Kafka Comes to America

All of us are a bit something else. America is like that, and the folks at Ancestry will test your DNA for you. You might find out you’re thirty-four percent Native-American. They buy a lot of thirty-second spots on most every television show for their clever ads to get you to send them a DNA sample, and a bunch of money – if you want to know such things. Many do that, which generates even more thirty-second spots, but most Americans know what they are. They know their family histories, and all the odd characters in all the old photos, and how they got here and what they did. There’s no mystery, and some of us are clearly Czech and a bit Slovak – even if Czechoslovakia is long gone, split in two years ago.

That doesn’t matter. We know what we are, and we have our heroes. In politics it’s Václav Havel – the witty and humane dissident playwright and philosopher, and friend of Frank Zappa. Havel was the last president of the newly freed Czechoslovakia and then the first president of the new Czech Republic – the way-cool guy who blew away all the crap of the Soviet years with grace and irony. In music it’s Dvořák and Bedřich Smetana of course, and in literature it’s Milan Kundera – because The Unbearable Lightness of Being makes existential despair into a pleasant dance. Kundera may not count, however. He moved to Paris long ago and writes in French now.

And then there’s Franz Kafka – born into a middle-class, German-speaking Jewish family in Prague, and trained as a lawyer, but who worked at an insurance company and wrote in his spare time. That might explain a lot. He’s dark. There’s that tale of the guy who wakes up to find that he’s a cockroach – a metaphor of modern life perhaps. And there’s The Trial – about the guy locked up with no explanation. Even those who are putting him on trial don’t know what the charges are – but everything proceeds anyway. It can’t be stopped. He’s guilty, of something. No one’s sure what that is.

That’s an even bigger nightmare, and that was prescient. That was Soviet Czechoslovakia before Havel. That’s life in much of the world now, but those of us who are a bit Czech don’t like to count Kafka as Czech. He wrote in German after all, but now that’s life in America:

Federal officials have agreed to free an Afghan family that had been granted special immigration visas but was detained after arriving at Los Angeles International Airport last week, prompting complaints from civil rights lawyers who rushed to court on its behalf.

On Monday afternoon, family members were in the process of being paroled, but it was unclear whether they would immediately fly to Seattle – their original destination – or spend the night in the Los Angeles area, said Mark Rosenbaum, an attorney with Public Counsel who is part of the legal team representing the family.

At a court hearing earlier in the day, government officials didn’t offer a clear explanation as to why they detained the family of five. They did say, however, that immigration officials had since returned the passports, which include the special visas, to the family.

Los Angeles became Kafka’s 1925 Prague:

The father, mother and their three children – ages 7, 6 and 8 months – arrived in L.A. on Thursday afternoon for a connecting flight to Seattle, where they planned to resettle, but were detained by U.S. Customs and Border Protection.

The family had been extensively vetted and approved for the visas because of the father’s work with the U.S. government, according to a federal court petition filed Saturday seeking release of the family. The father worked for U.S. officials for about a decade…

The father, whose name was not disclosed for security reasons, worked at a U.S. government base where the Taliban took notice of locals who worked for U.S. forces, his lawyer said. He said the father had been physically and verbally assaulted, and received death threats from the Taliban. The father applied for a special visa in 2015…

Immigration and Customs Enforcement officials have repeatedly declined to publicly explain the reasons why the family was detained.

There was an explanation:

“This is a victory in a battle that should not have been fought in the first place,” said Rob Blume, one of the attorneys representing the family. “The government swung and missed on this one. They just got it wrong.”

But, as with the Kafka tale, everything proceeded anyway:

After being detained at LAX for two days, the father was taken to a detention center in Orange County, and the mother and three children were taken to a similar facility in downtown Los Angeles. During the detention, immigration officials prevented the family from communicating with attorneys, Rosenbaum said.

“They had them for 40 hours incommunicado,” he [Rob Blume] said.

On Saturday morning, a habeas corpus petition was filed in U.S. District Court on behalf of the family by Public Counsel and the law firm Gibson Dunn. Then, at a brief meeting with the mother, attorneys learned that she and her children were going to be transported to a family detention center in Texas.

Attorneys then filed an emergency motion for a restraining order in federal court to prevent the government from transferring the family out of state.

That worked. But it never should have happened:

The process for obtaining the special immigrant visa the family obtained before its arrival involves intensive vetting, including interviews, security checks, medical examinations and fingerprints – as well as a finding that the applicant has experienced a serious threat because of his or her work with the U.S. government, according to the court petition.

Rosenbaum and Blume said they had never heard of anyone else with special immigrant visas experiencing similar treatment.

“That happens in Kafka and happens in authoritarian governments,” Rosenbaum said. “This is not supposed to happen here.”

Kafka has to come up, but things are softening a bit:

President Trump signed an executive order on Monday blocking citizens of six predominantly Muslim countries from entering the United States, the most significant hardening of immigration policy in generations, even with changes intended to blunt legal and political opposition.

The order was revised to avoid the tumult and protests that engulfed the nation’s airports after Mr. Trump signed his first immigration directive on Jan. 27. That order was ultimately blocked by a federal appeals court.

