There is a distinction between criminal and civil immigration
enforcement – the plan can’t solve for criminal enforcement
Seghetti, et al, 5 (Lisa M., also with Stephen R. Vina and Karma Ester,
all three work for the Congressional Research Service, “Enforcing
Immigration Law: The Role of State and Local Law Enforcement,” Oct
13 2005, p. summary)//ES
Congress defined our nation’s immigration laws in the Immigration and Nationality Act (INA)
(8 U.S.C. §§1101 et seq.), which contains both criminal and civil enforcement measures.
Historically, the authority for state and local law enforcement officials to enforce immigration
law has been construed to be limited to the criminal provisions of the INA; by contrast, the
enforcement of the civil provisions, which includes apprehension and removal of deportable
aliens, has strictly been viewed as a federal responsibility, with states playing an incidental
supporting role. The legislative proposals that have been introduced, however, would appear to
expand the role of state and local law enforcement agencies in the civil enforcement aspects of
the INA. This potential expansion has provoked a variety of responses from lawmakers,
scholars, interest groups, and law enforcement officials.
States can enforce the criminal provisions of the INA regardless of
federal authority – meaning they can still arrest people that entered
the country illegally – means the plan doesn’t solve
Seghetti, et al, 5 (Lisa M., also with Stephen R. Vina and Karma Ester,
all three work for the Congressional Research Service, “Enforcing
Immigration Law: The Role of State and Local Law Enforcement,” Oct
13 2005, p. 7)//ES
State enforcement of the criminal provisions of the INA is seen as being consistent with the
state’s police power to make arrests for criminal acts and the expectation that states are
expected to cooperate in the enforcement of federal criminal laws.19 Civil immigration law
enforcement, on the other hand, has generally been viewed as strictly a federal responsibility:
The civil provisions of the INA have been assumed to constitute a pervasive and preemptive
regulatory scheme — leaving no room for a direct state or local role.20 The distinction between
civil and criminal violations in the INA has been seen to suggest a bifurcated role for states and
localities. For example, state and local law enforcement officers cannot arrest someone solely for
illegal presence for the purpose of deporting them because it is a civil violation, but they can
arrest someone for the criminal offense of entering the country illegally.21
Congress overseas the FCC.
Cleland 15 (Scott, Deputy U.S. Coordinator for International Communications &
Information Policy in the George H. W. Bush Administration, “Why the FCC Needs Congress”,
1/20/15,, accessed
The FCC operationally needs Congress.
Congress funds the FCC, and the FCC is seeking a very big increase in its 2015 budget.
Congress investigates and oversees whether the FCC abides by legally required processes and
Congress is the source of all the FCC’s current and future authority, and the FCC’s congressional
authorizing committees are actively in the process of updating the Communications Act that
created the FCC in 1934.
The FCC also politically needs Congress.
AT: China Tech
China tech. leadership is not inevitable – their extractive model stifles
innovation and creativity – the Soviet Union proves.
Acemoglu and Robinson 12 – Department of Economics MIT and Harvard (Daron,
James, “World's next technology leader will be US, not China – if America can shape up”,
4/19/12,, accessed 7/25/15)//RZ
CAMBRIDGE, MASS. — Voices of both those convinced that China will eclipse the United States
as a global economic and military power and those who are confident of continued US
leadership are getting louder. Much of this debate focuses on the size of the Chinese economy
relative to the US economy or issues of military might.
But what matters for global leadership is innovation, which is not only the key driver of per
capita income growth but also ultimately the main determinant of military and diplomatic
leadership. It was the US that proved after Pearl Harbor how a prosperous economy can rapidly
increase its military power and preparedness when push comes to shove.
So the right question to ask is not who will be the military leader of the next century, but who
will be the technological leader. The answer must be: most probably the US – but only if it can
clean up its act.
The odds favor the US not only because it is technologically more advanced and innovative than
China at the moment, with an income per capita more than six times that of China. They do so
also because innovation ultimately depends on a country’s institutions.
OPINION 3 reasons why China isn't overtaking the US
Inclusive political institutions distribute political power equally in society and constrain how
that power can be exercised. They tend to underpin inclusive economic institutions, which
encourage innovation and investment and provide a level playing field so that the talents of a
broad cross-section of society can be best deployed.
Despite all of the challenges that they are facing, US institutions are broadly inclusive, and thus
more conducive to innovation. Despite all of the resources that China is pouring into science and
technology at the moment, its political institutions are extractive, and as such, unless
overhauled and revolutionized soon, they will be an impediment to innovation.
China may continue to grow in the near term, but this is growth under extractive institutions –
mostly relying on politically connected businesses and technological transfer and catch-up. The
next stage of economic growth – generating genuine innovation – will be much more difficult
unless China's political institutions change to create an environment that rewards the
challenging of established interests, technologies, firms, and authority.
We have a historical precedent for this type of growth and how it runs out of steam: the Soviet
Union. After the Bolsheviks took over the highly inefficient agricultural economy from the
Tsarist regime and started to use the power of the state to move people and resources into
industry, the Soviet Union grew at then-unparalleled rates, achieving an average annual growth
rate of over 6 percent between 1928 and 1960.
Though there was much enthusiasm about Soviet growth – as there is now about China’s growth
machine – it couldn’t and didn’t last. By the 1970s, the Soviets had produced almost all the
growth that could be derived from moving people from agriculture into industry, and despite
various incentives and bonuses, and even harsh punishments for failure, they could not generate
innovation. The Soviet economy stagnated and then totally collapsed.
AT: ‘FCC Sucks’
Their evidence doesn’t assume FCC internal reform – it resolves all
Taglang 15 (Kevin Taglang, leads the Benton Foundation’s work monitoring, analyzing and
articulating the public interest stake in telecommunications legislation, regulation, and
policymaking, “Does the FCC Need to be Reauthorized?”, 5/20/15, The Benton Foundation,, accessed 7/28/15)//RZ
**Wheeler took office 11/4/2013
At the hearings this week, FCC Chairman Wheeler highlighted his efforts to improve FCC
processes since he took office. In 2014, an internal FCC staff working group presented a Process
Reform Report to the Commission as an important first step to becoming more agile and
business-like in order to become more effective, efficient, and transparent. Guided by the
report, the FCC been moving forward with changes to streamline how it functions so the agency
is better able to serve the entities it regulates, as well as the American public. As an example, the
Chairman noted his use of consent agendas at meetings to facilitate quick action on noncontroversial items that require a vote of the commissioners. The FCC has also made significant
progress, he reported, toward all-electronic filing and distribution of documents. On March 19,
the FCC announced the availability of an online-filing module for Petitions for Rulemaking that
previously could be filed only on paper.
In response to concerns about a backlog of undecided matters at the FCC, Wheeler noted that
every Bureau and Office with responsibility for responding to requests from external petitioners
and licensees has developed a backlog reduction plan. And in 2014, the FCC closed more than
1,500 dormant dockets.
In early 2015, the FCC launched a new online Consumer Help Center, which will make the FCC
more user-friendly, accessible, and transparent to consumers. The new tool replaces the FCC's
previous complaint system with an easier-to-use, more consumer-friendly portal for filing and
monitoring complaints. In addition to being easier to use for consumers, the information
collected is to be integrated with the FCC's policymaking and enforcement processes.
The FCC is forming a task force to review its internal procedures following criticism from
Republicans, Chairman Wheeler announced on March 19. He will appoint one staff member
from each of the five commissioners' offices to review and compare procedures of similar
agencies. Chairman Wheeler said the task force will be led by his special counsel Diane Cornell,
and it will determine whether more change is needed.
Commissioner Michael O’Rielly said he welcomed the announcement and his staff will actively
participate. “To be clear, the standard for the task force must be what is in the best interest of
the American people and promotes a fair, open and efficient Commission process, not what
other agencies happen to be doing. With this goal in mind, the Commission will surely be able to
set a good government model other agencies can emulate. The task force should complement -not substitute for -- Congress’ effort to move process reform legislation.”
AT: Obama Controls (Net Neutrality)
The president is legally incapable of coercing the FCC and net
neutrality doesn’t prove. There is no evidence, they conflate
correlation with causation, and cite republican opponents. [If
anything congressional investigation immediately after proves
Shane 3/3 (Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law at Ohio State
University's Moritz College of Law, “‘Undue Influence?' Congressional Attacks on FCC-White
House Links”, 3/3/15,,
accessed 7/29/15)//RZ
What is an Independent Agency?
Any White House influence on the Open Internet proceeding would presumably be improper
only in three circumstances:
• If the FCC's “independent agency” status somehow barred White House contact;
• If White House contacts (or the President's public statement) violated some procedural rule
connected with the rulemaking proceeding; or
• If the White House presumed to command Chairman Wheeler or to pressure him into a
decision based on legally irrelevant or impermissible factors.
There is no report suggesting the White House sought to command Chairman Wheeler or to
introduce legally irrelevant or impermissible considerations into the FCC rulemaking. Only the
possible procedural objections remain.
The FCC's independent agency status does not by itself make White House contacts improper.
An independent regulatory agency is a body within the executive branch that Congress has so
structured as to limit the President's direct policy control over the agency. Such agencies are
typically (but not always) multi-headed, as is the FCC, with the stipulation that no more than a
bare majority of members may represent a single political party. Members are also typically
authorized to serve for terms longer than four years, so that no President, within a single term,
would likely have an opportunity to appoint the entire agency. The most critical feature
supporting agency independence, however, is a statutory limitation--explicit or implicit--on the
President's authority to remove any agency member at will, as the President could, for example,
with regard to any cabinet member. For independent agencies, presidents retain the authority to
remove administrators who are corrupt or somehow abusing their office. But presidents don't
have the authority to remove independent administrators over mere policy disagreements. Thus,
for example, President Obama was entirely free to try to persuade the FCC to adopt his position
on net neutrality. Had Chairman Wheeler chosen otherwise, however, President Obama could
not have fired him. (At most, the Communications Act would permit the President to designate
a different FCC member to be chairman.15)
Although some legal scholars (incorrectly, in my view) have tried to cast doubt on the
constitutionality of independent agencies--precisely because of the limit on presidential control-presidents have typically been punctilious in managing their relations with such agencies. For
example, every president since Ronald Reagan has required regulatory agencies that are not
independent to clear significant proposed rules with the Office of Management and Budget
before they are issued. Although these presidents have no doubt wanted the independent
agencies to follow the same cost-benefit principles as OMB imposes on other agencies, they have
been careful to express their preferences in the language of what independent agencies “ should”
do, not “must” do.16 The only White House command to independent regulatory agencies is
that they keep OMB informed of their rulemaking agenda and internal review processes.
President Obama's statement on net neutrality similarly used the language of exhortation, not
As for White House meetings to mobilize net neutrality supporters, it is difficult to believe that
presidents and their aides do not routinely invite potential policy supporters to private White
House meetings to share their views. Perhaps the most controversial instance in recent years
involved then-Vice President Cheney's leadership of the so-called National Energy Policy
Development Group, an interagency task force that met repeatedly with industry representatives
having an interest in the Bush Administration's approach to energy policy. The Administration
publicly (and properly) defended its consultations as within the president's constitutional
prerogative to seek advice wherever he or she might choose. Public interest groups went all the
way to the Supreme Court in a vain effort to get the White House to disclose the names of those
private individuals who met with Mr. Cheney and other government officials.17 The net
neutrality meetings that the Wall Street Journal called “unusual” and “secretive” may have been
confidential; they probably were also standard.
Ex Parte Comments
The remaining hypothetical possibility is that some White House communication with the FCC
may have violated rules against so-called ex parte contacts - that is, oral or written
communications not on the public record with respect to a particular administrative proceeding.
When the FCC or any other federal agency engages in administrative adjudication under the
federal Administrative Procedure Act--for example, when the Social Security Administration
reviews the denial of a social security disability claim--there are strict statutory limits on ex
parte contacts with anyone involved in deciding the case. With regard to administrative
rulemaking, however--the kind of proceeding that the FCC has been conducting with regard to
net neutrality--there is no general statutory bar to ex parte communications related to the
That does not entirely end the matter. The FCC, along with other agencies, has voluntarily
adopted a set of procedural rules that do affect ex parte contacts in rulemaking. An informal
rulemaking, in FCC terms, is called a “permit-but-disclose” proceeding. In any such proceeding,
a person may engage with the FCC in an oral communication directed to the merits or outcome
of the proceeding, but is supposed to file with the FCC a memorandum indicating who was
present and, in general terms, what was said. Written ex parte communications are likewise
permissible but must also be filed. It is possible, but by no means certain, that communications
from White House staff might fall within these definitions; it would depend at least on whether
the communications were “directed to the merits” of the proceeding.
No Sanctions Under FCC Ex Parte Rules
A problem for the FCC's detractors, however, is that, even if there were a technical violation of
the FCC's rules, there would almost certainly be no applicable sanction. The penalties section of
the FCC's ex parte rules states: “A party who has violated or caused the violation of any
provision of [the ex parte rules] may be subject to admonishment, monetary forfeiture, or to
having his or her claim or interest in the proceeding dismissed, denied, disregarded, or
otherwise adversely affected.”18 The White House, however, has no monetary stake or similar
claim involved in the net neutrality rulemaking. The rules are intended primarily to ward off
self-interested secret communications by special interests - not expressions of policy advocacy
within the government itself.
