Courts Counterplans
Index
FISA/FISC CP
SOP Supreme Court CP
Contributing:
Jake Galant
Ian Dill
KCathy Min
FISA/FISC CP
Notes
Contributing:
Ian Dill
The FISC is an Article III district court set up by the FISA act of ‘78 which makes rulings regarding the FISA
act as well as the FISA Amendments act of 2008. The FISCR is the appeals court set up to review the
FISC’s decisions. Both are secret, and are able to withhold decisions and opinions from public review.
Solves any advantage that is based purely in ending surveillance as opposed to advantages based on
modeling or perception of reform.
Best run against the freedom act aff, or any aff that restricts NSA surveillance, as that’s all channeled
through the FISC courts as it is. Specifically, it solves the privacy and bigotry advantages well.
Good net benefits are ptx, a deference da (if it’s a courts aff), or potentially a terror DA
(You would need to run a perception/deterrence link to the terror DA to make it net beneficial, because
you still restrict surveillance to the same degree as the aff would)
1NC
The Foreign Intelligence Surveillance Court of Review should rule that [Insert Plan
Mandate].
CP solves — FISCR Rulings set binding precedent for future FISC rulings AND those
decisions remain secret
Boeglin & Taranto 15, Jack Boeglin & Julius Taranto; Both are J.D. candidates in the class of 2016 at Yale Law School. “Stare Decisis
and Secret Law: On Precedent and Publication in the Foreign Intelligence Surveillance Court” Yale law Journal Number 124, Volume 6, April,
2015, 1836-2201. http://www.yalelawjournal.org/comment/stare-decisis-and-secret-law
*en banc – a hearing where all judges make a ruling
*Stare Decisis – setting law based on legal precedent
*FISCR – Foreign Intelligence Surveillance Court of Review
A. The Foreign Intelligence Surveillance Court The Foreign Intelligence Surveillance Act, enacted in 1978,10 sets up the Foreign Intelligence
Surveillance Court (FISC), a specialized Article III court with the power to hear and grant government requests for foreign surveillance.11 The
FISC’s work consists almost entirely of ex parte proceedings granting, modifying, and denying government requests for the authority to conduct
surveillance or searches, or to compel the production of tangible things.12 Pursuant to the statute, the FISC consists of eleven Article III district
court judges, selected by the Chief Justice of the United States.13 All
applications are considered by a single judge and
cannot be reheard by another judge of the FISC except when the court sits en banc.14 FISA provides for
both en banc consideration and appeals to the Foreign Intelligence Surveillance Court of Review
(Court of Review). En banc review involves a panel of all eleven FISC judges and must be ordered by a
majority of the FISC judges based on a determination that “(i) en banc consideration is necessary to
secure or maintain uniformity of the court’s decisions; or (ii) the proceeding involves a question of exceptional
importance.”15 According to public records, the FISC has sat en banc only once,16 but it is impossible to know how many sittings and opinions
remain secret. The
Court of Review, which consists of three district or circuit judges also designated by the
Chief Justice, has issued only two public decisions.17 B. Stare Decisis and the FISA Courts In terms of its core
function, the FISC is effectively a federal district court.18 The vast majority of its work involves a single
judge’s determinations of the legality of government requests to authorize surveillance or compel
production. Although it is hard to be certain without more publicly available information, FISC judges likely treat their
opinions as non-precedential, as is standard practice for federal district courts.19 The relatively few public FISC
opinions do cite earlier FISC opinions and principles of law,20 but we have seen no clear evidence to suggest that the
judges feel formally bound by those earlier opinions in any manner that would set them apart from
other Article III district courts. In contrast, en banc opinions and Court of Review opinions apparently
do have the force of stare decisis. With en banc rulings , this point is evident from the statute: the court may sit en banc
only to “secure or maintain uniformity” or to decide a “question of exceptional importance.”21 These bases for en banc
jurisdiction suggest that individual FISC judges must give stare decisis effect to any en banc panel
decision that is not overturned by the Court of Review because, absent such a practice, the en banc
panels would not fulfill one of their two statutory purposes: to secure or maintain uniformity. Court of
Review opinions can be precedential, but they are not necessarily precedential. The Court of Review
is an appellate court, and like other Article III appellate courts, it has the power to bind both lower
courts (in this case, the FISC) and later Court of Review panels .22 The Court of Review probably has
the same discretion as federal courts of appeals to designate opinions as precedential and nonprecedential; at least, no statutory provision declares otherwise.23 The two public Court of Review opinions are published in redacted
form in the Federal Reporter.24 As with the published case of the FISC sitting en banc, these published Court of
Review cases are certainly precedential.25 We do not know the volume, if any, of secret non-
precedential Court of Review opinions, or whether there are non-public Court of Review opinions that are nonetheless treated
as precedential.
2NC
2nc Overview
Cp solves the case – legal action by FISCR sets legal precedent for all NSA surveillance
requests and ensures compliance from the FISC – that solves unwarranted bulk
surveillance - all surveillance cases go through FISC
Avoids the NB –
2NC Solvency - Generic
FISA can do the plan – they have the Jurisdiction to set legal precedent
Kayyali 14 Nadia Kayyali, Bill of Rights Defense Committee Legal Fellow ,BA from UC Berkeley, JD from
UC Hastings. “What You Need to Know About the FISA Court—and How it Needs to Change” Electronic
Frontier Foundation. https://www.eff.org/deeplinks/2014/08/what-you-need-know-about-fisa-courtand-how-it-needs-change. 8/15/2014
Why the FISA Court Needs to Change: Among the myriad reasons the FISC must change, three stand out. First, FISA has become a drastically more complicated law
than when it was originally passed in 1978, and the role of the FISC has accordingly grown far beyond the bounds of what Congress envisioned. Second, because of
those changes, the FISC
has created a huge body of secret policy and legal precedent. Finally, the court’s reliance on the
government to provide all the necessary information needed to fairly make decisions is not sufficient, something that is painfully obvious as one reads the FISC
decisions themselves. It’s also something EFF has recently experienced in our NSA cases. The
court’s mandate has expanded
exponentially since 1978, especially during the 90s. More recently, Section 215 of the PATRIOT Act and Section 702 of the FISA
Amendments Act—both of which were passed decades after the initial FISA—granted far broader spying authorities to the government than had existed before,
and the government has claimed the right to conduct mass surveillance under these provisions. What
Congress originally authorized when
creating the FISC, with the Church Committee hearings freshly in mind, was an expedited system of approving
individualized warrants for foreign surveillance of specified individuals—much like what regular magistrate judges do
with warrants now, with safeguards built in for the national security context. That bears repeating: When FISA was passed, it authorized individualized warrants for
surveillance.
Now, the court is approving mass surveillance . This is key, because as “current and former
officials familiar with the court’s classified decisions” told the New York Times in July of last year, the court is no
longer simply approving applications . It is “regularly assessing broad constitutional questions and
establishing important judicial precedents, with almost no public scrutiny ," affecting millions of innocent people. As
former FISC judge James Robertson stated to the Privacy and Civil Liberties Oversight Board, “What [the FISC] does is not adjudication, but approval. This works just
fine when it deals with individual applications for warrants, but
the 2008 (FISA) amendment has turned the FISA court into an
administrative agency making rules for others to follow .” The result of this expansion of the FISC’s role is a body of secret law
that, now that some has come to light, has shocked most Americans. The most obvious example of this is, of course, section 215 of the Patriot Act, where “the
court’s interpretation of the word ['relevant,'] enabled the government . . . to collect the phone
records of the majority of Americans, including phone numbers people dialed and where they were
calling from, as part of a continuing investigation into international terrorism.” The “heightened duty of candor” is
not enough. FISC decisions that have been made public are full of descriptions of the NSA not fulfilling its duties and being very slow to inform the court about it.
Judge John Bates noted: “The court is troubled that the government’s revelations regarding the NSA’s acquisition of Internet transactions mark the third instance in
less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program,” and noted
“repeated inaccurate statements made in the government’s submission,” concluding that the requirements had been “so frequently and systematically violated that
it can fairly be said that this critical element of the overall…regime has never functioned effectively.” Judges have consistently chastised the NSA for “inaccurate”
statements, misleading or incomplete filings and for having “circumvented the spirit” of laws protecting Americans’ privacy. EFF had its own brush with this problem
earlier this year, when we discovered that the government had not even informed the FISC of its duties to preserve evidence. In March, after an emergency hearing,
a federal court in San Francisco ordered the government to preserve records of Section 215 call details collection. On that same day, the FISC issued its own strongly
worded order in which it mandated the government to make a filing explaining exactly why it had failed to notify the FISC about relevant information regarding
preservation orders in two related cases, Jewel and Shubert. This failure had affected the court’s earlier ruling mandating that certain information be destroyed. It’s
clear that the FISC simply can’t rely on the government to get the full picture.
FISA has empirically ruled against the NSA on domestic surveillance
Dougdale 13. Addy Dougdale. Contributer to FastCompany – a leading progressive news outlet. “FISA
COURT FORCED NSA TO STOP ILLEGALLY GATHERING EMAIL” August 22, 2013.
http://www.fastcompany.com/3016203/the-code-war/foi-request-shows-nsa-forced-to-stop-illegalgathering-of-us-correspondence-byU.S. Intelligence officials have released papers showing the NSA illegally snooped on thousands of U.S.
citizens' electronic messages before a court ordered it to cease. The declassified ruling, made by FISA's
chief judge in 2011, ordered the National Security Agency to rethink its methods of surveillance. The
heavily redacted 85-page document—which was released on the Office of the Director of National
Intelligence's brand-new Tumblr account, IC On The Record—is the first FISA court opinion released by
the government in response to a FOIA lawsuit brought by the Electronic Frontier Foundation in 2012.
Although FISA has been heavily criticized as a cypher for the intelligence sector, these documents
show that, on this occasion, that was not the case. "For the first time, the government has now
advised the court that the volume and nature of the information it has been collecting is
fundamentally different from what the court had been led to believe," wrote Judge John D. Bates in
the ruling of October 3, 2011.
No risk of it getting overturned – rulings are legally within FISA’s jurisdiction
Pfander and Birk 15 James E. Pfander & Daniel D. Birk; James has a BA, University of Missouri and
JD, University of Virginia. Currently Owen L. Coon Professor of Law at Northwestern School of Law.
Daniel has a JD from Northwestern School of law and is Law Clerk to Kenneth F. Ripple of the U.S. Court
of Appeals, Seventh Circuit. “Article III Judicial Power, the Adverse-Party Requirement, and NonContentious Jurisdiction” Yale Law journal Volume 125, Number 5, March 2015 – 1346-1835.
http://www.yalelawjournal.org/article/non-contentious-jurisdiction#_ftnref552
Since the adoption of FISA in 1978, the Foreign Intelligence Surveillance Court has reviewed government applications for the approval of certain
surveillance practices on an ex parte basis.548 As with other warrant applications,549 the government submits the request to the court without
notice to the target of the proposed surveillance.550 But unlike the targets of other warrant proceedings, most FISA targets will never learn
that the surveillance has been carried out and will never have occasion to challenge the warrant in the course of criminal proceedings. Unlike
other warrant proceedings, moreover, the proceedings do not take place in the local federal courthouse; rather, they require the FISA judges to
travel to a secret courthouse.551 If
the FISC denies the government’s application, FISA provides for oversight by
the Foreign Intelligence Surveillance Court of Review.552 The government does not invariably release
either the decisions of the trial court or the opinions of the court of review, although a few decisions have come
to light as a result of the leaks by Edward Snowden.553 Critics have argued that the FISC’s ex parte process presents both constitutional and
practical problems and have put forward a variety of suggested cures.554 For example, Orin Kerr has argued that Congress should establish a
special advocate within an existing security-cleared government department to offer adversary presentations during FISC proceedings.555
Steve Vladeck has urged instead that “private security-cleared lawyers, not government employees . . . serve as adversaries in secret litigation
commenced by the government.”556 Such proposals have gained traction in Congress; newly introduced bills would attempt to ensure
adversarial presentations by requiring the appointment of public interest advocates in certain situations.557 One commentator has argued that
private attorneys might be appointed to serve as consultants to the court in proceedings deemed to require some adversarial presentation.558
We do not claim expertise in matters of national security and have little to add to the policy debate over the wisdom of introducing an
adversary process to improve decision making at the FISC. We simply suggest that the
FISC’s role in hearing warrant
applications on an ex parte basis seems to fit comfortably within the scope of federal judicial power
over matters of non-contentious jurisdiction. The FISA process calls for the court to determine that the government
has complied with various statutory elements that regulate access to intelligence surveillance .559 The
resulting decisions by the FISC serve as final decisions on the issues at hand: the government’s
compliance with the statute and entitlement to conduct the surveillance in question. While the targets of
such surveillance can contest various aspects of the proceedings that yielded the evidence introduced at their trials, courts hearing
those trials treat the FISC’s determination as conclusive on the issue of the legality of the
surveillance .560 Even if the courts were to reopen the FISA decision and reevaluate the showings, such
judicial revision would not raise doubts about the judicial finality of the initial decision. To be sure, federal
officials may not always discharge their duties of candor to the FISC and may exceed the scope of the warrant’s authority in carrying out the
surveillance in question. Remedies should be available in such cases (just as they were in the nineteenth century when officers exceeded the
scope of their warrants). But
the possibility of executive branch missteps, while legitimate matters of
litigation and policy concern, do not deprive the judicial process of its character as such.
FISA solves
Cardy 08 Emily A Cardy. B.A in Law from Yale University “THE UNCONSTITUTIONALITY OF THE PROTECT
AMERICA ACT OF 2007” Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J. 171. Fall,
2008.
In 1978 the Foreign Intelligence Surveillance Act (FISA) established the processes by which the United
States intelligence community could effectively gather foreign intelligence, while striking "a balance
between national security interests and civil liberties." n10 "FISA provides a means by which the
government can obtain approval to conduct electronic surveillance of a foreign power or its agents
without first meeting the more stringent standard" required in domestic criminal investigations. n11
That the TSP operated outside of FISA's purview made it automatically constitutionally suspect. n12 The
Article III court established by FISA, the Foreign Intelligence Surveillance Court (FISC), is essential to
FISA's operation. n13 FISC objectively adjudicates intelligence collection proposals and procedures,
while protecting such details in the interest of national security. In short, FISA establishes the United
States' legal standard for gathering foreign intelligence, and provides safeguards [*174] to protect the
Fourth Amendment's promises to the American public that they will be free from unwarranted
government intrusion. n14
2NC Solvency – Constitutional Rulings
Specifically true of constitutional issues
Benkler 13 Yochai Benkler. law professor and director of the Berkman Center for Internet & Society at Harvard University. “In secret,
Fisa court contradicted US supreme court on constitutional rights” The Guardian.
http://www.theguardian.com/commentisfree/2013/sep/22/secret-fisa-court-constitutional-rights. 9/22/13
On Tuesday, the Foreign Intelligence Surveillance Court (FISC) declassified
an opinion in which it explained why the
government's collection of records of all Americans' phone calls is constitutional, and that if there is a
problem with the program, it is a matter of political judgment, not constitutional law. So, should Americans
just keep calm and carry on phoning? Not really. Instead, we should worry about a court that, lacking a real adversarial process to inform it,
failed while taking its best shot at explaining its position to the public to address the most basic, widely-known counter-argument to its
position. The
opinion does not even mention last year's unanimous US supreme court decision on the
fourth amendment and GPS tracking, a decision in which all three opinions include strong language that may render the NSA's
phone records collection program unconstitutional. No court that had been briefed by both sides would have ignored the grave constitutional
issues raised by the three opinions of Justices Scalia, Sotomayor, and Alito in United States v Jones. And no opinion that fails to consider these
should calm anyone down. The
newly-released FISC opinion, the first to opine on the legality of the phone
metadata collection program since the Snowden leaks brought the program to national attention, is
based on two straightforward points. First, in 1979, the supreme court held in Smith v Maryland that using "pen registers"
that record what number called what other number, when, and for how long, did not violate the fourth amendment. The
court in Smith reasoned that individuals have no expectation of privacy in information they knowingly
hand over to the phone company. The FISC reasoned that even though the NSA metadata program
collected more information than the program the supreme court upheld 35 years ago, the details did
not make a constitutional difference. Individuals have no fourth amendment rights in their phone call
metadata. The second component of the FISC argument was that "grouping together a large number
of individuals", no single one of whom has "a fourth amendment interest", "cannot result in a fourth
amendment interest springing into existence ex nihilo". Adding up many zeros doesn't create a
positive value; bulk collection of unprotected materials over a sustained period of years raises no special constitutional considerations.
Standing on its own, this logic may seem persuasive. But only until you think about how last year's Jones decision by the supreme court
destabilizes this logic.
FISCR has jurisdiction over 4th amendment rulings
Donohue 14. Laura K Donohue; Professor of Law, Georgetown University Law Center. “BULK METADATA COLLECTION: STATUTORY AND
CONSTITUTIONAL CONSIDERATIONS” Harvard Journal of Law & Public Policy, 37 Harv. J.L. & Pub. Pol'y 757. Summer, 2014. Lexisnexis.
To enforce the specialized probable cause standard encapsulated in FISA, Congress created a court of specialized but exclusive jurisdiction.
n279 Its job was to ascertain whether sufficient probable cause existed for a target to be considered a foreign power, or an agent thereof;
whether the applicant had provided the necessary details for the surveillance; and whether the appropriate certifications and findings had been
made. It is thus surprising that the government considers these orders now to be evidence of precedent, on the basis of which, it argues, the
programs are legal. In ACLU v. Clapper, n280 for instance, the government responded to the argument that it had exceeded its statutory
authority under FISA by arguing: [S]ince May 2006, fourteen separate judges of the FISC have concluded on thirty-four occasions that the FBI
satisfied this requirement, finding "reasonable grounds to believe" that the telephony metadata sought by the Government "are relevant to
authorized investigations . . . being conducted by the FBI . . . to protect against international terrorism. n281 The government went on to cite
Judge Eagan's August 2013 memorandum opinion in further support of its interpretation of "relevance." n282 These were the only points of
reference that mattered: "Considering that the Government has consistently demonstrated the relevance of the requested records to the FISC's
satisfaction, as Section 215 requires, it is difficult to understand how the government can be said to have acted in excess of statutory
authority." n283 [*823] Even more surprising than the role the granting of orders is playing for establishing legal precedent is the revelation
that FISC
has greatly broadened the "special needs" exception to the Fourth Amendment to embrace
wholesale data collection. n284 Although the Supreme Court has never recognized such an exception, FISC's unique
constitutional interpretation has served to authorize broad collection of information on U.S. citizens .
