Executive Order Counterplan
Answers
NAUDL 2015-16
Index
Index............................................................................................................................................... 1
Summary ........................................................................................................................................ 2
Glossary ......................................................................................................................................... 3
1NC and Solvency
Putting together a 1nc .................................................................................................................... 5
1nc - Immigration Solvency ............................................................................................................ 6
1nc NSA/Surveillance Solvency ..................................................................................................... 7
1nc War on Drugs Solvency ........................................................................................................... 8
1nc Net Benefit ............................................................................................................................. 10
Immigration Solvency ................................................................................................................... 12
NSA Solvency .............................................................................................................................. 13
General Solvency – Legal Strength .............................................................................................. 14
General Solvency – Causes Legislation ....................................................................................... 15
General Solvency – Perception .................................................................................................... 16
Answers to Congressional Solvency Deficit Arguments ............................................................... 17
Answers to Affirmative Arguments
Answers to Risks Roll Back .......................................................................................................... 18
Answers to Need More Oversight ................................................................................................. 19
Answers to Mission Creep ............................................................................................................ 20
Answers to “Permutation- Do Both” .............................................................................................. 21
Presidential Power Net Benefit
Plan Hurts Executive Power ......................................................................................................... 22
Secrecy Proves the Need ............................................................................................................. 23
Waiting on Congress Risks Conflict ............................................................................................. 24
Risks WMD conflicts ..................................................................................................................... 26
Answers to “Politics Links to the Counterplan too” ....................................................................... 27
Affirmative Answers
Executive Orders can be rolled back ............................................................................................ 28
Executive Branch Needs More Oversight ..................................................................................... 29
Risk Mission Creep....................................................................................................................... 32
Power doesn’t Trade-Off .............................................................................................................. 34
Strong Executive Unnecessary .................................................................................................... 35
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Executive Order Counterplan
Answers
NAUDL 2015-16
Summary
The Negative
This file is a generic counterplan that can be read against almost any affirmative on the topic. Instead
of having congress or the courts ‘curtail’ domestic surveillance, the counterplan has the executive act
alone to end the surveillance program that the affirmative is about.
To win the counterplan, one needs to focus on three important issues –
First, the plan and counterplan are different. If the 1ac plan text says congress or the courts then it is
obviously a different action. However, many affirmatives choose not to say which branch of the
United States does the 1ac. When this happens, it is important to argue that the 1ac, in order to be
topical, must have an external branch of the government “curtail” the executive policy. Winning that
argument distinguishes the plan from the counterplan.
Second, the counterplan has the same effect as the plan. This is what is often called the “solvency
deficit” debate. Does the counterplan solve all of the same advantages, to the same degree, as the
affirmative? The main arguments against the counterplan will be discussed below. However, the
focus of debating the counterplan should be on winning that the executive acting alone (or
unilaterally) is sufficient to solve the specific advantages the affirmative isolates.
Third, the counterplan needs to have a net benefit. There are two possibilities for the negative. First,
the politics disad would be the most common net benefit. By acting alone, the counterplan argues,
the President would be able to avoid a messy and drawn out fight with members of Congress.
Therefore, the President will be able to spend his/her time fighting with Congress about more
important issues. Second, the Presidential flexibility net benefit is also a possibility. Because the
affirmative has another actor force the President’s position on a national security issue, it is seen as
intervening into ‘presidential powers.’ Unchecked Presidential Powers are important for a successful
and effective foreign policy.
The Affirmative
Beating the counterplan consists of winning one of the three arguments that are discussed above: the
counterplan is no different than the plan, the counterplan doesn’t solve one or more of the
advantages of the 1ac, or there is no net benefit to the counterplan.
The main “solvency deficit” arguments for the counterplan will center around the lack of ‘transparency’
or openness involved in executive actions. Unlike congress or the courts, when the Executive acts it
is usually secretive. Most advocates for curtailing domestic surveillance make a strong argument in
favor of openness. Because the counterplan has the executive act alone, that is not as open to public
accountability.
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Executive Order Counterplan
Answers
NAUDL 2015-16
Glossary
Executive – The President of the United States and all presidential level parts of the government.
This is distinct from Congress and the Courts. It includes the military, the NSA, CIA, and all the
cabinet level groups.
Executive Order – Laws written by the President without congressional votes. They are usually
instructions given to executive level groups on how to implement laws, or change the way things are
done. The NSA was started and acts based on authority given by an Executive Order 12,333 written
by President Reagan.
Judicial – the courts. Usually, but not necessarily, the Supreme Court of the United States or the
SCOTUS. Could include any number of lower federal or state courts.
Mission Creep – When the original plan for something gets broader and beyond what was originally
intended. The best example is if your teacher tells you to clean up the classroom. After cleaning up
the classroom you go outside and start cleaning up on the playground. In foreign policy, it happens
when a directive to do something gets extended to other countries and groups. It is usually a way of
describing the fear that the executive will take a small issue and expand it.
Oversight – being in charge of looking after what someone is doing. It’s like having a manager. In
this literature, oversight usually refers to congress or public groups having the ability to check in on
what executive groups like the NSA, Department of Justice [DOJ] or others are doing.
Permutation – a debate jargon phrase. It means that the affirmative gets to test whether the
counterplan is competitive or not. A counterplan must be better than the plan and the plan added to
the counterplan, otherwise the affirmative wins.
Presidential Power – the power of the presidency. Usually referred to as the Presidency’s ability to
do things without having to answer to Congress or the other branches of congress.
Rolled Back – When a law gets overturned. A common phrase within literature about Executive
Orders because president’s can easily pass new executive orders overturning older ones. When
Obama was elected he “rolled back” several executive orders that Bush implemented during his
Presidency.
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Answers
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Solvency Deficit – Debate Jargon. A way of saying that the counterplan does not “solve” for all of the
advantages of the affirmative – or at least does not solve them as well. So, for example, if the plan
saves 100 lives and the counterplan only saves 10, then the affirmative would argue that there is a
“solvency deficit” of 90 lives. It is rarely as clean cut as 100 vs 10. However, it is a way of taking
about which of the two actions [plan or counterplan] is superior.
Statutory – an act of congress. Written into “statute.” Legislation is often called statutory, executive
orders are not.
Unilateral – When an actor acts by his or herself and without others. In this instance, an executive
order is the president acting “unilaterally.” If the President and Congress acted together then it would
not be “unilateral.” The phrase will often also appear in foreign policy literature about the United
States acting unilaterally [without other countries] as opposed to “multi-laterally” or with many other
countries together.
Zero-Sum – When two things trade off with each other they are called ‘zero sum.’ So, for example, if I
have 2 apples and both Martin and Susan are asking for an apple, if I give one to Martin that is zerosum with giving it to Susan. I can’t give them both the same apple. So, my supply of apples is ‘zerosum.’ The phrase appears in this file in relation to the power between the president and congress. If
one acts, then the other loses power. It is called, “zero-sum” power. When something is “not zero
sum” it means that increasing it for one does not decrease if for another.
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1NC and Solvency
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Putting together a 1nc
A standard Counterplan 1nc includes:
-Text – the statement or plan of action for the counterplan.
-Solvency – usually a piece of evidence or explanation of what the counterplan solves.
-Net Benefit – the reason to prefer the counterplan over the plan – usually this is either a disad
that links to the plan and not the counterplan OR a reason the counterplan is good.
STEP ONE - Writing the text –
First, take the 1nc plan text, and change the parts that are about Congress, the Courts, or the
US federal government into “The President of the United States should . . .”
Second, change verb from “curtail” or “restrict” to “stop.”
Example Text – if the plan says, “The United States federal government should end mass data
surveillance of its citizens.
Then, the counterplan should say, “The President of the United States should stop the mass data
surveillance of its citizens.”
STEP TWO – reading the right solvency card[s]. If you are debating an aff about drug policy,
then you should read the drug policy solvency card. The solvency evidence should be
specific to the 1ac you are debating.
STEP THREE – read the 1nc net benefit. [this is optional, you could obviously read the
counterplan without the Presidential Flexibility net benefit].