The leading D.C. Circuit case regarding ex parte political communications in the context of
rulemaking is called Sierra Club v. Costle.19 Environmentalists and representatives of industry
sued to challenge regulations issued by the Environmental Protection Agency (EPA) that
required new coal-fired steam generators that produce electricity to control their emissions of
sulfur dioxide and particulate matter into the air. (The environmentalists thought the rules were
too lenient; the industry representatives, too stringent.) EPA, unlike the FCC, is not an
independent regulatory agency. But the Clean Air Act, which gave EPA the relevant rulemaking
authority, required EPA to compile a public record of comments received in connection with the
rulemaking. Among other things, the Act provided:
All documents which become available after the proposed rule has been published and which the
Administrator determines are of central relevance to the rulemaking shall be placed in the
docket as soon as possible after their availability.20
The Sierra Club objected that EPA had violated that requirement by not including in its “docket”
any summary of certain meetings held after the close of the public comment period--meetings
that included a session at the White House involving the President and selected staff.
AT: TSA Fails 95% of the time
The public failure flows neg- current measures exist that effectively
deter terrorism, but the report invites attacks that require security
Jenkins 15— Senior advisor at the non-profit RAND corporation (Brian Michael, “TSA
flunked its security test big time — Now what?,” The Hill, June 15, 2015, WM
The failure of Transportation Security Administration (TSA) agents to detect 67 out of 70
weapons or fake explosives smuggled through airport security checkpoints by the TSA's own
inspectors renews questions about the agency's ability to protect the country's airlines. A failure
rate of 95 percent also provides a new opportunity for attack by the TSA's many foes and
rekindles the hostility many Americans have not just for the TSA, but for what they see as an
increasingly intrusive and untrustworthy federal government.
Without knowing more about the details of the undercover tests, it is hard to judge the precise
nature of the apparent security breakdown, but in any context, a 95 percent failure rate — the
repeated news story headline — is shockingly unacceptable.
There is one slender ray of good news: Department of Homeland Security inspectors found the
cracks in the system, not terrorists. However, this is far outweighed by the bad news: A highly
publicized failure of this magnitude destroys the illusion of security, and yes, for those who
criticize airport security as being merely for show, illusion is a useful component of security.
Security checkpoints, here and abroad, have almost never caught terrorists; the screeners find
enough weapons — over 2,000 in 2014 — to create an impression that they are on their game.
And that deters terrorists.
Whatever TSA's critics may think of airport security, terrorists seem to take it very seriously.
Faced with an array of greater intelligence efforts — even the perception of increased security at
the airport, the possible presence of air marshals on any flight, locked and armored cockpit
doors, and passengers ready to take on anyone threatening the plane — they seem to have just
about abandoned hijacking airplanes as a viable terrorism tactic.
Over the long run, attempts to sabotage airliners also have declined, but terrorists have not
stopped trying to smuggle explosives aboard airliners, and sometimes they have succeeded. In
an attempt to foil security, they build small devices that can be concealed in ways that will make
them undetectable to all but the most intrusive searches. To find the most artfully concealed
explosive devices on the most dedicated suicide bombers would require a full-body search. This
vulnerability is hard to close, but forcing terrorists to operate at this level of technical
sophistication and commitment is still an achievement.
Don’t use the test as an accurate evaluation- it was faulty and created
an image of TSA ineffectiveness that’s simply not true
Jenkins 15— Senior advisor at the non-profit RAND corporation(Brian Michael, “TSA
flunked its security test big time — Now what?,” The Hill, June 15, 2015, WM
The inspectors who foiled the security measures were described as "auditors," not a "red team."
The term "auditors" conjures up guys in green eyeshades, mild-mannered men and women as
opposed to special forces teams with James Bond gadgets. The investigators were, in fact,
experienced inspectors with an insider's knowledge of airport security. The tests were
conducted covertly, and they appeared as ordinary passengers. Their boss, the inspector
general, who heralds from the Department of Justice, has been tough on TSA's performance.
One may safely presume that the inspectors were determined to succeed. That makes them a
pretty good red team.
The inspectors had additional advantages. There is no indication that they used names that
were on the no-fly list. If they did, and they were undiscovered, there is an intelligence problem
in addition to a screening problem. There is a lesson here, though: TSA claims that its security is
"intelligence-driven," which is good, but it cannot become intelligence-dependent. Not every
would-be hijacker or saboteur may be on some list — airport screening is still needed. We also
don't know if the inspectors deliberately used counterfeit identification documents.
The inspectors would also be able to more easily thwart any behavioral detection efforts. A
terrorist, knowing that he or she faces imprisonment for life if apprehended, the prospect of a
shootout, or certain death, seems likely to be under greater stress than an inspector who, if
discovered, will show his real credentials and walk away.
Airline security is multilayered, meaning that failure of any single component will not be fatal to
the entire system. In this case, inspectors had the benefit of a free pass to the checkpoint.
287g has been renewed since their evidence was written
Numbers 14, news agency regarding immigration policy, (NumbersUSA, 10/22/14, L.A.
The Los Angeles County Board of Supervisors voted
to renew its 287(g) program, a federal-state
partnership that enables local police to send imprisoned illegal aliens to the Immigration and
Customs Enforcement (ICE) bureau for deportation. Supervisors Gloria Molina, Michael Antonovich and Don
Knabe voted to retain the program while Mark Ridley-Thomas and Zev Yaroslavsky abstained. L.A. County has used
287(g) since 2005. It basically deputizes local police to engage in immigration enforcement
efforts. The so-called jail model LA County uses trains police to screen convicts’ immigration status so that they can be deported
upon release. The program is a predecessor of Secure Communities, which automatically forwards the fingerprints of arrestees to
ICE for checking. It is considered to be more effective than Secure Communities in getting criminal aliens off the streets because
screening identifies those missed in a database check. "(I)n-person screenings, like
the ones conducted by local law
enforcement personnel under the 287(g) program, are of value," said ICE spokeswoman Virginia Kice. "In these
face to face encounters, we'll potentially identify individuals who are an enforcement priority for ICE...who might have gone
undetected because their fingerprints weren't in DHS' database." Identifying criminal aliens also helps the county financially. Local
governments that jail criminal foreign nationals get some federal reimbursement under the State Criminal Alien Assistance (SCAAP)
program, although funding has been reduced over time. LA County now gets only about 10 cents back for every dollar it spends for
SCAAP-eligible foreign inmates. “[287(g)]
helps us maintain better records for the purpose of reimbursement from
the federal government," said Anna Pembedjian, a staffperson for County Supervisor Michael Antonovich. “When these
individuals are arrested and serving time in our jails, we have no alternative but to provide them with the housing, the mental health
care, the medical care, food and security, which costs the county taxpayers millions of dollars every year. It is imperative for the
county to recover the money from the federal government, otherwise it forces cuts in other vital services.” But 287(g)’s enforcement
potential is only realized if criminal foreign nationals identified for deportation are actually deported. The Washington Times reports
that the number of criminal foreign nationals deported under the program nationwide dropped from 45,308 in 2009 to 11,767 in
2013. In 2008, Frederick County, Maryland started using a different type of 287(g) program (task force model) that
allows local police to forward arrestees, as opposed to inmates, to ICE for deportation. Frederick County Sheriff Chuck Jenkins told
The Washington Times that ICE released 25 of the 98 illegal aliens his deputies arrested and forwarded for deportation this
year. By comparison, ICE only released two of the 100 illegal aliens the county sent them in 2008, the last year of the Bush
Administration. “Right now there’s lack of enforcement of immigration laws,” Jenkins said. “But if
we run [287(g)] the
right way, we can do what we can to try to enforce them and get these criminals off our streets…Everyone against this program
just doesn’t want any kind of immigration enforcement at all. With the border crisis, every county in the nation is going to be a
border county. It’s going to be chaos. Every county needs to enforce the laws of this nation, and that’s what we’re doing with this
program.” 25 percent of those Jenkins detained this year committed serious felonies, a 14 percent increase over last year.
287g isn’t the only ICE program—other programs need to be curtailed
as well
Numbers 15, news agency regarding immigration policy, (NumbersUSA, 5/27/15, L.A.
The Los Angeles County Board of Supervisors voted Tuesday to terminate the 287(g) Memorandum of Understanding that
allowed ICE Agents to expedite the deportation of felonious illegal aliens from within county jails.
However the Board authorized the County Sheriff to negotiate with ICE regarding when ICE agents can enter county jails and
interview criminals who are suspected illegal aliens. Since
its adoption in 2005, the 287(g) federal-state
partnership program has removed many illegal aliens from LA County jails who are convicted of felonies. This has saved the
county millions of dollars and ensured the criminals would be deported rather than released on the streets. The Memorandum
of Understanding (MOU) between the county and ICE enabled Agents placed directly in jails to
interview newly convicted criminals and determine whether they were illegally present. The
interview process is important because it uncovers details that cannot be ascertained from criminal background checks. Now it will
be up to the county sheriff to determine which criminals ICE should interview. That contact will occur under the federal Priority
Enforcement Program, which the Obama Administration created last fall as it sought to phase out the more effective 287(g) and
Secure Communities programs. The motion to terminate the MOU was offered Supervisors Hilda Solis and Mark
Ridley-Thomas and supported by Supervisor Sheila Kuehl. Supervisors Michael Antonovich and Don Knabe cast the dissenting
votes. The Board had just renewed the MOU last fall with support former supervisor Gloria Molina but the balance shifted when
Keuhl replaced her. Over 100 people gave testimony before the Board’s vote, including Jamiel Shaw, Sr. In 2008, his teenage son
was murdered just steps from their home by illegal aliens. He said, "My
son would’ve been alive today [if
immigration laws were enforced]…We don’t want to hear about the sob stories of illegal aliens here working and doing
the right thing because that’s not true. Ask people like me, whose family members are in the ground while illegal aliens get privilege
for the American dream.
Other federal immigration programs are other names for ICE and
reify status quo trust gaps
San Roman 7/15, writer at OC Weekly, (Gabriel, 7/15/15, Immigrant Activists Give a Stern 'PEP' Talk to Santa Ana City
Council Over New ICE Program, OC Weekly,
"Hey, hey, ho, ho, PEP-Comm has got to go!" Immigrant organizations kicked off a press
conference in SanTana yesterday with chants calling on the city council to denounce a new
federal deportation program. The Department of Homeland Security (DHS) rolled out the
"Priority Enforcement Program" (known as "PEP-Comm") in place of its disgraced "Secure
Communities" predecessor last November. Activists with Orange County Immigrant Youth
United (OCIYU) and RAIZ say there's no significant difference between the two in calling on city
leaders to reject the re-branding. "The new PEP program maintains the engine of S-Comm,"
OCIYU's Hairo Cortes said in Spanish at the press conference. "Programs like this don't bring
security to the community." Activists argued that PEP still strikes fear into the heart of
immigrants just as S-Comm did before DHS Secretary Jeh Johnson announced its end in a
memo. The press conference took place outside the Immigration and Customs Enforcement
(ICE) field office in Santa Ana. A white DHS vehicle parked conspicuously near the assembled
activists beating Spanish-language media to the coveted space. Uniformed in a DHS vest, an
agent walked around the press conference, said "What's up" to activists and snapped a photo of
this reporter before chatting with a colleague in another van whose lights uselessly shone.
Undeterred by DHS making its presence known, activist groups noted they sent a joint letter to
the SanTana city council on Monday. "PEP-Comm will continue to erode community trust in
local police because all fingerprints taken by local law enforcement will be transmitted to DHS
for an immigration background check," it reads. "Any detentions in response to ICE hold
requests under PEP-Comm will continue to expose local law enforcement to legal liability."
Activists held that PEP-Comm is S-Comm by another name save for one minor, technical
difference. Instead of issuing legally controversial ICE detainer requests. PEP-Comm opts for
"notifications" instead where local law enforcement can notify immigration authorities of when
an undocumented person will be released from custody. ICE, then, could ostensibly park a van
and lie in wait for them. Not all detainer requests are abolished, critics argue. The letter sent to
SanTana city council further charges that they can continue under PEP for immigrants under a
vague "special circumstances" exemption. "What is clear is that by continuing to put
responsibility for immigration enforcement on local law enforcement agencies, PEP-Comm is
plagued by the same failings of S-Comm," the letter reads. The previous case of Samuel Sixtos,
an undocumented man turned over by Santa Ana Police to the Orange County Sheriff's
Department last year, was cited as an example of how local collaboration with ICE can wrongly
lead to deportation proceedings despite TRUST Act protections. (Sixtos is now free from a
private detention facility in Adelanto). "We can't trust the police when they are asking us where
we are born," RAIZ's Alexis Nava Teodoro said in Spanish at the press conference. The activist
mentioned afterward that a meeting with councilman David Benavides is reportedly in the
works in response to the letter demanding Santa Ana adopt a "no ICE notification" policy. "We
want the city to take a leadership on a national level."