Notably, because of the secret nature of FISC's proceedings and the ex parte nature of the court, there
are no advocates who could appeal a decision based on this interpretation to the Supreme Court.
Consequently, an unreviewable, complex body of law, establishing doctrines unrecognized by the Supreme Court, has emerged as precedent
for future application to FISC. In In re Directives, FISCR
looked back at its decision in In re Sealed Case to confirm
"the existence of a foreign intelligence exception to the warrant requirement." n285 It acknowledged that
FISCR had "avoided an express holding that a foreign intelligence exception exists by assuming arguendo that whether or not the warrant
requirements were met, the statute could survive on reasonableness grounds." n286 FISCR went on to determine that,
as a federal
appellate court, it would "review findings of fact for clear error and legal conclusions (including
determinations about the ultimate constitutionality of government searches or seizures) de novo ."
n287 It then asserted, for the first time, a foreign intelligence surveillance exception to the Fourth Amendment: The question . . . is whether the
reasoning of the special needs cases applies by analogy to justify a foreign intelligence exception to the warrant requirement for surveillance
undertaken for national security purposes and directed at a foreign power or an agent of a foreign power reasonably believed to be located
outside the United States. Applying principles derived from the special needs cases, we conclude [*824] that this type of foreign intelligence
surveillance possesses characteristics that qualify it for such an exception. n288 The court analogized the exception to the 1989 Supreme Court
consideration of the warrantless drug testing of railway workers, on the grounds that the government's need to respond to an overriding public
danger could justify a minimal intrusion on privacy. n289 The government subsequently cited In re Directives in its August 9, 2013 white paper,
defending the telephony metadata program, in support of an exception to the Fourth Amendment warrant requirement. n290 FISC
continues to go beyond its mandate. In August 2013, for instance, FISC issued a twenty-nine-page Amended Memorandum
Opinion regarding the FBI's July 18, 2013 application for the telephony metadata program. n291 Appending the
seventeen-page order to the opinion, Judge Claire V. Eagan considered Fourth Amendment jurisprudence, the statutory language of Section
215, and the canons of statutory construction to justify granting the order. n292 Similarly, in a 2002 per curiam opinion, FISCR
suggested
the case raised "important questions of statutory interpretation, and constitutionality" and concluded
"that FISA, as amended by the Patriot Act, supports the government's position, and that the restrictions imposed
by the FISA court are not required by FISA or the Constitution." n293 Congress did not design the Foreign Intelligence
Surveillance Court or the Court of Review to develop its own jurisprudence. Particularly in light of the secrecy and lack of adversarial process
inherent in the court, it is concerning that FISC's
decisions have taken on a force of their own in legitimizing the
collection of information on U.S. citizens.
2NC Solvency – Section 215
Solves surveillance under Section 215 – requests go through the court every 90 days
Slobogan 14. Slobogin, Christopher. Milton Underwood Professor of Law, Vanderbilt University Law School. “Panvasive Surveillance,
Political Process Theory, and the Nondelegation Doctrine” Georgetown Law Journal 102 Geo. L.J. 1721. August, 2014. Lexis.
The National Security Agency has wide-ranging authority to conduct surveillance of our phone and email
communications, assuming its efforts are aimed at protecting national security. Under the Foreign
Intelligence Surveillance Act of 1978, for instance, the NSA has the power to intercept the contents of
certain communications if a special, secret court (the Foreign Intelligence Surveillance Court, or FISC)
finds probable cause to believe a foreign agent is the target and that gathering intelligence is a
"significant purpose" of the surveillance. n181 The focus here, however, will be solely on the NSA's
authority to obtain "metadata," the term the NSA uses to describe both "envelope" information
obtained from [*1756] phone and Internet carriers and information from other third-party sources.
n182 While the NSA's interception of the content of communications still follows the typical Fourth
Amendment model, at least in the sense that a particularized warrant is required, the NSA's metadata
collection program has been highly panvasive in nature. Under Section 215 of the PATRIOT Act, as
amended in 2006, the NSA and other intelligence agencies may, pursuant to a request through the FBI,
obtain "any tangible thing[] (including books, records, papers, documents, and other items)" if it is
"relevant to an authorized investigation [designed] . . . to protect against international terrorism or
clandestine intelligence activities." n183 The designation of whether an investigation is authorized is
solely within the discretion of the Attorney General or his or her delegate. n184 Based on this
authorization, the FISC decides whether to issue a Section 215 order, which must describe with
particularity the types of items to be seized but not the people who will be targeted. n185 Section 215
has long been the subject of criticism. n186 For instance, a Section 215 order permits the seizure of
records of persons who are neither the agent of a foreign power nor the target of the investigation, and
thus could authorize accessing personal information about many innocent Americans who happen to be
somehow related to the investigation. As one commentator stated, "[T]he literal terms of section 215
would permit an entire database to be the subject of a FISA order. As long as there is 'an authorized
investigation,' the statute does not set any limits on the type or number of records subject to the FISA
order." n187 Snowden's disclosures, and the admissions made by the government subsequent to those
disclosures, indicate that the NSA is taking full advantage of this authority. n188 The NSA, through the
Attorney General, has asserted that the metadata of anyone who makes a phone call or sends a text
message in the [*1757] United States are "relevant" to its ongoing investigation of terrorist activities,
because only by obtaining this bulk information can the links between known and unknown terrorists be
discovered. n189 The FISC has agreed, authorizing such bulk metadata collection for the first time in
May 2006, and reauthorizing this collection (from, at a minimum, the three largest service providers)
every ninety days since then, including in the wake of the Snowden affair n190 (although President
Obama recently ordered that the metadata be stored with a third party rather than the NSA itself n191).
As described in more detail in Part III, Snowden's revelations and the NSA's own disclosures indicate that
these bulk metadata are "queried" on a frequent basis, resulting in the examination of the
communication records of thousands of people. n192
2NC Solvency – EO 12333
Solves 12333 – FISA defers to NSA based on EO 12333 now, but CP breaks that, which
routes cases surveillance cases through FISC
Farivar 13 (Cyrus Farivar, Senior Business Editor at Ars Technica; “Judge: “NSA exceeded the scope of
authorized acquisition continuously” Nov 19, 2013 http://arstechnica.com/tech-policy/2013/11/judgensa-exceeded-the-scope-of-authorized-acquisition-continuously/)
The second important FISC opinion, authored by Judge Bates, came in response to a government
request that aimed to expand the metadata collection program by “11-24 times.” Bates slammed the
government for not adhering to its guidelines but “reluctantly” allowed them to continue out of
deference to the Executive Branch (and intelligence agencies, like the NSA, whose powers are
granted through the Reagan-era Executive Order 12333). In the opinion, Judge Bates appears unwilling
or unable to meaningfully punish any government officials despite clear violations of the court’s prior
orders. “I see a lot of similarities between the Bates opinion and the Walton opinion,” Mark Rumold, a
staff attorney at the Electronic Frontier Foundation, told Ars. Rumold was referring to a 2009 opinion
by FISC Judge Reggie Walton, who also lambasted the government for breaking the rules.
2NC AT Circumvention/Noncompliance
FISC wont get circumvented – has disciplinary authority over NSA
Sinha 13 G. Alex Sinha. Aryeh Neier Fellow, Human Rights Watch and the American Civil Liberties Union. “NSA SURVEILLANCE SINCE 9/11 AND THE HUMAN
RIGHT TO PRIVACY” Loyola Law Review 59 Loy. L. Rev. 861. Winter, 2013
On August 21, 2013, in response to a Freedom of Information Act (FOIA) lawsuit, intelligence officials
declassified an October 2011 FISC opinion in which the court's chief judge castigated the NSA for
misleading the FISC as to the nature and scope of some of the NSA's domestic surveillance activities.
n230 According to the [*898] opinion, in May of 2011, the NSA revealed to the court that it had been
collecting full strings of purely domestic communications that were not from, to, or about a legitimate
surveillance target. n231 The NSA had been collecting as many as 56,000 of these communications
annually, and the surveillance practices that led to this over-collection had been in place for roughly
three years, since the passage of the FAA in 2008. n232 The FISC ordered the NSA to cease such
collection, which it deemed unconstitutional, and subsequently approved a modified collection
technique in November of 2011. n233 (The modified technique screened purely domestic
communications to the FISC's satisfaction, and reduced the retention period for data from five years to
two, though further details remain unclear.) n234 The court also criticized the NSA for using improper
search terms in digging through the massive amounts of transactional data it obtained about
Americans' calling records. n235
2NC AT Transparency Turn
FOIA solves transparency
EFF 15 (Electronic Frontier Foundation; non-profit organization working to preserve civil rights; 2015
https://www.eff.org/issues/transparency)
One of the major tools we use is the Freedom of Information Act (FOIA), a federal law that gives people
the right to request information kept by federal government agencies. Our team of FOIA lawyers also
submit requests on a variety of digital civil liberties issues and often take cases to court when we
believe the government is unduly withholding information. But anyone can make a request under
FOIA, and you can go here to learn how you can submit your own. While emerging technologies give
the government new tools that threaten citizen civil liberties, technology also has the potential to
create a more democratic relationship between public institutions and the citizens they serve. Today,
a broad range of new tools are allowing the public to more closely examine government and
corporate entities and to hold them accountable for deception, censorship, and corruption. In
addition to using freedom of information laws to shed light on government actions, EFF also wants to
highlight technologies that help the transparency process —whether it’s making it easier to file and
track FOIA requests, websites dedicated to whistleblowing, or open government initiatives that can
improve access to information.
AFF – FISA/FISC CP
2AC FISA/FISC CP
Perm do both
Perm do the CP
Non-compliance guarantees circumvention – no oversight means precedent is
reversed or ignored by lower FISC court or the NSA
Stanley 13 Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project. “The FISA
Court’s Problems Run Deep, and More Than Tinkering is Required” NOVEMBER 21, 2013. ACLU.
https://www.aclu.org/blog/fisa-courts-problems-run-deep-and-more-tinkering-required
With the latest release of documents about the NSA and the FISA Court (this one in response to an ACLU/EFF Freedom of Information Act
request) we
now have yet more evidence that the NSA’s compliance with the court’s orders has been
poor. We learn, for example, that, according to the court, “the NSA exceeded the scope of authorized [metadata]
acquisition continuously during the more than [redacted] years of acquisition under these orders.” And,
“NSA’s record of compliance with these rules has been poor.” Extraordinary powers require extraordinary oversight. But
we’re gradually beginning to see the full scope of the FISA Court’s inadequacy as an oversight
institution. The latest disclosures follow other evidence that this court has had less than a stellar record in enforcing its rulings. Previous
documents revealed, for example, that the NSA repeatedly violated court-imposed limits on its surveillance
powers, and that the agency experienced numerous so-called “compliance incidents” such as staff using
the agency’s tremendous powers to spy on love interests. And as my colleague Jameel Jaffer points out, the record
suggests that the government has felt free to make bolder, less-supportable arguments before the secret
FISA Court than it’s willing to make before real courts that are open to the public. It has often been
pointed out that the FISA Court is not a normal court, a big reason being that all of its proceedings are ex parte
(that is, there is no adversarial proceeding, the court only hears from one side) and that it operates within an ocean
of secrecy and compartmentalization. My colleagues Patrick Toomey and Brett Max Kaufman yesterday detailed the sorry story
of how these characteristics allowed the court to stretch the law to permit bulk metadata collection.
Can’t solve and turn – no accountability for decisions, no review process, and no
investigative authority - destroys court transparency
Setty 15 (Sudha Setty; Professor of Law and the Associate Dean for Faculty Development and
Intellectual Life at Western New England University School of Law; “Surveillance, Secrecy, and the
Search for Meaningful Accountability” Faculty Publications; Digital commons; Western New England
University School of Law; 51 STAN. J. INT'L L 16 (2015)
http://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?article=1305&context=facschol)
Two forms of relatively weak judicial review exist over the NSA Metadata Program. The primary mechanism by which the NSA has legitimated
its surveillance activities is the Foreign Intelligence Surveillance Court (FISC), a closed, non-adversarial setting. Article III courts have had the
opportunity to consider post-9/11 surveillance programs on numerous occasions, and with few exceptions, Article III courts have refused to
review matters of national securityrelated surveillance. I. Foreign Intelligence Surveillance Court The FISC differs from Article III courts in
numerous ways: Its statutory scope is limited to matters of foreign intelligence gathering; its judges
are appointed in the sole
discretion of the Chief Justice of the United States Supreme Court; its proceedings are secret; its
opinions are often secret or are published in heavily redacted form; and its process is not adversarial
as only government lawyers make arguments defending the legality of the surveillance being
contemplated. 70 Many of these differences bring into doubt the legitimacy of the court, its ability to
afford adequate due process regarding civil liberties concerns, and its ability to uphold the rule of law
in terms of government accountability. Compounding this legitimacy deficit is the FISC's own loosening of
the relevance standard under Section 215 of the PATRIOT Act such that the FISC has found that bulk
data collection without any particularized threat or connection to terrorism is legally permissible . 71
Historically, the FISC has rejected NSA surveillance applications too infrequently to be considered a
substantial check on government overreach as an ex ante matter. 72 As an ex post matter, it is unclear to what extent
the FISC's work guarantees any meaningful accountability over NSA surveillance activities. On the one hand, because the FISC lacks an
adversarial process and has no independent investigative authority, the FISC only addresses ex post compliance problems
when the government itself brings the problem to the comt's attention. 73 As such, FISC judges rely on the statements of the
government as to the govemment's own behavior and lack the authority to investigate the veracity of
the government's representations. 74 For example, in 2011, the FISC found one aspect of the surveillance
program brought to its attention months after the program went into effect to be unconstitutional. 76
Additionally, in one declassified opinion, the FISC critiques the NSA's sloppy over-collection of metadata of U.S.
communications, and questions the efficacy of bulk data collection as a national security measure. 77 At one point, the FISC
sanctioned the NSA for overreaching in saving all metadata and mining daily metadata against an "alert list" of
approximately 17,800 phone numbers, only 10% of which had met FISC's legal standard for reasonable suspicion. 78 On such occasions, the
administration has modified problematic aspects of the surveillance and continued forward without further impediment by the FISC. 79 On the
other hand, the fact that the NSA itself has brought potential compliance incidents to the notice of the FISC indicates at least some internal
policing of these programs. However, this
is hardly an effective substitute for external review and accountability
mechanisms that would ensure that consistent controls are in place. Further, the self-reporting of these
compliance incidents does not in any way allow for discourse over the larger structural questions
surrounding the surveillance programs. Finally, the ability of the FISC to act as an effective check on NSA
oveneaching is severely limited by the secrecy and lack of information available to the FISC judges.
Judge Reggie B. Walton, formerly the Chief Judge of the FISC, lamented that "[t]he FISC is forced to rely upon the accuracy of
the information that is provided to the Court .... The FISC does not have the capacity to investigate
issues of noncompliance .... " 81 The ability of the NSA to not only gather and retain bulk metadata, but also to build in
backdoor access into data files despite private encryption efforts has been largely sanctioned by the FISC based on NSA
representations as to the seriousness of the security threats posed to the nation. 82 In an enviromnent in
which there is a tremendous fear of being held responsible for any future terrorist attack that might occur
on U.S. soil, 83 and in which there is a information deficit for those outside of the intelligence community, the FISC has consistently
deferred to the NSA's assertions and has not been able to act as an effective accountability
mechanism.
That’s key to the democratic process – ensures further infringements on rights and
replicates the error – perm is key to transparency and public engagement
HRW 14 (Human Rights Watch; Kenneth Roth; Executive Director of HRW; “Letter to President Obama
Urging Surveillance Reforms” January 16, 2014 http://www.hrw.org/news/2014/01/16/letter-presidentobama-urging-surveillance-reforms)
Vast changes to US law on surveillance have happened in secret without adequate oversight. The lack
of public information has prevented debate about issues of great importance to the democratic
process and individual rights. In addition, the companies and organizations that have participated in US
surveillance programs have been prevented from disclosing basic data about the information that the
government has been demanding of them. You have in the past stated that you welcome a debate
about these matters, and your decision to establish the review group to recommend possible reforms
implicitly recognizes the importance of this discussion. Yet it is impossible to have a healthy and open
democratic debate about these matters when the public – and most of the US Congress – is kept in
the dark about the scope of the programs and their implementation. There are legitimate reasons to
classify certain types of information – for example, to protect the identities of vulnerable individuals or
to protect the public from harm. But classification can too easily become a tool to prevent
embarrassment or exposure of wrongdoing, or to conceal information about the functioning of public
institutions. Protecting national security does not have to come at the expense of public
accountability. For example, there was no legitimate reason why the extent of the government
collection of metadata should have been kept from the general public. We urge you to disclose much
more about the scope of terms of surveillance occurring under Section 702 and Executive Order 12333,
which could have enormous implications for the rights of foreigners abroad. US persons have the same
interest as those abroad in knowing when their privacy rights are protected, and that can be revealed
without disclosing information that would threaten national security. We also encourage you to support
legislative reforms suggested by the review group, including transparency measures to require greater
reporting to Congress and the public about use of intelligence gathering powers, and to permit
technology companies to report on the number of orders they receive for user data. They also
recommended a strong presumption of transparency in decisions about whether to keep programs of
the magnitude of the 215 bulk telephony metadata program secret. These measures will not only assist
democratic debate today, but guard against abuse of power in the future. The review group also made
a number of other specific recommendations with which we agree, and which we hope you adopt and
encourage Congress to act on. These include: * Ending the widespread use of National Security Letters
(NSLs) without judicial review: National security letters are a form of administrative subpoena that give
the FBI and other government agencies expanded power to compel the production of records. Under
the PATRIOT Act of 2001, authorization for their use was greatly expanded; the need for individualized
suspicion was reduced and a broader array of officials became authorized to issue them. As a result, the
use of NSL’s dramatically increased to the point where the FBI currently issues nearly 60 NSLs per day
without judicial approval and accompanied by strict gag orders on the recipients. According to a report
by the Office of the Inspector General in the Department of Justice, the lack of oversight has resulted in
serious compliance issues and extensive misuse of NSL authority.[9] The review group effectively called
for an end to this practice, saying that NSLs should be subject to judicial authorization, like 215 orders.
