelected corporate mandarins now taking over the Executive Branch is less “abitrary”?  Or less driven by “favored groupsand not imposing “heavy economic, political, and social costs onthe unfavored public?

Patrice McDermott


Amendment to Gut CBO — Make those unacceptable swamp numbers slow and unusable

Update The House Rules Committee is allowing the Griffith amendment to move to the floor for debate and a vote.

On July 24, Congressman Morgan Griffith (R-VA), along with Congressmen Jim Jordan (R-OH), Mark Meadows (R-NC), and Scott Perry (R-PA), submitted to the Rules Committee an amendment to abolish the Budget Analysis Division of the Congressional Budget Office (CBO) and transfer its duties to the Office of the Director.  The amendment was made to the Make America Secure Appropriations Act of 2018, through the use of the Holman Rule.  A separate amendment filed by Rep. Mark Meadows (R-N.C.) would also eliminate the same division and specify that the CBO instead evaluate legislation “by facilitating and assimilating scoring data” compiled by four private think tanks — the Heritage Foundation, the American Enterprise Institute, the Brookings Institution, and the Urban Institute.

During a Monday appearance at the National Press Club, Rep. Mark Meadows (R-NC), chairman of the Freedom Caucus, said “There’s plenty of think tanks that are out there. And so we ought to take a score from Heritage, from AEI, from Brookings, from the Urban Institute and bring them together for a composite score that would represent a very wide swath of think tanks and their abilities. We think that’s a pragmatic way to use the private sector and yet let Congress depend on a score that is accurate.”

During the first week in January, House Republicans reinstated the Holman Rule, an arcane procedural rule that empowers any member of Congress to propose amending an appropriations bill to single out a government employee or cut a specific program. It was first enacted in 1876 and rescinded in 1983, and was reinstated in January on a temporary basis.