State sovereignty
State sovereignty is key to solve warming—risks extinction
Rayfuse and Crawford 11, contributors to a Legal Studies Paper at the University of
Sydney Law School, (Rosemary and Emily, September 2011, Climate Change, Sovereignty and
Statehood, University of Sydney Law School,,%20Sovereignty%20and%20Stateho
Climate change presents a unique threat to the territorial integrity of states , indeed, to the very
notion of statehood itself. As the Intergovernmental Panel on Climate Change has noted, climate change will
affect the physical territory of states in a number of ways, such as the loss of viable eco-systems
due to desertification, increased soil salinity, flooding of coastal and low-lying regions or loss of
reliable access to land due to increased severe weather events such as hurricanes. 2 Coastal
states, in particular those with low-lying coastal areas, will also be affected by permanent loss of land through
shoreline erosion caused by extreme weather events and sea-level rise. 3 Moreover, it has been recognised that by rendering
some inhabited land incapable of sustaining human habitation, climate change will also result in the forced
migration of some or all of a population from their lands.4 At the extreme end of the scale, climate change induced
territorial degradation coupled with climate change induced migration may threaten the very existence of some states. 5 1 This
chapter emanated, in part, from work undertaken, in my capacity as research associate, for Professor Jane McAdam, under her
Australian Research Council Discovery Grant ‘Weathering Uncertainty: Climate Change “Refugees” and International Law’. In
particular, it has been suggested that by the end of this century a number of low-lying small island states such as Tuvalu, Kiribati,
the Marshall Islands and the Maldives, may be rendered totally uninhabitable due to sea level rise.6 This
begs the question
as to the continued statehood of these entities. In light of these sometimes dire predictions, this chapter examines
the challenges posed by climate change to the international law on statehood. It does so in the context of
analysis of the legal construction of statehood, how the law regulates the dissolution of states, and whether the law is adequately
positioned to deal with the threat to statehood and sovereignty posed by climate change. 10.2
Statehood and Sovereignty
Fundamental to the contemporary international legal system is the concept of the state. States
are both the subject and primary object of international law. States possess ultimate rights of
participation in both the creation of international law and in the construction and operation of
the international legal system.7 The hallmark of the modern state is described by the terminology of sovereignty which,
among other things, means the right to exercise supreme, independent authority or jurisdiction over a piece of territory. There are
limitations on this territorial sovereignty9 ; however, for the most part,
a sovereign state has considerable
discretionary latitude regarding the conduct of affairs within its territory .10 Sovereignty and the
ability to exercise jurisdiction over people and events also extends, in varying degrees, to a
states’ maritime zones. International law relating to entitlement to maritime zones is set out in the 1982 Law of the Sea
Convention (LOSC). 11 All coastal states are entitled to certain maritime zones - internal waters, a territorial sea, an exclusive
economic zone, a continental shelf and, where the geomorphological conditions exist, an extended continental shelf. Within each of
these zones states exercise varying degrees of sovereignty. Internal waters are wholly under the jurisdiction and sovereignty of a
state and may be equated, for present purposes, to a piece of territory.12 Within the territorial sea, a coastal state exercises complete
sovereignty, subject only to a right of innocent passage for foreign ships.13 In the exclusive economic zone a coastal state enjoys
sovereign rights for the exploration and exploitation of living and non-living natural resources of the water column,14 while on the
continental shelf the state enjoys sovereign rights for the exploration and exploitation of the natural resources of the seabed and
subsoil.15 Beyond the areas under the national jurisdiction of states lie the ‘global commons’. Here, the high seas water column is
subject to an open access regime of equal right of user, while the deep seabed, known as ‘the Area’, 16 9 The international law
regarding human rights, the conduct of hostilities and diplomatic, consular and head-of-state immunities, all serve as limits on the
acts of states within their own territory: “[a] body of substantive rules ranging from human rights issues to control over the use of
military force… have limited the freedom of law action by States in detail… sovereignty is no longer absolute.” C. Schreuer, ‘The
Waning of the Sovereign State: Towards a New Paradigm for International Law?’, 4 EJIL (1993) 447-471. is governed by the
International Seabed Authority (ISBA).17 Within the global commons states exercise exclusive jurisdiction over their vessels and
their nationals.18
State sovereignty is key to international cooperation over climate
Rayfuse and Crawford 11, contributors to a Legal Studies Paper at the University of
Sydney Law School, (Rosemary and Emily, September 2011, Climate Change, Sovereignty and
Statehood, University of Sydney Law School,,%20Sovereignty%20and%20Stateho
Can states still ‘exist’ separate from their territory? The decision in the Island of Palmas arbitration, would seem to answer in the
negative: Although municipal law, thanks to its complete judicial system, is able to recognize abstract rights of property as existing
apart from any material display of them, it has none the less limited their effect by the principles of prescription and the protection
of possession. International
law, the structure of which is not based on any super-State organisation,
cannot be presumed to reduce a right such as territorial sovereignty, with which almost all
international relations are bound up, to the category of an abstract right, without concrete
manifestations.36 However, despite such a seemingly definitive position, state practice would suggest otherwise.
There is precedent for the endurance of the state in a somewhat abstract form in the guise of the
‘government in exile’. If the government of a state has been forcibly displaced from its territory through belligerent
occupation, the government in question is considered to remain the legitimate government and state, and thus retains its
international personality, even though it does not have possession or jurisdictional control over either its population or its territory.
Under international law, such exile must be accepted by the international community; that is, there
should be no general acknowledgement of a change of circumstances. The government in exile must retain its accreditation with
other governments and continue its representations in international organisations.37 Historically, governments
in exile
have legitimately adopted treaties, entered into contracts and maintained diplomatic relations during their exile. 38
While some of the literature suggests that a government in exile must receive the unequivocal support of the international
community,39 practice
has demonstrated that this need not be the case. For example, the UN Secretary-General,
to sign a number of multi-lateral
in his capacity as depository, allowed the Cambodian governments-in-exile40
treaties, including the International Covenant on Civil and Political Rights41 and on Economic, Social and Cultural Rights,42
despite protests from states who chose instead to recognise the Government of the People’s Republic of Kampuchea as the only
entity to be considered as the government of Cambodia.43
State sovereignty is key to enforcement of environmental
regulations—regulations are key
ALEC 13, American Legislative Exchange Council, (1/28/13, State Sovereignty for Air Quality
and Visibility Act,
Section 1. {Statement of Purpose}
As part of the State of {state}’s ongoing development and
implementation of a long-term strategy in connection with visibility and air quality related values
within class I areas, the Department________ shall evaluate the extent to which the activities of the federal
government are directly adversely impacting visibility and air quality related values within class I
areas and make a determination whether such entities have taken or are taking all reasonable steps necessary
to remedy that impact. At any time, the Department________ may make, and a federal land manager shall
respond to, reasonable requests for information necessary for the Department to perform such
regulation. Section 2. For the purpose of addressing regional haze and visibility impairment in {state}’s mandatory class I federal
areas; (A) the federal land manager of each such area shall develop a plan for evaluating visibility
in that area by visual observation or other appropriate monitoring technique approved by the
federal Environmental Protection Agency and shall submit such plan for approval to the division
for incorporation by the commission as part of the state implementation plan. (B) Such submittal and
compliance by the federal land managers shall be done in a manner and at a time so as to meet all present or future federal
requirements for the protection of visibility in any mandatory class I federal area. (C) Such plan
shall only be approved
by the commission if the expense of implementing such a plan is borne by the federal
government. Section 3. {Emission inventory} (A) In addition to the plan submitted by each federal land manager pursuant to
Section 2, the responsible federal land management agency shall provide an emission inventory to
the commission of all federal land management activities in {state} or other states that result in
the emission of criteria pollutants, including surrogates or precursors for such pollutants, that affect any mandatory
class I federal area in {state} by reducing visibility in such an area. Such emission inventory shall be submitted to the commission no
later than {effective date}, and no less frequently than every five years thereafter. (B) The commission shall exempt from the
inventory any sources or categories of sources that it determines to be of minor significance. Section 4. The
shall adopt rules to fully implement the general assembly’s intention to exercise state powers to
the maximum extent allowed under Section 118 of the federal act in requiring each federal land management agency with
any presence in the state of {state} to develop and submit to the division an inventory of emissions from lands, wherever situated,
which could have any effect on visibility within mandatory class I federal areas located in {state}. The commission and the division
shall use the information from these emission inventories: (A) To
develop control strategies for reducing
emissions within the state of {state} as a primary component of the visibility long-term
strategies for inclusion in the state implementation plan; (B) In any environmental impact statement or
environmental assessment required to be performed under the federal “National Environmental Policy Act of 1969,” 42 U.S.C. secs.
4323 to 4347; and (C) To
exercise all powers and processes that exist to seek reduction in emissions
outside the state of {state} that reduce visibility in the { State } mandatory class I federal areas. Section 5. {Funding} The cost
of preparing and submitting inventories pursuant to Section 3 shall be borne by the federal government.
Court legitimacy
Police credibility is key to court legitimacy
Newspaper 12, political databased regarding courts and congressional actions, (7/24/12,
Courts Wrestle With Police Officer Credibility,
When a court judges whether a motorist is guilty of a traffic offense, the evidence frequently rests on the
word of a police officer against that of the accused driver. In such cases, the edge is automatically
given to law enforcement, even if there is reason to believe officers may twist or fabricate the
facts. The US District Court for the District of Columbia on Friday confronted the question in evaluating an October 21, 2011 traffic
stop in Washington. Officer Kenneth Thompkins stopped Maurice Williams in the 6300 block of Georgia Avenue NW, claiming he
had seen Williams enter his white Chevrolet Traverse and drive away without wearing a seatbelt. Thompkins had been following
Williams, who insists not only that he was wearing a seatbelt, but that there also was good reason to believe that Thompkins would
not have been able to see whether he was wearing one from his position. Under court precedent, an officer's subjective motivation
for stopping someone is irrelevant. What
matters is whether he can articulate a reason to suspect a crime,
no matter how minor, was being committed. According to Judge Beryl A. Howell, Williams testified "convincingly"
that he was wearing a seatbelt. "The court finds defendant Maurice Williams' testimony on this issue credible,"
Judge Howell wrote. "Nevertheless, the officer was unswerving in his affirmation that, through the
back tinted window of the car, he could see that the defendant did not fasten his seatbelt." Both
witnesses were found to be equally credible, but the edge was given to the policeman because the
courts allow him to be wrong. "Crediting defendant Maurice Williams' testimony as true, the hearing established no
explanation for Officer Thompkins' otherwise mistaken factual assessment that the defendant was not wearing his seatbelt, other
than the possibility that the tinted back window, combined with the lack of color differentiation between the seatbelt and the
defendant's shirt, made it appear as if the seatbelt were unfastened," Howell ruled. "As in Whren, even if Officer Thompkins were
mistaken about the seatbelt being unfastened, it was objectively reasonable, even if mistaken, for him to believe a traffic violation
had occurred and, therefore, the stop of Maurice Williams' vehicle was valid under the Fourth Amendment." It may take a dashboard
video camera to establish what actually happened during a traffic stop. In a July 11 ruling, the Iowa Court of Appeals overturned
Blake M. Wilkerson's conviction for driving under the influence of marijuana after determining that Ringgold County Sheriff's
Deputy Arends lied about the traffic stop he conducted on January 11, 2011. At a hearing, Arends testified that he saw Wilkerson's
truck "weave within its own lane" and cross the center divider. According to the three-judge panel, the only violation seen in the
video was Wilkerson's Fourth Amendment right not to be seized without probable cause. "From our de novo review of the patrol
car's recording, it is apparent the recording does not show repeated weaving between boundary lines or sustained, inappropriate
crossing of the center line while climbing the hill immediately prior to the stop," Chief Judge Larry J. Eisenhauer wrote. "Rather,
based on the position of the always-visible taillights, Wilkerson's driving is smooth, nondescript, and unremarkable."
AT: Counterplans
States CP
Federal immigration policy makes state and local immigration
enforcement ineffective and wrecks trust with the communities—the
plan is the key federal action that solves the trust gaps and restores
credibility in the states
Biehl 7/15, staff writer at The Hill, (Richard, 7/15/15, Communities are safer when law
enforcement roles are clear, The Hill,
The circumstances surrounding the tragic murder of Kathryn Steinle in San Francisco last week have reignited the debate about
“sanctuary cities” and the role of local police in enforcing immigration laws. The suspect in the killing, Juan Francisco LopezSanchez, had seven previous immigration-related and drug-related felony convictions and had already been deported on five
occasions. Following
Steinle’s senseless murder, many have rightfully sought to examine how the system
failed . The Steinle murder is a clarion call to resolve the important but different roles assigned
to local police and officials of U.S. Immigration and Customs Enforcement [ICE] in keeping our
communities and country safe. At the heart of this debate is an important question — whether
local police should carry out immigration policing functions or federal authorities should take
the lead in carrying out these functions. Relying on state and local law enforcement to carry out
federal immigration enforcement responsibilities is highly problematic. Having state and local
law enforcement take on the work of federal immigration officials undermines community
policing and is counterproductive . When state and local law enforcement are entangled in these
functions, immigrant communities view them with increased suspicion. More often than not,
these immigrant groups are then reluctant to report crimes committed against them or their
neighbors, fearing that such reports will result in deportation after their immigration status — or
the immigration status of friends and family members — is revealed. This fear has true costs,
allowing dangerous criminals and criminal organizations to prey on immigrant communities, as
well as the community at large. As a Chief of Police, my number one priority is to ensure community safety and security.
Accordingly, in order to serve the greater community, all members of a community must feel free to call for
police services without fear of undue repercussions. This improves community policing and
safety for everyone. The Dayton Police Department has adopted three key policy revisions since 2008 to support community
policing and better serve growing immigrant communities, including (1) refining our enforcement strategies that involve federal
immigration personnel, (2) setting out department-wide guidelines for interacting with immigrant witnesses and victims, and (3)
publicizing existing federal laws that offer protection to cooperative victims and witnesses. These changes have allowed the
Department to focus on what is important, both in terms of building community partnerships and prioritizing and focusing
enforcement resources. They also have produced concrete results, coinciding with significant reductions in crime in Dayton.