We agree with these recommendations, and though they require Congressional action we strongly urge
you to support them. * Creating an Institutional Advocate at the Foreign Intelligence Surveillance Court
(FISC): For years, the FISC has been authorizing dramatic changes to US law in secret without any
adversary’s view being part of the process. That is a recipe for decisions that set the wrong balance
between security and rights, because any judge is more likely to be persuaded by the side whose views
he or she hears. The panel supported creating an institutional advocate with appropriate security
clearances at the FISC to represent the public’s privacy interests. We strongly urge you to support
legislative action on this matter. * Strengthening the Privacy and Civil Liberties Oversight Board (PCLOB)
and Investing It with Whistleblower Reporting Authority: The PCLOB was established by Congress after
September 11, 2001, to conduct oversight of the intelligence community and make recommendations
about how to improve privacy and civil liberties protections. But for years, the board remained dormant,
without a chairman or staff. It now has a chairman and staff but limited resources. If strengthened
further and provided with adequate resources, it can help to check the powers of an intelligence
community that gravitates toward over-classification and secrecy. Additionally, we agree with the
review group that the PCLOB should be empowered to receive whistleblower complaints. Would-be
whistleblowers need an independent and effective body to which they can report abuses or wrongdoing
without having to report them internally first. A presidential policy directive issued in 2012, intended to
improve whistleblower protections for federal employees, does not cover contractors and requires
whistleblowers to report to a person in their direct chain of command instead of a more independent
body.[10] While this would not adequately address the need for whistleblower reform that Human
Rights Watch has previously identified, it would be a starting point. More complete whistleblower
reform would require more than just creating an independent body to report wrongdoing. It would also
require providing whistleblowers with legal protection against retaliation and legal defenses to
prosecution. We urge you to propose to Congress a law that will grant such protections to federal
employees and consultants in this sector. The rules that the United States establishes today on these
matters will likely govern surveillance long after your administration has completed its term. They will
also set a key precedent to which other countries will look to as they debate crucial questions about
privacy and Internet freedom across the world. We strongly urge you, even as US surveillance
capabilities continue to increase, to ensure that those capabilities are effectively regulated, within a
framework of the rule of law, maximum transparency, and respect for democracy and human rights.
Adopting the recommendations outlined above will be a first step in that direction.
2AC Addon — Internet Freedom
Public surveillance reform key to revive US credibility on the internet freedom agenda
Ries ‘14
(Internally quoting Zeke Johnson, director of Amnesty International's Security & Human Rights Program. Also internally quoting
Cynthia M. Wong is the senior researcher on the Internet and human rights for Human Rights Watch. Before joining Human
Rights Watch, Wong worked as an attorney at the Center for Democracy & Technology (CDT) and as director of their Project on
Global Internet Freedom. She conducted much of the organization’s work promoting global Internet freedom, with a particular
focus on international free expression and privacy. She also served as co-chair of the Policy & Learning Committee of the Global
Network Initiative (GNI), a multi-stakeholder organization that advances corporate responsibility and human rights in the
technology sector. Prior to joining CDT, Wong was the Robert L. Bernstein International Human Rights Fellow at Human Rights
in China (HRIC). There, she contributed to the organization’s work in the areas of business and human rights and freedom of
expression online. Wong earned her law degree from New York University School of Law. Also internally quoting Center for
Democracy and Technology Senior Counsel Harley Geiger – Brian Ries is Mashable’s Real-Time News Editor. Prior to working at
Mashable, Brian was Social Media Editor at Newsweek & The Daily Beast, responsible for using Twitter, Facebook, and Tumblr
to cover revolutions, disasters, and presidential elections. During his time at The Daily Beast, he contributed to a team that won
two Webby Awards for “Best News Site”. “Critics Slam 'Watered-Down' Surveillance Bill That Congress Just Passed” - Mashable May 22, 2014 – http://mashable.com/2014/05/22/congress-nsa-surveillance-bill/)
As a result, many
of its initial supporters pulled their support. “We supported the original USA Freedom
act, even though it didn’t do much for non-US persons,” Zeke Johnson, director of Amnesty
International's Security & Human Rights Program told Mashable after Thursday's vote. He described
the original version as “a good step to end bulk collection. ” However, in its current version, it's not
even clear that this bill does that at all, Johnson said. He added that Congress left a lot of "wiggle room" in the
bill — something he said is a real problem. "Where there is vagueness in a law, you can count on the administration
to exploit it," Johnson said. However, Laura W. Murphy, director of the ACLU Washington Legislative Office, took a more positive view of the bill. "While far
from perfect, this bill is an unambiguous statement of congressional intent to rein in the out-of-control NSA," she said in a statement. "While we share the concerns
of many — including members of both parties who rightly believe the bill does not go far enough — without it we would be left with no reform at all, or worse, a
House Intelligence Committee bill that would have cemented bulk collection of Americans’ communications into law." The Electronic Frontier Foundation simply
called it "a weak attempt at NSA reform." “ The
ban on bulk collection was deliberately watered down to be
ambiguous and exploitable,” said Center for Democracy and Technology Senior Counsel Harley Geiger. “We withdrew support for
USA FREEDOM when the bill morphed into a codification of large-scale, untargeted collection of data
about Americans with no connection to a crime or terrorism.” And Cynthia Wong , senior Internet researcher at
Human Rights Watch, said, “This so-called reform bill won’t restore the trust of Internet users in the US and
around the world. Until Congress passes real reform, U.S. credibility and leadership on Internet
freedom will continue to fade.”
That’s key to the global economy
Kalathil ‘10
Shanthi Kalathil - Adjunct Faculty and Adjunct Lecturer in the Communication, Culture, and Technology (CCT) Master of Arts
Program at Georgetown University. Kalathil has extensive experience advising the U.S. government, international organizations
and nonprofits on supporting civil society, independent media, technology, transparency and accountability. Previously a senior
Democracy Fellow at the U.S. Agency for International Development and she has authored or edited numerous policy and
scholarly publications, including the edited volume Diplomacy, Development and Security in the Information Age. She has
taught courses on international relations in the information age at the Monterey Institute of International Studies and
Georgetown University. Kalathil holds degrees from U.C. Berkeley and the London School of Economics and Political Science –
“Internet Freedom: A Background Paper” – October 2010 - Available via:
http://www.aspeninstitute.org/sites/default/files/content/images/Internet_Freedom_A_Background_Paper_0.pdf
As use of the Internet has grown exponentially around the world, so too have concerns about its defining
attribute as a free and open means of communication. Around the world, countries, companies and citizens are
grappling with thorny issues of free expression, censorship and trust. With starkly different visions for the Internet
developing, this era presents challenges—and also opportunities—for those who wish to ensure the Internet
remains a backbone of liberty and economic growth. U.S. officials have made clear their vision for the
Internet’s future. President Obama, in a speech before the UN General Assembly, said that the U.S. is committed to promoting
new communication tools, “so that people are empowered to connect with one another and, in repressive
societies, to do so with security. We will support a free and open Internet, so individuals have the information to make up their own minds.” His words were
reinforced by FCC Chairman Julius Genachowski: “It is essential that we preserve the open Internet and stand firmly behind the right of
all people to connect with one another and to exchange ideas freely and without fear.”1 Indeed, a free, widely accessible Internet stands at
the heart of both global communication and global commerce. Internet freedom enables dialogue and direct diplomacy between
people and civilizations, facilitating the exchange of ideas and culture while bolstering trade and economic growth. Conversely, censorship
and other blockages stifle both expression and innovation. When arbitrary rules privilege some and not others, the investment
climate suffers. Nor can access be expanded if end users have no trust in the network. However, making reality live up to aspirations for Internet freedom can prove
difficult. Numerous global
initiatives—spearheaded by governments, private sector and civil society—are attempting to enshrine the
norms, principles and standards that will ensure the Internet remains a public space for free expression. At the
same time, other norms are fast arising—particularly those defined by authoritarian countries that wish to
splinter the Internet into independently controlled fiefdoms. Even as Internet access has expanded around the world, many
governments are attempting to control, regulate and censor the Internet in all its forms: blogs, mobile communication, social
media, etc. Such governments have devoted vast resources to shaping the Internet’s development within
their own borders, and they are now seeking to shape the Internet outside their borders as well. Indeed,
Internet experts are worried that national governments of all stripes will increasingly seek to extend their regulatory authority over the global Internet,
culminating in a balkanized Internet with limited interoperability. Hence, the next few years present a
distinct window of opportunity to elevate the principles of the free exchange of ideas, knowledge and commerce on the Internet.
While U.S. leadership within this window is vital , a global effort is necessary to ensure that these norms become a
standard part of the Internet’s supporting architecture.
Decline leads to war
Merlini ‘11
[Cesare Merlini, nonresident senior fellow at the Center on the United States and Europe and chairman of the Board of Trustees of the Italian
Institute for International Affairs (IAI) in Rome. He served as IAI president from 1979 to 2001. Until 2009, he also occupied the position of
executive vice chairman of the Council for the United States and Italy, which he co-founded in 1983. His areas of expertise include transatlantic
relations, European integration and nuclear non-proliferation, with particular focus on nuclear science and technology. A Post-Secular World?
DOI: 10.1080/00396338.2011.571015 Article Requests: Order Reprints : Request Permissions Published in: journal Survival, Volume 53, Issue 2
April 2011 , pages 117 - 130 Publication Frequency: 6 issues per year Download PDF Download PDF (~357 KB) View Related Articles To cite
this Article: Merlini, Cesare 'A Post-Secular World?', Survival, 53:2, 117 – 130]
Two neatly opposed scenarios
for the future of the world order illustrate the range of possibilities, albeit at the risk of
oversimplification. The first scenario entails the premature crumbling of the post-Westphalian system. One or more of the acute tensions
apparent today evolves into an open and traditional conflict between states, perhaps even involving the use
of nuclear weapons. The crisis might be triggered by a collapse of the global economic and financial system,
the vulnerability of which we have just experienced, and the prospect of a second Great Depression, with consequences
for peace and democracy similar to those of the first. Whatever the trigger, the unlimited exercise of national sovereignty,
exclusive self-interest and rejection of outside interference would likely be amplified, emptying, perhaps entirely, the
half-full glass of multilateralism, including the UN and the European Union. Many of the more likely conflicts, such as between Israel and Iran or India and Pakistan,
have potential religious dimensions. Short of war, tensions such as those related to immigration might become unbearable. Familiar issues of creed and identity
could be exacerbated. One way or another, the secular rational approach would be sidestepped by a return to theocratic absolutes, competing or converging with
secular absolutes such as unbridled nationalism.
1AR Transparency Turn
FISA courts undermine democracy
Timm 13 (Trevor Timm; co-founder and the executive director of the Freedom of the Press
Foundation. He is a journalist, activist, and lawyer; JD in law from New York Law school; “Reform the
FISA Court: Privacy Law Should Never Be Radically Reinterpreted in Secret” JULY 10, 2013;
https://www.eff.org/deeplinks/2013/07/fisa-court-has-been-radically-reinterpreting-privacy-law-secret)
It’s likely the precedent laid down in the last few years will stay law for years to come if the courts are
not reformed. FISA judges are appointed by one unelected official who holds lifetime office: the Chief
Justice of the Supreme Court. Under current law, for the coming decades, Chief Justice John Roberts
will solely decide who will write the sweeping surveillance opinions few will be allowed to read, but
which everyone will be subject to. Judge James Robertson was once one of those judges. He was
appointed to the court in the mid-2000s. He confirmed yesterday for the first time that he resigned in
2005 in protest of the Bush administration illegally bypassing the court altogether. Since Robertson
retired, however, the court has transitioned from being ignored to wielding enormous, undemocratic
power. “What FISA does is not adjudication, but approval,” Judge Robertson said. “This works just fine
when it deals with individual applications for warrants, but the [FISA Amendments Act of 2008] has
turned the FISA court into administrative agency making rules for others to follow.” Under the FISA
Amendments Act, "the court is now approving programmatic surveillance. I don't think that is a
judicial function.” He continued, "Anyone who has been a judge will tell you a judge needs to hear
both sides of a case…This process needs an adversary." No opposing counsel, rulings handed down in
complete secrecy by judges appointed by an unelected official, and no way for those affected to
appeal. As The Economist stated, “Sounds a lot like the sort of thing authoritarian governments set up
when they make a half-hearted attempt to create the appearance of the rule of law.” This scandal
should precipitate many reforms, but one thing is certain: FISA rulings need to be made public so the
American people understand how courts are interpreting their constitutional rights. The very idea of
democratic law depends on it.
Further lack of transparency undermines public confidence in federal surveillance –
stymies legal reform and ensures further violations
Butler 13 (Alan Butler; Appellate Advocate Counsel, Electronic Privacy Information Center; J.D., UCLA
School of Law; B.A., magna cum laude, Economics, Washington University in St. Louis. “Standing Up to
Clapper: How to Increase Transparency and Oversight of FISA Surveillance” New England Law Review v.
48, 55, p 59-100; 2013)
The failure to publish FISC opinions over the last ten years is the root of the current loss of public
confidence in the Administration’s use of foreign intelligence authorities.192 The court’s legal analysis
and conclusions, as opposed to the operational details of surveillance activities, are part of the law that
cannot properly develop without public oversight. Promulgation of the law is a central requirement of
democracy; the failure to promulgate results in a “fail[ure] to make law.” 193 Both the FISC and the
Attorney General bear the responsibility to promote public understanding of the FISA process and
what it encompasses. This is especially true where the court attempts to strike some balance between
national security and civil liberties concerns.194 Secret law undermines our system of checks and
balances by disabling the democratic oversight by which the public governs its government.195
1AR Solvency Deficit
Adversarial system is key to consistent rulings – even if they fiat FISCR compliance,
trials still ensure NSA noncompliance – specifically true of 702 and 4th amendment
rulings
Butler 13 (Alan Butler; Appellate Advocate Counsel, Electronic Privacy Information Center; J.D., UCLA
School of Law; B.A., magna cum laude, Economics, Washington University in St. Louis. “Standing Up to
Clapper: How to Increase Transparency and Oversight of FISA Surveillance” New England Law Review v.
48, 55, p 59-100; 2013)
The recent revelations about the extent and nature of FISA surveillance have highlighted the
important and unreviewed body of constitutional and statutory law being developed by the FISC.205
Unlike other ex parte proceedings, the FISC reviews of applications submitted under Section 702
require extensive analysis and create precedent for the court.206 But this lawmaking process only
works when the judges hear both sides of the argument. In addition, the Fourth Amendment issues
and technical details of surveillance tactics are very complex, and FISC judges cannot adequately
evaluate the various interests without in-depth briefing on both sides. Any FISC reform should address
this problem by providing for a “Special Advocate” to the court, who would operate with a security
clearance and argue in opposition to the Department of Justice on important legal questions regarding
FISA and the Constitution. The FISC is developing complex legal interpretations under a provision of
the FAA that requires the FISC to find that the “targeting and minimization procedures” adopted by
the Government are “consistent with . . . the fourth amendment to the Constitution . . . .”207 But
these decisions are necessarily complex and difficult to make in the abstract context of a Section 702
application because Fourth Amendment analysis is necessarily fact-based.208 In the American judicial
system, facts are developed through an adversarial process.209 The government has an interest in
arguing in favor of the surveillance applications that it submits to the FISC; a Department of Justice
lawyer’s role is not to present the judges with reasons why the application might be denied or
modified. There is currently no advocate on the other side of these complex and novel issues judged
by the FISC. And while recipients of FISA-authorized surveillance orders and directives can file challenges
under certain circumstances,210 they cannot review the classified opinions or government briefs and
do not have the necessary opportunity or incentive to develop fact-based constitutional arguments.
The difficulty in having an adversarial process at the FISC is that the materials presented by the
government are highly classified. However, classified proceedings have become more prevalent over the
past ten years in the United States211 as well as in the United Kingdom.212 The use of specially
appointed, security-cleared attorneys to challenge government legal arguments in national security
cases has been in place for more than a decade in the United Kingdom.213 The use of such a “Special
Advocate” would be appropriate in the FISA context where FISC judges are asked to make novel and
significant legal determinations regarding important constitutional rights. Two former FISC judges,214
and other prominent legal scholars,215 have proposed adding such an adversarial position to ensure
that legal developments at the FISC do not suffer from unbalanced advocacy.216
SOP Court CP
Notes
SOP Supreme Court CP
1. The Counterplan is to have to Supreme Court rule on the separation of powers doctrine.
2. The net benefits are the internal SOP DA, and the 4th amendment DA
3. You could read this aff against affirmatives that have the Supreme Court rule on an amendment
that is not the separation of powers doctrine ie. 1st, 4th, etc.