Final Product:
So, your 1nc should be: Text, specific solvency card, net benefit cards
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1NC and Solvency
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1nc - Immigration Solvency
Executive authority to change immigration laws – opponents are wrong
Gorod, appellate counsel at Constitutional Accountability Center, 15
[Brianne Gorod, 2 – 19 – 15, President Obama’s Unproductive Statements About His Productive
Immigration Policy, http://www.newrepublic.com/article/121098/president-obamas-executive-orderimmigration-wasnt-overreach]
The president’s comments may have been motivated more by his sense of immigration politics than
his views on immigration law—reports in 2014 indicated that Obama was “dial[ing] down the partisan
rhetoric on immigration ... [to] give House Republicans some breathing room to try to pass
legislation”—but they nonetheless fueled detractors. Some on the right argued that the president
didn’t have the authority to take executive action on immigration; when Obama ultimately did take
action, they maintained he was simply doing so in order to achieve unilaterally what he could
not achieve by working with Congress. Indeed, in the decision out of Texas, the district judge
wrote, “The Government must concede that there is no specific law or statute that authorizes
[Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)]. In fact, the
president announced that it was the failure of Congress to pass such a law that prompted him ... to
‘change the law.’” (The judge formally based his decision to halt implementation not on the substance
of the executive action, but on the government’s failure to comply with certain procedural
requirements he felt were warranted.)
But President Obama’s opponents are as wrong now as he was then: He does have the authority
to take executive action on immigration action, and that executive action isn’t a response to
congressional inaction at all. Rather, it’s a response to congressional action—actions by past
Congresses that have passed immigration laws that it is now the responsibility of the executive
branch to enforce. There’s nothing novel about this. Presidents are always asked to exercise
discretion in determining how best to implement laws passed by Congress (a responsibility and
power often referred to as “prosecutorial discretion”), and that’s exactly what the Framers of our
Constitution intended. When the Framers drafted the Constitution, their views on the presidency
were shaped not only by their experiences under British rule, but also by their experiences under the
Articles of Confederation, the precursor to the Constitution. The Articles lasted just eight years, and
one of the central weaknesses that led to its failure was the absence of a strong executive branch
capable of enforcing the nation’s laws.
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1NC and Solvency
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1nc NSA/Surveillance Solvency
Reductions in domestic surveillance should be done through executive orders – not curtailed
by acts of congress or the courts.
E.F.F 2014 Electronic Frontier Foundation – Executive Director Cohn
[Cindy Cohn, Tell Obama: Stop Mass Surveillance Under Executive Order 12333,
https://act.eff.org/action/tell-obama-stop-mass-surveillance-under-executive-order-12333]
The NSA relies on Executive Order 12333 to engage in mass surveillance of people around the
world. But most people have never even heard of this presidential order. It’s time to respect the
privacy rights of innocent people, regardless of their nationality. Tell Obama: amend Executive
Order 12333 to prohibit mass surveillance.
Executive orders are legally binding orders given by the President of the United States which
direct how government agencies should operate. Executive Order 12333 covers "most of what
the NSA does" and is "the primary authority under which the country’s intelligence agencies
conduct the majority of their operations."1 So while the U.S. Congress is considering bills to
curtail mass telephone surveillance the NSA’s primary surveillance authority will be left
unchallenged.
It’s time to change that.
Last July, former State Department chief John Napier Tye came forward with a damning account of
Executive Order 12333, which he published in The Washington Post2. Thanks to his account and the
reports of others who have spoken out candidly against surveillance under E.O. 12333, we know:
1. Executive Order 12333 is used to collect the content of your communications– including Internet
communications like emails and text messages.
2. Executive Order 12333’s has no protections for non-U.S. persons, a fact that has been used to
justify some of the NSA's most extreme violations of privacy, including the recording of an entire
country's telephone conversations.3
3. Executive Order 12333 is used to collect information on U.S. persons who are not suspected of a
crime. As Tye wrote, "It does not require that the affected U.S. persons be suspected of wrongdoing
and places no limits on the volume of communications by U.S. persons that may be collected and
retained."
4. No US court has seriously considered the legality and constitutionality of surveillance conducted
under Executive Order 12333.
This executive order was signed by President Ronald Reagan in 1981, many years before the
Internet was widely adopted as a tool for mass communication. A stroke of the U.S. President's
pen over thirty years ago created the conditions that led to our global surveillance system.
The present President could fix it just as easily.
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1NC and Solvency
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1nc War on Drugs Solvency
Obama can reform drug policy through executive action
Tracy, Cannabis Consultant & Civil Liberties Activist, 2014
[Sam Tracy, Three Executive Actions Obama Can Take to Rein in the Drug War,
http://www.huffingtonpost.com/sam-tracy/three-executive-actions_b_4691178.html]
In his fifth State of the Union address, President Obama didn't hide his frustrations with one of the
least productive Congresses in history. He focused his speech on changes he can make
unilaterally, saying, "Some [of my proposals] require Congressional action, and I'm eager to work
with all of you. But... wherever and whenever I can take steps without legislation to expand
opportunity for more American families, that's what I'm going to do." Sadly, he didn't say a single word
about one of the areas where he has the most authority to make positive change: drug policy.
Here are three of the most important reforms Obama could make with a stroke of his pen.
1. Reschedule marijuana. Federal drug policy is determined largely by the Controlled Substances
Act (CSA), which divides illegal drugs into five categories, or "schedules," of harmfulness. Marijuana
remains in the most restrictive category, Schedule I, meaning it has a high potential for abuse and no
accepted medical use in treatment. So, while a large majority of people -- including President Obama
himself -- recognize that marijuana is safer than alcohol, the drug remains in the same legal category
as heroin and LSD. Eighty percent of the public supports medical marijuana and 20 states have
legalized its use, yet the federal government refuses to recognize that the drug has any medical
benefits. This classification is why the federal government continues to raid medical marijuana
facilities even when they're in full compliance with state law.
It doesn't have to be this way. As admitted by Attorney General Holder, President Obama has the
power to reschedule marijuana without Congressional approval. The CSA states that any substance
can be moved into another category by petitioning the Drug Enforcement Administration, a federal
agency under the president's control. While this been tried many times in the past, including by
Americans for Safe Access and governors Gregoire and Chafee, the DEA has denied every attempt.
Obama can, and should, direct the agency to move marijuana at least to Schedule III, defined as
having a lower potential for abuse and a currently accepted medical use (this category already
includes Marinol, a synthetic form of the chemical THC found in marijuana). This simple change
would allow states to legalize and regulate medical marijuana without any fear of federal intervention.
2. Replace DEA Administrator Michele Leonhart. One of the main causes of the DEA's
obstinance is its leadership. As I've written before, Administrator Leonhart has lied to Congress and
the American public on multiple occasions. Originally appointed by President George W. Bush, she
has been an embarrassment for the Obama Administration for her refusal to admit that marijuana is
less harmful than heroin. Even more nonsensically, she recently criticized the White House for flying
a hemp American flag and allowing its unofficial softball team to play against a team of drug policy
reformers (full disclosure: I'm a proud member of that team, the One Hitters, and we've beaten the
White House both times we've played them).
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1NC and Solvency
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[EVIDENCE CONTINUES FROM PREVIOUS PAGE]
There is a growing movement to replace Leonhart with someone who understands the drugs they're
throwing people in prison for. The Marijuana Policy Project's petition to fire her already has over
20,000 signatures and is quickly growing. At least two members of Congress have called for her
resignation, with Rep. Cohen saying Leonhart's leadership is "going to be looked upon in 10 or 20
years as the dark ages." Replacing Leonhart with someone more in line with the president's views on
drug policy would go a long way towards scaling back the Drug War.
3. Pardon drug offenders serving unjust sentences. One of the president's most important
criminal justice powers is the ability to pardon any federal conviction. President Obama has been one
of the least merciful presidents in history when it comes to pardons; the eight clemencies and 13
pardons he granted last month was more than he did in his entire first term. Meanwhile, tens of
thousands of Americans remain in prison for drugs: In 2012, the most recent date for which data is
available, 99,426 of the nation's 196,574 federal prisoners -- just over 50 percent -- were serving time
for drug offenses.
If President Obama truly believed his own (correct) statements that drug abuse is a mental health
issue, he would pardon all nonviolent drug offenders just as President Carter once pardoned all
Vietnam War draft dodgers. After all, what other mental health issue do we imprison people for?
However, if Obama doesn't want to take the political risk that such a mass pardoning may bring, he
could at least start with the most heinous cases, like the many people serving life sentences for as
little as cocaine residue in a clothing pocket.
There is still hope that Congress will take some steps towards ending the War on Drugs in the
near future. But as President Obama said, we have a criminal justice system "in which a large
portion of people have at one time or another broken the law and only a select few get punished." If
Congress refuses to do anything about it, Obama should use his executive powers to reform it
as much as he can.