Sanctuary policies and practices are not designed to harbor criminals. On the contrary, they exist to support community policing,
ensuring that the community at large — including immigrant communities — trusts state and local law enforcement and feels secure
state and local
law enforcement should carefully tailor policies to ensure that community policing is not
undermined . What everyone wants is a safe community. Police presence within an entire
community is crucial to create a feeling of safety and trust for all residents and members of that
community. Asking the immigration status of a victim or a witness in the course of an
investigation not only detracts from the investigation, it is detrimental to relations with
members of our community. We must balance investigative approaches that will encourage (and
not discourage) public cooperation with investigations. The absence of effective, cogent action
by Congress to address this issue has left state and local governments with the challenge of
sorting this issue out on their own. Instead of considering how to punish these “sanctuary
cities,” Congress should be working to reform our broken immigration system.
in reporting criminal conduct. Cooperation with federal immigration enforcement officials still can exist, but
There needs to be a sharp distinction between federal ICE policy and
state and local policy—key to restoring trust and effectiveness
Lansdowne 7/25, career police officer and contributor to The Sacramento Bee, (William,
7/25/15, Keep clear, separate roles for local law enforcement and ICE, The Sacramento Bee,
The tragic killing of Kathryn Steinle by an undocumented immigrant in San Francisco has drawn
national attention to the relationship between local police and immigration enforcement. In my
four decades in uniform and 20 years as police chief, I saw again and again politicians’ temptation to respond to a
singular, heart-wrenching incident with sweeping policy change . In my experience, this always does
more harm than good. In response to Steinle’s senseless death, some have called for an end to policies that
limit local agencies’ entanglement with federal immigration enforcement, blaming San Francisco for this
tragedy. In the wake of a devastating incident like this, it is difficult, yet important, to take a step back to
examine why it is that so many law enforcement officers believe it is critical to maintain clear
and separate roles for local law enforcement and federal Immigration and Customs
Enforcement. Carrying out our respective roles, we keep our communities and country safe.
Helping to advance the technique of community-oriented policing is one of my proudest accomplishments in my decades of law
enforcement service. Having officers
meet regularly and frequently with the community members they are
sworn to protect and serve is the foundational element of this proven technique. Requiring those same officers to
inquire about the immigration status of a victim , witness or even a suspect dismantles the trust we are
working to build and undermines our ability to investigate and prevent crime . When police
officers and sheriff’s deputies are tasked with carrying out federal immigration enforcement,
immigrant families – many of whom are of mixed status, with some members legal and some undocumented –
understandably become fearful of any encounter with law enforcement . This has the ill effect of making
routine law enforcement duties much more difficult and in some cases impossible. A study by the University of Illinois at Chicago
44 percent of Latinos surveyed said they would be less likely to contact police officers if
they were the victims of a crime because they feared any interaction with police might lead
officers to ask about their immigration status or that of family members. Sound policing
requires trust between law enforcers and the members of the public, so that community
members share information that helps prevent crimes from occurring and so that victims and
witnesses come forward to help police solve crimes. For years, we saw the negative consequences when cities and
found that
counties were forced to bear the costs of complying with federal immigration policies. We learned the hard way that wedding local
law enforcement agencies’ work to the federal government’s deportation tactics breeds deep-seated mistrust in the police. To date,
more than 320 localities throughout the country, including 50 in California, have stopped holding individuals beyond their ordinary
release merely on the basis of an ICE detainer request. Instead, sheriffs and police departments have adopted due process
protections to operate within the law, reduce the risk of deterring innocent crime victims and witnesses from coming forward, and
restore community trust. In the tragic killing of Steinle, all ICE would have had to do is present San Francisco with a judicial order
authorizing detention, and local authorities could legally have kept Lopez-Sanchez in custody. Instead of using Steinle’s tragic death
as a vehicle to tear down smart policing policies across our state, our members of Congress should use this moment as an
opportunity to ask law enforcement officials why they have worked so hard to establish trust and cooperation with immigrant
Visas CP
Federal immigration policy is a prerequisite to state-sponsored
visas—CP doesn’t change this federal policy—it’s an alt cause too
massive to overcome
Fuller and Rust 14, contributors at the Cato Institute, (Brandon and Sean, 4/23/14, StateBased Visas: A Federalist Approach to Reforming U.S. Immigration Policy, Cato Institute,
U.S. immigration policy currently prevents many productive foreign workers and entrepreneurs
from contributing to the American economy. To help move American immigration policy in a more open direction,
policymakers should consider including principles of federalism as part of immigration reform. By
allowing states a greater say in managing immigration, the United States can reap economic
benefits by allowing state experimentation with different levels of immigration. State-based
visas would be temporary work visas that allow the visa holder to live and work anywhere
within the sponsoring state. Law-abiding visa holders would be eligible for renewal and free to apply for permanent
residency during their stay in the United States. Under the work permit, the migrant worker would be unable to work for an
employer outside of the state, but if the migrant becomes a permanent resident, he or she would be able to travel freely around the
United States. Although overseen by the federal government, the program would allow state governments to work with local
governments and employers to tailor a state-based immigration strategy to meet their local economic demands. Successful
regional visa programs in Canada and Australia have aided economic and population growth in
formerly depressed regions. American policymakers could apply lessons learned in those
countries when creating a similar program in the United States. Based on the experiences of Canada and
Australia with their regional visa programs, we outline many of the options that are open to American
policymakers for designing and implementing a state-based visa program
“Its” means belonging to a certain thing
Merriam-Webster Dictionary No Date, (
its adjective \ˈits, əts\ : relating to or belonging to a certain thing, animal, etc. : made or done by a certain thing,
animal, etc.
“their” is the plural form of “its”
Merriam-Webster Dictionary No Date, (
their adjective \thər, ˈther\ : relating to or belonging to certain people, animals, or things : made or done by certain
people, animals, or things
Executive Constitutionalism
Extend ____________ ev -- The Aff restores executive
constitutionalism—key to offset judicial monopoly and is key to a
functioning democracy
Pillard ‘05 – Former Deputy Assistant Attorney General in the DOJ (February, Cornelia T.,
Michigan Law Review, 103.4, “The Unfulfilled Promise of the Constitution in Executive Hands”,
103 Mich. L. Rev. 676-758,
The executive, in my view, has failed fully to meet the challenges of interpreting and applying the
Constitution on its own. My focus here is on questions of individual rights that evade judicial review. As
the Office of Legal Counsel's "torture memos" illustrate, there are substantial risks associated with executive decisionmaking on fundamental questions
of executive power and individual rights.' My basic analysis is also relevant to the executive's approach to federalism and separation of powers, but the
principal focus here is on how the executive understands and fulfills its constitutional obligations with respect to individuals.2 This Article builds on
two bodies of literature that, thus far, have not significantly engaged one another: writings about executive-branch legal processes, and about the
Department of Justice's Solicitor General ("SG") and Office of Legal Counsel ("OLC") in particular (the institutional literature), and a recent round of
theoretical scholarship about extrajudicial constitutionalism (the theoretical literature). The institutional literature typically projects confidence that
the SG and OLC provide the highest quality legal advice and representation to the executive, and that they scrupulously
protect the
Constitution against executive officials distorting the law to advance personal, partisan, or institutionally parochial agendas.
These writings routinely point to the special character and traditions of those offices in representing not only the president and the executive branch,
but also the United States and its people. The descriptions seem at first blush to support the enthusiasm of the extrajudicial constitutionalists,
inasmuch as they highlight offices within the executive branch dedicated to high-quality constitutional analysis. Meanwhile, the theoretical literature
on extrajudicial constitutionalism suggests that the political branches have the capacity to
effectuate the Constitution in ways quite distinct from the familiar, judicial version, and that, in part because of that distinctiveness,
extrajudicial constitutionalism provides a normatively attractive supplement to or substitute for judicial doctrines. Scholars have pinned on the political
branches hopes for a more democratic, less crabbed and formalistic constitutionalism, and one that reflects the political branches' distinctive capacities.
Larry Sager, for example, sees the gap between the Constitution's normative commands and their judicial enforcement as enabling "robust
participation by popular political institutions in the constitutional project of identifying and implementing the elements of political justice."3 Robin
West identifies congressional constitutionalism as potentially enabling the "the democratization - long overdue - of the Constitution itself," and as
law involve profound issues of national
cannot be resolved merely by judicial decree," and that, therefore, "a legitimate and vibrant
system of constitutional law requires institutional structures that will ground it in the constitutional culture
of the nation."5 Larry Kramer unearths an American historical tradition of popular constitutionalism that embraces "the
democratic pedigree and superior evaluative capacities of the political branches" and that is
resistant to the notion that the Constitution is mere ordinary law, formalistic and legalized to such an extent
that only courts can be trusted with it.6 Bruce Peabody believes "a deeper consensus" could result from
promising a less legalistic approach Robert Post and Reva Siegel contend that "[q]uestions of constitutional
identity that
greater engagement by nonjudicial actors in constitutional interpretation Mark Tushnet champions a "populist constitutional law," wrested from the
courts' unduly formalistic reliance on text, structure and history, and interpreted instead in light of "all-things-considered, more practical judgment."'
As Christopher Eisgruber has explained, "[e]xperience and responsibility are invaluable teachers in the art of governance, and there may be times when
Congress or the
Executive, by virtue of their connection to the people or their knowledge of what government can do, have the best
insight into how the Constitution balances competing principles."9 Certain features stand out as normatively attractive to proponents of politicalbranch constitutionalism. As applied to the executive, the theoretical literature highlights the importance of democratic responsiveness and distinctive
to investigate facts and take positive action) in shaping a
constitutionalism that differs substantially from what the courts devise. Also central for those theorists,
although often implicit, is a commitment to constitutional - as distinct from merely political - guidance for decisions left to political actors. The
Constitution in the executive's hands could be a counterweight both to a monopoly over
constitutional meaning in the hands of judicial elites that is stunted by the courts' limited
practical capacities, and to a politics of raw competition among self-promoting interests
divorced from the public-regarding underpinning our fundamental law provides. Viewed in this way,
institutional capacities (e.g., the executive's ability
executive constitutionalism holds untapped potential as a more democratically engaged and
institutionally versatile way of keeping the American polity true to its best self.
Functioning domestic democracy prevents multiple causes of extinction
Diamond ‘95 (Larry Diamond, senior fellow at the Hoover Institution, December 1995, Promoting Democracy in the 1990s,
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 common cause with authoritarian regimes and
have utterly corrupted the institutions of tenuous, democratic ones. 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 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 because, within their own borders, they respect competition, civil liberties,
property rights, 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.
Ext – Exec action key
Executive checks solve executive constitutionalism
Pillard ‘05 – Former Deputy Assistant Attorney General in the DOJ (February, Cornelia T.,
Michigan Law Review, 103.4, “The Unfulfilled Promise of the Constitution in Executive Hands”,
103 Mich. L. Rev. 676-758,
Discussion of political-branch constitutional interpretation today, however, generally rejects such effacement of identifiably
constitutional thinking in the political branches, and instead, assumes a role for some constitutional brand of reasoning from
principles toward ideals.69 Executive
branch constitutional decisions may turn on a mix of practical,
prudential, political, policy-based, discretionary judgment and principled, justice-oriented, lawlike norms.7 "
That mix may vary depending on the type of question, but in any event, given the distinctly constitutional elements of such
decisions, it remains important to identify in concrete terms whether and how the executive self-reflectively works to effectuate the
Political-branch constitutionalism manifests itself, not only in opinions on constitutional questions, but also in the kinds of legal
products the political branches more typically produce: legislation, regulations, and the diverse array of discrete activities of
executive officials doing their jobs. The Fourteenth Amendment's enforcement clause expressly casts the Congress (with presidential
cooperation) in a constitutional enforcement role.7 " Regulations
and executive orders can express the
executive's constitutional vision.72 Historical patterns of executive practice, apart from any
formal codification or written justification, may also provide a gloss on "abstract analysis."73 At
least where interbranch checks and balances are concerned, familiar modes of constitutional
analysis can be informed by "deeply embedded traditional ways of conducting government," or
"systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never
before questioned."74 Where do the constitutional interpretations that guide those practices come from? And what
constitutional vision informs the huge mass of executive conduct that is not itself constitutionally inspired, but that nonetheless has
constitutional implications?
Ext key to democracy
Judicial exclusivity destroys democracy
Lipkin 06
AND THE INTERBRANCH SOLUTION,” 28 Cardozo L. Rev. 1055, December, lexis)
Does any institution exercising such enormous unchecked power and authority comport with republican self-government? If the answer is no, what is the remedy? This Article first explains why such unchecked
power and authority are incompatible with republican democracy. In a nutshell, republican democracy is a form of self-government where complex deliberation is designed to articulate the community's real
interests or what the community reflectively judges its real interests to be. Republican democracy rejects both direct and representative majoritarian democracy. 2 Instead, it embraces the [*1056] distinction
between the community's reflective judgment and the everyday attitudes of the populace. 3 Republican democracy fortifies this distinction by constructing deliberative governmental filters to transform the
Judicial review may be one of these filters by providing a chance
for the lawmaking community to express second-thoughts - or critical reflection - concerning legislation and
other governmental conduct. 4 Ultimately, however, republican democracy is committed to the proposition that
the electorate - after refining its judgment deliberatively through its representatives and other institutional procedures - is the final arbiter of
constitutional meaning. Republican democracy founders when any governmental branch has
final unchecked authority and uses it to short-circuit this process. In the American republic, no other political
institution has anything like the judiciary's unchecked authority to invalidate or sustain 5 federal and state
legislation simply because the Court views such legislation to [*1057] be unconstitutional. 6 This
power - known as judicial supremacy - is essentially a failure of accountability, 7 not, as many jurists and
electorate's raw, unrefined, and possibly transient beliefs into the reflective judgment of the community .