1NC Material
1NC Solvency
[Insert Plan] replace the grounds with = “based on the separation of powers doctrine”
1st and 4th amendment challenges to surveillance fail – the counterplan is key to
legitimately stopping surveillance
Slobogin 15
(Christopher -Milton Underwood Professor of Law, Chris Slobogin has authored more than 100 articles,
books and chapters on topics relating to criminal procedure, mental health law and evidence. Named
director of Vanderbilt Law School’s Criminal Justice Program in 2009, Professor Slobogin is one of the
five most cited criminal law and procedure law professors in the country, according to the Leiter Report,
Vanderbilt University Law School, Standing and Covert Surveillance, Pepperdine Law Review, February
18, 2015, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2567070, JZG)
IV. A THIRD BASIS
FOR CHALLENGING SURVEILLANCE: SEPARATION OF POWERS AND THE
NONDELEGATION DOCTRINE One response to standing arguments based on the insights of scholars like Milligan and Richards is
that they ignore the close relationship between standing and the scope of the right in question.131 Indeed, when the Fourth Amendment is
the basis for the claim, the Supreme Court has explicitly conflated standing with the Amendment’s substance. In Rakas v. Illinois, 132 the
Court stated that the decision as to whether a defendant can make a Fourth Amendment claim “forthrightly focuses on the extent of a
particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of
standing.”133 If a government action is not a Fourth Amendment “search” vis-à-vis the litigant, Rakas held, then the litigant lacks standing
to challenge it. If that reasoning is the correct approach to standing, then in cases challenging covert surveillance on Fourth or First
Amendment grounds everything rides on whether the surveillance, as it operates in the way the plaintiff describes it, infringes the plaintiff’s
reasonable expectations of privacy or speech and association interests.134 While such a finding would presumably be made in the Clapper
case, which involved the alleged interception of the content of overseas phone calls,135 it is less certain in connection with collection and
querying of metadata. The
Fourth Amendment is only meant to protect reasonable expectations of
privacy.136 Supreme Court case law to date strongly suggests that any privacy one might expect in
one’s metadata or Internet activity is unreasonable, because we assume the risk that third parties to
which we knowingly impart information (here phone companies and Internet service providers) will in turn divulge it
to the government.137 The same type of analysis might limit standing in cases brought under the First
Amendment. As the Court intimated in Clapper, 138 one could conclude that even if speech and
association are inhibited by surveillance, that inhibition proximately results from the individual’s
choices, not from anything the government has done to the individual.139 On this view, even if an
individual can show that he or she was targeted, standing to contest surveillance does not exist unless
and until the government uses the seized information against the individual, because otherwise a colorable
claim that a constitutionally cognizable interest was infringed cannot be made. If, despite its impact on political participation, covert
surveillance like the metadata program remains immune from Fourth and First Amendment challenges, there
remains another
avenue of attack, derived directly from separation of powers doctrine. In other work, I have argued that, even if
the Fourth (or First) Amendment does not govern a particular type of surveillance, Ely’s political
process theory provides a basis for challenging panvasive actions that are the result of a seriously
flawed political process.140 More specifically, panvasive surveillance might be challengeable on one of
three grounds: (1) the surveillance is not authorized by the appropriate legislative body; (2) the
authorizing legislative body does not meaningfully represent the group affected by the surveillance;
or (3) the resulting legislation or law enforcement’s implementation of it violates notions underlying
the non-delegation doctrine.141 The first and third of these grounds are based explicitly on separation
of powers concerns. As I pointed out, some panvasive surveillance has not been legislatively authorized or
has been authorized by legislation that does not announce an “intelligible principle” governing the
implementing agency.142 Panvasive surveillance is also defective under non-delegation principles if, as I
have argued is true of the NSA’s metadata program, it is implemented by rules or practices that are not
explained, were produced through flawed or non-transparent procedures, or are applied unevenly.143
Based on several Supreme Court cases, particularly in the administrative law area,144 I concluded that any one of these
deficiencies could be the basis for the claim that the legislature, the relevant law enforcement agency,
or both are failing to carry out their constitutional obligations as law-making and law implementing
bodies.145 Although this type of claim, like the Fourth and First Amendment claims, aims at “generalized relief,” the Court itself
has often granted standing to individuals making separation of powers claims.146 The rationale of
these cases is not difficult to grasp, because it again reflects the political process rationale. Many
years ago Justice Brandeis stated, “[T]he doctrine of the separation of powers was adopted by the
convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power.”147 More
recently, Chief Justice Burger asserted that “checks and balances were the foundation of a structure of
government that would protect liberty.”148 More recently still, in Bond v. United States149 the Court stated “[t]he structural
principles secured by the separation of powers protect the individual as well.”150 If one accepts the possibility that a
separation of powers argument can be made in covert surveillance cases, then parties who can
demonstrate the type of injury described above—that is, a significant stifling of political participation
that, to borrow the Second Circuit’s language in its Clapper decision,151 is a reasonable, non-fanciful, and non-paranoid
reaction to covert surveillance—should have standing to challenge panvasive surveillance even if it is not a
search under the Fourth Amendment or does not abridge First Amendment freedom. The merits claim would not be that the
surveillance is an unreasonable search or infringement of speech or association rights, but rather that
the legislature has failed in its delegation task or that the relevant law enforcement or intelligence
agency has acted in an ultra vires fashion. These are the types of separation of powers claims that courts ought to hear
because they assure the proper functioning of the political process that the Court is so eager to protect (with, inter alia, its standing
doctrine). To requote Chief Justice Roberts, “[T]he obligation of the Judiciary [is] not only to confine itself to its proper role, but to ensure
that the other branches do so as well.”152
1NC SOP Net Benefit
The counterplan is key to SOP and checking executive powers – solves democracy and
function of the government
Slobogin 15
(Christopher -Milton Underwood Professor of Law, Chris Slobogin has authored more than 100 articles,
books and chapters on topics relating to criminal procedure, mental health law and evidence. Named
director of Vanderbilt Law School’s Criminal Justice Program in 2009, Professor Slobogin is one of the
five most cited criminal law and procedure law professors in the country, according to the Leiter Report,
Vanderbilt University Law School, Standing and Covert Surveillance, Pepperdine Law Review, February
18, 2015, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2567070, JZG)
If panvasive surveillance cannot be challenged in court, it could well continue indefinitely despite its real
threat to democratic institutions. Despite all of the hullabaloo occasioned by Edward Snowden’s disclosures, the
NSA appears to be continuing its large-scale surveillance and Congress has yet to propose serious
limitations on it.162 Although President Obama has put a few new restrictions on the NSA’s programs,163
to date there have been few judicial assessments of their constitutional status, and Clapper stands as an
obstacle to challenges to all but the most obviously panvasive government actions. While the limitations on standing may
make sense in some types of cases, challenges to panvasive surveillance should be treated differently than most other
generalized claims. The separation of powers, Fourth Amendment, and First Amendment concerns about this
surveillance go to the core of American democracy. The Court’s decision in De Jonge v. Oregon, decided almost eight
decades ago, makes the point in language that still resonates in this post- 9/11 era: The greater the importance of safeguarding the
community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve
inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political
discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by
peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.164 Unwarranted
surveillance broadly stifles fundamental liberties and undermines “the very foundation of
constitutional government.” Government is no longer functioning as the framers of the Constitution
imagined it should if political discourse, individual creativity, outspokenness and non-conformity are
not allowed to flourish. This state of affairs threatens rather than sustains the notion of separate but
equal governmental powers, because it diminishes the vitality of the legislative function, improperly
enhances the executive function, and ignores the judiciary’s role as a regulator of law enforcement
through determinations of cause. Standing doctrine, meant to ensure each branch of government is
allowed to do its job, should not prevent courts from ensuring that the other branches actually do it.
Democracy checks inevitable extinction.
Diamond ‘95
(Larry, Senior Fellow at the Hoover Institution and Coeditor of The Journal of Democracy , “Promoting Democracy in the 1990s”,
December, http://www.wilsoncenter.org/subsites/ccpdc/pubs/di/fr.htm)
This hardly exhausts the lists of threats to our security and well-being in the coming years and decades. In the former Yugoslavia nationalist aggression tears at the
stability of Europe and could easily spread. The flow of illegal drugs intensifies through increasingly powerful international crime syndicates that have made
Nuclear, chemical, and
biological weapons continue to proliferate. The very source of life on Earth, the global ecosystem, appears
increasingly endangered. Most of these new and unconventional threats to security are associated with or aggravated by
common cause with authoritarian regimes and have utterly corrupted the institutions of tenuous, democratic ones.
the weakness or absence
of democracy, with its provisions for legality, accountability, popular sovereignty, and openness. LESSONS OF THE TWENTIETH
CENTURY The experience of this century offers important lessons. Countries that govern themselves in a truly democratic fashion do
not go to war with one another. They do not aggress against their neighbors to aggrandize themselves or glorify their
leaders. Democratic governments do not ethnically "cleanse" their own populations, and they are much less
likely to face ethnic insurgency. Democracies do not sponsor terrorism against one another. They do not
build weapons of mass destruction to use on or to threaten one another. Democratic countries form more reliable, open, and
enduring trading partnerships. In the long run they offer better and more stable climates for investment. They are more environmentally
responsible because they must answer to their own citizens, who organize to protest the destruction of their environments. They are better bets to
honor international treaties since they value legal obligations and because their openness makes it much more difficult to breach agreements in secret. Precisely
and the rule of law, democracies are the only reliable
foundation on which a new world order of international security and prosperity can be built.
because, within their own borders, they respect competition, civil liberties, property rights,
2NC CP
2NC Solvency
The political process theory supports the cp’s solvency
Slobogin 15
(Christopher -Milton Underwood Professor of Law, Chris Slobogin has authored more than 100 articles,
books and chapters on topics relating to criminal procedure, mental health law and evidence. Named
director of Vanderbilt Law School’s Criminal Justice Program in 2009, Professor Slobogin is one of the
five most cited criminal law and procedure law professors in the country, according to the Leiter Report,
Vanderbilt University Law School, Standing and Covert Surveillance, Pepperdine Law Review, February
18, 2015, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2567070, JZG)
V. OBJECTIONS One
objection to the political process rationale for granting standing to litigants with
colorable claims of injury from NSA surveillance is that, as Clapper stated, the Court has “often found a lack
of standing in cases in which the Judiciary has been requested to review actions of the political
branches in the fields of intelligence gathering and foreign affairs.”153 A separate but related objection comes
from Professor Jesse Choper, who argued in 1980 that the executive and legislative branches have
“tremendous incentives jealously to guard [their] constitutional boundaries and assigned prerogatives
against invasion by the other,” and thus separation of powers issues ought to be non-justiciable
political questions.154 Neither of these objections are sustainable from the political process
perspective. Precisely because of the perceived importance of national security, the legislative and
executive branches often either act in collusion with one another or, as illustrated earlier, function in ways
that undermine the other’s prerogatives, with the result that both end up ignoring their constitutional
obligations.155 Particularly when it comes to national security, courts should have the authority to
ensure that legislatures define the scope of permissible law enforcement and that law enforcement
abide by appropriate rule-making mechanisms, a notion the Court has accepted in related national
security contexts.156 At the least, these obligations should include procedures for assuring public
accountability (such as notice-andcomment or other transparent rule-making processes), or, if that is not feasible, some method of
assuring accountability to the legislature.157 Unfortunately, the perceived imperatives of the War on Terrorism have led both branches to
short-circuit these requirements.158 A
different kind of objection is that the political process rationale for
standing reaches too broadly.159 If the chilling effect of panvasive surveillance on private
communications and speech and association is enough to establish standing, then other challenges to
alleged flaws in the political process—ranging from voting matters to educational obligations—could conceivably
create standing as well. Perhaps so. As noted above,160 in FEC v. Akins the Court has already recognized as much with respect to
the “most basic of political rights” of voting.161 Whether other interests less closely related to the democratic process might be treated
similarly is beyond the scope of this Article.
2NC AT Perm Do CP
The counterplan severs the part of the plan text that rules on the ____ amendment.
Severance is bad because it also the aff to be a moving target – we can never get
stable negative ground – voting issue for fairness
2NC AT Perm Do Both
The permutation still links to the 4th amendment DA
The perm links to the net benefit – creates confusion
Thurmon 92
(Mark Alan, 1992, WHEN THE COURT DIVIDES: RECONSIDERING THE PRECEDENTIAL VALUE OF SUPREME
COURT PLURALITY DECISIONS,
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3205&context=dlj, JZG)
When the Supreme Court decides a case, the Federal District Courts and Circuit Courts of Appeals are
responsible for finding the governing rules of law in that decision. The first lower court to deal with the
issue often "defines" the holding of the case by reviewing the reasoning found in the Supreme Court's
opinion. Other lower courts then rely largely on this interpretation. Plurality decisions' greatly
complicate this process because lower courts not only have to find the rationale of each opinion, but
must also decide which opinion's rationale governs . With all these choices, it is not surprising that plurality
decisions often do "more to confuse the current state of the law than to clarify it."2
Multiple gruonds cause confusion
Hochschild 2k - J.D., Washington University School of Law
(Adam S., The Modem Problem of Supreme Court Plurality Decision: Interpretation in Historical
Perspective,
http://heinonline.org/HOL/Page?handle=hein.journals/wajlp4&div=11&g_sent=1&collection=journals#2
66, JZG)
On the evening of December 12, 2000 America watched as TV legal scholars scrambled to decipher the United States Supreme Court's split
decision in Bush v. Gore.' Despite the six different opinions, that case turned out to be easy enough to understand. A clear majority of five
Justices ruled the same way. Real
problems arise when there is less than a clear majority speaking for the
Court when the leading opinion of the Court is a plurality opinion. A Supreme Court plurality decision
holds ambiguous precedential value. At the very least, plurality decisions bind the parties in the particular case.2 Our
jurisprudential tradition further assumes that all cases elaborate a general rule of decision, or ratio decidendi, that applies to future cases
involving similar issues.3 The discernment of a ratio decidendi from a majority opinion is generally uncontroversial because a majority opinion
represents the rationale of a majority of Justices.4 But, the discernment of a ratio decidendi from a plurality opinion, which represents the
rationale of less than half of the Justices, is more problematic.
A majority opinion may command more authority than a
plurality decision,5 but precisely what authority does a plurality decision command? In other words,
how should courts apply a plurality decision to subsequent controversies involving similar issues? This
Note posits that the growing confusion surrounding plurality opinions is a foreseeable consequence of the
formative years of the Supreme Court. The hubris of wielding federal judicial power, that has driven Justices since the Court's inception, is the
cause of the plurality opinion chaos. An
examination of the history of the Supreme Court's power and its
methods of decision making suggests that the problem is deeply rooted in American law. Accordingly, an
earnest solution involves a shift in our fundamental understanding of the Supreme Court's role. We must begin, at least, by recognizing the
esteemed and modest beginnings of the Supreme Court.
2NC SOP Net Benefit
2NC CP Overview
The counterplan solves 100% of the case that is not based on the ____ amendment. We use the same
process of the plan but rule on different grounds. 1NC Slobogin is the most specific to the counterplan’s
process, multiple standings exist for litigants to sue based on the doctrine and the Supreme Court has
often given standing to those litigants.
The Counterplan solves the internal SOP net benefit and avoids the 4th amendment good DA.
2NC SOP Good
Executive power is too massive – control over FISA Court is to blame
Williams 14 -Assoc. Professor, Western State College of Law
(Ryan T., The Road Most Travel: Is the Executive’s Growing Preeminence Making America More Like the
Authoritarian Regimes It Fights So Hard Against?, August 2014,
http://works.bepress.com/cgi/viewcontent.cgi?article=1006&context=ryan_williams, JZG)
Through further analysis, one finds that congress’ FISA court solution does not establish a valid check on
Executive power. First, the FISA court is comprised of eleven justices, who serve seven-year terms.46 All current
judges were appointed to the special court by Chief Justice John G. Roberts Jr.47 This method raises concerns
about the democratic process. These eleven judges, unlike the Supreme Court justices, were not vetted and
brought before Congress for ratification. They were simply appointed by one Supreme Court justice to decide
important Constitutional issues, such as the scope of the Fourth Amendment and the limits/expectations of privacy.48 Second, unlike almost
any other court, “the FISA
court hears from only one side in the case — the government.”49 One need not be a
if only one side of an argument is heard, the
chance for a fair examination of both sides diminishes. The government routinely seeks trillions of records about
American citizens, including, but not limited to phone call and e-mail records.50 One wonders how the FISA court considers
both sides if only one side is being argued. The fear, of course, is that the two outcomes, to grant or deny the government’s
Constitutional law professor or political science scholar to realize that
request, are not accorded equal weight, if any weight at all. Under such a scenario, one might suspect a disproportionate number of granted
requests by the government. Unfortunately, that appears to be the case, here. As of the writing of this Article, nearly
every NSA
surveillance request ever submitted to the FISA court, with regard to spying on Americans, was granted.51 In
2012, the FISA court granted every single government request and issued nearly 1,800 surveillance
orders pursuant to those requests. 52 That equates to more than five orders each day for the entire year.
According to the FISA court, no request from any intelligence agency was denied.53 This makes it difficult to argue that
Congressional authorization of the FISA court to oversee the Executive’s spying program is little more
than a talisman, creating a mirage of democratic process cloaked in secrecy and power to a few
people in charge. If the FISA court is the supposed watchdog of the privacy interests for Americans, but only the government gets to
present its case and every single government request for spying is granted, where is the check? Nothing about the aforementioned process
comports with Constitutional notions of checks and balances, regardless of Congressional approval. In
addition, the FISA court’s
findings are almost “never made public.”54 The people are not afforded a chance to review the breadth of a surveillance request,
which 100% of the time results in a surveillance order. The NSA obtains everything it seeks and reports to no one
outside of the Executive branch.
This leads to autocratic rule through the destruction of the separation of powers
Williams 14 -Assoc. Professor, Western State College of Law
(Ryan T., The Road Most Travel: Is the Executive’s Growing Preeminence Making America More Like the
Authoritarian Regimes It Fights So Hard Against?, August 2014,
http://works.bepress.com/cgi/viewcontent.cgi?article=1006&context=ryan_williams, JZG)
D. Resulting Harm Is the
Executive’s newfound expansive ability to spy on Americans, and seeming inability
to challenge it, harmful? Such spying may be necessary to protect the nation from credible terrorist threats. Moreover, on an
individual level, why is there is any problem with the Executive tracking all of people’s activities and information? If people have
nothing to hide, then what is the harm? First, one potential harm is if (and when) the Executive wants to
further expand its powers, and, in secret, unilaterally take away other rights or privileges. By granting
the Executive unchecked power for it’s NSA surveillance program, a dangerous precedent is set where
the Executive may have incentive to take additional power in other areas, while falsely claiming it is
for national security . It may really be for political or personal gain, or to push another agenda to
improperly shape American policy, but if it’s under the guise of national security, a precedent is being
set where the Executive is beyond reproach. Thus, not having a watchdog over the NSA and the
Executive can lead to a host of abuses we have yet to even realize, the worst of which may be yet to
come. Second, aspects of the NSA surveillance program may be unconstitutional. Facially, the concept of tracking phone calls, email
communications and Internet traffic to see if someone is behaving suspiciously seems a little unnerving. It is not “we have a target, let’s start
monitoring them.” Instead, it’s “let’s monitor virtually everyone, to see if there are any targets.” To some, like the plaintiffs in Clapper, this
difference is troubling enough to challenge in court, but their case was dismissed for lack of standing. Conjointly, the NSA surveillance
program may have unconstitutional components, but they will continue to remain unnoticed if no one is ever able to challenge the
lacking a check on Executive power dilutes America’s version of democracy . The Executive
is often supposed to, if not expected to, operate as the unilateral figure in international relations.71 That is
not in dispute, but even as the appropriate central-figure in international relations, the Executive was
never intended to operate in an unconstitutional manner without reproach. The separation of powers,
Executive. Finally,
so vital to a democratic republic, is severely undermined when one branch is possesses seemingly
limitless powers . If America continues to allow the Executive, the person in charge of the military and controlling the spying agencies,
to be effectively unchecked by the other branches,
this much more closely resembles an authoritarian regime than
any form of democracy . Is the current American President a dictator? Surely, this is not the case, but
the NSA surveillance program represents a step towards the type of “elective despotism” that Thomas Jefferson
and the Founding Fathers fought hard to guard against when they formed the United States of America.72 The aforementioned dangers
highlight the problems with the Executive’s newfound and unchecked secret and growing power to spy on Americans. The NSA surveillance
program, however, is not the only way the Executive has usurped power without being stopped by Congress or the Judiciary in the War on
Terror.