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Executive Order Counterplan
1NC and Solvency
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1nc Net Benefit
The President acting alone preserves executive power – prevents congress from stepping in
Wall Street Journal 2013
[Wall Street Journal, 9/5/2013. “Obama's Curbs on Executive Power Draw Fire,”
http://online.wsj.com/article/SB10001424127887323893004579057463262293446.html]
The president's moves on national-security issues reflect a mix of political pragmatism as well
as personal principles, and exactly how much power Mr. Obama actually has given up is the
subject of debate. He has walked a fine line on Syria, for example, saying he wasn't required to seek
sign-off from lawmakers for a military strike but asking for their approval anyway.
A senior administration official said that while the new drone-strike policy does rein in executive
authority, the NSA and Syria proposals weren't a reduction of power but an effort to increase
transparency and build public confidence.
Still, the president, who was criticized for seizing too much power through recess appointments and
other steps that some said circumvented Congress, now is being criticized by veterans of past
Republican administrations for weakening the presidency.
John Yoo, a Justice Department official in the George W. Bush administration, said Mr. Obama had
unnecessarily limited his own authority. He noted that it is rare to see a president restrict his powers.
Mr. Obama "has been trying to reduce the discretion of the president when it comes to national
security and foreign affairs," said Mr. Yoo, now a law professor at the University of California at
Berkeley. "These proposals that President Obama is making really run counter to why we have a
president and a constitution."
Others, though, said the president had given up a modicum of authority in an effort to protect
presidential power and guard against congressional action.
The question of the extent of executive power has been long debated in Washington. President
Lyndon Johnson was accused of using a narrow congressional resolution to vastly and illegally
expand the Vietnam War, for example, and President Richard Nixon was accused of creating an
"imperial presidency" before his resignation.
More recently, Mr. Obama's predecessor, Mr. Bush, was accused by Democrats of having
inappropriately expanded executive powers in combating terrorism.
Jack Quinn, who served as White House counsel for President Bill Clinton, said Mr. Obama's recent
moves amount to threading a needle to reach agreements and avoid larger setbacks for
executive power. "Sometimes, it's important to show tolerance for others in order to preserve
the power that you have," he said. "I don't think anyone can say that he is a shrinking violet
when it comes to his use of power as president."
A.B. Culvahouse, White House counsel under Ronald Reagan, agreed that the president
imposing constraints on executive authority is the preferable course if it helps dissuade
Congress from stepping in to impose the same or more onerous limitations. Lawmakers retain
the power of the purse, he noted, and also could codify restrictions in statute.
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1nc Net Benefit
A strong unchecked executive is necessary to prevent and win inevitable conflicts
McCarthy, Director Center for law and counterterrorism at the Foundation for Defense of
Democracies, 2006
[Andrew C. McCarthy, March 2006. Directs the. “The Powers of War and Peace by John Yoo,”
Commentary, https://www.commentarymagazine.com/articles/the-powers-of-war-and-peace-by-johnyoo/]
Yoo’s thesis in this book is strongest as an argument grounded in text—the text, that is, of our
founding law. Precisely because the Constitution reposes such power in the executive, he
argues, it is adaptable to the demands of crisis (though one must add that broad presidential
power is necessarily also open to great abuse and even disastrous miscalculation). It is also flexible
enough to allow for international cooperation in the name of the national interest without a
wholesale commitment to dreamy multilateral constructs (though this, too, can make for trouble
in an age of globalization in which dependable allies are essential).
But is Yoo’s reading, especially concerning the power of war, truly consistent with the framers’
original understanding? As the constitutional scholar Cass Sunstein has observed in reviewing Yoo’s
book, George Washington himself construed Congress’s power to declare war as meaning that “no
offensive expedition of importance can be undertaken until after they [Congress] have deliberated on
the subject, and authorized such a measure.” Other giants of the founding—Adams, Jefferson,
Hamilton, Madison, Chief Justice John Marshall—voiced similar sentiments. Even granting that the
framers expressly resisted congressional war-making, and promoted a vibrant executive, one need
not interpret “declare” as narrowly and legalistically as Yoo suggests.
In short, the tension reflected in the debates at the constitutional convention persists. But one must
also be alert to reality. In a world beset by the constant threat of sudden destructive force, a
robust and firmly grounded view of presidential power is imperative. Potential perils come
today not just from growing national powers like China but from rogue states in Iran and North
Korea as well as from increasingly diffuse terror cells that have demonstrated their capacity to
continue striking globally even when, as now, they are under siege. If public safety is to be
something other than an illusion, securing it will demand the power to attack quickly and, in
appropriate circumstances, preemptively; the price of awaiting consensus from 535 members
of Congress may be too prohibitive. For showing how that power derives from the very system the
framers bequeathed us, John Yoo deserves our deep thanks.
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1NC and Solvency
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Immigration Solvency
(__)
(__) Obama’s executive order on immigration has been implemented
Jorgensen, Staff writer for the Observer, 4 – 2 – 2015
[Jilian Jorgensen, Council Gearing Up to Implement Immigration Executive Order, Despite Court
Challenges, http://observer.com/2015/04/council-gearing-up-to-implement-immigration-executiveorder-despite-court-challenges/]
President Barack Obama’s immigration reform executive order may be tied up in federal
court—but that hasn’t stopped the New York City Council from getting ready to implement it,
Speaker Melissa Mark-Viverito told the Observer.
“We’re just trying to put the wheels in motion and be ready to really roll, fully, once we get the
approval—and we believe that court case is going to be overturned, thrown out, whatever—so the
executive order can move forward,” Ms. Mark-Viverto said in an interview yesterday at her City Hall
office.
Mr. Obama’s executive order would expand the existing Deferred Action for Child Arrivals
program—and, if enacted, would allow as many as five million undocumented immigrants, who
came to this country under the age of 16 or have family who are legally here and have resided in the
United States for five years, to register to avoid deportation and to work legally in the country, if
they have no criminal record.
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Executive Order Counterplan
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NSA Solvency
(___)
(__) Executive controls all things related to the NSA – started with an executive order
Williams, Think Progress Staff, 2014
[Lauren C. Williams, The ‘Primary Source’ Of NSA’s Spying Power Is A 33-Year-Old Executive Order
By Ronald Reagan, http://thinkprogress.org/world/2014/09/30/3573647/reagan-nsa-order/]
Newly released documents prove the U.S. National Security Agency’s spying power overseas
primarily comes from a 33-year-old executive order signed by then President Ronald Reagan.
The American Civil Liberties Union obtained a series of internal papers from intelligence agencies
including the NSA and Defense Intelligence Agency detailing how integral Reagan’s 1981 order is to
the NSA’s current surveillance program. The order broadly allows the government to collect data from
any company that is believed to have ties to foreign organizations. It also complicates the path
forward for intelligence reforms in Congress.
Previous reports acknowledge the order’s use as a foundation for some of the NSA’s
surveillance programs such as gaining backdoor access to tech companies’ data centers. But the
new documents, which were released as part of a Freedom of Information Act lawsuit the ACLU and
other civil liberties advocates filed just before Edward Snowden’s leaks to the media, show Executive
Order 12333 is the “primary source” authority when it comes to the NSA’s foreign spy programs.
“Because the executive branch issued and now implements the executive order all on its own,
the programs operating under the order are subject to essentially no oversight from Congress
or the courts,” Alex Abdo, a staff attorney for the ACLU wrote in a blog post.
(__) Executive can reform the NSA - Paul statements prove
Volz, Staff Writer for the National Journal, 2015
[Dustin Volz, Rand Paul Pledges to 'Immediately' End NSA Mass Surveillance If Elected President
The new Republican presidential candidate makes a forceful stand on surveillance,
http://www.nationaljournal.com/2016-elections/rand-paul-pledges-to-immediately-end-nsa-masssurveillance-if-elected-president-20150407]
Sen. Rand Paul vowed Tuesday while announcing his presidential campaign to immediately end
the National Security Agency's bulk collection of Americans' phone records.
"The president created this vast dragnet by executive order. And as president on day one, I will
immediately end this unconstitutional surveillance," Paul, speaking before a raucous crowd in
Kentucky, said. "I believe we can have liberty and security. And I will not compromise your liberty
for a false sense of security, not now, not ever. "
Paul has been among the most ardent critics of the NSA's sweeping surveillance programs in
Congress—a policy position that has grown more pronounced in the two years since the Edward
Snowden disclosures began.