commentators contend, a countermajoritarian difficulty. 8 Even if a super-majority or a mere plurality were required to pass ordinary legislation, the problem of judicial supremacy would persist - not because it is
countermajoritarian - but rather because no constitutional actor can effectively check the Court when it chooses to speak. 9 This point requires emphasis. Accountability need not be majoritarian to its core. Even
in such undemocratic governments as monarchies, aristocracies, or theocracies, a failure of accountability may exist when the institution primarily designated to create law is checked by another institution whose
role as authoritative reviewer has been garnered informally. In other words, even when the primary designated decision-maker is unaccountable to the people, the problem of accountability is present if a formally
undesignated decision-maker can overturn or significantly modify the primary designated decision maker's decisions even if only on special occasions. Hence, one salient form of unaccountability is unchecked
Defending the practice of judicial supremacy requires too great a tolerance
for almost complete unaccountability in deciding constitutional meaning. 11 This creates a
republic where the [*1058] constitutional choices of the people are often blocked or come to a
virtual dead-end. Such a dead-end republic can, of course, survive; ours has for over 200 years. But it prevents citizens nevertheless from
engaging in the joint enterprise of integrating and reconstructing their reflective judgments into
a conception of the common good as the only authentic fount of sovereign authority over the
society's future. 12 Rather than offering an internal remedy of judicial self-regulation - requiring judges to adopt judicial restraint 13 or to adhere to the "correct" judicial methodology - I offer
power by an undesignated decision maker. 10
instead an external solution to be imposed on judges through a congressional override of Supreme Court decisions. My suggested remedy does not eliminate judicial review, but rather augments this important
constitutional practice by fashioning an institutional safety net that permits the best reflective judgment of the people to prevail over the best reflective judgment of the courts. 14 Article V makes it clear that the
Constitution is committed [*1059] to the proposition that the best reflective judgment of the electorate should prevail over other constitutional actors. 15 However, while recognizing the promise of the
electorate's ultimate role in constitutional change, Article V fails to fulfill this promise. 16 This Article proposes a congressional override as a more effective way for the electorate to fulfill its role as the ultimate
constitutional arbiter. The idea of a congressional override has a grand legacy. 17 But it is not the only possible solution to the problem of judicial supremacy. Among the more prominent solutions are: councils of
revision; impeaching Justices; recalling Justices; electing Justices; a periodic re-appointment procedure; referenda; random and temporary selection of appellate judges to serve as Justices on the Court; formal
term limits or informal incentives such as attractive retirement packages; and most recently and controversially, congressional standing to challenge any attempt to strike down a congressional statute. Each of
these remedies warrants examination, and each has costs and benefits. However, a congressional override of Supreme Court decisions as the solution to the [*1060] problem of judicial supremacy has the
advantage of resting the authority for constitutional decision-making in the governmental body representative of the electorate and one that can be held accountable by it. 18
AT: Courts can do it alone
The Exeuctive is needed to solve constitutionalism – Judicial alone
Pillard ‘05 – Former Deputy Assistant Attorney General in the DOJ (February, Cornelia T.,
Michigan Law Review, 103.4, “The Unfulfilled Promise of the Constitution in Executive Hands”,
103 Mich. L. Rev. 676-758,
Because the relative institutional capacities of each branch play a significant role in the distinct contributions each can make to constitutional
effectuation, it
is important to develop within the executive a more nuanced understanding of the
branches' relative institutional capacities. The challenge is to break the executive habit of simply
looking to the courts and largely ignoring rights the court does not enforce, rather than appreciating and
speaking from within its own institutional context about effectuating constitutional rights. Larry Sager,217 Christopher Eisgruber,"8
David Barron219 and others have already highlighted the general importance of institutional capacity. Executive-branch
constitutionalism should build on those insights by identifying what exactly the executive's abilities are and how they
might bear on constitutional decisions in various contexts. In defending Congress's power to enforce constitutional rights under Section 5 of the
Fourteenth Amendment, observers have pointed to its fact-finding abilities, its capacity to tax and spend, and its ability to fashion broad, affirmative,
prospective mandates in contrast to the narrower, retrospective, and largely negative remedial powers of the courts. The executive's and Congress's
capacities differ from the courts' in some common ways. Both political
branches have agenda-setting and fact-finding
powers. The executive, however, has an arguably unique ability to estimate national security and public-safety
risks, and to make certain decisions in a discretionary manner (rather than by announcing general rules) and thereby to
match responses more closely to relevant circumstances. The executive also has the capacity to be
flexible and innovate, to marshal affirmative resources, and to prioritize, lead, and set an example for
other political officials, both in the other branches and in the states.
Officials thinking about the Constitution from the vantage point of the executive branch should reflect on
when and why their branch might have different insights on constitutional rights from those of the
courts. They should also focus on why and how the executive's powers and duties regarding constitutional rights are distinctive.
More explicit understandings of the institutional underpinnings of deference, and of the executive's institutional
strengths, could help to map out more clearly the constitutional ground the Court often cedes to the
executive. 220 If, as several scholars contend, there is more to be said in favor of extrajudicial constitutionalism than is typically
thought, an intensified focus on relative institutional capabilities is an important aspect not only of claiming the political branches'
role, but fulfilling it.
Only we solve—courts fail because of justiciability doctrines and
practical constraints—the executive has to act independently to set a
precedent—this is a case turn
Pillard 2005 – JD from Harvard, Faculty Director of Supreme Court Institute at Georgetown
University Law Center, former Deputy Assistant Attorney General in the DOJ (February,
Cornelia T., Michigan Law Review, 103.4, “The Unfulfilled Promise of the Constitution in
Executive Hands”, 103 Mich. L. Rev. 676-758,
The constitutional
obligations of government suggest a duty of constitutional self-policing by the
political branches. The size of that task depends on where one stands along the spectrum between judicial supremacy and
departmentalism. Because
departmentalism holds that the political branches have as much authority
as the courts to interpret the Constitution, it places in congressional and executive hands complete
responsibility to decide constitutional questions for themselves, guided by judicial precedent only for its
persuasive value. As the following subsections point out, however, executive constitutional interpretation is
ubiquitous even under a strongly judicial-supremacist view because of limits on what the courts
can or will decide.
A. Space for Executive Constitutionalism Under Judicial Supremacy
Even under a robust judicial supremacism, the executive admittedly has significant space and responsibility to
interpret and apply the Constitution. Room for executive branch constitutionalism occurs in part because of
the acute practical and legal limitations on the courts' ability and willingness to decide many
constitutional issues that confront the executive branch. As James Bradley Thayer famously put it, "much which is
harmful and unconstitutional may take effect without any capacity in the courts to prevent it,
since their whole power is a judicial one."24
First, it hardly needs to be repeated that the
Constitution itself leaves large openings for interpretation. Many
are broadly and generally worded, and cues from history are often
ambiguous.' Supreme Court precedent, however binding we take it to be, frequently fails to
provide crisp answers to the next concrete case.26 Where a novel issue arises, there is both an
obligation and an opportunity for the executive to arrive at a view of the matter and act accordingly in
advance of a court's opportunity to decide it. Even clearly established judicial precedent permits
doubt when the Court itself seems uncommitted to it.27 Second, the executive is the most frequent
and influential Supreme Court litigant. Even when the Supreme Court is poised to decide an
issue, the constitutional views voiced by the executive can shape the Court's view. The potential for
important constitutional provisions
dynamic interplay between the executive's and the Court's constitutionalism underscores the importance of the executive's own
considered views.
Third, even
where private parties can get courts to respond to their constitutional harms, they may face
interstitial deprivations. Individuals suffer injury in the time lag between constitutional harm and relevant
judicial response. There is inevitable delay between execution of a new practice, policy, program, or other executive action,
and the courts' ability to decide its constitutionality (assuming someone brings an appropriate case). An executive that has
adequate mechanisms of constitutional self-scrutiny would, however, avoid the unconstitutional
conduct or check it more promptly than a court. Similarly, even where courts invalidate
challenged government action, limits on their remedial capacities may make them unable fully
to cure constitutional harms.28 The only remedies available from courts for race-based conviction in violation of equal
protection, for example, are release, expungement of the conviction, and money damages; no post hoc remedy can restore the years
of lost freedom to a person wrongfully convicted. Privacy, once violated, cannot be retroactively restored. Similarly, any shame or
anxiety visited on a government employee unconstitutionally fired in retaliation for her public expression, and any period of
exclusion from the job, even if it can be eased or mitigated, cannot be undone by a court award of reinstatement and back pay or
other monetary compensation.29 Thus, the
delay in judicial review and the pervasive inadequacy of
remedies - especially, but not exclusively, when harm is "irreparable,"3 - also focuses
responsibility on the executive to engage constitutional issues and strive to avoid constitutional violations in the first
Fourth, when the
courts apply procedural or institutional doctrines that avoid decision on the merits of a constitutional question,
implies that someone else, i.e., people elsewhere in the government, must make the
decisive constitutional calls.3 " The political question doctrine is a classic example of such judicial
avoidance: a decision not to invalidate government action on political question grounds "is of course very different from a
decision that specific congressional action does not violate the Constitution,"32 because it leaves open the possibility that
the political branches might themselves find a violation. Similarly, other justiciability doctrines,
such as standing, ripeness, and mootness,33 as well as immunity defenses that avoid decisions on
their nondecision
the merits,34 mean that many instances of unconstitutional conduct will evade definitive
constitutional consideration by the Court, leaving only the political branches to avoid or redress
them." Courts are also unlikely to review challenges to the exercise of exclusively executive
powers, like the powers to pardon,36 veto,37 make appointments,38 and receive ambassadors,39 nor are they likely to
review most congressional-executive power struggles.' Even under judicial supremacy,
constitutional obligations regarding the exercise of those powers are in the executive's hands .
Democracy Impact Extension
Democracies won’t go to war with each other – public constraint
means accountability and slow mobilization
Rosato 3 – Assistant Professor of Political Science at the University of Notre Dame (Sebastian, "The Flawed Logic of
Democratic Peace Theory" The American Political Science Review, Vol. 97, Iss. 4; pp. 585-603)
According to the institutional logic, democratic institutions and processes make leaders accountable to a wide range of social groups
that may, in a variety of circumstances, oppose war. Accountability
derives from the fact that political elites
want to remain in office, that there are opposition parties ready to capitalize on unpopular
policies, and that there are regular opportunities for democratic publics to remove elites who
have not acted in their best interests. Moreover, several features of democracies, such as freedom of
speech and open political processes, make it fairly easy for voters to rate a government's
performance. In short, monitoring and sanctioning democratic leaders is a relatively straightforward matter (e.g., Lake 1992,
25-26; Owen 1997, 41-43; Russett 1993, 38-40). Because they are conscious of their accountability,
democratic leaders will only engage in large-scale violence if there is broad popular support for
their actions. This support is essential both because they may be removed from office for engaging in an unpopular war and
because society as a whole, or subsets of it, can be expected to oppose costly or losing wars. There are several social groups that may
need to be mobilized to support a war including the general public, those groups that benefit from an open international economy,
opposition political parties, and liberal opinion leaders. The idea that publics generally oppose wars because of the costs they impose
can be traced back to Kant's Perpetual Peace and continues to inform democratic peace theorists today (Doyle 1997, 24-25; Russett
1993, 38-39). Another established intellectual tradition argues that economic interdependence creates interest groups that are
opposed to war because it imposes costs by disrupting international trade and investment (Doyle 1997, 26-27). Still other scholars
have argued that opposition parties can choose to support a government if it is carrying out a popular policy or to oppose it for
initiating domestically unpopular policies (Schultz 1998, 831-32). Finally, Owen has focused on the role of liberal opinion leaders in
foreign policy decisions. These elites oppose violence against states they consider to be liberal and can expect the general public to
share their views in times of crisis (Owen 1997,19,37-39,45-47; see also Mintz and Geva 1993). In short, domestic
may oppose war because it is costly, because they can gain politically from doing so, or simply
because they deem it morally unacceptable. Five causal mechanisms, and therefore five variants of the institutional
logic, flow from elite accountability and the need to mobilize social groups for war. Each outlines a different path to peace between
democracies. Two of them claim that democracies will often be unwilling to resort to force in an international crisis. According
to the public constraint mechanism, this reluctance arises because leaders respond to the
general public's aversion to war. The group constraint mechanism is similar; democratic leaders
carry out the wishes of antiwar groups. In a crisis involving two democracies, then, the leaders of both states are
constrained from engaging in large-scale violence, perceive their counterparts to be similarly constrained, and will be inclined to
come to an agreement short of war (e.g., Bueno de Mesquita and Lalman 1992,155-58; Russett 1993, 38-40).4 Two other causal
mechanisms focus on the claim that democracies are slow to use force. The
slow mobilization mechanism holds that
democracies cannot mobilize quickly because persuading the public and potential antiwar
groups to support military action is a long and complex process. The surprise attack mechanism shares this
insight but also notes that mobilization takes place in the public domain, thereby precluding the possibility of a surprise attack by a
democracy. In
purely democratic crises, then, both sides will have the time to come to a mutually
acceptable agreement and be able to negotiate in good faith without fearing attack (e.g., Russett 1993,
38-10). Finally, the information mechanism suggests that democracies provide information that can avert wars. Because democratic
elites are accountable to their citizens and can expect opposition parties to oppose unpopular policies, they will be cautious about
deciding to escalate a crisis or commit the country to war. Indeed, they
will only select themselves into conflicts if
they place a high value on the outcome of those conflicts, if they expect escalation to be popular
at home, if there is a good chance that they will emerge victorious, and if they are prepared to
fight hard. This sends a clear signal to other parties: If a democracy escalates or stands firm, it is highly resolved. In
democratic crises, then, both states will have good information about the resolve of the other
party, will be unlikely to misrepresent their own resolve, and will therefore be able to reach a
negotiated solution rather than incur the risks and costs associated with the use of force (Bueno de
Mesquita et al. 1999, 802-03; Schultz 1998, 840-41; see also Reiter and Stam 1998 and Fearon 1994).