Executive is power bad – congress has ceded too much
Katyal 14 -Professor of Law, Georgetown University Law Center
(Neal Kumar, is an American lawyer and chaired professor of law. He served as Acting Solicitor General
of the United States from May 2010[2] until June 2011, Internal Separation of Powers: Checking Today’s
Most Dangerous Branch From Within, The Yale Law Journal,
http://poseidon01.ssrn.com/delivery.php?ID=40610509703108307902709508606409703001700303804
40670331221010971020920291240860260070070190551190060030211021150000831141041080340
91000041007071122111113098030043035082069119077112125119018126070088122118088112005
125069094003024125099091119&EXT=pdf&TYPE=2, JZG)
the need for internal separation of powers The treacherous attacks of September 11 gave Congress and the
President a unique opportunity to work together. Within a week, both houses of Congress passed an
Authorization for the Use of Military Force Resolution (AUMF); two months later they enacted the USA PATRIOT Act
to further expand intelligence and law enforcement powers.11 But Congress did not do more. It
passed no laws authorizing or regulating detentions for United States citizens. It did not affirm President
Bush’s decision to use military commissions to try unlawful belligerents.12 It stood silent when President
Bush took thinly-reasoned legal views of the Geneva Conventions, such as that they did not require
Article 5 hearings to determine prisoner-of-war status. 13 The Administration was content to rest on vague legislation
like the AUMF, and Congress was content not to do much else.14 There is much to be said for the violation of
separation of powers engendered by these executive decisions, but for purposes of this Essay, I want to concede the
executive’s claim—that the AUMF gave the President the raw authority to make these decisions. A democratic deficit still exists;
the values of divided government and popular accountability are not being preserved. Even if the
President had the power to carry out the above acts, it is surely wiser if Congress authorizes them .
Congress’s imprimatur would have ensured that the people’s representatives concurred, aided the government’s defense of these actions in
courts, and signaled to the world a broader American commitment to these decisions than one man’s pen-stroke. Of course,
Congress has not been passing legislation to denounce these Presidential actions either. And here we come
to a subtle change in the legal landscape with broad ramifications: the demise of the congressional checking function. The story begins
with the collapse of the non-delegation doctrine in the 1930s, which enabled broad areas of
policymaking authority to be given to the President and agencies under his control. That collapse,
however, was tempered by the legislative veto, meaning, in practical terms, that when Congress did
not approve of a particular agency action, the legislature could correct the problem. But after INS v.
Chadha, 15 which declared the legislative veto unconstitutional, that checking function, too, has
disappeared. While Congress has at times engaged in oversight, such as the scandal-driven 1995- 2000 period, such oversight is often
stymied by structural dynamics. In most instances today, the only way for Congress to disapprove of a
presidential decree, even one chock full of rampant lawmaking, is to pass a bill with a solid enough
majority to override a Presidential veto. This transforms the veto into a tool that entrenches
presidential decrees, rather than one that blocks congressional misadventures. And because Congress ex
ante appreciates the supermajority-override rule, its members do not even bother to try to check the President,
knowing that a small cadre of loyalists in either House can block such a bill.16 For example, when some of the Senate’s most powerful
Republicans (John McCain, Lindsay Graham, and John Warner) tried to regulate detentions and trials at Guantánamo Bay, they were told
that the President would veto their bill or any other attempt to modify the AUMF.17 The
result is that once a court interprets
a congressional act, such as the AUMF, to give the President broad powers, Congress often cannot
reverse the interpretation, even if they never intended to give the President those powers in the first
place. Members of Congress must not only surmount a supermajority requirement, they must do so in each House. Senator McCain might
persuade every one of the other ninety-nine Senators to vote for his bill, but that is of no moment without a supermajority in the House of
Representatives as well.18 At
the same time, the executive branch has gained power from deference
doctrines that induce courts to leave much conduct untouched–particularly in foreign affairs.19 The
combination of deference and the presidential veto is particularly insidious—it means that a President can interpret a vague statute to give
him additional powers, receive deference in that interpretation from courts, and then lock that decision into place via his veto power. This
ratchetand-lock scheme makes it almost impossible to rein in executive power. This
expansion of presidential power is
exacerbated by the party system. When the political branches are controlled by the same party, considerations of loyalty,
discipline, and self-interest generally preclude inter-branch checking. That general reluctance is exacerbated by the paucity of weapons with
which to check the President, with the only ones in existence called “nuclear” ones. In earlier times, it was not difficult to use legislative
vetoes as surgical checks. But post-Chadha, Congress only has weapons that cause extensive collateral damage. The fear of that damage, of
course, becomes yet another reason why Congress is plagued with inertia. And the filibuster, the last big check in periods of single-party
government, is useless against the host of problems where Presidents take expansive views of their powers under existing laws (such as the
AUMF). Instead of preserving bicameralism, the rule in Chadha has therefore led to its subversion and “no-cameralism.” All legislative action
is therefore dangerous. Any bill, like Senator McCain’s torture bill, can be derailed through compromise. Even if its text ultimately has teeth,
a President will interpret it niggardly, and that interpretation will likely receive deference from a court, and it will then be locked into place
due to the veto. A rational legislator, fearing this cascading cycle, is likely to do nothing at all. A Congress that conducts little oversight
provides a veneer of legitimacy to an adventurist President. The President can appeal to the historic sense of checks and balances, even if
those checks are entirely compromised by modern political dynamics. With this system in place, it is no surprise that calls for legislative
revitalization in the wake of the September 11th attacks have failed. No successful action-forcing mechanisms have been developed; instead
we are still in John Hart Ely’s world of giving a “halftime pep-talk imploring that body to pull up its socks and reclaim its rightful
authority.”20 Instead of another pep-talk, it is time to consider second-best solutions to bring separation of powers into the executive.
Bureaucracy can be reformed and celebrated (instead of purged and maligned), and neutral conflict-decision mechanisms can be introduced.
Design choices such as these can help bring our government back in line with the principles envisioned
by our Founders—ones that have served our nation and the world so well for so long.21
Lack of Court determination in determining the powers of the branches leads to
excessive presidential power
Cantu 15
(Edward -Associate Professor, University of Missouri-Kansas City School of Law, 2015 The Separation-ofPowers and the Least Dangerous Branch, Hein Online, JZG)
III. THE UPSHOT: UNPRECEDENTED EXECUTIVE POWER Some appear to hold out in their hope of helping to corral the Court's pragmatism
into some construct resembling doctrine. 192 But separation-of powers decisions are interminably pragmatic, and the systemic effect of that
pragmatism becomes apparent upon a cursory examination of the state of modern government. The
most conspicuous and
controversial manifestation of the pragmatism in power allocation that the Court has acquiesced to is
the dramatic growth of executive power, and corresponding decrease in congressional power, over the
past century. A good example of this dramatic growth, and the reality that the political process is the only check on it, is the recent use by
Presidents of executive orders and other mechanisms of presidential control over administration to manage national affairs. In 2001, thenProfessor Elena Kagan reflected on the increasing control asserted by Presidents since Ronald Reagan over administrative agencies and
declared quite correctly that "[w]e live today in an era of presidential administration." 19 3 She emphasized that "presidential control of
administration, in critical respects, expanded dramatically during the Clinton years, making the regulatory activity of the executive branch
agencies more and more an extension of the President's own policy and political agenda." 194 Lest one conclude that this is the result of
rank grabs at power by ambitious Presidents, Kagan convincingly explained how this increasing assertiveness of Presidents is likely the result
of "structural aspects of the modern presidency," 195 created by several dynamics beyond Presidents' control. For example, the American
public's expectations of what Presidents can do have increased in recent decades, but the President's ability to convince Congress to go
along has only decreased due to increasing partisanship. 196 Given
Congress' decreasing ability to effectively legislate
because of partisan gridlock, the President is left to meet national expectations using tools the use of
which requires no congressional pre-approval. Naturally, then, Presidents get to work, tackling national
problems as they see fit, even if that means taking an increasingly assertive stance regarding
administrative agencies that Congress originally envisioned would be beyond the President's direct
control. As others have explained, 197 in the criminal law context especially, this is a vicious cycle. Congress understands
it can escape political accountability and appear "tough on crime" by enacting broad criminal laws.
Presidents, in turn, exercise increasing prosecutorial discretion in choosing what conduct the statute
criminalizes, and which offenders to prosecute. This further increases the public's expectations of the
President, which increases the President's willingness to push the boundaries of his prosecutorial
discretion. Which encourages Congress to enact more laws empowering the executive.., and so on. The
"structural aspects" of the modern presidency that Justice Kagan discusses manifest in controversies over, for example, President Bush's
Executive Order 13,435,198 which banned federal funding for certain types of embryonic stem cell
research, based on Bush's belief that the restriction was necessary for "maintaining the highest ethical standards and respecting human
life and human dignity."1 99 President Obama reversed this Executive Order with one of his own. 200 These
erratic shifts in federal law were due to simply a fundamental policy disagreement, one of a moral nature
quintessentially the province of legislatures to resolve, yet one the legislature has left Presidents to resolve through massive delegation, a
disinclination to be responsible for controversial federal policy, and a resignation to a reality that modern life requires a powerful executive
branch. As of this writing, President Obama is well into his eight-year presidency, and the former constitutional law professor now wellappreciates the practical limitations of attempting to govern with the assistance of Congress. Rightly
or wrongly-but no doubt
controversially-President Obama has recently declared that, in light of Congress' inability or
unwillingness to legislate with respect to important issues, "I have got a pen and I have got a phone,"
and that he would use his pen and phone to advance his policies without the help of Congress.20 1
Obama has thus, for example, announced, without consultation with Congress, that the executive branch would stop deporting children
present in the country illegally,20 2 which some argue is tantamount to refusing to enforce federal immigration laws, at least in a significant
categorical respect.20 3 Also controversial is his (as of this time) forthcoming executive order that would raise the minimum wage for federal
contractors' employees without any legislation, 20 4 a move justified, as defenders argue,205 only by vaguely delegated authority in the
Federal Property and Administrative Services Act of 1949, that charges the executive to promote "economy and efficiency" in
procurement.20 6 Perhaps
more relevant-though less controversial for being so familiar-is the increasing
use of military power by Presidents since the end of the Second World War without congressional
approval. The argument, for example, that wars are illegal without Congress first declaring them is generally deemed so illegitimate-to
the point of being almost adorably quaint-such that even those generally against U.S. involvement abroad generally bypass the argument
altogether, notwithstanding historical evidence that the Declare War Clause was, absent the need to repel a sudden attack, intended to
ensure Congress and not the executive commit the nation to war.20 7 Even half-way measures meant to preserve meaningful congressional
constraints on executive war-making powers, such as the War Powers Resolution, have been largely ignored.208 Thus, the
Obama
administration has asserted that it may conduct airstrikes against Syria without congressional
approval.20 9
Obama is violating the SOP – SOP key to stop despotism
Will 14
(George, Obama Violates Separation of Powers, 23 Jun 2014,
https://www.newsmax.com/GeorgeWill/Obama-Separation-Powers-Congress/2014/06/23/id/578644/,
JZG)
What philosopher Harvey Mansfield calls "taming the prince" — making executive power compatible with democracy's abhorrence of arbitrary
power — has been a perennial problem of modern politics. It is now more urgent in America than at any time since the Founders, having
rebelled against George III's unfettered exercise of "royal prerogative," stipulated that presidents "shall take care that the laws be faithfully
executed." Serious as are the policy disagreements roiling Washington, none is as important as the structural distortion threatening
constitutional equilibrium. Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but
his offenses against the separation of powers have been egregious in quantity, and qualitatively different. Regarding
immigration,
healthcare, welfare, education, drug policy, and more, Obama has suspended, waived, and rewritten
laws, including the Affordable Care Act. It required the employer mandate to begin this year. But Obama wrote a new law, giving to certainsized companies a delay until 2016, and stipulating that other employers must certify they will not drop employees to avoid the mandate. Doing
so would trigger criminal perjury charges; so, he created a new crime, that of adopting a business practice he opposes. Presidents
must
exercise some discretion in interpreting laws, must have some latitude in allocating finite resources to the enforcement of laws, and
must have some freedom to act in the absence of law. Obama, however, has perpetrated more than 40 suspensions
of laws. Were presidents the sole judges of the limits of their latitude, they would effectively have
plenary power to vitiate the separation of powers, the Founders' bulwark against despotism.
2NC SOP Low Now
SCOTUS ruling on marriage crushes SOP
Dixon 6-26
(Kristal, Loudermilk: Court Violated Separation of Powers In Marriage Equality Ruling, June 26, 2015,
Patch.com, http://patch.com/georgia/cartersville/loudermilk-court-violated-separation-powersmarriage-equality-ruling-0, JZG)
U.S. Representative Barry Loudermilk (R-Cassville) is
blasting the U.S. Supreme Court’s decision to make marriage
equality legal across the country. Loudermilk, who represents Georgia’s 11th District in the U.S. House of Representatives, said in a
statement that the court “has ignored the foundational intentions of the Constitution.” Marriage, he added, has always been recognized as part
of a ”religious institution,” something American founding fathers have deemed to be outside the realm of the federal government. “Therefore,
any recognition or licensing of marriage by government was left within the power of the states,”
he said. “In this decision, the
Supreme Court fully stepped upon the principle of federalism and the rights and will of the states regarding social and religious issues.
Once again the courts have overstepped their boundaries and have engaged in social engineering by violating the basic
premise of separation of powers and the will of the people.”
2NC AT Non-Delegation DA
2NC Paris Doesn’t Solve
Paris can’t solve warming
Friedman 14
(Lisa - E&E reporter, The pending Paris climate deal may not keep the world under 2 C -- does that
mean failure?, August 21, 2014, http://www.eenews.net/climatewire/stories/1060004756, JZG)
A growing number of leaders are openly acknowledging that a 2015 international agreement to avert
catastrophic global warming will surely fall short of what's needed to achieve that goal. But another consensus is also
forming among top U.S. experts: that shortfall is OK, as long as the deal puts all major climate polluters on a serious, upward and
transparent path to cutting greenhouse gases. "The big question the public is going to ask is: Are all the major emitters participating? And
are they doing enough to help solve this challenge?'" said Peter Ogden, director of international climate and energy policy at the Center for
American Progress and a former chief of staff to U.S. Special Envoy for Climate Change Todd Stern. The
new agreement to be
signed in Paris, to take effect in 2020, will essentially replace the 1997 Kyoto Protocol. Unlike Kyoto, the Paris deal will demand
action from everyone, and not just from wealthy industrialized countries. But in order to make that palatable for governments, negotiators
are moving away from a traditional top-down approach in which scientists dictate what is needed to save the planet and countries are
allotted targets accordingly. Instead, consensus has built around a more voluntary approach in which governments figure out how much
they can cut and offer it up as a pledge. Those "intended nationally determined contributions" are due early next year. In
interviews
with former negotiators and longtime observers of the U.N. climate negotiations, not one person
expressed confidence that the sum of countries' targets will be enough to keep rising global
temperatures below the internationally agreed 2-degree-Celsius "guardrail" between dangerous and extremely
dangerous warming. "If that were the case, it would be a stunning surprise. I don't think anyone expects that," said Joy Hyvarien, executive
director of the U.K.-based Foundation for International Law and Development (FIELD). Recently, the Massachusetts Institute of Technology
used a sophisticated climate model to come to the same result. Studies
show a continuing emissions rise In a report,
"Expectations for a New Climate Agreement," researchers reviewed the likely pledges and found that instead of
greenhouse gas emissions scaling back dramatically, they would actually result in levels of carbon
dioxide equivalent in the atmosphere exceeding 580 parts per million by the end of the century.
Paris wont get us below 2C
Neslen and Mathiesen 15
(Arthur Neslen and Karl Mathiesen, Paris climate pledges 'will only delay dangerous warming by two
years', 3 June 2015, http://www.theguardian.com/environment/2015/jun/03/paris-climate-pledgeswill-only-delay-dangerous-warming-by-two-years, JZG)
Pledges made by countries to cut their carbon emissions ahead of a crunch climate summit in Paris later this year
will delay the world passing the threshold for dangerous global warming by just two years , according to a
new analysis. The research, led by a former lead author on the UN’s climate science panel, found that the submissions so far by
36 countries to the UN would likely delay the world passing the threshold until 2038, rather than 2036 without
the carbon cuts. However, more than 150 countries have yet to submit their carbon pledges despite a deadline of the end of March. While
most are relatively small emitters, commitments by big polluters such as India could significantly change the picture. The analysis for the
Guardian by the non-profit Climate Analytics comes as climate negotiators from nearly 200 countries meet in Bonn and academics warned
the agreement hoped for in Paris would not keep temperatures to UN’s target of holding temperature rises below 2C above pre-industrial
levels. None of the pledges, known in UN jargon as Intended Nationally Determined Contributions (INDCs), were found to be in line with the
2C limit, when a fair global distribution of emissions cuts was factored into countries’ offers. Pledges made by Russia and Canada would be
consistent with potentially catastrophic warming of between 3-4C if the pledges were matched with a similar level of ambition globally,
according to the research. “The action
and ambition we have seen to date is far from sufficient and unless it is rapidly
of limiting warming below 2C will be extreme,” said Dr Bill Hare, the founder of
Climate Analytics and a former Intergovernmental Panel on Climate Change (IPCC) lead author. But he added: “What we
accelerated, the difficulties
see in the economic and technological potential for emissions reductions gives us hope that if governments are willing to move fast enough
in the next 5-10 years, we might still make it. All that is lacking is political will.” Achim Steiner, the director of the UN Environment
Programme, said this week that he would measure countries’ commitments by “looking at whether the pledges add up to anything that
comes close to ensuring that we at least have the possibility to stay within a 2C scenario.” The new analysis suggests an uphill struggle. Some
civil society groups complain that the focus on national pledges distracts attention from the planet’s fast-dwindling carbon budget and the
UN Framework Convention on Climate Change’s (UNFCCC) goal of stabilising atmospheric greenhouse gas emissions at safe levels. “When
the UNFCCC started 21 years ago, atmospheric CO2 concentration were at 300 parts per million (ppm). Today they are at 400 ppm, and
increasing faster each year than the one before,” said Michael Wadleigh, the founder of the Unesco-supported Homo Sapiens Foundation,
and director of the Oscar-winning film, Woodstock. “Despite all the UNFCCC’s negotiated agreements, the body is failing in its key
objective.” Reto Knutti, a lead author for the IPCC’s last major climate report, said that scientists would prefer the world to set global carbon
quotas – rather than percentages of national emissions set against baseline years – but admitted that this was a hard sell. “We presented
carbon budget schemes in Warsaw two years ago [the UN climate summit in 2013], and the policy-makers all said ‘we agree and its urgent’.