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General Solvency – Legal Strength
(__) Executive Action creates a legal framework – results in congressional agreement
BRECHER, J.D., University of Michigan Law School, 2012
[Aaron P. Brecher, “Cyberattacks and the Covert Action Statute: Toward a Domestic Legal
Framework for Offensive Cyberoperations,” October,
http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1081&context=mlr
This Part argues that the federal government should adopt the presumption that cyberattacks will be
carried out under the covert action statute, and that the best way forward is for the president to
issue an executive order making the covert action regime the presumptive framework for
cyberattacks. It includes a brief discussion of why a president might willingly constrain her
discretion by issuing the proposed executive order. It also shows that while the internal executive
processes associated with both military and intelligence legal frameworks help mitigate the risk of
cyberattacks’ misuse by the executive, only the covert action regime provides an adequate role for
Congress. Finally, this Part argues that the executive order option is preferable to one alternative
proposed by scholars—enacting legislation—because of the practical difficulties of passing new
legislation. The covert action regime is the best approach for committing cyberattacks under the
current law, as it would facilitate cooperation among executive agencies. The debate over which
agency and set of legal authorities govern cyberattacks has caused no small amount of
confusion.145 Apparently, an Office of Legal Counsel (“OLC”) memorandum declined to decide which
legal regime should govern the use of cyberattacks, and the uncertainty has led to interagency
squabbles, as well as confusion over how cyberattacks are to be regulated.146 Establishing a
presumptive answer would go far toward resolving this dispute. Most importantly, adopting the
covert action framework as the presumptive legal regime would be a principled way to help ensure
constitutional legitimacy when the president orders a cyberattack.147 There is also reason to believe
that presidential power is intimately bound up in credibility, which in turn is largely dependent
on the perception of presidential compliance with applicable domestic law.148 A practice of
complying with the covert action regime for cyberattacks, both when they do not constitute a use of
force and when it is unclear whether they do, is most likely to be in compliance with the law.
Compliance with the covert action regime would also encourage covert action procedures in close
cases without unduly restricting the executive’s choice to use military authorities in appropriate
circumstances. The executive might also issue the proposed order, even though it would limit her
freedom in some ways, because of the possible benefits of constraining future administrations or
preempting legislative intervention.149 For example, in this context, an administration may choose
to follow the finding and reporting requirements in order to convince Congress that legislative
intervention is unnecessary for proper oversight. This is acceptable if the covert action regime is in
fact adequate on its own. Moreover, if greater statutory control over cyberattacks is needed, the
information shared with Congress may give Congress the tools and knowledge of the issue
necessary to craft related legislation.150 Additionally, while executive orders are hardly binding,
the inertia following adoption of an order may help constrain future administrations, which may
be more or less trustworthy than the current one. Creating a presumption through an executive
order also establishes a stable legal framework for cyberattacks that allows law to follow policy
in this new field, and permits decisionmakers to learn more about the nature of cyberoperations
before passing detailed statutes that may result in unintended consequences.
14
Executive Order Counterplan
1NC and Solvency
NAUDL 2015-16
General Solvency – Causes Legislation
(__) Executive action spurs legislation
Kagan, Visiting Professor at Harvard Law School and current Court Justice, 2001
[Elena, “Presidential Administration,” Harvard Law Review, Vol. 114, No. 8, June, p. 2293-2312]
It is not surprising, given these changes in the political landscape, that a President would turn to
administration - a sphere in which he unilaterally can take decisive action. The more the
demands on the President for policy leadership increase and the less he can meet them through
legislation, the greater his incentive to tap the alternate source of supply deriving from his position as
head of the federal bureaucracy. ¶ Administrative action is unlikely to provide a President with all he
could obtain through legislation: Congress, after all, has set bounds on administration through prior
statutory enactments. But as compared with legislative stasis, administrative action looks
decidedly appealing. More, administrative action has the potential to spur legislative action
by calling public attention to Congress's failure to act on the relevant issue.
15
Executive Order Counterplan
1NC and Solvency
NAUDL 2015-16
General Solvency – Perception
(__) Other countries will see the counterplan as the same thing as the plan – they pay
attention to the President’s actions and assume they are the same.
SINNAR, Assistant Professor of Law, Stanford Law School, 2013
[Shirin Sinnar, May 2013.. “Protecting Rights from Within? Inspectors General and National Security
Oversight,” Stanford Law Review, 65 Stan. L. Rev. 1027, Lexis]
These limitations on traditional external checks on the executive - Congress and the courts have led to increased academic interest in potential checks within the executive branch. Many
legal scholars have argued that executive branch institutions supply, or ought to supply, an alternative
constraint on executive national security power. Some argue that these institutions have
comparative advantages over courts or Congress in addressing rights concerns; others characterize
them as a second-best option necessitated by congressional enfeeblement and judicial abdication.
Thus, Neal Katyal argues that institutions within the executive branch can provide for the
"internal separation of powers" in the foreign policy arena and champions bureaucracy as a
check on presidential power. n2 Samuel Issacharoff and Richard Pildes argue that internal
dissension within the executive branch has historically protected civil liberties in wartime. n3
Dawn Johnsen advocates that legal advisers within the executive branch serve to constrain
unlawful executive action. n4 Others contend that internal executive mechanisms have comparative
advantages over judicial review: for instance, Gillian Metzger observes that such mechanisms can
operate ex ante and continuously, rather than solely in response to justiciable challenges or
problems that generate congressional attention, and argues that the policy recommendations of
executive institutions may face less resistance than external critiques. n5 Moreover, outside the
United States, legal scholars also point to executive oversight institutions as necessary to
mitigate inadequate judicial review of state national security activities. n6
16
Executive Order Counterplan
Answers
NAUDL 2015-16
Answers to Congressional Solvency Deficit Arguments
(__)
(__)Don’t need statutory reform – need the executive to answer what they SHOULD be doing
not what they COULD be doing
Schlanger, Henry M. Butzel Professor of Law, University of Michigan, 2015
[Margo Schlanger, Intelligence Legalism and the National Security Agency's Civil Liberties Gap,
Harvard National Security Journal, 6 Harv. Nat'l Sec. J. 112]
Much of the reform action is, and should be, devoted to substantive interventions. Congress should
itself ask the "should" question, and can insist on, for example, tighter rules governing bulk collection,
requiring more-individuated justifications for data acquisition, analysis, and use. Or to rephrase the
point using the familiar vocabulary of rules and standards, n343 [*190] Congress, and the
President, can design and promulgate new rules to serve the overarching standard--that liberty
should be prioritized where it carries no, or acceptable, cost to security--and these rules can then be
enforced by a compliance regime.
But what about implementation of the underlying standard itself: the idea that liberty should be
prioritized where it carries no, or acceptable, cost to security? I argued in Part III that surveillance
secrecy and the very significant changes over time mean that some opportunities to further that
standard are likely to remain untouched by the Constitution, statutes, and executive order. So
while I am far from opposed to additional statutory and regulatory-type rules, there remains an
additional opportunity to further individual liberty and privacy with less legalistic, more
standard-like interventions. This opportunity is the thrust of the last category of reforms,
which propose to institutionalize within the Executive branch, the question of "should" rather
than "can":
The President announced in August 2013 that the NSA would "put in place a full-time civil liberties
and privacy officer." n344 The job announcement went up in September, n345 and as already
described, the new NSA Civil Liberties and Privacy Officer, Rebecca Richards, began work in
January. n346
17
Executive Order Counterplan
Answers
NAUDL 2015-16
Answers to Risks Roll Back
(__)Executive position taking is binding – EVEN IF the executive wants to change their
position
Tomz, Professor at Stanford University, 2007
[Michael Tomz, October 2007. Stanford University. “Domestic Audience Costs in International
Relations: An Experimental Approach,” International Organization 61.4.]
What makes international commitments credible? The answer may lie, in part, at the intersection
of foreign affairs and domestic politics. Recent models of international relations assume that
leaders would suffer “domestic audience costs” if they issued threats or promises and failed
to follow through. Citizens, it is claimed, would think less of leaders who backed down than of
leaders who never committed in the first place. In a world with audience costs, the prospect of
losing domestic support—or even office—could discourage leaders from making empty threats
and promises. The concept of domestic audience costs is now central to theories about military
crises, and researchers have incorporated similar ideas into models of alliances, economic
sanctions, foreign trade, foreign direct investment, monetary commitments, interstate bargaining, and
international cooperation more generally. 1
Despite the prominence of audience costs in international relations theories, it remains unclear
whether and when audience costs exist in practice. Most empirical work on the topic is indirect.