Democratic peace has been verified universally – democratic
initiators either avoid wars or win them
Reiter & Stam 9 – Chair of the Department of Political Science at Emory University & Professor of Political Science at the
University of Michigan (Dan & Alexander, "Another Skirmish in the Battle over Democracies and War" International Security,
Volume 34, Number 2, Fall 2009, pp. 194-204, Project MUSE)
In previous articles and in our 2002 book Democracies at War, we argued that democracies are particularly likely to win their wars.
Democratic political institutions provide incentives for elected leaders to launch only short,
winnable, low-cost wars, so they may avoid domestic political threats to their hold on power.
Democracies tend to win the wars they initiate because democratic leaders generally “select” themselves into
winnable wars, and they are more likely to win when they are targeted because their armies fight with better
initiative and leadership. Analyzing all interstate wars from 1816 to 1987, we found strong empirical support for our
theory.1 Other scholarship has produced findings supportive of our theory. Elsewhere, two different formal game-theoretic models
produced the hypothesis that democracies are especially likely to win the wars they initiate.2 The
empirical results
generated to test these and related hypotheses have withstood challenges to data selection and
research design.3 Using data sets and research designs different from ours, other scholars have uncovered
empirical patterns consistent with our theory that democracies are especially likely to win the
crises they initiate,4 that wars and crises are shorter when democracies and democratic initiators are
involved, and that democracies become increasingly likely to initiate wars as their likelihood of victory increases.5 H.E.
Goemans’s recent empirical work exploring the relationship among conflict outcome, regime type, and the postwar fate of leaders
confirms our theory, noting that his main result “now offers empirical support for some of these theories [of international conflict]
(Bueno de Mesquita et al. 1999, 2003; Reiter and Stam 2002).”6 And, the
long-established democratic peace has
been explained using our theoretical assumption that variations in domestic political
institutions create variations in conflict behavior.7 Even the research designs of our critics, trivially adjusted,
generate supportive results for our theory.8 Lastly, in recent work, we have extended the data set forward to 2001 and confirmed our
earlier results. Notably,
in the 1988–2001 period, democratic initiators won five interstate wars, and
tied or lost none.9
Diversity of studies prove – democratic peace theory is fact
Harrison 10 – Professor of International and Area Studies, Professor of Political Science, Assistant Dean of the College of
Arts & Sciences at Washington University in St. Louis (Ewan, “The democratic peace research program and system-level analysis”
Journal of Peace Research, 47(2) 155-165, Sage Publications)
Ray defines the hard core of the democratic peace research program in terms of dyadic theory. However, Lakatos (1970: 132)
required that a research program should not be collapsed into any specific theory. Instead, it encompasses
a series of theories sharing generic features. Adapting from Owen (2004: 610–11), the hard core of the democratic peace research
program may be restated as follows: HC: International
outcomes involving liberal democracies are
identifiably different from those not involving liberal democracies. This axiom is non-falsifiable because it is
deliberately formulated at a level of abstraction that transcends any specific relationship between democracy and patterns of
behavior in world politics. It does not say which outcomes are causally affected, nor at what level of interaction democracy is a
variable. This
formulation remains compatible with different theories that operate at different
levels of analysis but which collectively constitute a research program. At the same time, proposition HC
retains the distinctive notion that the features of democracies explain aspects of international relations. This new definition of the
core has implications for the specification of the negative heuristic. Ray’s
discussion of the negative heuristic is
brief because his definition of the core rules out the possibility that there may be democratic
peace theories which do not operate at the dyadic level. His definition excludes hypotheses such as those
derived from realist or institutionalist theory which are incompatible with proposition HC. Nevertheless, it also rules out non-dyadic
democratic peace formulations. Chernoff (2004), for
example, includes monadic theories as part of the
democratic peace research program. Monadic theories have been less successful in terms of their ability to generate a
positive heuristic, even if their contributions can be underestimated (MacMillan, 2003). Yet the function of the negative
heuristic is not to ensure that theories are empirically corroborated, but to ensure that theories within a research
program are logically consistent. There is therefore no reason why democratic peace theories
that operate at different levels of analysis should not co-exist within the same research program.
This feature of the negative heuristic makes it possible to view research programs in terms of a
series of theories that develop cumulative insights.
No Link to Politics
Executive orders cost ZERO political capital – No consensus building needed
Howell and Pevehouse ‘07 (William G. Howell - Sydney Stein Professor in American Politics in the Harris School
And Jon C. Pevehouse - associate professor at the University of Chicago's Irving B. Harris School of Public Policy, Princeton
University Press, “While Dangers Gather: Congressional Checks on Presidential War Powers”, 2007, Pg. 8)
The second feature of unilateral powers that deserves attention is that when
the president acts, he acts alone. Of
course, he relies on numerous advisors to formulate the policy, to devise ways of protecting it against
congressional or judicial encroachment, and to oversee its implantation. But to issue the actual
policy, as either an executive order or memorandum or any other kind of directive, the president need not
rally majorities, compromise with adversaries or wait for some interest group to bring a case to
court. The president, instead, can strike out on his own, placing on others the onus of coordinating an effective
response. Doing so, the modern president is in a unique position to lead, break through the stasis that
pervades the federal government, and impose his will in more and more areas of governance.
Rulemaking streamlines the process and avoids cumbersome debates
and publicity
Levin, Professor at Wash , 95
Ronald M. Levin, * Professor of Law, Washington University. ¶ The George Washington Law
Review¶ November 1995¶ 64 Geo. Wash. L. Rev. 1¶ LENGTH: 18498 words¶ ARTICLE: Direct
Final Rulemaking
[*2] The purpose of the direct final rulemaking technique is to streamline the rulemaking
process in situations in which a rule is considered so noncontroversial that the most minimal
procedures should be adequate. It is intended to enable the agency to avoid two rounds of
deliberation on the rule--once at the proposal stage and once at the final promulgation stage. To
date, direct final rulemaking has been little publicized and therefore little used, but the climate
is right for a considerable expansion in its use. In an era in which the rulemaking process has
been criticized as too cumbersome, n2 and in which most agencies face the prospect of living
under more severe resource constraints than they have experienced in the past, administrators
have strong reasons to take note of the efficiencies that direct final rulemaking offers.In fact, this
technique has already received favorable attention from influential voices in the executive
branch. It was highlighted in Improving Regulatory Systems, one of the reports accompanying
the National Performance Review or "reinventing government" effort led by Vice President Al
Gore. n3 The authors of that report urged each regulatory agency to consider making use of
direct final rulemaking during the coming year. n4 The Administrative Conference of the United
States ("ACUS"), in its 1993 recommendation on "Improving the Environment for Agency
Rulemaking," n5 also urged agencies to consider the possible advantages of direct final
rulemaking. n6 The present study builds on those pronouncements and other words of praise,
n7 by outlining a legal and practical framework within which direct final rulemaking can
Executive Self – Regulation solves politics
Link Turn – Executive Self-restraint generates polcap and shields
Sales ‘12 – Assistant Professor of Law, George Mason University School of Law (7/3, Nathan Alexander, Journal of National Security Law &
Policy, 6.227, “Self-Restraint and National Security”)
My use of this analytical framework is not intended to deny the validity ¶ of other possible explanations for self-restraint. For
instance, Eric Posner
and Adrian Vermeule argue that Presidents have an incentive to engage in ¶
“self binding,” because it will enhance their credibility and “generate ¶ support from the public
and other members of the government.”45 Elizabeth ¶ Magill likewise argues that bureaucrats sometimes
find it advantageous to ¶ “self-regulate” – i.e., “limit their options when no source of authority ¶
requires them to do so” – as a means of controlling subordinates, inducing ¶ reliance by outside parties, and entrenching
today’s policy choices.46 Still ¶ more accounts emerge if we widen the analytical lens beyond public choice ¶ principles. One might
explain self-restraints by consulting theories of ¶ bounded rationality – the notion that imperfect information, cognitive ¶ failures,
and other factors prevent bureaucratic players from accurately ¶ measuring the expected costs and benefits of a given action.47 Or
one might ¶ look to new institutionalism – the notion that bureaucratic outputs are ¶ determined in large part by organizations’
cultures, histories, and ¶ structures.48 And, of course, there are the public interest explanations: ¶ Officials
might embrace
a particular restraint because they believe in good ¶ faith that it represents sound public policy.
The public interest framework ¶ may actually complement, not contradict, this article’s public choice story. ¶ One of the reasons
they calculate that doing so will position them to
achieve desirable ¶ policy outcomes . In any event, the point of this article is to generate ¶ hypotheses that can
account for the occasional tendency of national security ¶ figures to restrain themselves. Other
officials might build their bureaucratic empires is ¶ because
frameworks are likely to yield equally ¶ plausible alternative hypotheses.
Link Turn – we link comparatively less to politics – Agency action is
only noticed after-the – fact, while the cp would be public based on
the anouncement
Metzger ‘09 – Professor of Law, Columbia Law School (Gillian E., Emory Law Journal, 59.2, “THE INTERDEPENDENT RELATIONSHIP
Several bases exist for thinking that internal separation of powers mechanisms
may have a comparative
advantage. First, internal mechanisms operate ex ante, at the time when the Executive Branch is
formulating and implementing policy, rather than ex post. As a result, they avoid the delay in application
that can hamper both judicial and congressional oversight.76 Second, internal mechanisms often operate
continuously, rather than being limited to issues that generate congressional attention or arise in the form
of a justiciable challenge.77 Third, internal mechanisms operate not just at the points at which policy proposals originate and
are implemented but also at higher managerial levels, thus addressing policy and administration in both
a granular and systemic fashion. In addition, policy recommendations generated through internal
checks may face less resistance than those offered externally because the latter frequently arise
after executive officials have already decided upon a policy course and are more likely to take an
adversarial form.78 Internal mechanisms may also gain credibility with Executive Branch officials to the extent they are
perceived as contributing to more fully informed and expertise-based decisionmaking.79
Plan gets circumvented – rename agency and redistribute roles – how
ICE was formed
US Legal, 7 (US Legal Law Digest, “United States U.S. Immigration and Naturalization”,
June 3 2007, KW
Over the years, INS was repeatedly criticized for its seemingly unmanageable bureaucracy.
Border Patrol agents and INS investigators developed reputations of being undertrained and
overworked. People applying for immigration benefits often encountered backlogs that stretched
for years. Many suggestions were made for reorganization, but the terrorist attacks of 2001
finally precipitated major change. In the wake of September 11, INS was criticized for its failure
to prevent the terrorists from entering the country. Calls for change became more strident after
the revelation that several of the hijackers had received visas to come to the U.S. to attend flighttraining schools.
On November 19, 2002, President George W. Bush signed legislation that established the
Department of Homeland Security, a cabinet-level department. DHS encompassed 22 agencies
and 190,000 employees. Along with INS, the Coast Guard and the Customs Service came under
DHS jurisdiction on March 1, 2003.
Under the auspices of DHS, the U.S. Citizenship and Immigration Services (USCIS) has
assumed the responsibility for administering benefits, including oversight over:
Immigrant and nonimmigrant admission to the country
Work authorization and other permits
Naturalization of qualified applicants for U.S. citizenship
Asylum and refugee processing
Immigration enforcement now comes within the purview of the Directorate of Border and
Transportation Security. Duties are further divided between the Bureau of Immigration and
Customs Enforcement (ICE), and the Bureau of Customs and Border Protection (CBP). ICE is
responsible for the enforcement of immigration laws within the U.S. CBP is responsible for
inspections of people coming to the country, and for patrolling the border. Enforcement
responsibilities for ICE and CBP include:
Preventing aliens from entering the country unlawfully
Detection and removal of aliens who are living in the U.S. unlawfully
Preventing terrorists and other criminal aliens from entering or residing in the U.S.
ICE formed when another agency was dismantled – same thing could
happen to ICE
Hollingsworth, 14 (Gabrielle, LegalMatch Legal Writer and Attorney at Law, “INS
Reorganization”, 4/16/14, KW
What Was the INS?
“INS” is an acronym for the Immigration and Naturalization Service, a U.S. agency that was
dismantled in 2003. The law that formed the INS was the Immigration and Naturalization Act
(INA). As a response to the 9/11 attacks on the World Trade Center, the Patriot Act made major
changes to the INA in 2001. The feeling existed that the INS no longer met the needs of a society
under threat of terrorism.
What Replaced the INS?
Among the changes included creating the Student and Exchange Visitor Information System
(SEVIS), a computerized system to keep track of foreign students living in the US. Other
changes included the 2002 Homeland Security Act and the 2002 Enhanced Border Security and
Visa Entry Reform Act. These amendments mandated, for reasons of national security, that a
number of federal agencies be created, renamed, and reorganized.
On March 1, 2003, the Immigration and Naturalization Service (INS) was dismantled and
reorganized into the Department of Homeland Security (DHS). Within the DHS there are three
new agencies: the U.S. Citizenship and Immigration Services (USCIS), the U.S. Immigration and
Customs Enforcement (ICE), and the U.S. Customs and Border Protection (CBP).
The USCIS absorbed the former INS office administration and immigration services. ICE, the
main enforcement arm of the DHS, absorbed the former U.S. Customs investigators, the Federal
Protective Service, and the Federal Air Marshal Service. And CBP absorbed the former INS and
Customs Inspectors, the Department of Agriculture, and the Border Patrol.
As a result of these changes, the U.S. immigration agencies are now more “enforcementoriented,” meaning that they aim to help increase the security of the U.S., while protecting U.S.
citizens from terrorism within their borders.
Even small changes to names causes them to be considered new
MCALEENAN and RAGSDALE 14 (KEVIN K. MCALEENAN Acting Deputy Commissioner U.S.