But at the same time, they tried to tweak things so they had to do as little as possible,” he said. Nicholas Stern, the author of aninfluential
review of the economics of climate change for the UK government, said that the Paris summit would be crucial in at least setting a “floor of
ambition” “The question is how fast can you ramp up,” he said. “There’s no doubt that [INDCs] are coming in too high for 2030 for 2C [of
warming]. That’s crystal clear. Much too high. But if we get some movement in policies, if we get much stronger innovation of the kind they
are trying to encourage, then they could be ramped up quite quickly.” Christiana Figueres, the head of the UN climate secretariat,
acknowledges Paris is unlikely to meet 2C but said future rounds of pledges could meet the target. “You don’t run a
marathon with one step,” Reuters reported her as as saying.
2NC No EPA Regs Now
States thump climate regulations
Foran 15
(Clare, Mike Pence Says Indiana Will Buck Obama’s EPA Climate Plan, 6-24-15,
http://www.nationaljournal.com/energy/mike-pence-says-indiana-will-buck-obama-s-epa-climate-plan20150624, JZG)
June 24, 2015 Indiana Gov. Mike Pence says his state won't comply with the Environmental Protection Agency's effort to
curb carbon dioxide from power plants—unless the administration dramatically overhauls its regulation. Mike Pence sent a letter to the
President Obama on Wednesday with that warning, saying that unless proposed EPA regulations for power plants are significantly
"improved" before the agency finalizes them, Indiana will buck the rule. That declaration
arrives on the heels of a major
push from Senate Majority Leader Mitch McConnell urging governors not to comply with the
regulations, which stand at the heart of Obama's effort to tackle global warming and shore up a legacy on the environment before he
leaves office. In his letter to the White House, Pence did not explicitly outline what changes he hopes to see from EPA, but claimed that the
regulation "fails to strike the proper balance between the health of the environment and the health of the economy," and warned that it
will drive up the cost of electricity. "As Governor of Indiana, I am deeply concerned about the impacts of the Clean Power Plan on our state,
especially our job creators, the poor, and the elderly who cannot afford more expensive, less reliable energy. I reject the Clean Power Plan
and inform you that absent demonstrable and significant improvement in the final rule, Indiana will not comply," Pence wrote, adding that
Indiana will "reserve the right to use any legal means available to block the rule from being implemented." Indiana
joined a
coalition of states that sued the administration in a failed effort to block the regulations before they
were made final. And this is not the first instance when a Republican governor has pushed back against the rule. Oklahoma Gov.
Mary Fallin signed an executive order blocking her state from complying with the power-plant
regulations. Wisconsin Republican Gov. Scott Walker, a 2016 presidential prospect, has also vowed to fight the
regulations in court.
SCOTUS ruling crushed obama’s momentum for the green agenda
GUILLÉN 6-29
(Alex, Supreme Court deals blow to Obama's green agenda, 6/29/15,
http://www.politico.com/story/2015/06/supreme-court-epa-mercury-emissions-obama-environment119541.html, JZG)
The Supreme Court dealt President Barack Obama’s environmental agenda a major setback on Monday, ruling
that the Environmental Protection Agency had erred in writing its 2012 limits on mercury pollution
from power plants. The decision could alter the administration’s strategy for rolling out an even grander
environmental initiative — EPA’s first-ever regulations on power plants’ greenhouse gas emissions, which had been
expected later this summer. Monday’s ruling capped a session that delivered mixed signals regarding
how the court will judge the inevitable challenge to that landmark climate rule. Even standing alone, Monday’s
ruling on EPA’s Mercury and Air Toxics Standard, one of the administration’s major green initiatives, comes as a blow to the agency, which
was confident it was on solid legal ground after an unequivocal appellate court win in 2014. EPA said in a statement it was “disappointed”
the court did not uphold the rule, but it was still committed to implementing the mercury controls that were now remanded to the U.S.
Court of Appeals for the District of Columbia Circuit. And agency spokeswoman Melissa Harrison noted that because “this rule was issued
more than three years ago, investments have been made and most plants are already well on their way to compliance.” But congressional
Republicans and other critics of EPA’s agenda appeared emboldened by Monday’s ruling as a rebuke for the administration’s broader
agenda. “Today’s
decision firmly rejects the Obama administration’s circumvention of the democratic
process and restores a dose of accountability to the increasingly unaccountable executive branch,”
House Majority Leader Kevin McCarthy (R-Calif.) said in a statement. He added that the decision “vindicates the House’s legislative actions
to rein in bureaucratic overreach and institute some common sense in rule-making.” The ruling, which greens had hoped would bolster
the legal case for Obama’s upcoming climate change rules, saps
rulings supporting Obamacare and gay marriage.
some of the president’s momentum after last week’s crucial
2NC Warming Impact Defense
( ) Warming not real- recent temperatures show no increase
Happer ‘12
(William is a professor of physics at Princeton. “Global Warming Models Are Wrong Again”, Wall Street Journal, 3/27/12,
http://online.wsj.com/article/SB10001424052702304636404577291352882984274.html)
What is happening to global temperatures in reality? The answer is: almost nothing for more than 10 years.
Monthly values of the global temperature anomaly of the lower atmosphere, compiled at the University of Alabama from
NASA satellite data, can be found at the website http://www.drroyspencer.com/latest-global-temperatures/. The latest (February
2012) monthly global temperature anomaly for the lower atmosphere was minus 0.12 degrees Celsius,
slightly less than the average since the satellite record of temperatures began in 1979
( ) Warming won’t cause extinction---mitigation and adaptation solve
Mendelsohn ‘9
(Robert O. Mendelsohn 9, the Edwin Weyerhaeuser Davis Professor, Yale School of Forestry and Environmental Studies, Yale
University, June 2009, “Climate Change and Economic Growth,” online:
http://www.growthcommission.org/storage/cgdev/documents/gcwp060web.pdf)
These statements are
attention,
largely
alarmist and misleading . Although climate change is a serious problem that deserves
society’s immediate behavior has an extremely low probability of leading to catastrophic
consequences. The science and economics
of climate change
is quite clear that emissions over the next few
decades will lead to only mild consequences. The severe impacts predicted by alarmists require a century (or
two
in the case of Stern 2006) of
no mitigation. Many of the predicted impacts assume there will be no or little
adaptation . The net economic impacts from climate change over the next 50 years will be small regardless. Most of the more
severe impacts will take more than a century or even a millennium to unfold and many of these
“ potential”
impacts will never occur because people will adapt. It is not at all apparent that
immediate and dramatic policies need to be developed to thwart long‐range climate risks . What is needed
are long‐run balanced responses.
2NC EPA Regs Hurt Econ
EPA regs hurt the economy
Harder 15
(Amy, Obama Administration Readies Big Push on Climate Change, June 9, 2015,
http://www.wsj.com/articles/obama-administration-readies-big-push-on-climate-change-1433873269,
JZG)
People on either side of the fight hotly contest to what degree—or whether at all—the regulations will create new costs on the
U.S. economy. EPA Administrator Gina McCarthy has averaged about two speeches a week on climate change
since the agency first proposed the carbon rule for power plants a little more than a year ago, according to EPA. Many of the speeches, which
include addresses in front of oil and natural gas industry executives around the world, focus
on what Ms. McCarthy describes as
the positive economic impact of new regulation. “Strategies to reduce carbon can double as investments that return value
for your operations as they evolve over time,” Ms. McCarthy told an audience of energy executives at a conference in Houston in late April
about the agency’s proposed rule cutting carbon from the utility sector. Other
experts maintain the economic upshots of
regulations aren't as clear-cut. “There is no question that regulations are shifting supply and demand
curves, so they are increasing costs,” said Susan Dudley, who was a top regulatory official in the White House during the George
W. Bush administration. “Some of those costs are encouraging cleaner alternatives; sometimes they’re shifting things to other countries. Fully
understanding the costs and benefits is really challenging.”
AFF – SOP CP
2AC
2AC Nondelegation DA
The CP rules on the nondelegation doctrine – their ev
Slobogin 15
(Christopher -Milton Underwood Professor of Law, Chris Slobogin has authored more than 100 articles,
books and chapters on topics relating to criminal procedure, mental health law and evidence. Named
director of Vanderbilt Law School’s Criminal Justice Program in 2009, Professor Slobogin is one of the
five most cited criminal law and procedure law professors in the country, according to the Leiter Report,
Vanderbilt University Law School, Standing and Covert Surveillance, Pepperdine Law Review, February
18, 2015, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2567070, JZG)
140 More specifically, panvasive
surveillance might be challengeable on one of three grounds: (1) the
surveillance is not authorized by the appropriate legislative body; (2) the authorizing legislative body
does not meaningfully represent the group affected by the surveillance; or (3) the resulting legislation
or law enforcement’s implementation of it violates notions underlying the non-delegation doctrine.141
The first and third of these grounds are based explicitly on separation of powers concerns. As I pointed
out, some panvasive surveillance has not been legislatively authorized or has been authorized by
legislation that does not announce an “intelligible principle” governing the implementing agency .142
Panvasive surveillance is also defective under non-delegation principles if, as I have argued is true of the NSA’s
metadata program, it is implemented by rules or practices that are not explained, were produced
through flawed or non-transparent procedures, or are applied unevenly.143
That prevents executive agencies from making regulation – like the EPA
Rappaport 14
(MIKE - Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego,
where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor
Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the
Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review,
Reinvigorating the Nondelegation Doctrine through the Constitutional Amendment Process, SEPTEMBER
12, 2014, http://www.libertylawsite.org/2014/09/12/reinvigorating-the-nondelegation-doctrine-andthe-constitutional-amendment-process/, JZG)
One of the ways that small government and democratic accountability could be promoted in the modern world
is through the reinvigoration of the nondelegation doctrine. Under that doctrine, administrative
agencies would be prohibited from making discretionary legislative decisions and therefore Congress
would have to do so. If Congress, rather than administrative agencies, were to make the discretionary
legislative decisions, this would both reduce the number of regulations that were enacted and would
ensure that members of Congress would have to be responsible for their decisions. By contrast, under the
current system of delegation, the administrative agencies can use the efficiency of the administrative
process to pass large numbers of regulations and members of Congress can avoid accountability for these regulations, always
claiming that they did not intend any particular regulation which might turn out to be unpopular or controversial.
The EPA will create climate regulations now that are key to signaling support for Paris
Harder 15
(Amy, Obama Administration Readies Big Push on Climate Change, June 9, 2015,
http://www.wsj.com/articles/obama-administration-readies-big-push-on-climate-change-1433873269,
JZG)
The Obama administration is planning a series of actions this summer to rein in greenhouse-gas emissions
from wide swaths of the economy, including trucks, airplanes and power plants, kicking into high gear
an ambitious climate agenda that the president sees as key to his legacy. The Environmental Protection Agency is
expected to announce as soon as Wednesday plans to regulate carbon emissions from airlines, and soon
after that, draft rules to cut carbon emissions from big trucks, according to people familiar with the proposals. In the coming
weeks, the EPA is also expected to unveil rules aimed at reducing emissions of methane—a potent greenhouse
gas—from oil and natural-gas operations. And in August, the agency will complete a suite of three regulations lowering carbon from the
nation’s power plants—the centerpiece of President Barack Obama’s climate-change agenda. The proposals represent the biggest climate push
by the administration since 2009, when the House passed a national cap-and-trade system proposed by the White House aimed at reducing
carbon emissions. Anticipating the rules, some of which have been telegraphed in advance, opponents of Mr. Obama’s regulatory efforts are
moving to block them. Senate Majority Leader Mitch McConnell (R., Ky.), is urging governors across the country to defy the EPA by not
submitting plans to comply with its rule cutting power-plant emissions. Nearly all Republicans and some Democrats representing states
dependent on fossil fuels say the Obama administration is going beyond the boundary of the law and usurping the role of Congress by imposing
regulations that amount to a national energy tax driven by ideological considerations. “The Administration seems determined to double down
on the type of deeply regressive regulatory policy we’ve already seen it try to impose on lower-and-middle-class families in every state,” Mr.
McConnell said in a statement. “These Obama administration regulations share several things in common with the upcoming directives: they
seem motivated more by ideology than science, and they’re likely to negatively affect the economy and hurt both the cost and reliability of
energy for hard-working American families and small-business owners.” Supporters of Mr. Obama’s efforts say the regulatory push has the
backing of both science and the force of law. They cite a 2007 Supreme Court decision that compelled the EPA to regulate greenhouse-gas
emissions if the agency found they endanger the public’s health and welfare, which the EPA did in 2009 with a scientific finding shortly after Mr.
Obama became president. They also argue that the moves became necessary after the Senate in 2010 rejected the administration proposal to
cap the amount of carbon emitted in the U.S. Mr. Obama in 2013 issued an executive order directing the EPA to issue the regulations, which it
did a year later, in June 2014. “It’s a demonstration of his commitment. He tried one path, it wasn’t successful, so he took another path that
was available,” said Carol Browner, Mr. Obama’s top climate adviser for the first two years of his administration and EPA administrator for
President Bill Clinton. “He’s following the law Congress passed in 1990,” added Ms. Browner, referring to the 1990 Clean Air Act Amendments.
The actions expected as soon as this week include a scientific finding concluding that carbon emissions from aircraft contribute to climate
change, a move that legally prompts the requirement to regulate based on the 2007 ruling by the Supreme Court, and new carbon-emission
standards for big trucks and trailers, such as a typical 18-wheeler semi-truck. Two factors are driving the timing of the push this summer. The
administration wants to complete it ahead of December’s United Nations summit on climate change,
where world leaders will meet in Paris to decide whether to agree on a global accord to cut carbon
emissions. The EPA’s regulatory agenda represents nearly everything Mr. Obama is set to offer world
leaders on what the U.S. is doing to address climate change. Secondly, once the EPA rules on emissions by
power plants become final, states will have a year to submit plans while lawsuits challenging the rule
are expected to be heard by the courts. The administration wants to make sure that its officials can
oversee as much of these two developments as possible instead of relying on the next president,
especially if it is one of the GOP White House candidates who have expressed opposition to the EPA’s
climate agenda altogether. “When you’re regulating as much of the economy as he [Mr. Obama] is
attempting to regulate by executive order, that’s clearly an overreach,” said Tim Phillips, president of
Americans for Prosperity, a political advocacy group backed by the wealthy Koch brothers.
By preventing the EPA from doing regulations the CP allows the Senate to block
*GOP will also crush NEPA
Plautz 15
(Jason, How Mitch McConnell Is Attacking Obama's EPA, 6-16-15,
http://www.nationaljournal.com/energy/mitch-mcconnell-epa-climate-change-appropriations20150616, JZG)
June 16, 2015 Senate
Majority Leader Mitch McConnell said he joined the appropriations subcommittee in
charge of the Environmental Protection Agency this year to "fight back against this administration's
anti-coal jobs regulations." Looks like he's doing just that. The fiscal 2016 spending bill passed by the Interior and Environment
Subcommittee Tuesday includes language that would bar federal enforcement of the EPA's rules limiting
greenhouse-gas emissions for existing power plants. That would allow states to opt out of the rule
without fear of the EPA stepping in with a federal implementation plan. The rider on the EPA's powerplant rule would represent a significant blow to President Obama's climate plan by giving states the
opportunity to sit out rather than crafting an individual plan to clean up its power plants and improve energy efficiency. McConnell has
been pushing his "just say no" plan to governors, warning that the climate rule will kill jobs while delivering minimal
environmental benefits. McConnell earlier this year wrote to all 50 governors telling them to sit out the EPA rule, saying the plan was "already
on shaky legal grounds" and that EPA was out of bounds in requiring states to write plans to cut their emissions. So far only one governor,
Oklahoma's Mary Fallin, has said publicly she would opt out, although Wisconsin Gov. Scott Walker, an expected presidential candidate, has
indicated he would opt out as well. Overall, the
$30.01 billion bill would cut $539 million from the EPA compared to the
below President Obama's request of $8.6
billion. The bill seeks to cut $75 million as well from EPA clean-air and clean-water programs and cuts $7.5
fiscal 2015 enacted levels, for a total funding level of $7.6 billion. That's also well
million from civil and criminal enforcement at the agency. The bill passed by a voice vote, as is traditional in the Senate committee, and will face
a full committee markup on Thursday. The spending bill also looks to block several other landmark EPA rules, like the agency's clarification of its
Clean Water Act authority. Republicans
have long argued that the so-called Waters of the United States rule is
a regulatory overreach and would give EPA too much power over agriculture and construction
interests. Another rider would bar the EPA from lowering the standard for ground-level ozone, or smog, until 85 percent of counties that
currently do not meet the standard come into compliance. It would also block EPA from regulating lead fishing and tackle, and block a rule
requiring companies to make financial plans to clean up hazardous-waste contaminations, which Democrats say would leave taxpayers on the
hook. Another rider in the bill would stop a
White House guidance instructing federal agencies to consider
climate-change impacts when they conduct National Environmental Policy Act reviews for major
infrastructure projects. Subcommittee Chairman Lisa Murkowski, R-Alaska, said the riders were designed to "rein in the EPA," adding
that she was concerned the NEPA requirements would block construction projects.