Fearon conjectured that audience costs are higher in democracies than in autocracies and explained
why this gap would cause the two types of regimes to behave differently. 2 Researchers have,
therefore, checked for correlations between democracy and foreign policy. 3 Although valuable, these
tests do not reveal whether the effects of democracy stem from audience costs or from other
differences between political regimes.
One could try to study audience costs directly, perhaps by examining the historical fate of leaders
who issued threats and then backed down. The problem, which international relations scholars widely
recognize, is strategic selection bias. 4 If leaders take the prospect of audience costs into
account when making foreign policy decisions, then in situations when citizens would react harshly
against backing down, leaders would tend to avoid that path, leaving little opportunity to observe
the public backlash. It would seem, therefore, that a direct and unbiased measure of audience costs
is beyond reach.
This article aims to solve the empirical conundrum. The analysis is based on a series of
experiments embedded in public opinion surveys. In each experiment, the interviewer describes
a military crisis. Some participants are randomly assigned to a control group and told that the
president does not get involved. Others are placed in a treatment condition in which the president
escalates the crisis but ultimately backs down. All participants are then asked whether they approve
of the way the president handled the situation. By comparing approval ratings in the “stay out” and
“back down” conditions, one can measure audience costs directly without strategic selection
bias.
In the remainder of this article, I demonstrate that constituents disapprove of leaders who make
international threats and then renege. I further explain why many leaders regard disapproval as a
political liability. Finally, as a step toward deepening our theoretical as well as empirical
understanding of audience costs, I investigate why citizens react negatively to empty threats.
18
Executive Order Counterplan
Answers
NAUDL 2015-16
Answers to Need More Oversight
(__)
(__) Executive employs internal constraints – case studies prove
MICHAELS, Professor, UCLA School of Law, 2011
[Jon, “The (Willingly) Fettered Executive: Presidential Spinoffs in National Security Domains and
Beyond,” Virginia Law Review, http://www.virginialawreview.org/content/pdfs/97/801.pdf]
These are revealing case studies, weighty in their own right and interesting complements to one
another. They give us insight into how these strategically important, but largely unknown,
responsibilities are administered. They show how the Executive, rather than the Executive’s usual
rivals—Congress and the courts—can constrain public administration, through mechanisms
within the administrative state and outside of it. And, they suggest why the Executive might
welcome those constraints (and possibly others as well). The studies bring into focus a new
template, one with significant descriptive attributes and predictive power. They reveal an
underappreciated phenomenon where (1) legal constraints and political accountability checks over
administrative responsibilities are disabled, inapplicable, or dangerous; (2) the Executive seems
surprisingly hamstrung by virtue of the absence of constraints; and (3) the Executive appears to take
steps to impose an alternative regime of administrative discipline to better carry out the
responsibilities in question. Combined, the studies reveal two alternative paths to compensate for the
lack of conventional accountability assurances. With In-Q-Tel, the Executive uses an external
institutional redesign seemingly to insulate the technology incubation process from perverse
political pressures and to better align principal-agent interests. With CFIUS, the President employs
an internal institutional redesign with the apparent effect of limiting White House control, both for
the good of the parties engaged in the foreign-investment deal and in service of the President’s
larger foreign-policy goals. Taken in tandem, In-Q-Tel and CFIUS present a challenge to the
dominant view of the Executive as power-aggrandizing. Equally important, however, is the fact
that the acts and mechanisms of self-constraint are not obvious or celebrated. The Executive’s
subtlety in these domains thus itself serves as testament to the durability and primacy of the
dominant understanding.
19
Executive Order Counterplan
Answers
NAUDL 2015-16
Answers to Mission Creep
(__)
(__)Past executive orders have all been ANTI civil liberties – that is different from the
counterplan which would be pro-rights
Schlanger, Henry M. Butzel Professor of Law, University of Michigan, 2015
[Margo Schlanger, Intelligence Legalism and the National Security Agency's Civil Liberties Gap,
Harvard National Security Journal, 6 Harv. Nat'l Sec. J. 112]
3. Executive Order
Efforts to implement most of the Church Committee's substantive recommendations as statutory
law failed; they entered American law instead as part of Executive Order 12,333. As already
quoted, the Executive Order does expressly state (in language unchanged from its 1981
promulgation): "Set forth below are certain general principles that, in addition to and consistent with
applicable laws, are intended to achieve the proper balance between the acquisition of essential
information and protection of individual interests." n301 That is, one of 12,333's purposes is to fill the
civil liberties gap left by constitutional and statutory law.
But 12,333 cannot live up to that goal. For one thing, the rules' status as part of an executive order
renders them both less visible and more easily weakened. The 2008 amendments to 12,333, for
example, for the first time allowed inter-agency sharing of signals intelligence "for purposes of
allowing the recipient agency to determine whether the information is [*181] relevant to its
responsibilities and can be retained by it," pursuant to potential "procedures established by the
Director in coordination with the Secretary of Defense and approved by the Attorney General." n302
This change received no attention by non-governmental commentators. n303
More important, even if Executive Order 12,333 adequately covered civil liberties interests in 1980, it-along with its associated AG Guidelines--has grown out-of-date in subsequent decades.
Unsurprisingly, given the generally low visibility of intelligence matters, there was little appetite
to update either Executive Order 12,333 or other sources of executive self-regulation to
address new challenges to liberty, until the Snowden disclosures. Thus notwithstanding the
enormous changes that have taken place in the scope of surveillance since 1980 and the advent of
"big data" methods, there have been no substantive liberty-protective changes ever made to the
Executive Order. Some procedural protections have been added, n304 and notable efforts to
weaken the protection of U.S. Person information were fended off. n305 But whatever further
substantive protection might be useful in light of technological or other changes, all that has been
added since 1980 is new hortatory language swearing fealty to (already binding) other laws:
"The United States Government has a solemn obligation, and shall continue in the conduct of
intelligence activities under this order, to protect fully the legal rights of all United States persons,
including freedoms, civil liberties, and privacy rights guaranteed by Federal law." n306
20
Executive Order Counterplan
Answers
NAUDL 2015-16
Answers to “Permutation- Do Both”
(__)
(__) To curtail means to put a restriction on something. The affirmative must put a restriction
on the action. The counterplan only stops the action.
VOCABULARY.COM 2014
[http://www.vocabulary.com/dictionary/curtail]
curtail
To curtail something is to slow it down, put restrictions on it, or stop it entirely. If I give up
cake, I am curtailing my cake-eating.
Curtail is an official-sounding word for stopping or slowing things down. The police try to curtail
crime — they want there to be less crime in the world. A company may want to curtail their
employees' computer time, so they spend more time working and less time goofing around. Teachers
try to curtail whispering and note-passing in class. When something is curtailed, it's either
stopped entirely or stopped quite a bit — it's cut short.
(__) “Authority” derives from other actors – curtailing must done by another actor – not the
executive branch
Hill, JD – Hastings College of Law, 2013
[Gerald Hill, The People's Law Dictionary, http://dictionary.law.com/Default.aspx?selected=2478]
authority
n. permission, a right coupled with the power to do an act or order others to act. Often one
person gives another authority to act, as an employer to an employee, a principal to an agent, a
corporation to its officers, or governmental empowerment to perform certain functions. There are
different types of authority, including "apparent authority" when a principal gives an agent various
signs of authority to make others believe he or she has authority; "express authority" or "limited
authority," which spells out exactly what authority is granted (usually a written set of instructions)
"implied authority," which flows from the position one holds and "general authority," which is the broad
power to act for another.
21
Executive Order Counterplan
Net Benefit
NAUDL 2015-16
Plan Hurts Executive Power
(__)
(__) Congressional and executive power are zero-sum
Howell, Professor of government at Harvard, 2003
[William Howell, 2003., Power without Persuasion: The Politics of Direct Presidential Action, p. 101]
The unilateral politics model identifies the basic, and sometimes counterintuitive, dynamics of
presidential policy making. The model explains why presidents unilaterally set policies that a majority
within Congress may oppose. It specifies how changes within Congress (caused generally, though
not exclusively, by elections) translate into either an expansion or contraction of executive discretion
to act unilaterally. And it clarifies how these powers enable the president not only to set policies
that Congress on its own accord would not pass, but also to undermine congressional efforts to
enact laws that the president opposes. We repeatedly return to a basic theme about systems
of governance defined by their separated powers: executive power is inversely proportional to
legislative strength. Presidential power expands at exactly the same times when, and
precisely the same places that, congressional power weakens. The occurrence is hardly
coincidental. Indeed, the forces operate in tandem, for it is the check each places on the other
that defines the overall division of power.