Customs and Border Protection Department of Homeland Security and DANIEL H. RAGSDALE
Deputy Director U.S. Immigration and Customs Enforcement Department of Homeland
Security. “Authorizing Customs and Border Protection and Immigration and Customs
Enforcement.” April 8, 2014 KW
With the creation of DHS, the enforcement and service functions of INS and the U.S. Customs
Service were absorbed into the Directorate of Border and Transportation Security, including
U.S. Customs, Bureau of Border Security, and Bureau of Citizenship and Immigration Services.
In 2003, President George W. Bush submitted a reorganization plan for DHS, renaming the
Bureau of Border Security the Bureau of Immigration and Customs Enforcement and the
Customs Service the Bureau of Customs and Border Protection. In 2007, DHS changed the
name of the Bureau of Customs and Border Protection to U.S. Customs and Border Protection
and the Bureau of Immigration and Customs Enforcement to U.S. Immigration and Customs
politics links
dea: empirics- hemp
DEA activities cause backlash in Congress- response to hemp policy
interference proves
WCL News 14 (the West Coast Leaf, news agency dedicated to issues in the marijuana
industry, “DEA’s Efforts to Block Hemp Draw Federal Ire,”,
June 30, 2014, silbs)
The federal DEA (Drug Enforcement Administration) caught some backlash from its interference in hemp
activities that had recently been legalized by Congress when Congress slapped back three times
in one day. After the renegade agency tried to undercut the intent of the US Farm Bill passed in
February 2014, Representative Suzanne Bonamici introduced House Amendment 745 to HR 4660 on May 30, 2014. Her
amendment to prohibit the use of funds to prevent a State from implementing its own State laws
that authorize the use, distribution, possession, or cultivation of industrial hemp, as defined in section
7606 of the Agricultural Act of 2014 (Public Law 113-79), was 237 – 170 in favor of the amendment. Also on May 30, 2014,
Representative Thomas Massie introduced House Amendment 754 to HR 4660, to prohibit the use of funds
in contravention of section 7606 (“Legitimacy of Industrial Hemp Research”) of the Agricultural Act of 2014 (Public Law No.
113-79) by the Department of Justice or the DEA. The vote was 246 – 162 in favor of the amendment. In yet
another rebuff to the narcotics agency, and again on the same day, May 30, during a debate regarding a
Justice Department funding bill, Rep. Dana Rohrabacher (R-CA)offered an amendment intended to block
DEA raids on medical marijuana dispensaries that passed by a surprisingly wide margin of 219-189.
dea: senate backlash
The Senate has a tumultuous relationship with the DEA
Ross 7/20 (Lee, reporter, Congressional Fellow/Press Secretary at the American Political
Science Association, “Key lawmaker demands answers from DEA following Fox News report,”, July 20, 2015,
A key lawmaker is demanding answers from the Drug Enforcement Administration about alleged
improper conduct that was first reported by Fox News on Thursday and may be tied to the resignations of two high-level officials. A
letter from Senate
Judiciary Committee Chairman Chuck Grassley, R- Iowa, raises "important
questions" about actions taken by DEA investigators looking into claims of retaliation and harassment made by
Darek and Lisa Kitlinski, a married couple, who each work at the agency. Grassley wants Acting Administrator
Chuck Rosenberg to reveal whether a DEA-issued smartphone was used to conduct covert
surveillance on the employees. It it was, the senator wants to know under what legal authority.
The letter, which calls for a response by month's end, also questions whether senior lawyer Letitia Pinkney and Deputy
Administrator Thomas Harrigan resigned because of improprieties tied to the Kitlinski investigation. Darek Kitlinski's initial claim
against the agency was based on his inability to secure an internal transfer. Kitlinski says his status as a Coast Guard reservist
brought hostility from superiors and was the source of friction over the transfer. More
than a dozen senior DEA
officers have filed lawsuits alleging retaliation, reprisals and career derailments because of their
military service. Collectively they suggest the law enforcement agency on front lines of America's
drug war is inhospitable to men and women who also serve in the reserves. Last fall, after leaving a
secure DEA garage, Darek says he noticed a red blinking light coming from under the hood of his SUV. He reached in and pulled out
a still functioning Blackberry bearing a DEA identification sticker. The device allegedly traces back to the DEA's top Human
Resources officer. Skilled hackers can access smartphone externally to monitor its movements and even eavesdrop on conversations.
dea: emprics- cartel scandal
Congress backlashes against DEA activities- fast and furious scandal
Newman 11 (Alex, CEO at Liberty Sentinel Media, journalist, “Congress Probes DEA Drug
Money Laundering Scheme,”, The New American, December 9, 2011,
As the “Fast and Furious” gun-trafficking scandal continues to grow, Congress is now investigating a
Drug Enforcement Administration (DEA) program that was laundering money for Mexican
cartels. Meanwhile, multiple cartel leaders and reports continue to suggest that the federal
government is deeply involved in the narcotics and arms trades. According to an article in the New York
Times that first revealed the DEA money-laundering scheme to the public, U.S. drug agents supervised by the Justice
Department likely laundered hundreds of millions in illegal profits — maybe more. The DEA and
other agencies also helped send the illicit cash back across the border to Mexico in operations
“orchestrated to get around sovereignty restrictions,” the Times reported in the article, headlined "U.S. Agents
Launder Mexican Profits of Drug Cartels." “The high-risk activities raise delicate questions about the agency’s
effectiveness in bringing down drug kingpins, underscore diplomatic concerns about Mexican
sovereignty, and blur the line between surveillance and facilitating crime,” the article stated, noting that
the agency often allows cartels to continue operating for years before taking any action. And the program does not appear to be
disrupting the criminal organizations. One former DEA official was quoted by the paper as saying that if the program failed to show
results, "the D.E.A. could wind up being the largest money launderer in the business, and that money results in violence and deaths."
And the program has failed to show results, according to analysts. Activists and members
of Congress were already
deeply suspicious of Attorney General Eric Holder and the Obama administration’s Department of Justice over a
program that put thousands of weapons into the hands of cartels — some of the guns were eventually linked
to murders of U.S. law enforcement officers — as well as subsequent efforts to cover up the scandal using lies.
So when news of federal money laundering broke, lawmakers immediately demanded answers.
Congress reacts to DEA action, ties failings to the Obama
administration, and doesn’t trust them to carry out programs
Newman 11 (Alex, CEO at Liberty Sentinel Media, journalist, “Congress Probes DEA Drug
Money Laundering Scheme,”, The New American, December 9, 2011,
“It also appears as though these American agents, posing as smugglers, assisted Mexican drug cartels in their illicit and deadly drug
trade,” Rep. Darrell Issa (R-Calif.), chairman of the House Oversight and Government Reform Committee investigating Fast and
Furious, wrote in a letter to Holder citing the Times article. “These allegations, if true, raise further unsettling questions about a
Department of Justice component engaging in a high-risk strategy with scant evidence of success.” Issa repeated the concern
expressed in the Times article that the DEA operations point to serious issues in the agency’s effectiveness in actually catching drug
bosses. There are other problems, too, including worries about sovereignty and the blurring of the line between “surveillance” and
actually helping criminals. “The
law limits the conduct alleged in this story," Rep. Issa noted. “The existence
of such a program again calls your leadership into question.... The consequences have been
disastrous. It is almost unfathomable to contemplate the degree to which the United States
Government has made itself an accomplice to the Mexican drug trade.” The Justice Department
responded with a letter saying similar tactics have been used since the 1980s, but that it could not discuss specifics. Like the Bureau
of Alcohol, Tobacco, Firearms, and Explosives (still known as ATF), the
DEA also promptly responded to the
accusations by claiming the operations were aimed at fighting crime, not assisting it. And anonymous
“sources” were deployed by the federal drug agency to defend the scheme, saying a comparison with Fast and Furious was off the
mark. In a statement, the agency also defended its operations, saying the money laundering was aimed at tracking drug profits
rather than aiding criminals. "The DEA has well-established mechanisms for coordinating and approving activities associated with
the fight against money laundering," it claimed. "As a result of this cooperation, DEA has seized illicit transnational criminal
organization money all around the world through our partnership with law enforcement." The federal agency also said it had been
working closely with Mexico’s notoriously corrupt government for years. "As part of that collaboration, DEA works with Mexican
authorities to gather and use information about these criminal organizations to counter the threats they pose to both of our
countries," it alleged in the statement, claiming the cooperation was based on “mutual trust” and respect for each government’s
jurisdiction. But
lawmakers were not thoroughly convinced by administration denials, noting that
and the Justice Department have admittedly been lying about the Fast and
Furious scandal for almost a year. "The first answer you get from this Justice Department doesn't have a high
Holder, Obama,
credibility," Rep. Issa said this week.
other programs will fill in and guarantee circumvention- NLPRD
Tate 14 (Kristin, multi-media reporter, “Obama’s DHS Activating National License Plate
Tracking Database,” Truth in Media,, February 14, 2014, silbs)
President Obama’s Department of Homeland Security (DHS) is quietly activating a national license plate
tracking system. It will be shared with law enforcement and allow officials to track citizens’ vehicles “from a variety of sources
nationwide.” The new system, called the “National License Plate Recognition Database,” is outlined in a
PDF on the Federal Business Opportunities website. The system will allow authorities to “to determine where and
when the vehicle has traveled” by tracking “vehicle license plate numbers that pass through
cameras or are voluntarily entered into the system from a variety of sources.” Using their smartphones,
DHS officials will be able to take photos of any license plate in the country and upload it to the database. They will then receive an
instant alert if that plate is on the “hot list” containing “target vehicles.” The
intended purpose of the new system is
to catch illegal immigrants and terrorists, but it is likely that the vast majority of targeted
individuals will be American citizens. To many who are concerned about the scope and growth of government power,
the system is reminiscent of George Orwell’s 1984 — especially since in recent years, the DHS has branded “liberty lovers” as
possible terrorists.
Economy Impact
AT: Royal
Royal votes neg two pages later—decline disincentivizes costly power
Royal 10—their author
(Jedediah, “Economic Integration, Economic Signaling and the Problem of Economic Crises”, Economics of War and Peace:
Economic, Legal and Political Perspectives pg 217, dml)
There is, however, another trend at play. Economic
crises tend to fragment regimes and divide polities. A
decrease in cohesion at the political leadership level and at the electorate level reduces the ability of the state
to coalesce a sufficiently strong political base required to undertake costly balancing
measures such as economic costly signals. Schweller (2006) builds on earlier studies (sec, e.g., Christensen,
1996; Snyder, 2000) that link political fragmentation with decisions not to balance against rising
threats or to balance only in minimal and ineffective ways to demonstrate a tendency for states to
'underbalance'. Where political and social cohesion is strong, states are more likely to balance
against rising threats in effective and costly ways. However, 'unstable and fragmented regimes that
rule over divided polities will be significantly constrained in their ability to adapt to systemic
incentives; they will be least likely to enact bold and costly policies even when their nation's
survival is at stake and they are needed most' (Schweller, 2006, p. 130).
Counterplan Answers
AT: Military Readiness CP
Nato Bad
--can’t solve heg
U.S. needs to pull back its security commitments to NATO in order to
retain it’s hegemony
Layne, 10 (Christopher, Professor and Robert M. Gates Chair in National Security at Texas A&M’s George H.W. Bush School
of Government & Public Service (May 1, 2010, “Graceful Decline: The End of Pax Americana”)//MBB
The United States will be compelled to overhaul its strategy dramatically, and rather than having this adjustment forced upon it
suddenly by a major crisis, the U.S. should get ahead of the curve by shifting its position in a gradual, orderly fashion. A new
American global posture would involve strategic retrenchment, burden-shifting, and abandonment of the so-called “global
the U.S. will need to pull back from its
current security commitments to NATO, Japan, and South Korea. This is not isolationism. The
United States undertook the defense of these regions under conditions very different from those
prevailing today. In the late 1940s, all were threatened by the Soviet Union—in the case of South Korea and Japan, by China
counterinsurgency” being waged in Afghanistan and Iraq. As a first step,
as well—and were too weak to defend themselves. The U.S. did the right thing by extending its security umbrella and “drawing a line
They were meant as
a temporary shield to enable Western Europe, Japan, and South Korea to build up their own
economic and military strength and assume responsibility for defending themselves. There are
in the sand” to contain the Soviet Union. But these commitments were never intended to be permanent.
several explanations for why the U.S. did not follow through with this policy. Fundamentally, during the Pax Americana there was no
need. As the U.S. declines, however, it will be compelled to return to its original intent. If we remember that an eventual pullback
was the goal of U.S. policy, strategic retrenchment in the early 21st century looks less like a radical break than a fulfillment of
strategic goals adopted in the late 1940s. Burden-shifting—not burden-sharing—is the obvious corollary of strategic retrenchment.
American policy should seek to compel our allies to assume responsibility for their own security and take the lead role in providing
security in their regions. To implement this strategic devolution, the U.S. should disengage gradually from its current commitments
in order to give an adequate transition period for its allies to step up to the plate. It should facilitate this transition by providing
advanced weapons and military technology to friendly states in Europe and Asia. With respect to Islamic terrorism, we need to keep
our priorities straight. Terrorism is not the most pressing national-security threat facing the United States. Great powers can be
defeated only by other great powers—not by nonstate terrorists or by minor powers. The
U.S. needs to be careful not to
pay more attention to Islamic terrorists than to emerging great powers. Here the Obama administration
and Defense Secretary Robert M. Gates are getting it wrong.
