This response to John and Terrence is offered as a discussion guide for list mates who, despite possible contrary personal biases, sincerely want "real facts and reason" in order to engage students in transparently and fairly discussing the Trump EO. I expect that this will be my last message on the topic.
Before I get into the responses, here's additional evidence of the hypocrisy of the "no compassion" argument against the EO:
Iraq's retaliatory immigration hiatus is forcing U.S. civilian mercenaries (who are presumably still killing Iraqis in the continuing shadow war) out of Iraq. So the EO, while likely reducing the future frequency of terror attacks in the U.S., is also reducing the probability of U.S. mercenary attacks in Iraq. Fewer dead people in both countries seems pretty compassionate to me.
Back to the discussion guide. . .
Terrence asks whether the attacks on Boston, Orlando, or San Bernardino would have been prevented by the EO, implying that if the jihadis in those attacks were not immigrants from the "seven countries," the EO would have been ineffective. But Terrence misses the point. Boston, Orlando, and San Bernardino are only exemplars of 59 similar jihadi attacks starting with the November 2009 massacre at Ft. Hood. This string of attacks, documented graphically at The Daily Signal,*** is persuasive evidence of an epidemic of Islamist violence on U.S. soil. Evidence from abroad (e.g., Paris and Berlin) shows that this highly contagious social disease is global in scope.
Jihad and jihadis come from lots of places. (I have not sourced all 59 of these attacks but you are welcome to do so.) What if none of the 59 U.S. incidents originated in one of the seven EO countries? Why focus on these seven? One answer: If jihadis can be "grown" inside the United States, where "only" 13 percent of the Muslim population advocates terror attacks to some extent,**** how much more widespread is the jihadi disease in Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia, where terror is widely encouraged and surveillance is more lax? We can't use predictive analytics like this to put people in jail but we should use it to prevent jihadis and their coaches from entering the country in the first place. It's not a "ban". It's a temporary slow-down, with exceptions, to allow better vetting going forward.
Terrence also offers up Glen Kessler's WP "Fact Checker" piece (attached) as impeachment of David French's detailed, factually rich and verifiable argument that, broadly speaking, the Trump EO is Obama immigration policy redux.* But Kessler's piece--narrowly focused on one line of an ABC Night Line report on Iraqi "refugee" immigration gone wrong**--lays no glove on French. The French piece, now at a better link with pretty graphics and easy-on-the-eyes fonts,* is a must read.
Apparently bereft of facts and law, John is now pounding the table with glittering generalities and ad hominems including the false dichotomy that "compassion" and support for the substance of the EO are mutually exclusive. Too bad. It would be nice to hear real facts and reasonable counterarguments.
Kind regards to all,
Kurt
* David French, http://www.nationalreview.com/article/444370/donald-trump-refugee-executive-order-no-muslim-ban-separating-fact-hysteria
** In November 2013 ABC Nightline quoted "federal officials" who said that "the State Department stopped processing Iraq refugees for six months in 2011." ABC Nightline, Exclusive: US May Have Let 'Dozens' of Terrorists Into Country As Refugees, http://abcnews.go.com/Blotter/al-qaeda-kentucky-us-dozens-terrorists-country-refugees/story?id=20931131.
*** See http://dailysignal.com/2015/09/10/a-timeline-of-73-islamist-terror-plots-since-911/.
**** See http://www.people-press.org/2011/08/30/muslim-americans-no-signs-of-growth-in-alienation-or-support-for-extremism/.
----- Original Message -----
From: "John Allison" <[log in to unmask]>
To: "Academy of Legal Studies in Business" <[log in to unmask]>
Sent: Monday, January 30, 2017 8:35:55 PM
Subject: Re: Why the Trump EO may be good policy
I am not going to waste my time attempting to refute each of your assertions. These assertions smack of an attempt to distract people from the obviously heinous actions that are the product of a sick mind. Your arguments are not worth anyone's time. Yo refuse to see what most intelligent and compassionate people see. Actually, one does not need much intelligence to comprehend the awfulness of this man and his actions.
I'm done here.
John
Sent from my Verizon, Samsung Galaxy smartphone
-------- Original message --------
From: Kurt Schulzke <[log in to unmask]>
Date: 1/30/17 6:50 PM (GMT-06:00)
To: [log in to unmask]
Subject: Re: Why the Trump EO may be good policy
John,
Whether you view it as nonsense isn't the issue. If you've read the sources cited in support of the proposition and you disagree with some assertion made by those sources, the customary "legal" response is to identify specific problematic assertions and explain why you find them problematic. A blanket "nonsense" doesn't fly.