Absent Paris, temperature rise and tipping points are inevitable
Ward 14 - Grantham Research Institute on Climate Change and the Environment at London School of
Economics and Political Science
(Bob, "The UN climate change summit is a vital chance for the world to avoid catastrophe", 9-20-14,
http://www.theguardian.com/commentisfree/2014/sep/20/un-climate-change-suummit-vital-leadersact-reverse-carbon-emissions, JZG)
This week, I will witness a key test of whether we will betray our children, grandchildren and future generations through a lack of ambition and
will. I will be at the headquarters of the United Nations in New York on Thursday to listen to David Cameron, Barack Obama and more than 120
other political leaders outline how they intend to tackle the growing risks from climate change. The
summit has been called by
the United Nations secretary general, Ban Ki-moon, to try to build high-level support for efforts to reach an
international agreement to avoid dangerous levels of global warming, which is due to be signed in
Paris in December 2015. The ambition is that countries will outline how they intend to stop and reverse,
within the next 10 years, the growth in annual emissions of carbon dioxide and other greenhouse gases, and
put us on a path towards zero emissions by the second half of this century. Without a treaty, it will be hard for
the world to avoid the potentially catastrophic impacts of the global average temperature rising by
more than 2C degrees above its pre-industrial level. The consequences of creating a climate not seen on Earth
for millions of years will not be suffered primarily by us but by those who will be here next century. By
then, if the climate has warmed by three degrees or more, the Earth is likely to have passed a number of tipping points,
such as irreversible melting of the Greenland ice sheet, leading to gradually accelerating and
potentially irreversible disruption of lives and livelihoods. Even though nearly all of us will be gone by the start of the
next century, it is we who have to determine in the next 15 months whether our descendants in the 22nd century will have to cope with the
risks created by a climate that modern Homo sapiens, less than 250,000 years old, has never experienced. This choice
is shockingly
clear from the scientific evidence for climate change that has now been assembled. But we have constructed
an economic and political system that leads us to disregard this threat to the prosperity and wellbeing of our children and grandchildren. We
make decisions about our economy based on models that discount the future such that the further in the future someone is born, the less they
are worth. This means the impacts of climate change on them are simply dismissed. Yet a major report published last week, The
New
Climate Economy, showed that many of the actions we have to take to prevent future generations
from facing huge risks from climate change would also have other more immediate economic
benefits, such as reducing local air pollution. We hold public discussions about climate change that are mediated by
newspapers and broadcasters, many of whom are obsessed with perpetuating controversy about whether there is a problem, instead of
focusing attention on what should be done. Yet few of the editors of our national media bother to cover the mounting evidence that the UK is
already experiencing climate change. Our seven warmest years and four of our five wettest years on record have all occurred from 2000
onwards. This year has so far been both the warmest and wettest since records began in 1910, and has included the rainiest winter we have
seen. But worst of all, we have constructed a political process that focuses on narrow, near-sighted concerns rather than on the profound longterm challenges that we face. In doing so, we have undermined the legitimacy of our democratic elections by alienating many young people
who are turning their backs on traditional party politics, not out of apathy, but out of sheer disgust and disillusionment. It is a symptom of how
little politics has to offer the young that none of the leaders of the three biggest political parties in parliament has made a major speech on
climate change since the last election more than four years ago. Meanwhile, Ukip has surged in popularity, mainly among older voters, while
embracing outright denial of climate change as part of its laughable energy policy that pledges a revival of coal, the dirtiest of the fossil fuels. It
is little wonder then that there could be a record low turn-out of young voters in the general election next May, even though whichever party
wins will help to decide whether there should be a strong international agreement on climate change. Our best hope is for young voters to
express their despair about our dismal politics, not by boycotting the general election as some have advocated, but instead by speaking out
loudly and fiercely, and forcing potential MPs to confront long-term issues such as climate change in the run-up to the next general election. In
doing so, they would ensure that their best interests, and the best interests of future generations, are not betrayed by those political leaders
who will decide in Paris next year whether the world will avoid dangerous climate change.
The impact is billions of deaths
Cummins ‘10
(Ronnie, International Director – Organic Consumers Association and Will Allen, Advisor – Organic Consumers Association, “Climate
Catastrophe: Surviving the 21st Century”, 2-14, http://www.commondreams.org/view/2010/02/14-6)
The hour is late. Leading climate scientists such as James Hansen are literally shouting at the top of their lungs that the world needs to
reduce emissions by 20-40% as soon as possible, and 80-90% by the year 2050, if we are to avoid climate chaos , crop
failures , endless wars , melting of the polar icecaps, and a disastrous rise in ocean levels. Either we radically reduce
CO2 and carbon dioxide equivalent (CO2e, which includes all GHGs, not just CO2) pollutants (currently at 390 parts per million and rising 2
ppm per year) to 350 ppm, including agriculture-derived methane and nitrous oxide pollution, or else
survival for the present and future
generations is in jeopardy. As scientists warned at Copenhagen, business as usual and a corresponding 7-8.6 degree Fahrenheit rise in global
temperatures means that the carrying capacity of the Earth in 2100 will be reduced to one billion people. Under this hellish scenario,
billions
will die of thirst, cold, heat, disease, war, and starvation. If the U.S. significantly reduces greenhouse gas emissions,
other countries will follow. One hopeful sign is the recent EPA announcement that it intends to regulate greenhouse gases as pollutants
under the Clean Air Act. Unfortunately we are going to have to put tremendous pressure on elected public officials to force the EPA to crack
down on GHG polluters (including industrial farms and food processors). Public pressure is especially critical since "just say no" Congressmenboth Democrats and Republicans-along with agribusiness, real estate developers, the construction industry, and the fossil fuel lobby appear
determined to maintain "business as usual."
AT Democracy Impact – Squo Solves
Squo solves democracy – marriage ruling
Battle Creek Enquirer Editorial Board 6-27
(Editorial: Marriage ruling a victory for democracy, June 27, 2015,
http://www.battlecreekenquirer.com/story/opinion/editorials/2015/06/27/marriage-ruling-victorydemocracy/29395721/, JZG)
In a scathing dissent, Justice Antonin Scalia writes that the U.S. Supreme Court's ruling that states cannot ban
gay marriage threatens our democracy. The irony is that it does precisely the opposite. The majority
opinion handed down Friday in Obergefell v. Hodges is nothing less than a reaffirmation of the very tenets of our
Constitution and our system of judicial review. It will stand among the most consequential rulings in U.S. history. Justice
Anthony Kennedy's soaring rationale not only carried the day, but firmly established precedent ensuring that any law targeting people based on
sexual orientation calls for heightened scrutiny. Further, its penultimate graph signals that no statute-grounded animus or religious doctrine
can supersede the fundamental rights of a United States citizen, making
this a decision that will transcend the issue of
gay marriage and will reverberate for generations. Kennedy wrote: "No union is more profound than marriage, for it
embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater
than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It
would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so
deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of
civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right." The opinion's
sweeping embrace of "equal dignity in the eyes of the law" has predictably unhinged Kennedy's strict-constructionist colleagues. Chief Justice
John Roberts Jr., reading his dissent from the bench, chastened those basking in the glow of the ruling: "Celebrate today's decision … but do not
celebrate the constitution." Scalia's ignoble, insulting rhetoric set a new low for the court's most conservative jurist, who called Kennedy's
opinion "egotistic" and "silly," filled with "straining-to-be-memorable passages." Scalia's diatribe mocked the "hubris" of those in the 5-4
majority whom he accused, by virtue of their privilege and position, of making a "naked judicial claim to legislative – indeed, super-legislative
power; a claim fundamentally at odds with our system of government." It often seems as though Scalia resides in an alternate universe, utterly
blind to the forces of avarice, bigotry and political privilege that are indeed dismantling our system of government. It's a system in which
cynically drawn legislative districts and statutory shrouds of secrecy around campaign finance and administrative functions continually
marginalize the disenfranchised and people of modest means struggling to build lives for themselves and their families. It's a system in which
lawmakers, including many in Michigan, are granted safe harbor to pursue blatantly discriminatory legislation, such as the bills Gov. Rick Snyder
signed just this month allowing faith-based agencies to turn away gay and lesbian couples seeking state-supported adoptions. Another bill, just
introduced, would allow only clergy to perform marriages. The court's ruling in in Obergefell v. Hodges is indeed a triumph, but it is far from the
end of our collective struggle to ensure justice for all. Justice Kennedy's opinion sets us more firmly on that course, opening the door for more
Americans to join the struggle. Scalia is simply wrong. That
was a decisive victory for democracy.
1AR
1AR Nondelegation UQ
Climate control protections coming now – dramatically reduces warming
Restuccia 6-22
(Andrew - Andrew Restuccia is an energy reporter for POLITICO Pro. Prior to joining POLITICO, Restuccia
covered energy and environmental politics and policy at The Hill. He also reported on energy policy for
The Washington Independent and Inside Washington Publishers., White House climate strategy hits its
stride, 6/22/15, http://www.politico.com/story/2015/06/white-house-climate-strategy-hits-its-stride119310.html, JZG)
Critics of the Environmental Protection Agency’s climate change agenda should brace themselves —
the Obama administration isn’t letting up. President Barack Obama has launched an unprecedented
regulatory assault on greenhouse gas emissions, putting the White House’s executive branch power
on display and enraging conservative opponents as the president works to cement his environmental legacy. It’s the result of 24 months
of heavy lifting by EPA that started when Obama unveiled a sweeping climate plan on a sweltering day at Georgetown University two years
ago this week, telling students there he refused “to condemn your generation and future generations to a planet that’s beyond fixing.” Now,
the administration is in full swing: The EPA on Friday proposed new fuel efficiency rules for heavy-duty trucks, the
agency recently took the first step toward cutting airplane emissions, and its planning to curb methane emissions from new oil and gas
operations. That’s
on top of the Interior Department’s plans to regulate hydraulic fracturing on federal lands,
EPA’s proposal to veer the country’s ethanol trajectory away from Congress’ goals, and new water
rules that have enraged agricultural groups. It’s all building to August, when the EPA is expected to finalize first-ever greenhouse gas rules
for the nation’s massive fleet of power plants, a plan that’s set to pummel an already-ailing coal industry. Environmentalists, who for years
have complained about the failure of the U.S. to take on climate change, are now hailing Obama’s vigor in trying to cut the emissions
blamed for the warming planet. “The president’s climate action plan identified the biggest opportunities to cut carbon pollution using the
authority of existing laws. His agencies are now delivering, as promised,” said David Doniger, director of the Natural Resources Defense
Council’s climate and clean air program. But Republicans are furious, deriding the strategy as executive overreach
for a policy that Obama couldn’t get passed in Congress. “EPA’s overreach comes at a significant cost to American taxpayers and energy
consumers,” Senate Environment and Public Works Committee Chairman Jim Inhofe (R-Okla.), the most vocal climate change skeptic in
Congress, said through a spokeswoman. “The administration’s extremist agenda on global warming will reduce grid reliability, raise the cost
of energy, undermine the Clean Air Act, move jobs overseas and ignores the will of Congress.” Obama’s climate agenda hasn’t won him
many friends in the fossil fuel industry either. “What started out as an academic speech two years ago will long be remembered for its role
in leading us down a path away from the intent of Congress and the people and towards governance through executive fiat,” Laura Sheehan,
a spokeswoman for the American Coalition for Clean Coal Electricity, a coal industry group. “So far-reaching are the administration’s
environmental missives that they will undermine our nation’s energy security and wreak havoc on families’ budgets; all for negligible
climate impact.” Obama jaunted into his second term with a renewed desire to take action on climate change. But, having been burned by a
first-term push to pass cap-and-trade legislation, he knew Congress had no appetite for the issue. In a much-heralded speech at Georgetown
University in June 2013, the president unveiled a 21-page plan that outlined his agenda. The takeaway from the speech was clear: The
administration would go it alone, abandoning its years-long push for a climate bill in favor of dozens of new regulations and initiatives that
touch on most major sectors of the economy. Two years later, scarcely a week goes by without the administration unveiling a new climate
change initiative. The EPA
last week proposed a new regulation that would require makers of heavy-duty trucks to hike fuel
efficiency by up to 24 percent. The rule, the agency said, would save 1 billion metric tons of carbon dioxide over the life of
the vehicles sold during the program.
1AR Nondelegation AT SCOTUS Ruling
SCOTUS ruling actually helped Obama, and it shows that only bad court precedents
can stop Obama
Drajem 6-24
(Mark, Obama May Win by Losing in Quirk of Supreme Court EPA Review, June 24, 2015,
http://www.bloomberg.com/news/articles/2015-06-24/obama-may-win-by-losing-in-quirk-of-supremecourt-epa-review, JZG)
Here’s a twist for
the Obama administration as it awaits a U.S. Supreme Court decision on the biggest environmental rule of
its first term: A loss shores up the legal basis of the biggest environmental rule of the second term. The high
court is set to decide as soon as Thursday on the 2012 rule by the Environmental Protection Agency that ordered curbs in mercury and other
toxic pollutants emitted from coal-fired power plants. As a result of the rule, dozens of old coal plants were shuttered, and utilities have
invested billions of dollars to install expensive scrubbers. The
legal irony in this case is that when industry lawyers
challenged another major EPA initiative -- a proposal to also mandate cuts in carbon emissions from
power plants -- they argued that the Clean Air Act would preclude that regulation if the mercury rule
is in effect. If the mercury rule were tossed out, that argument might go with it. “It unquestionably
would help EPA’s carbon rule,” said Brian Potts, an attorney specializing in Clean Air Act cases. “Both sides
have something to lose by winning here.” The legal two-step for the EPA underscores the degree to which President
Barack Obama’s environmental legacy, especially in regulating greenhouse gases blamed for climate change, is dependent
on favorable decisions from federal courts. The mercury rule was fought all the way to the Supreme Court, even as analysts
say utilities such as American Electric Power Co. and Southern Co. won’t reverse decisions to close old coal plants if the EPA loses.
1AR Nondelegation Link
CP revives a doctrine that kills obama’s policy
Shapiro 15
(Stuart is Associate Professor and Director, Public Policy Program at Rutgers University, President
Obama using EPA to bypass Congress is not illegal, june 11, 2015,
http://www.sciencecodex.com/president_obama_using_epa_to_bypass_congress_is_not_illegal159116, JZG)
President Obama using EPA to bypass Congress is not illegal It’s a big few weeks at the Environmental Protection Agency
(EPA). The EPA issued a regulation clarifying its authority to regulate bodies of water throughout the country. This week it issued an
“endangerment finding,” a precursor to a regulation governing carbon emission from aircrafts. There is also a plan to raise fuel efficiency
standards on trucks. And within the next week or two, the Supreme Court will issue a ruling regarding whether the EPA unreasonably refused to
consider costs when issuing its recent standard on mercury emissions from power plants. But
while it is a big few weeks, it is
not an unusual few weeks for the Obama Administration EPA. The mercury, aircraft emission and clean water
regulations are all examples of major policy initiatives taken by the executive branch of the government during this administration. President
Obama said in 2014 that in the wake of Congressional gridlock, he would use his “pen and phone” to make policy
without Congress. In no policy area (save perhaps immigration) has that been more evident than in environmental policy. Common playbook
Not surprisingly, President Obama’s opponents have reacted strongly to the policy-making through
regulation. The clean water rule was described as an “egregious power grab.“ Republican senators unhappy with
EPA attempts to regulate greenhouse gases have spoken of the need to “rein in” the executive branch. However, two of the
premises behind these attacks are at best questionable. The first is that the Obama Administration
emphasis on regulation is unprecedented, and the other is that issuing regulations is an unchecked
exercise of executive power. The use of executive power by a president to get his wishes, particularly in a
second term, is extremely common. Every two-term president since Franklin Delano Roosevelt has been confronted by a
Congress with at least one house controlled by the opposition party in his second term. This severely constrains the ability of the president to
affect domestic policy through legislation. As such, sometime
around their second inauguration, presidents typically
switch from a “legislative presidency” where they advocate for new laws in Congress, to an “administrative
presidency” where they use their executive powers to enact their policy preferences. Increasingly, that has meant using
regulation as a policy tool. Statutes passed in the 1960s and 1970s gave the president considerable ability to set policy through regulation.
The Supreme Court has repeatedly upheld the constitutionality of this delegation of power to the
president from Congress.
Hence, all presidents from Carter through Obama have issued hundreds of significant regulations, and
presidents all pick up the pace of regulating as their time in office grows short.