(__) Any deviation from the unitary executive undermines prez powers.
Calabresi, Associate Professor Northwestern School of Law, 1995
[Steven Calabresi, 1995.. “Some Normative Arguments for the Unitary Executive,” 48 ARK. L. REV.
23, Lexis]
I began this section by saying that I would show why it is at least as important that there be a unitary
presidency as that there be a strong presidency. I think the groundwork has now been laid for
defending that claim. Any deviation from the principle of unitariness in the executive structure
immediately opens up a crack into which the state and local pressures described above will tend to
insinuate themselves. The minute some portion of the executive is cut free from the President and the
national electoral constituency which he and he alone represents, it tends to become swallowed by
the state and local political pressures that drive the congressional committees and subcommittees.
Deviations from executive unitariness thus necessarily hold the risk [*66] that different
regional concerns will attach themselves to the disassociated interest, especially if it somehow
seems important to their region. Thus, an "independent" Defense Department would likely be a
target of opportunity for members of Congress from a state with a lot of defense spending or
with voters who care strongly about the military. An "independent" Federal Reserve Board will
be a target for members of Congress who represent large financial interests, and so on. Any
deviation, however slight, from the Framers' organizing principle of executive unitariness will
be filled by regional, anti-national concerns.
22
Executive Order Counterplan
Net Benefit
NAUDL 2015-16
Secrecy Proves the Need
(__)
(__) Executive Deference & the need for secrecy justify executive actions
DALAL, J.D., Yale Law School; B.A., B.S., University of Pennsylvania, 2014
[Anjali S. Dalal, Shadow Administrative Constitutionalism and the creation of surveillance culture,
Michigan State Law Review, 2014 Mich. St. L. Rev. 59]
Separately, this history reminds us that, unlike other areas in which the executive branch exercises
authority, executive expertise on issues of war, peace, and the various states of security that exist in
between is authoritative. Agencies acting pursuant to the national security mandate--including
the DOJ, the FBI, the CIA, the Department of Defense (DOD), and the National Security Agency
(NSA)--are granted deference in their decisions because they are understood to operate with a
level of expertise that is unrivaled among the three branches of government. In Holder v.
Humanitarian Law Project, the Court emphasized the appropriateness of this sort of deference by
reiterating a point it had previously made in Boumediene v. Bush that "'neither the Members of this
Court nor most federal judges begin the day with briefings that may describe new and serious threats
to our Nation and its people.'" n256 Consequently, the Court held that "when it comes to collecting
evidence and drawing factual inferences" on national security issues, "'the lack of competence on the
part of the courts is marked,' and respect for the Government's conclusions is appropriate." n257
Thus, agency norm entrepreneurship on issues of national security will often receive a level of
deference that undercuts the deliberative process required under administrative constitutionalism.
n258
Operating together, agency expertise and executive branch authority on national security
elicit a sort of super-deference that applies to agency norm entrepreneurship in the national
security arena.
[*117] B. Secrecy
The second reason national security policymaking lends itself to shadow administrative
constitutionalism is secrecy. National security demands the government operate with some
secrecy. Announcing our plan of attack or our weakest defenses threatens to sacrifice
national security at the altar of transparency. As Former Attorney General Benjamin Civiletti noted
in a law review article over thirty years ago:
23
Executive Order Counterplan
Net Benefit
NAUDL 2015-16
Waiting on Congress Risks Conflict
(__)
(__) Waiting on Congress risks WMD conflicts
Li, JD @ Georgetown Law; Associate @ Willkie Farr & Gallagher LLP, 2009
[Zheyao Li, 2009.. “War Powers for the Fourth Generation: Constitutional Interpretation in the Age of
Asymmetric Warfare,” Georgetown Journal of Law & Public Policy, Geo. J.L. & Pub. Pol'y 373,
Lexis.]
Another shortcoming of Professor Koh's proposal to introduce new institu- tional checks and
balances on the war powers through statutory enactment is revealed when he quotes, but quickly
dismisses, the concerns of Professor Paul Kennedy, who wrote even before the end of the Cold
War that the United States, "may not always be assisted by its division of constitutional and decisionmaking powers, deliberately created when it was geographically and strategically isolated from the
rest of the world two centuries ago.., but which may be harder to operate when it has become a
global superpower, often called upon to make swift decisions vis-A-vis countries which enjoy far fewer
30 constraints."
While Koh is absolutely correct when he argues that, simply because other nation-states might not
abide by the same constitutional or democratic con- straints, that does not entitle America to freely
disregard her own Constitution,31 this tautology does not provide a satisfactory conclusion to the
inquiry, especially when American lives are at stake.
Specifically, Professor Koh fails to foresee the
unique problems presented by the rise of non-state actors, particularly terrorist groups. He
writes that "[e]xpect- ing, perhaps, a response to a nuclear strike, the occasions are exceedingly
rare when the president would jeopardize the nation by considering legality before committing
the nation to a course of international action.",32 This statement is true when considered solely in
the context of non-nuclear, state-based threats. In the modem age of international terrorism and
rogue states, however, consider- ing the proliferation of weapons of mass destruction and the
ease and low cost with which WMDs may be deployed, the President may not have the luxury
to wait on congressional debate and approval before acting to prevent the loss of American
lives.
24
Executive Order Counterplan
Net Benefit
NAUDL 2015-16
Waiting on Congress Risks Conflict
(___)
(__) Restricting the president shifts power to the bureaucracy - this undermines foreign policy
effectiveness.
Cronin, President of Whitman College, Political Scientist, 1998
[Thomas Cronin, 1998. The Paradoxes of the American Presidency, pg. 203]
A central question during the 1970s was whether, in the wake of a somewhat diminished
presidency, Congress could furnish the necessary leadership to govern the country. Most
people, including many members of Congress, did not think that Congress could play that role. The
routine answer as we enter the twenty-first century is that the United States needs a presidency of
substantial power if we are to solve the trade, deficit, productivity, and other economic and
national security problems we currently face. We live in a continuous state of emergency.
Terrorism or nuclear warfare could destroy our country. Global competition of almost every
sort highlights the need for swift leadership and a certain amount of efficiency in government.
Many people realize, too, that weakening the presidency may, as often as not, strengthen the
vast federal bureaucracy and its influence over how programs are implemented more than it
would strengthen Congress. Congress simply is not structured for sustained leadership and
direction. Power in Congress is too fragmented and dispersed. Congress can, on occasion,
provide leadership on various issues, yet it is far less able to adapt to changing demands and
national or international crises that arise than is the presidency. The presidency is a more
fluid institution and thereby can usually more quickly adjust and adapt.
25
Executive Order Counterplan
Net Benefit
NAUDL 2015-16
Risks WMD conflicts
(__)
(__) Fast, rapid, unchecked executive prevents WMD conflicts
Royal, Institute of World Politics, 2011
[John Paul Royal, 2011. “War Powers and the Age of Terrorism,” Center for the Study of the
Presidency & Congress The Fellows Review, www.thepresidency.org/storage/Fellows2011/Royal_Final_Paper.pdf]
Proliferation of weapons of mass destruction (WMD), especially nuclear weapons, into the hands
of these terrorists is the most dangerous threat to the United States. We know from the 9/11
ommission Report that Al Qaeda has attempted to make and obtain nuclear weapons for at least the
past fifteen years. Al Qaeda considers the acquisition of weapons of mass destruction to be a
religious obligation while “more than two dozen other terrorist groups are pursing CBRN
[chemical, biological, radiological, and nuclear] materials” (National Commission 2004, 397).
Considering these statements, rogue regimes that are openly hostile to the United States and have or
seek to develop nuclear weapons capability such as North Korea and Iran, or extremely unstable
nuclear countries such as Pakistan, pose a special threat to American national security interests.
These nations were not necessarily a direct threat to the Unite d States in the past. Now, however,
due to proliferation of nuclear weapons and missile technology, they can inflict damage at
considerably higher levels and magnitudes than in the past. In addition, these regimes may
pursue proliferation of nuclear weapons and missile technology to other nations and to allied terrorist
organizations. The United States must pursue condign punishment and appropriate, rapid action
against hostile terrorist organizations, rogue nation states, and nuclear weapons proliferation threats
in order to protect American interests both at home and abroad. Combating these threats are
the “top national security priority for the United States... with the full support of Congress, both
major political parties, the media, and the American people” (National Commission 2004, 361).