Do you agree that "Trump’s 50,000 stands roughly in between a typical year of refugee admissions in George W. Bush’s two terms and a typical year in Obama’s two terms"? That President Obama identified these countries as terror risks? That he signed legislation identifying them? That he suspended immigration from Iraq for six months?
Do you disagree that "Trump is improving security screening and intends to admit refugees at close to the average rate of the 15 years before Obama’s dramatic expansion in 2016"? If so, on what grounds?
Do you disagree that "While the Syrian Civil War was raging, ISIS was rising, and refugees were swamping Syria’s neighbors and surging into Europe, the Obama administration let in less than a trickle of refugees"? Or that "Only in the closing days of his administration did President Obama reverse course — in numbers insufficient to make a dent in the overall crisis"?
How about "federal asylum and refugee law already has a built-in religious test."? True or false?
What about any of this is "nonsense"?
Thanks,
Kurt
----- Original Message -----
From: "John Allison" <[log in to unmask]>
To: "Academy of Legal Studies in Business" <[log in to unmask]>
Sent: Monday, January 30, 2017 6:37:03 PM
Subject: Re: Why the Trump EO may be good policy
Trump’s immigration EO is in no way comparable to anything Obama did. Frankly, Kurt, I view that as nonsense.
John
Sent from my Verizon, Samsung Galaxy smartphone
-------- Original message --------
From: Kurt Schulzke <[log in to unmask]>
Date: 1/30/17 4:45 PM (GMT-06:00)
To: [log in to unmask]
Subject: Why the Trump EO may be good policy
The Trump immigration EO appears consistent with the Obama administration's own immigration moves over the years.* Like the roll-out of Obamacare, the roll-out of this EO was awkward and badly timed. Yet, on substance it is pretty much warmed-over Obama.
That said, John and Terrence raise interesting points. John says that the EO finds "no rational basis" in the risk of Islamist terror attacks. Yet, Obama's own EOs and signed bills are evidence that Obama saw such risks as real and serious.* Terrence points to a Cato blog post that purports to catalog "foreign-born people who committed or were convicted of attempting" terror attacks on U.S. soil, 1975-2015. It's not clear what inference Terrence intends readers to draw, but he calls the data "startling."
What startles me--apart from the unverified status of the Cato data--is that the post's author thinks we should predict terror attacks in 2017+ using pre-2010 terror data. Nate Silver argues persuasively that such thinking lost Hillary Clinton the 2016 election.** Clinton committed a fundamental violation of the Great Book of Data: she extrapolated. She assumed that pre-2016 data would tell her how voters (in, e.g, Michigan, Wisconsin, and Pennsylvania) would behave in 2016.
The Cato blog post duplicates Hillary's predictive malpractice by extrapolating from *very old* terror data to predict a dynamic, rapidly evolving risk. (If only it were just one black swan!) Any POTUS would rightly be ridiculed for relying on data from 2005 (not to mention 1975!) to manage the risk of terror attacks in 2017 and beyond. This is especially true given the recent rash of Jihadi terror events in places like Boston, Orlando, Paris, Berlin, and San Bernardino. These recent attacks should be given far more weight in assessing and managing this risk than any collection of stale data points from 1975-2010. Our jihadis are not our grandparents' jihadis.
The Trump EO's security concerns are based on facts which, to rational observers, should signal heightened risks associated with the entry of nationals from the target countries. Whether this EO (and its attendant process) was the best response to Orlando, Berlin et al. is a fair question. Its rationality, however, seems pretty hard to argue.
* See http://www.powerlineblog.com/archives/2017/01/trumps-immigration-order-myths-and-realities.php and http://www.realclearpolitics.com/2017/01/29/separating_fact_from_hysteria_on_trump_refugee_order_401367.html.
** Nate Silver, http://fivethirtyeight.com/features/the-electoral-college-blind-spot/.
Kurt S. Schulzke, JD, CPA, CFE
Associate Professor of Accounting & Business Law
Director - Law, Ethics & Regulation
Corporate Governance Center
Kennesaw State University
+ 1-470-578-6379 (O)
+ 1-404-861-5729 (C)
LinkedIn: http://www.linkedin.com/in/kurtschulzke/
----- Original Message -----
From: "John Allison" <[log in to unmask]>
To: "Academy of Legal Studies in Business" <[log in to unmask]>
Sent: Sunday, January 29, 2017 9:29:27 PM
Subject: Re: lawful choice v. good policy
There is no rational basis between the EO and public safety or the risk of terrorism. None.