1AR Nondelegation Paris IL
Paris can solve – even if initial commitments are insufficient – the new framework
allows for success
Freedman 15
(Andrew, Why the Paris Climate Summit might actually work, JUN 02, 2015,
http://mashable.com/2015/06/02/paris-climate-summit-global-warming-agreement/, JZG)
The Paris Climate Summit is approaching more quickly than it might seem. Though it actually takes place in early December, there are fewer
than 20 negotiating days left on the diplomatic calendar before the international community gathers in the French capital. Their goal is to
construct something that has eluded the world for more than two decades: a meaningful, effective and enforceable global climate change
agreement. Based
on recent climate science findings, the summit can be viewed as the last chance for the
global community to meet the mandate countries agreed to back in 1992 — avoiding "dangerous human
interference with the climate system." Negotiators have defined that danger threshold as global
warming greater than 2 degrees Celsius, or 3.6 degrees Fahrenheit. Emissions of planet-warming greenhouse gases would have
to plummet in the next decade to avoid overshooting that 2-degree target, according to many studies. Increasingly, it seems that leaders
recognize this, as many are publicly talking about including a long-term goal of zero or negative emissions (when more emissions are taken out
of the atmosphere than added to it) in the Paris Agreement. Positive signs Recently,
there have been a number of
indications that Paris is unlikely to be a repeat of the debacle that occurred in Copenhagen in 2009. That's
when world leaders, including a then-new President Barack Obama, jetted into Denmark expecting to sign a completed treaty text ready for
signature — only to be disappointed and embarrassed by the weak "accord" they hastily adopted when negotiations all but collapsed. There
were many reasons for Copenhagen's failure. But perhaps the best explanation is this: the world was not yet ready to undertake the serious
actions that solving this issue requires. Oil and coal companies were still fighting the science. China and the U.S. were still at loggerheads over
China's responsibility to cut its rapidly-growing emissions. Leaders were not yet feeling much heat at home for failing to move forward. All that,
and more, has changed. A
global movement is underway to encourage entities of all sizes, from cities to colleges to entire
countries, to divest from fossil fuel companies. The movement has met with growing success. The U.S. and China
struck a climate agreement that would bring a massive expansion in China's renewable energy use, and a peak in its carbon
emissions by 2030. The U.S. has committed to cutting its emissions by up to 28% below 2005 levels by 2025. Currently, U.N.
climate negotiators are meeting in Bonn, Germany, to work on the rough draft of an agreement that will be up for debate in Paris. As it is
currently written, the draft is sprawling, with brackets surrounding the most contentious issues. The task before the negotiators is to whittle
away at the text and get closer to widespread agreement on some of the major sticking points — such as financial assistance from the
industrialized world to pay for the impact of climate change in developing countries, and to assist with their transition from fossil fuels to
renewable energy. Fossil fuel companies are feeling more pressure from governments and their shareholders to consider the possibility that
some of their assets may become "stranded" because of the need to cut emissions. On Monday, the leaders of six global oil and gas companies
sent a letter to top U.N. climate official Christiana Figueres, offering support for the implementation of a carbon price. The chief executives of
Shell, BP, Total, Statoil, Eni and the BG Group wrote: We acknowledge that the current trend of greenhouse gas emissions is in excess of what
the Intergovernmental Panel on Climate Change (IPCC) says is needed to limit the temperature rise to no more than 2 degrees above preindustrial levels. The challenge is how to meet greater energy demand with less CO2. We stand ready to play our part. The letter endorsed the
increased use of natural gas, a fuel that has less carbon compared to oil, but is still not a clean energy source, to help fight climate change. A
carbon price could encourage the use of natural gas, according to National Journal. While no one believes the oil companies are about to stop
drilling anytime soon — just look at Shell's summer plans for the Arctic — there are other important signs that the Paris meeting will be very
different from past negotiating sessions. An old house with new beams and a better foundation For
one thing, the agreement that
is up for negotiation is entirely different from what was on the table in Copenhagen, and even earlier, in
Kyoto, Japan. These talks are not aimed at creating a top-down mandate from the U.N. that will be legally
binding on some countries but not others. Instead, it's the reverse: a bottom-up approach in which each
country determines what it is willing to do to address its share of the global warming problem . These
individual goals will then be stitched together into some kind of patchwork quilt that has legal force to it. This ad-hoc structure may seem
wonky, and only of interest to diplomacy nerds, but it's actually a fundamental part of why many longtime observers of climate talks are more
optimistic about Paris than any of its predecessors. Such
a framework allows the agreement to be built upon in later
years. Each country's target can be ratcheted up gradually, in terms of ambition. "I think the Paris agreement is
likely to be structured to bring countries back regularly to the table to strengthen their commitment to complete the job," says Jennifer
Morgan, global director of the climate program at the World Resources Institute in Washington, an environmental think tank. Under the old
system, there were good reasons for countries to resist ambitious emissions reduction targets — because they were legally binding and came
from a complicated, largely arbitrary calculation by the U.N. bureaucracy. Now, though,
each country has an incentive to
act more swiftly in order to be recognized for early action, and to help put pressure on other nations
to do the same. "The idea is to have both that long-term target and then a process where countries would come back to the table say
every five years, and in the actual Paris agreement would be a commitment that they would increase their ambition, or not roll back their
ambition, every five years," Morgan said on a call with reporters. "There could even be assessments of the country's proposed commitments
for the future when they come out. All
of those things are ways to try and create a positive momentum or
signals that would get the countries closer and closer to staying below 2 degrees [Celsius]".
1AR Nondelegation AT CO2 Ag
CO2 increases hurt crops – decrease sunlight, make food less nutritious
Radford 15
(Tim, Climate News Network, Rise in CO2 Could Restrict Growing Days for Crops, Jun 20, 2015,
http://www.truthdig.com/report/item/rise_in_co2_could_restrict_growing_days_for_crops_20150620,
JZG)
LONDON—The positive consequences
of climate change may not be so positive. Although plants in the
colder regions are expected to thrive as average global temperatures rise, even this benefit could be
limited. Some tropical regions could lose up to 200 growing days a year, and more than two billion rural
people could see their hopes wither on the vine or in the field. Even in temperate zones, there will be limits to
extra growth. Plants quicken, blossom and ripen as a response to moisture, warmth and the length of daylight. Global warming
will clearly change the temperatures and influence the patterns of precipitation, but it won’t make
any difference to the available hours of sunlight at any point on the globe. Scientists at the University
of Hawaii at M?noa report in the Public Library of Science journal PLOS Biology that they looked at the big picture of
complex change. Higher concentrations of atmospheric carbon dioxide—the greenhouse gas from car exhausts, forest fires and
factory chimneys—are expected overall to aid crop and forest growth. Extended season Average global warming of less than 1°C in the
last 30 years has extended the northern hemisphere growing season by up to 11 days, but plants are still
limited by radiation. “Those that think climate change will benefit plants need to see the light, literally and figuratively,” says Camilo
Mora, lead author of the report and assistant professor in the Department of Geography at the University of Hawaii. “A narrow focus on
the factors that influence plant growth has led to major underestimations of the potential impacts of
climate change on plants, not only at higher latitudes but more severely in the tropics, exposing the world to dire
consequences.” Professor Mora has made a career of thinking about global consequences. He and colleagues recently tried to calculate
the possible dates at which local climates could shift inexorably in different parts of the world, and tried also to build a picture of how ocean
plants will not be able to take advantage of those
warmer temperatures because there will not be enough sunlight to sustain their growth.” His team is not the first to
try to calculate the potential impact of catastrophic global warming on global food supply. Cereals are vulnerable to extremes of
heat, and climate change may already be affecting yields in Europe. But the Hawaiian scientists tried a simple theoretical approach, by first
warming and acidification would affect incomes everywhere. “Many
identifying the ranges of temperature, soil moisture and light that drive 95% of the world’s plant growth today. They then tried to calculate the
number of days in a year in which these growth conditions could be expected at various latitudes in the future, as carbon dioxide levels—and
average temperatures—climb. They found that, nearer the poles, the number of days above freezing would increase by 7%. “But many plants
will not be able to take advantage of those warmer temperatures because there will not be enough sunlight to sustain their growth,” says Iain
Caldwell, of the Hawaii Institute of Marine Biology. The same warming at the lowest latitudes could be devastating: in some tropical regions,
conditions could become too hot and dry for any growth. Overall, the
planet could see an 11% reduction in the number
of days suited to growth, and some places in the tropics could lose 200 growing days a year. Although some regions in China, Russia
and Canada will see an improvement, around 2.1 billion people who rely on forests and agriculture for food and
revenue could lose 30% of the days they now bank on for plant growth. But rising levels of carbon
dioxide could also affect the quality of plant growth, according to a new study in Global Change Biology. Zhaozhong
Feng, of the Department of Biological and Environmental Sciences at the University of Gothenburg, Sweden, and colleagues looked at
the results of eight experiments in four continents on crops, grasslands and forests, and found that as carbon
dioxide levels go up, the nitrogen content of the crop is lowered. In the case of wheat and rice, this
would also mean lower protein levels. Negative effect “Furthermore, we can see that this negative effect
exists regardless of whether or not the plants’ growth increases, and even if fertiliser is added,” says Johan Uddling, a
plant physiologist at Gothenburg, and a co-author of the report. “This is unexpected and new.” In the same week, a team of scientists at the
University of Alaska Fairbanks produced evidence that climate change has already begun to alter the forests of the far north. They report in the
journal Forest Ecology and Management that in the interior of Alaska, already at the optimum temperature range for white spruce, tree growth
slowed as summer temperatures rose.
Newest studies prove – the deniers use too short of studies that don’t take into
account all the variables
Abrams 15
(Lindsay, Scientists destroy another climate denier myth: Rising CO2 levels aren’t good for plants, MAY
22, 2015,
http://www.salon.com/2015/05/22/scientists_destroy_another_climate_denier_myth_rising_co2_level
s_arent_good_for_plants/ , JZG)
Plants need carbon dioxide to grow. Humans are emitting the stuff into the atmosphere in excess. Therefore, humans are helping
plants. So goes one of the more long-lived arguments put forward by people who deny the reality of man-made climate change — an who
attempt to turn the CO2 –> global warming –> bad narrative on its head. The Heartland Institute, most recently, made it the focal point of a
campaign asserting that CO2 is actually good for human and environmental health. There are already a number of flaws in this line of
reasoning, but new
research from Montana State University illustrates how, in reality, the benefits of added
CO2 can’t necessarily compete with the harmful downsides of a changed climate. The study, published last week
in the journal Nature Communication, examines one Montana meadow over 44 years — a period during which
atmospheric carbon dioxide concentrations increased by about 75 ppm (they were 20 percent lower when the study
started, in 1969, than they were when it ended in 2012). At the same time, the greater Yellowstone climate became
more arid — and the grasslands’ productivity, by the study’s end, had decreased by half. “Our longterm results of declining grassland production contrast with the results of some models and shortterm experiments,” study coauthor Jack Brookshire explained in a statement. “We find that increasing dryness over the
last several decades is outpacing any potential growth stimulation from increasing atmospheric carbon dioxide and
nitrogen deposition.” In other words, as the Daily Climate explains, studies that look solely at carbon’s direct impact on
plants through fertilization, and even at the benefits conferred by slightly warmer temperatures, fail
to take the entire picture into account. Factors like altered rainfall, that occur as a result of climate
change, can cancel out the positives, as they do here. Might some plants, in some regions, still benefits in a warmer climate?
Sure. But that’s a long way from saying that continuing to pump CO2 into our atmosphere will be, in the aggregate, anything but a disaster.
1AR AT Adaptation
( ) Can’t adapt to warming – rates likely to be too fast to ensure resilience.
EPA ‘7
[United States Environmental Protection Agency. “Climate Change-health and environmental effects: ecosystems and biodiversity.”
http://www.epa.gov/climatechange/effects/ecosystemsandbiodiversity.html -- 12/20]
Observations of ecosystem impacts are difficult to use in future projections because of the complexities involved in human/nature interactions
(e.g., land use change). Nevertheless, the
observed changes are compelling examples of how rising temperatures
can affect the natural world and raise questions of how vulnerable populations will adapt to direct and indirect effects associated
with climate change. The IPCC (IPCC, 2007) has noted, During the course of this century the resilience of many ecosystems
(their ability to adapt naturally) is likely to be exceeded by an unprecedented combination of change in
climate and in other global change drivers (especially land use change and overexploitation), if greenhouse gas emissions
and other changes continue at or above current rates. By 2100 ecosystems will be exposed to atmospheric
CO2 levels substantially higher than in the past 650,000 years, and global temperatures at least among the highest as those
experienced in the past 740,000 years. This will alter the structure, reduce biodiversity and perturb functioning of
most ecosystems, and compromise the services they currently provide.
1AR AT Warming Not Real
( ) Global Warming is happening – most recent and best evidence concludes that it is
human induced
Muller ‘12
[Richard, professor of physics at the University of California, Berkeley, and a former MacArthur Foundation fellow, “The Conversion of a
Climate-Change Skeptic”, http://www.nytimes.com/2012/07/30/opinion/the-conversion-of-a-climate-change-skeptic.html?pagewanted=all]
CALL me a converted skeptic. Three years ago I identified problems in previous climate studies that, in my mind, threw doubt on the very
existence of global warming. Last year, following an intensive
research effort involving a dozen scientists, I concluded that
global warming was real and that the prior estimates of the rate of warming were correct. I’m now going a step further: Humans
are almost entirely the cause. My total turnaround, in such a short time, is the result of careful and objective analysis by the
Berkeley Earth Surface Temperature project, which I founded with my daughter Elizabeth. Our results show that the average
temperature of the earth’s land has risen by two and a half degrees Fahrenheit over the past 250 years, including an increase
of one and a half degrees over the most recent 50 years. Moreover, it appears likely that essentially all of this increase results
from the human emission of greenhouse gases. These findings are stronger than those of the Intergovernmental Panel on
Climate Change [IPCC], the United Nations group that defines the scientific and diplomatic consensus on global warming. In its 2007 report, the
I.P.C.C. concluded only that most of the warming of the prior 50 years could be attributed to humans. It was possible, according to the I.P.C.C.
consensus statement, that the warming before 1956 could be because of changes in solar activity, and that even a substantial part of the more
sophisticated statistical methods developed largely by our
lead scientist, Robert Rohde, which allowed us to determine earth land temperature much further back in time.
We carefully studied issues raised by skeptics: biases from urban heating (we duplicated our results using rural data alone),
from data selection (prior groups selected fewer than 20 percent of the available temperature stations; we used virtually 100 percent),
from poor station quality (we separately analyzed good stations and poor ones) and from human intervention and data
adjustment (our work is completely automated and hands-off). In our papers we demonstrate that none of these potentially troublesome
recent warming could be natural. Our Berkeley Earth approach used
effects unduly biased our conclusions. The historic temperature pattern we observed has abrupt dips that match the emissions of known
explosive volcanic eruptions; the particulates from such events reflect sunlight, make for beautiful sunsets and cool the earth’s surface for a
few years. There are small, rapid variations attributable to El Niño and other ocean currents such as the Gulf Stream; because of such
oscillations, the “flattening” of the recent temperature rise that some people claim is not, in our view, statistically significant. What has caused
the gradual but systematic rise of two and a half degrees? We
tried fitting the shape to simple math functions
(exponentials, polynomials), to solar activity and even to rising functions like world population. By far the best
match was to the record of atmospheric carbon dioxide (CO2), measured from atmospheric samples and air trapped in
polar ice.
( ) Consensus is on our side
EDF 9.
[ENVIRONMENTAL DEFENSE FUND, 1-13 “GLOBAL WARMING MYTHS AND FACTS” -- http://www.edf.org/page.cfm?tagID=1011]
FACT: There is no debate among scientists about the basic facts of global warming. The most respected
scientific bodies have stated unequivocally that global warming is occurring, and people are causing it by
burning fossil fuels (like coal, oil and natural gas) and cutting down forests. The U.S. National Academy of Sciences, which in 2005 the White House
called "the gold standard of objective scientific assessment," issued a joint statement with 10 other National
Academies of Science saying "the scientific understanding of climate change is now sufficiently clear to justify nations
taking prompt action. It is vital that all nations identify cost-effective steps that they can take now, to contribute to substantial and long-term reduction
in net global greenhouse gas emissions." (Joint Statement of Science Academies: Global Response to Climate Change [PDF], 2005) The only debate in the
science community about global warming is about how much and how fast warming will continue as a result of heat-
trapping emissions. Scientists have given a clear warning about global warming, and we have more than
enough facts — about causes and fixes — to implement solutions right now.
Additional Comparative Courts Cards
AT Congress Key
Congress is an ineffective actor – when it comes to surveillance, Congress lacks
knowledge and oversight.
Setty 15 – Sudha Setty, Professor of Law @ Western New England University School of Law; She
specializes in the areas of comparative law and national security; Her scholarly publications address
secrecy, separation of powers and rule of law issues in the comparative constitutional context, 2015
(“Surveillance, Secrecy, and the Search for Meaningful Accountability”, Stanford Journal of International
Law, available at 51 Stan. J Int'l L. 69 @ Lexis, accessed 6/21/15, KM)
B. Congressional Efforts at Oversight and Accountability Enforcement The extent of congressional knowledge regarding the NSA Metadata
Program is not fully known to the public and has been the subject of significant debate. Nonetheless, even assuming that Congress was
sufficiently informed as to the potential reach of the PATRIOT Act with regard to surveillance n59 and, therefore, that the statutory authority
for the bulk data collection and storage was sound, the ability
of Congress to effect significant and meaningful ex post
oversight appears to be severely limited. Historically, congressional hearings and investigations have been a
powerful tool to rein in executive branch overreaching. However, it seems that the extreme secrecy
surrounding the NSA surveillance programs undermined the efficacy of these oversight powers, to the point
that they may have been reduced to an ersatz form of accountability. One prominent example stems from a Senate
oversight hearing on March 12, 2013, in which Senator Ron Wyden specifically asked Director of National Intelligence James Clapper if the NSA
was systematically gathering information on the communications of millions of Americans. n61 Clapper denied this, yet subsequent revelations
confirmed that the broad scope of the data collection included metadata for telephonic communications, as well as content data for emails,
texts, and other such writings. n62 After public discussion of the discrepancy in his testimony, Clapper commented that he gave the "least most
untruthful" answer possible under the circumstances. n63 Senator Wyden expressed disappointment and frustration that even while under
oath at an oversight hearing, Clapper misled the Senate. n64 The ability for congressional oversight is
further hampered by
a general lack of access to information about the details of the NSA Metadata Program and lack of ability to
discuss publicly whatever knowledge is shared with Congress. n66 In fact, it remains unclear whether senators, including
Dianne Feinstein, Chair of the Senate Intelligence Committee, knew of the lapses in NSA procedure until after such information was leaked to
news sources. n67 Further revelations indicate that administration statements made to Congress even after the Snowden disclosures were not
entirely accurate. n68 These examples are not determinative,
but taken together, they raise significant doubt to
the extent of accurate information regarding surveillance programs being made available to congressional
oversight committees, and whether the oversight committees can function as effective accountability
measures n69 without the benefit of illegally leaked information such as the Snowden disclosures.
Courts Good — Surveillance Specific
Breaking deference solves – the judiciary is the best and only actor to force
institutional and structural change.
Setty 15 – Sudha Setty, Professor of Law @ Western New England University School of Law; She
specializes in the areas of comparative law and national security; Her scholarly publications address
secrecy, separation of powers and rule of law issues in the comparative constitutional context, 2015
(“Surveillance, Secrecy, and the Search for Meaningful Accountability”, Stanford Journal of International
Law, available at 51 Stan. J Int'l L. 69 @ Lexis, accessed 6/21/15, KM)
If the PCLOB is able to exert some degree of soft power in influencing national security decision-making, then the judiciary represents
hard power that could be used to force the protection of civil liberties where it might not otherwise occur.
The FISC should be reformed to include a public advocate lobbying on behalf of privacy concerns, making
the process genuinely adversarial and strengthening the FISC against charges that it merely rubber stamps
applications from the intelligence community. n190 Article III courts need to follow the lead of Judge Leon in Klayman
in conceptualizing privacy as broad and defensible, even in a world where electronics-based communication
is dominant and relatively easy for the government to collect. If the judicial defense of privacy were
combined with the possibility of liability for violations of that privacy, it is likely that this would incentivize
increased self-policing among the members of the intelligence community. The creation of an active PCLOB and a
more adversarial process before the FISC will not provide a perfect solution to the dilemmas posed by the government's legitimate need for
secrecy and the protection of the public against potential abuse. Yet because these changes are
institutional and structural,
they are well-placed to improve the dynamic between the intelligence community, oversight mechanisms,
and the public. Conclusion 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 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.