The new order continued to impose a 90-day ban on travelers, but it removed Iraq, a redaction requested by Defense Secretary Jim Mattis, who feared it would hamper coordination to defeat the Islamic State, according to administration officials.

It also exempts permanent residents and current visa holders, and drops language offering preferential status to persecuted religious minorities, a provision widely interpreted as favoring other religious groups over Muslims. In addition, it reversed an indefinite ban on refugees from Syria, replacing it with a 120-day freeze that requires review and renewal.

Those are concessions, or they’re not:

The heart of the sweeping executive action is still intact, reflecting Mr. Trump’s “America first” pledge to safeguard against what he has portrayed as a hidden influx of terrorists and criminals – a hardline campaign promise that resonated deeply with white working-class voters.

The new order retains central elements of the old one, cutting the number of refugees admitted to the United States each year to 50,000 from about 110,000. Mr. Trump is also leaving open the possibility of expanding the ban to other countries, or even putting Iraq back on the banned list if the country’s leaders fail to comply with a requirement that they increase intelligence sharing, officials said.

“Unregulated, un-vetted travel is not a universal privilege, especially when national security is at stake,” said John F. Kelly, the homeland security secretary, appearing alongside Secretary of State Rex W. Tillerson and Attorney General Jeff Sessions at the Ronald Reagan Federal Building in Washington on Monday.

Kelly and Tillerson and Jeff Sessions made the announcement. Trump was in hiding. He signed the new order in private – no lights, no cameras – Kafka stuff – but those with preexisting visas will not have those revoked. That’s something, even if a bit late for that Afghan family that tried to catch that connecting flight to Seattle here in Los Angeles.

Ah well, they did finally get to Seattle, but Trump is giving Kafka a bad name. Ilya Somin notes the horror here:

The order still inflicts cruel harm on refugees and others, while creating little if any security benefit. Most notably, the new order still cuts the total intake of refugees for fiscal year 2017 from 110,000 to 50,000. This part of the order is unlikely to be struck down by the courts. But it deserves emphasis nonetheless, because it consigns many thousands of refugees to misery and the risk of death without even a minimally plausible security rationale. The reduction applies to all refugees from anywhere in the world, regardless of whether there is any reason to think they might be security risks or not. The same point applies to the order’s suspension of all refugee admissions for 120 days. That period of time may not seem very long. But for many refugees, it might mean the difference between life and death. Refugees awaiting admission to the US and other Western nations often live in dangerous refugee camps, or even worse. The fact that these parts of the order probably cannot be successfully resisted in court does not make them any less cruel and unjust.

This is a variation of the story that Kafka was writing, and although Kafka was trained as a lawyer, Somin is an actual lawyer:

With regard to the legal issues, the revised order’s exemptions for legal permanent residents and visa holders make it less vulnerable to challenge on the Due Process Clause grounds at issue in the Ninth Circuit Court of Appeals ruling against the initial order. That decision emphasized the rights of these two groups.

But the revised order remains vulnerable on the ground that its real purpose is religious discrimination against Muslims, which was the basis for the most recent trial court ruling against the initial order. Like the original order, the new one is still clearly an outgrowth of Trump’s advocacy of a “Muslim ban,” as admitted by Trump adviser Rudy Giuliani, who played a key role in drafting the first order. Courts have repeatedly – and correctly – ruled that Trump and Giuliani’s anti-Muslim statements are relevant to assessing the constitutionality of the original order.

The same should be true of the new order, as well. The new order is clearly an outgrowth of its predecessor, and still targets all the same Muslim-majority nations, with the exception of Iraq. The security rationale for the order remains laughably weak. Indeed, the risk that any given American will be killed by an immigrant terrorist of any kind is much lower than the risk that he will be killed in a lightning strike. The total number of Americans killed by immigrant terrorists from the nations covered by the travel order is zero, though a very small number have made unsuccessful attempts.

This executive order may die in the courts too, and there are those pesky practical matters:

By singling out citizens from these countries for exclusion, Trump’s order may well actually increase the risk of terrorism, because it disincentivizes citizens of those nations from cooperating with US forces. That danger is reduced by the decision to drop Iraq from the new order and to make the exclusion of Syrians temporary rather than indefinite. But Syrians and citizens of other nations who cooperate with US forces still have reason to worry. The administration might try to extend the 120 day period after it ends. And even 120 days might be a long time for those in fear for their lives. More generally, even a temporary categorical ban on entry by citizens of those nations likely alienates public opinion there, and makes cooperation with American forces less likely.

The one change, being nice to Iraq, makes little difference in the Middle East, because this seems to be pure animus:

The weakness of the security rationale for both the original order and the new one makes it more likely that discrimination against Muslims is the true motive behind it. Under the standard legal framework for analyzing such cases, once evidence of discriminatory intent is proven, the government has the burden of showing that it would have adopted the same policy even in the absence of improper motivation. That burden will be extremely difficult to meet in this case.