John
John R. Allison
The Spence Centennial Professor of Business, and
Professor of Intellectual Property Law
McCombs School of Business
University of Texas at Austin
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of Terence Lau
Sent: Sunday, January 29, 2017 7:59 PM
To: [log in to unmask]
Subject: Re: lawful choice v. good policy
Since the immigration ban is predicated on the policy of public safety, I tried to find out how many terrorist attacks have been carried out in the United States by nationals of the seven countries affected. Turns out the Cato Institute already did the research, from 1975 to 2015. The results are startling.
https://www.cato.org/blog/guide-trumps-executive-order-limit-migration-national-security-reasons
On Sun, Jan 29, 2017 at 4:00 PM John Allison <[log in to unmask]<mailto:[log in to unmask]>> wrote:
Oh my, I just misread--I'm so sorry. I say Australia for some reason when your clearly wrote Canada.
Sigh..... I am truly into geezerdom.
That said, I do think that Canada's approach makes sense for them.
John
John R. Allison
The Spence Centennial Professor of Business, and
Professor of Intellectual Property Law
McCombs School of Business
University of Texas at Austin
-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]<mailto:[log in to unmask]>] On Behalf Of Kurt Schulzke
Sent: Sunday, January 29, 2017 1:51 PM
To: [log in to unmask]<mailto:[log in to unmask]>
Subject: Re: lawful choice v. good policy
Interesting policy argument. But I asked about legal differences.
But along policy lines, what do you think of the Canadian immigration model? I understand it's pretty much identical to Australia's and has worked famously for Canada:
http://www.immigration.ca/who-qualifies-for-canadian-permanent-residence-skilled-worker-immigration/
----- Original Message -----
From: "John Allison" <[log in to unmask]<mailto:[log in to unmask]>>
To: "Academy of Legal Studies in Business" <[log in to unmask]<mailto:[log in to unmask]>>
Sent: Sunday, January 29, 2017 2:40:54 PM
Subject: Re: lawful choice v. good policy
And I find it curious, Kurt, that you would view the two actions as equal. This does not calculate.
I certainly didn't agree with everything Obama did, but this action was a change from a policy that had given Cuban immigrants a free pass just for the purpose of opposing of opposing the Castro regime by siphoning off Cuba's best and brightest. The previous policy had continued long after it made any sense. And Obama's change was part of the larger objective of beginning to normalize relations with Cuba long after our attempts to isolate the nation made any sense.
John
John R. Allison
The Spence Centennial Professor of Business, and Professor of Intellectual Property Law McCombs School of Business University of Texas at Austin
I assume that Michael meant that what is lawful does NOT depend on who is President. Speaking of which, how does President Trump's ban compare legally to President Obama's buzzer-beater on Cuban immigration, which Prof. Volokh called a "cruel policy reversal."*
I find it curious that no one on this list questioned Obama's ban. Is this a double standard? Or are their legal distinctions to be made?
*See https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01/14/obamas-cruel-policy-reversal-on-cuban-refugees
----- Original Message -----
From: "Michael O'Hara" <[log in to unmask]<mailto:[log in to unmask]><mailto:[log in to unmask]<mailto:[log in to unmask]>>>
To: "Academy of Legal Studies in Business" <[log in to unmask]<mailto:[log in to unmask]><mailto:[log in to unmask]<mailto:[log in to unmask]>>>
Sent: Sunday, January 29, 2017 11:29:13 AM
Subject: lawful choice v. good policy
ALSBTALK:
Executive over reach is an unlawful choice. A very different question is whether the choice is good policy.
President Jefferson multiple times concluded the pressures of the moment on the office of the President urged as good policy acts he previously (when he did not occupy the office) had publicly categorized as executive over reach (e.g., act of war). Other Presidents were primarily different in that they had not spoken so publicly on the limits of the office prior to occupying the office.
Judicially, Justice Frankfurter famously observed that the altitude affects the attitude.
In short, a person's good faith perceptions might vary materially when the context of one's perception changes materially. Critically, what once was viewed as an unambiguously unlawful choice might come to be perceived as such a good policy as to be transformed into a lawful choice. At the same time and in the same context another observer might hold an invariant good faith observation of the range of lawful choices from which good policy choices are constrained to be selected.
Lawful does depend on who is President. Whatever criteria of lawful executive action is used for the 44th President ought be used for the 45th President: and visa versa. What does depend on who is President are (1) the viewer's array of preferred policy choices; and (2) the viewer's trust of the President in question.
I recommend legal analysis focused on the law rather than policy and person. Once the range of lawful choices is identified, to my view, only then can "good" policy be chosen since unlawful choices, in my experience, are not good policy.
Michael J O'Hara: from phone
--
______________
Terence Lau
Associate Dean Undergraduate Programs
School of Business Administration
Tel: 937-229-4556; Fax: 937-229-3301
“Never give in. Never, never, never. Never yield in any way, great or small, large or petty, except to convictions of honor and good sense.” -- Winston Churchill
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