Operations may take the form of pre-emptive and sustained action against those who have
expressed hostility or declared war on the United States. Only the executive branch can effectively
execute this mission, authorized by the 2001 AUMF. If the national consensus or the nature of the
threat changes, Congress possesses the intrinsic power to rescind and limit these powers.
26
Executive Order Counterplan
Net Benefit
NAUDL 2015-16
Answers to “Politics Links to the Counterplan too”
(__)
(__) Executive orders don’t require lobbying of congress.
SOVACOOL, PhD, Research Fellow in the Energy Governance Program at the Centre on Asia
and Globalization, 2009
[Benjamin Sovacool and Kelly Sovacool, 2009.. “Preventing National Electricity-Water Crisis Areas in
the United States,” Columbia Journal of Environmental Law , 34 Colum. J. Envtl. L. 333.]
Executive Orders also save time in a second sense. The President does not have to expend
scarce political capital trying to persuade Congress to adopt his or her proposal. Executive
Orders thus save presidential attention for other topics. Executive Orders bypass congressional
debate and opposition, along with all of the horsetrading and compromise such legislative
activity entails. 292 Speediness of implementation can be especially important when challenges
require rapid and decisive action. After the September 11, 2001 attacks on the Pentagon and World
Trade Center, for instance, the Bush Administration almost immediately passed Executive Orders
forcing airlines to reinforce cockpit doors and freezing the U.S. based assets of individuals and
organizations involved with terrorist groups. 293 These actions took Congress nearly four months to
debate and subsequently endorse with legislation. Executive Orders therefore enable presidents to
rapidly change law without having to wait for congressional action or agency regulatory
rulemaking.
27
Executive Order Counterplan
Affirmative Answers
NAUDL 2015-16
Executive Orders can be rolled back
(__)
(__) Executive acting alone fails – future administrations will just act however they want –
needs to be more broadly curtailed
Friedersdorf, Politics and National Affairs Writer for the Atlantic, 2013
[Conor Friedersdorf, 5/28/2013 “Does Obama Really Believe He Can Limit the Next President's
Power?” The Atlantic, http://www.theatlantic.com/politics/archive/2013/05/does-obama-really-believehe-can-limit-the-next-presidents-power/276279/]
Will anyone follow them? That's what I don't understand. Why does Obama seem to think his
successors will constrain themselves within whatever limits he sets? Won't they just set their
own limits? Won't those limits be very different? What would Chris Christie do in the White
House? I have no idea, but I'm guessing that preserving the decisionmaking framework Obama
established isn't what he'd do.
Does anyone think Hilary Clinton would preserve it?
Obama doesn't seem to realize that his legacy won't be shaped by any perspicacious limits he places
on the executive branch, if he ever gets around to placing any on it. The next president can just
undo those "self-imposed" limits with the same wave of a hand that Obama uses to create
them. His influence in the realm of executive power will be to expand it. By 2016 we'll be four terms
deep in major policy decisions being driven by secret memos from the Office of Legal Counsel. The
White House will have a kill list, and if the next president wants to add names to it using standards
twice as lax as Obama's, he or she can do it, in secret, per his precedent.
Some new John Brennan-like figure, with different values and a different personality, will serve
as Moral Rectitude Czar.
Even ending torture was done by executive order. The folks guilty of perpetrating it weren't punished.
Congress wasn't asked to act. (There was an ambitious domestic agenda to focus on!) So who knows
what we'll get next, save for a new president who witnessed all the previously unthinkable things post9/11 presidents got away with so long as they invoked fighting "terror."
The fact that every new president is likely to be a power-seeking egomaniac seems like too
obvious a flaw in Obama's plan for a smart guy like him not to see it. So what gives? Is all the
talk of limiting the executive branch just talk? But why even talk at this point, if so? He isn't running
again. Yet if he really does think his office wields too much power, why is he putting in place
safeguards the next president can and probably will undo instead of zealously trying to get
Congress to act? Yet he does seem to be concerned. Here's Peter Baker reporting in The New York
Times:
28
Executive Order Counterplan
Affirmative Answers
NAUDL 2015-16
Executive Branch Needs More Oversight
(___)
(__) Problem is lack of transparency & oversight – need more external checks
BUTLER , Appellate Advocate Counsel, Electronic Privacy Information Center; J.D., UCLA
School of Law, 2013
[Alan Butler, Standing Up to Clapper: How to Increase Transparency and Oversight of FISA
Surveillance, New England Law Review, Fall, 2013, 48 New Eng. L. Rev. 55]
As new details have emerged about the FBI and NSA's domestic intelligence-gathering practices, it
has become clear that the current system does not provide enough transparency to ensure
public oversight and trust. n42 There are three main problems with the current system: the
development of a secret body of constitutional and statutory law by the FISC, structural
limitations on judicial review of FISA surveillance, and rules inhibiting Congress' ability to
facilitate public oversight. As a result, important questions about the scope and nature of
surveillance remain unanswered, and in many cases, there is not even enough information to
know which questions to ask.
29
Executive Order Counterplan
Affirmative Answers
NAUDL 2015-16
Need More Oversight-- Extensions
(___) Current laws defer too much to executive authority on surveillance issues. New
congressional action is needed to provide proper overisight.
BUTLER , Appellate Advocate Counsel, Electronic Privacy Information Center; J.D., UCLA
School of Law, 2013
Congress plays an important role in the intelligence oversight process as well, but its
oversight of FISA activity authorized under Section 702 and Section 215 is severely limited by
procedural rules imposed by the Department of Justice ("DOJ") and inadequate public
reporting. The law requires that the Attorney General keep the Senate Select Committee on
Intelligence, n48 the House Permanent Select Committee on Intelligence, n49 and the Senate
Judiciary Committee "fully informed" concerning the Government's use of FISA. n50 However, reports
sent from the DOJ to the [*65] House and Senate Intelligence Committees impose strict rules on the
dissemination of the government's legal interpretation of these programs. n51 For example, the
detailed reports on the use of Section 215 were only available in Intelligence Committee offices for a
"limited time period," no photocopies or notes could be taken out of the room, and only certain
congressional staff members were allowed to attend. n52 Similar rules likely apply to the Attorney
General's reports on significant FISA legal interpretations n53 and the use of Section 702 authorities.
n54 Public reports regarding the extent of FISA surveillance activity give a bare minimum of
information, including only the number of applications for electronic surveillance, the number granted,
modified, or denied, n55 and the same information regarding requests for orders compelling
production of business records. n56 Unlike the Wiretap Reports issued by the Administrative Office of
the U.S. Courts, which provide a comprehensive overview of the cost, duration, and effectiveness of
surveillance in criminal investigations, n57 the FISA reports do not provide sufficient detail. n58 As a
result, Members of Congress and the public do not have the information [*66] they need to
evaluate the efficacy and legality of these programs. n59
The problem of secret law is exacerbated by the limited judicial review of important
constitutional and statutory issues related to modern FISA surveillance. As one former FISA
judge recently noted, the role of judges is not to make policy, it is to "review policy determinations for
compliance with statutory law" - but such review must be done in the context "of [the] adversarial
process." n60 The FISA does not currently provide for adversarial hearings in the FISC, even
when presented with complex and novel issues. n61 And unlike warrants and other ex parte
orders issued in criminal cases, judicial review of FISA activity is not guaranteed in criminal
prosecutions or other subsequent proceedings. n62 Even when the government provides notice of
the use of FISA-derived evidence in criminal cases, it has not specified whether such surveillance
was accomplished pursuant to Section 702 authorized directives. n63 As a result, the
traditional means of obtaining judicial review of the ultimate [*67] constitutional question
regarding modern FISA surveillance is unavailable. The Supreme Court has also made it more
difficult to assert a constitutional challenge in a civil case based on Section 702 activities. n64
30
Executive Order Counterplan
Affirmative Answers
NAUDL 2015-16
Need More Oversight-- Extensions
(__)
(__) Accountability is key – need multiple agencies involved
SETTY, Professor of Law and Associate Dean for Faculty Development & Intellectual Life,
Western New England University School of Law, 2015
[Sudha Setty, Surveillance, Secrecy, and the Search for Meaningful Accountability, Winter, 2015,
Stanford Journal of International Law, 51 Stan. J Int'l L. 69]
Genuine accountability should not depend on the chance that an unauthorized and illegal leak
will occur. In the comparative example of the United Kingdom, engagement with a European Union
energized with a commitment to increase privacy protections, along with domestic parliamentary
oversight, provide two potential avenues for increased constraint on surveillance. In India, the
parliament and the courts historically enabled, not constrained, the intelligence community. Whether
that stance will continue as the government's technological capabilities increase is yet to be seen.