This isn’t that Kafka tale. Those with the power to destroy other’s lives will have to explain themselves. That’s how things work here, but some explanations are puzzling:

House Republicans unveiled on Monday their long-awaited plan to repeal and replace the Affordable Care Act, scrapping the mandate for most Americans to have health insurance in favor of a new system of tax credits to induce people to buy insurance on the open market.

The bill sets the stage for a bitter debate over the possible dismantling of the most significant health care law in a half-century. In its place would be a health law that would be far more oriented to the free market and would make far-reaching changes to a vast part of the American economy.

The House Republican bill would roll back the expansion of Medicaid that has provided coverage to more than 10 million people in 31 states, reducing federal payments for many new beneficiaries. It also would effectively scrap the unpopular requirement that people have insurance and eliminate tax penalties for those who go without. The requirement for larger employers to offer coverage to their full-time employees would also be eliminated.

People who let their insurance coverage lapse, however, would face a significant penalty. Insurers could increase their premiums by 30 percent, and in that sense, Republicans would replace a penalty for not having insurance with a new penalty for allowing insurance to lapse.

Trump promised something far better and far cheaper than Obamacare – something wonderful – and this doesn’t seem to be what he promised, except for this:

House Republican leaders said they would keep three popular provisions in the Affordable Care Act: the prohibition on denying coverage to people with pre-existing conditions, the ban on lifetime coverage caps and the rule allowing young people to remain on their parents’ health plans until age 26.

Scrapping the mandate for most Americans to have health insurance means that there’s no way to pay for that, but never mind:

Republicans hope to undo other major parts of President Barack Obama’s signature domestic achievement, including income-based tax credits that help millions of Americans buy insurance, taxes on people with high incomes and the penalty for people who do not have health coverage.

Medicaid recipients’ open-ended entitlement to health care would be replaced by a per-person allotment to the states. And people with pre-existing medical conditions would face new uncertainties in a more deregulated insurance market.

The bill would also cut off federal funds to Planned Parenthood clinics for one year.

This seems to be all takeaways, and there’s this:

Republicans did not offer any estimate of how much their plan would cost, or how many people would gain or lose insurance. The two House committees plan to vote on the legislation without having estimates of its cost from the Congressional Budget Office, the official scorekeeper on Capitol Hill.

But they did get the support from President Trump that they badly need to win House passage.

They are going to vote on this legislation without knowing what it costs or how many will be hurt. Those with the power to destroy other’s lives are not going to explain themselves, just like in that Kafka tale, but there was this:

On Monday, four Republican senators – Rob Portman of Ohio, Shelley Moore Capito of West Virginia, Cory Gardner of Colorado and Lisa Murkowski of Alaska – signed a letter saying a House draft that they had reviewed did not adequately protect people in states like theirs that have expanded Medicaid under the Affordable Care Act.

Three conservative Republicans in the Senate – Mike Lee of Utah, Rand Paul of Kentucky and Ted Cruz of Texas – had already expressed reservations about the House’s approach.

If this passes in the House it won’t be passed in the Senate, but it may not pass the House:

In the House, Republican leaders will have to contend with conservative members who have already been vocal about their misgivings about the legislation being drawn up. “Obamacare 2.0,” Representative Justin Amash, Republican of Michigan, posted on Twitter on Monday.

Representative Mark Meadows, Republican of North Carolina and the chairman of the conservative House Freedom Caucus, also offered a warning on Monday, joining with Mr. Paul to urge that Republican leaders pursue a “clean repeal” of the health care law.

“Conservatives don’t want new taxes, new entitlements and an ‘ObamaCare Lite’ bill,” they wrote on the website of Fox News. “If leadership insists on replacing ObamaCare with ObamaCare-lite, no repeal will pass.”

The move to strip Planned Parenthood of funding and the plan’s provisions to reverse tax increases on the high-income taxpayers will also expose Republicans in more moderate districts to Democratic attacks.

Kevin Drum, who follows the details of these things closely, offers this summary:

It’s safe to say that on the cost side, this will be a lot cheaper than Obamacare. In fact, since the tax credits are so stingy, it’s likely that very few people in the bottom third of the income spectrum will use them. They leave insurance too expensive for most poor people to afford.

Because of this, my horseback guess is that the Republican plan will be used by about 3 million people, compared to 10 million for Obamacare. The Medicaid expansion will be unchanged for a while, continuing to cover about 10 million people. Total cost for subsidies + high-risk pools + Medicaid expansion will run about $25 billion per year, compared to $100 billion for Obamacare.

Three million people is far too small a pool for any kind of successful program, and the pre-existing conditions clause ensures that the pool will be not just small, but very, very heavily weighted toward the very sick. It’s a disaster for insurance companies, who will almost surely refuse to participate.

That’s my guess, anyway. It’s a bloodbath.

There’s also no coverage if you wake up and discover that you’re a cockroach – but otherwise it’s pure Kafka. He has come to America. Those of us who are a bit Czech apologize for that – but we did give you Dvořák, even if no one here uses those diacritical marks when they spell his name. His New World Symphony might cheer you up. That’s about America. But he didn’t imagine this.