Domestically, it could be argued that the types of reform recommended here to improve actual
accountability and transparency over programs like the NSA Metadata Program are overkill: They
involve multiple branches of government, the PCLOB, and the public. However, much of the
accountability apparatus that has been in place was dormant until the Snowden disclosures,
and would have remained passive without those disclosures. A multi-faceted, long-term,
structural approach [*103] to improving transparency and accountability - one that involves
at a minimum the courts and the PCLOB, but hopefully Congress, the executive branch, and the
public as well - improves the likelihood of sustained and meaningful accountability as new
surveillance capabilities are developed and implemented.
31
Executive Order Counterplan
Affirmative Answers
NAUDL 2015-16
Risk Mission Creep
(__)
(__) Executive will engage in mission creep – national security fears external& nature of
bureaucracy insure it – proves the need for checks
DALAL, J.D., Yale Law School; B.A., B.S., University of Pennsylvania, 2014
[Anjali S. Dalal, Shadow Administrative Constitutionalism and the creation of surveillance culture,
Michigan State Law Review, 2014 Mich. St. L. Rev. 59]
The mission of national security is at once so powerful and so vague that mission creep
towards complete surveillance is only [*100] natural. After all, it is a Hobbesian reminder of
the primary purpose of the state. The state exists to keep us safe from each other and from
outsiders. If the citizenry cannot rest assured that their possessions, livelihoods, and lives are stable
and secure, then the state has failed in its most fundamental duty. At the highest level, this mandate
contains no limiting principles, and the determination of when our national security is threatened is
solely in the hands of the executive charged with delivering on the mandate. Thus, while we may
negotiate peacetime limitations on the authorities of law enforcement and intelligence gathering,
when the security of the nation is called into question, those limitations are easily shrugged off and
the mission expanded.
As existential threats to our national security increasingly become a way of life, the FBI is
instinctively responding by expanding its mission and pursuing its mission more
comprehensively. As Professor Peter Swire explains:
[A] more general reason why surveillance powers expand over time [is that] intelligence agencies get
part of a picture but are unable to understand the entire picture and thus seek and receive additional
powers, with the hopes that the additional surveillance capabilities will be more effective at meeting
the goal of preventing harm before it occurs. n183
Thus it is in part the noble pursuit of a powerful but amorphous mandate that motivates
mission creep.
32
Executive Order Counterplan
Affirmative Answers
NAUDL 2015-16
Risk Mission Creep
(__) Need external checks to prevent mission creep
DALAL, J.D., Yale Law School; B.A., B.S., University of Pennsylvania, 2014
[Anjali S. Dalal, Shadow Administrative Constitutionalism and the creation of surveillance culture,
Michigan State Law Review, 2014 Mich. St. L. Rev. 59]
CONCLUSION
This Article begins to tackle an under-theorized area in legal scholarship: the role of administrative
agencies, often in isolation, in articulating the contours of constitutional protections in the area of
national security. Our national security law is determined largely by administrative agencies--be
it the DOJ, the DOD, the CIA, the NSA, or the various fiefdoms within each of these agencies.
While the War on Terror has led to significant interest in the growth of Executive Power, this
interest has largely focused on the roles of the President and his closest advisors in determining the
contours of the President's constitutional authority. However, given the high profile nature of
presidential power grabs, many of these interpretations of executive authority ultimately are reviewed
by the Supreme Court or at least reviewed by the public. As we saw with the series of Supreme Court
decisions on the legal rights of Guantanamo detainees n341 and the President's renewed promises,
in the face of serious public pressure, to close Guantanamo and rein in [*137] drone warfare, n342
serious expansion of presidential power is often subject to checks and balances.
Comparatively, administrative agencies operate under the radar--not necessarily making the big
decisions on detention authority or warrantless wiretapping programs, but making the smaller
decisions on how much the FBI can do without obtaining a warrant. These seemingly smaller
things remain outside of public purview and escape public deliberation.
Administrative constitutionalism presents a democratic process by which to arrive at constitutional
meaning. However, agency norm entrepreneurship that is not followed by robust deliberation
threatens to allow agencies, the least accountable members of our tripartite government, the
power to create and entrench constitutional norms that ultimately inform the development of
constitutional law. Building structural solutions to force deliberation can ensure the
legitimacy of administrative constitutionalism.
33
Executive Order Counterplan
Affirmative Answers
NAUDL 2015-16
Power doesn’t Trade-Off
(__)
(__) Legislative-Executive power isn’t zero-sum – it’s a rubber band – it can be exercised
without changing the structure
Rottinghaus, Assistant Prof of Poli Sci at the University of Houston, 2011
[Brandon tottinghaus, “The Presidency and Congress”, from New Directions in the American
Presidency, ed. Lori Cox Han] page 96-97
Alexander Hamilton's edict for "energy" in the executive can creatively contradict the constitutional
authority given to the legislative branch. A visible and powerful president necessarily detracts from a
legislature whose job it is (at least on paper) to be the engine of legislative ingenuity. The Constitution
sought to buttress ‘parchment barriers' by pitting ambition against ambition; and the principle means
of doing that was the election of public officials at different times, by different people and for
somewhat different reasons." 107 Although the powers of the president have grown
immeasurably beyond what the framers envisioned and have surpassed Congress in terms of
the ability to lead in the American system, the function of shared powers continues to shape
the political process in America.
To consider this relationship a pendulum (an analogy some have used108 to suggest the power
balance swings from one branch to another) may overstate the zero-sum game of Washington
politics-the truth is that legislative powers are shared, even if certain powers are exercised at
certain times by specific institutions that perhaps encroach on the power of another branch. A
pendulum analogy implies that the power shifts between the branches (potentially at regular,
predictable intervals). This arrangement is false since, even during times when one branch
appears to have more power than another, the truth is that the branches still rely on one
another for shared policy-making power. In reality, the executive-legislative relationship is
more like a rubber band, where it retains a fundamental shape but can be stretched to change
as legislative and executive tools change and political events occur. So, for instance, in utilizing
unilateral powers, presidents can stretch that part of the rubber band, even while members of
Congress assert themselves on matters of foreign policy or the appointments process.
Indeed, perpetuating the rubber band analogy, jointly understanding presidency- centered and
Congress-centered variables is also shown to better account for variations in policy making.109
For instance, recent evidence suggests a resurgent Congress in the creation of foreign policy, a
fact that seems at odds with the "two presidencies" thesis 110 or other literature that claims that
Congress always defers to the president in foreign policy matters. 111 This supports the literature
that Congress may not be involved in the formal aspects of foreign policy making but does play a
role in the informal aspects.112 The evidence presented here also reveals that Congress has more
say on when and how the president uses his unilateral powers and whom the president
recommends for nomination and confirmation than was previously assumed.
34
Executive Order Counterplan
Affirmative Answers
NAUDL 2015-16
Strong Executive Unnecessary
(__) Less powerful executive won’t hurt US foreign policy
Paul, Professor at University of Connecticut School of Law, 1998
[Joel Paul, July 1998. “The Geopolitical Constitution: Executive Expediency and Executive
Agreements,” California Law Review, 86 Calif. L. Rev. 671, Lexis.]
A less powerful executive would not weaken U.S. foreign policy. Public scrutiny of the
deliberative process and an independent judiciary have been a source of political stability and vitality
in our system of government. The advantages of the President acting with the support of a
strong consensus are evident. A congressional authorization to use force overseas sends a
serious message to a foreign adversary that the nation is united. Congressional debate can
educate the public about the nature of a foreign situation and consolidate public support for
foreign assistance. Compelling members of Congress to take a public position in favor of a
policy makes it less likely that they will abandon the policy when the going gets tough. For a
generation the executive has told us how to imagine the world beyond our borders. Our
collective fear displaced reason as we deferred to the President's greater wisdom. As a
consequence, the people no longer hold Congress accountable for the failures and excesses of U.S.
[*773] foreign policy. We cannot afford to ignore global forces that are reshaping our economy
and our politics. Foreign and domestic issues have converged. Accordingly, we must reassert
some measure of democracy in the formulation of foreign policy. Holding our government
accountable for foreign policy requires the vigilance of the courts no less than Congress.
35