NATO is useless: US has not used since the collapse of the Soviet
Slocombe 10, Walter B. June 2010 “Towards A New NATO Strategic Concept A View from the United States”, PERSPECTIVE
With the implosion of the Soviet Union ending its domination of Central Europe and the direct
military threat to the European allies the question naturally arose for the US – as for other allies – whether
NATO still had a purpose. Some in the US argued that with the Soviet threat gone and Europe
increasingly focused on internal integration, the right course for America was to resume its
historical distance from Europe’s problems. This view was held not only by those who favored a
return to a form of isolationism, but also by the proponents of a highly interventionist US
approach to international security, who saw the chief, if not the only, challenges to American
interests arising in the Middle East and, to a lesser extent, Asia, rather than Europe and wished to be
free of European constraints on US action. The early 1990s represented the high-water mark, at least in the US, of
the view that NATO’s time had passed: the US and many European nations hoped that the conflict in the Balkans could
best be handled by the Europeans and NATO as an institution stood aside from the US-led international coalition that reversed
Saddam Hussein’s invasion of Kuwait. In the event, however, the dominant view in the US came to be that NATO could and should
be a keystone of US security policy both for Europe (exemplified by its central role in implementing the settlement in Bosnia and
defeating Serbian ethnic cleansing in Kosovo), and as a means to address chal-lenges arising outside NATO’s established geographic
radius. Accordingly, the US, far from pulling back from NATO, has continued to regard NATO as a central element of its
international security policy. It has been a strong advocate of relatively rapid membership for former Warsaw Pact countries, of a
direct military role for NATO in »out of area« operations (like those in Af-ghanistan), of non-member European states (and in-deed
of »values partners« like Australia) joining in NATO operations and activities through the Partnership for Peace, and of expanding
US reliance on
NATO has certainly not been undeviat-ing. Most egregiously, the US declined to make its initial
military response in Afghanistan a NATO project despite the allies’ immediate invocation of the
Article V guarantee following the September 11 attacks – but still sought later to make success in Afghanistan a
touchstone of NATO’s viability. Nor has it been wholly successful. »Out of area« inter-ventions remain
controversial. NATO took no part in the 2003 invasion of Iraq, and only the most minimal role in the
NATO’s missions to include new threats like terrorism, cyberwar, energy security, and nuclear proliferation.
subsequent stabilization efforts. US hopes that a growing European Union security structure would be closely integrated with NATO
– complementary rather than competitive – have only partially been fulfilled. European defense budgets have continued to decline,
and the gaps between US and European military capa-bilities have grown.
--hurts Russia relations
Russia is only concerned with the U.S. system; NATO only has the
power to hurt U.S.-Russian relations
Suslov, 10
Deputy Director for Research at the Council on Foreign and Defense Policy (5/18/10, Dmitry V., “U.S.- Russia Relations After the
New START Treaty,”
Another reason why this positive stage in bilateral relations could end is the lack of tangible progress on most other issues on the
agenda. Signing the New START treaty will be of no assistance here. In fact, it has caused further complications, e.g. in the case of
the U.S. missile defense shield.
Disagreements over missile defense have not been resolved, and by signing the New START treaty
in its current version, Russia has lost its leverage to demand an international regime to regulate U.S. actions for the foreseeable
future. The U.S. will have free reign when it comes to missile defense. Russia
has been invited to participate in the
non-existent NATO missile defense system, but this is meant to appease Russia, not to allay its
main concern over the U.S. missile defense shield. The U.S. and NATO shields will be two
different systems, and Russia is only concerned about the U.S. system -- which is off-limits -not the non-existent NATO system.
Perm solves best—oversight redundancy decreases group think and
politicization while creating a race to the top.
O'Connell 06. (Anne, George Johnson Professor of Law at the University of California, Berkeley. “The
Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World,” Berkeley Law
Scholarship Repository. 1-1-2006.
Redundancy has several benefits for achieving an operational goal. First, redundancy may combat
"group think." Psychologists have found that "group polarization" increases "if members have a sense of shared identity" and
decreases "if members have a degree of flexibility in their views and groups consist of an equal number of people with opposing
views.""' Redundant
institutional design may increase diversity in view- points if workers identify
primarily with their own agency. This could prevent members of the intelligence community from
forming a shared identity across agencies, and thereby decrease the risk of "group think.""' 2 This
psychological research suggests, for example, that if all members of the intelligence community perceive themselves to be clones of
the DNI, deliberation among those members likely will lead to an outcome that is more extreme than the DNI's position because
deliberation will not contain any opposing viewpoints.¶ Second, redundancy
may prevent “capture” of agencies or
overseers particular interest groups, decreasing politicization of intelligence. 113 If interest groups
have objectives that differ from the goal of maximizing national security, capture of agencies or overseers
decreases national security effectiveness. One interest group generally will find it more difficult to capture
several agencies than a single agency; to wield power over multiple agencies, interest groups may have
to work together, which is a costly enterprise for the groups. 114¶ Third, if redundancy produces
competition, 115 it may yield better outcomes than coordination. 116 This is, of course, a fundamental insight
of economics: prefer competition produces more socially optimal results than monopolies. Specifically, competitive
structures may prevent “pernicious” collusion, particularly when the organizations are similar.
117 Competition may encourage redundant entities to work harder and more creatively, generating
a race to the top in performance; competition may also motivate one entity to correct mistakes made
by another entity. 118 For example, if multiple intelligence agencies were tasked with finding Osama bin Laden, the
competition to find him might motivate each agency to achieve more than it would if it were the only agency working to achieve that
objective.'19 In addition, such competition may "make it easier for the organization[s] to adapt to a changing environment."'20
Alternatively, redundancy may allow for needed cooperation, as certain tasks may require multiple, overlapping entities.' 2'¶ Fourth,
redundancy may increase reliability by decreasing the chances of the system failing entirely in
certain respects. 2 2 Take the classic example of a belt and suspenders for holding up a man's pants. Each accessory
independently, with some probability, keeps the pants from falling down. A belt can unlatch or suspenders can snap, however.
Together, on average, the accessories should prevent an embarrassing moment more often than either used on its own. For example,
if the belt works effectively 90% of the time, and the suspenders work effectively 75% of the time, these two devices together should
work as well as a system that is effective 97.5% of the time.2 3 The same reasoning applies to the (far harder) task of finding bin
Laden. The more dependent the structures are on each other, the smaller the improvement in reliability; in other words, completely
inde- pendent but redundant structures yield the greatest increase in reliability. 2 4¶ This reasoning can be applied to administrative
agencies: according
to bureaucratic redundancy theory, multiple agencies delegated the same task
are more likely to complete the task than a single agency. 125 Examples of such redundant arrangements
abound in our governmental system. For example, the federal and state courts are redundant, in that both have jurisdic- tion over
certain claims. 26 The classic example for the administrative state is that each military service employs its own "air force," though
any one air force could protect troops on the ground.127 Although each air force has been tailored to its service's needs, each likely
could be reconfigured to provide much of the same protection as any other. Other agency examples exist. The Federal Trade
Commission, an independent regulatory commis- sion, and the Antitrust Division of the United States Department of Justice, a
cabinet department, both have authority to enforce antitrust laws.12' The Department of Interior's Bureau of Reclamation and the
Army Corps of Engineers both have authority over federal water policy.129
Perm do both – the counterplan can’t solve any perception internal
links on its own – GAO has historical precedent of ineptitude
Kushing 14 – reporter for Techdirt (Tim, “The GAO's Office In The NSA Is Collecting Dust
Because Congress Hasn't Asked For A Report In Years”
Steven Aftergood at Secrecy News points out there's another
layer of oversight that's gone unutilized for
years as well. Years ago, the Government Accountability Office, the investigative arm of Congress,
conducted routine audits and investigations of the National Security Agency, such that the two
agencies were in “nearly continuous contact” with one another. In the post-Snowden era, GAO could perform that oversight function
once again. “NSA
advises that the GAO maintains a team permanently in residence at NSA,
resulting in nearly continuous contact between the two organizations,” according to a 1994 CIA
memorandum for the Director of Central Intelligence. Why haven't we read any damning reports from the GAO
about the NSA's abuses over the past several years? Well, apparently it's because no one wants to know. At a 2008
Senate hearing, Sen. Daniel Akaka asked the GAO about its relationship with NSA. “I understand that GAO even had an office at the
NSA,” Sen. Akaka noted. “We
still actually do have space at the NSA,” replied David M. Walker, then-Comptroller
General, the head of the GAO. “ We just don’t use it . And the reason we don’t use it is we are not
getting any requests [from Congress ]. So I do not want to have people sitting out there twiddling
their thumbs.” There's that oversight at work again. Idle for "years" by 2008 and no signs that anything
has occurred since then. The GAO maintains an office (currently unstaffed) within the NSA but
because if no one's asking any questions, it's not providing any answers. If there's something the GAO
does well, it's track down internal issues and problematic behavior. Unfortunately, it's limited to recommending
courses of action rather than mandating any serious changes, meaning its follow-up reports are
generally filled with descriptions of how these audited entities failed to pursue the
recommendations and (often) performed considerably worse during the interim. On the other hand,
the GAO's reports do at least make it clear to the American public exactly what's wrong with nearly
everything the government spends its money on. It's very limited accountability that does nothing
to change the underlying agency ethos, but at least it prevents them from pretending these problems don't exist. Being
in-house should naturally raise concerns about the GAO's objectivity. Unfortunately, considering the nature of the
agency's intelligence work, there's probably no way around that. But the first step in renewing this layer of
oversight is to remind Congress of its existence. It has the power to order a GAO investigation, but until it does, the office will
continue to gather dust and the NSA's internal problems will worsen -- or at least go unnoticed by Congress. Aftergood points out
that James Clapper has ordered the agency to be responsive to GAO inquiries, apparently in the eventuality that it ever gets back to
the business of asking questions. In Intelligence Community Directive 114, issued in 2011 following years of stagnation in GAO
oversight of intelligence, DNI James Clapper instructed U.S. intelligence agencies to be responsive to GAO, at least within certain
boundaries. “It is IC policy to cooperate with the Comptroller General, through the GAO, to the fullest extent possible, and to provide
timely responses to requests for information,” the DNI wrote. Of course, Clapper's definition of "responsive" probably differs greatly
from the normally-accepted usage of the word. Having Clapper condone cooperation with an agency that exists to find flaws and
misconduct is a bit underwhelming. The NSA's top men have been less than cooperative in the many hearings since the Snowden
leaks began, most often recycling old talking points and insisting on discussing it in the context of one program (Section 215) when
everyone else is clearly focused on another area. Still, whatever
the GAO finds (that somehow doesn't get blotted out with
provide more useful information for its Congressional overseers. This certainly
shouldn't be used in place of more independent oversight committees, but it
should prove to be a valuable addition. The real question Congress needs to answer is why it has ignored this
black ink) will
option for so many years.
GAO Expertise Fails
The GAO has no expertise in data analysis and targeting surveillance
GAO No Date (“About GAO”
The U.S. Government Accountability Office (GAO) is an independent, nonpartisan agency that works for
Congress. Often called the "congressional watchdog," GAO investigates how the federal government spends
taxpayer dollars. The head of GAO, the Comptroller General of the United States, is appointed to a 15-year term by the
President from a slate of candidates Congress proposes. Gene L. Dodaro became the eighth Comptroller General of the United States
and head of the U.S. Government Accountability Office (GAO) on December 22, 2010, when he was confirmed by the United States
Senate. He was nominated by President Obama in September of 2010 from a list of candidates selected by a bipartisan, bicameral
congressional commission. He had been serving as Acting Comptroller General since March of 2008. Full Biography More on the CG
Selection Process Our Mission is to support the Congress in meeting its constitutional responsibilities and to help improve the
performance and ensure the accountability of the federal government for the benefit of the American people. We provide Congress
with timely information that is objective, fact-based, nonpartisan, nonideological, fair, and balanced. Our Core Values of
accountability, integrity, and reliability are reflected in all of the work we do. We operate under strict professional standards of
review and referencing; all facts and analyses in our work are thoroughly checked for accuracy. In addition, our
audit policies
are consistent with the Fundamental Auditing Principles (Level 3) of the International Standards
of Supreme Audit Institutions.
The GAO has been reduced to a congressional lapdog – it lacks the
political teeth to get reforms across
Washington Examiner 11 (“Congress wants to turn GAO watchdog into a lapdog”
Has somebody dumped gallons of hallucinogens into the drinking water on Capitol Hill? How
else can we explain why Congress is slashing the operational budget of its most effective weapon
against wasteful federal spending? That weapon, of course, is the Government Accountability Office, the
green-eyeshade agency that for decades has been the bane of every wasteful bureaucrat in Washington. Sen. Tom Coburn, R-Okla., is
also mystified, pointing out in a report he made public yesterday that: "Just this year, GAO
identified hundreds of
billions of dollars of duplicative and overlapping programs that, if addressed by Congress, could both save
money and improve services for taxpayers. For every $1 spent on GAO, the agency provides $90 in savings
recommendations. Yet, instead of adopting these good government reforms, the Senate
Appropriations Committee has responded by proposing dramatic budget cuts to the GAO
budget." Did you catch that ratio of potential savings identified by GAO to the cost of running GAO? If every government agency
could provide $90 in real economic value for every $1 in operational costs, this nation would have a $15 trillion surplus rather than a
the cuts are not being proposed just by the Democratcontrolled Senate Appropriations Committee, and they're not a one-time thing . As Coburn points out
in his report, the Republican-controlled House Appropriations Committee has proposed a 6.4
percent reduction, only a little less than the 7.6 percent sought by the Senate panel. And the effort to cut GAO has
been going on for two decades: GAO's work force has been reduced by 40 percent -- or more than 2,000 positions -$15 trillion debt. What's even more shocking is that
since 1992, and during the same period, the agency's budget has been reduced 13 percent (in inflation-adjusted dollars). So
Democrats and Republicans in Congress have been colluding for decades in this obvious effort
to reduce Washington's best watchdog to a congressional lapdog.
Terror Talks/ Death K
The expulsion of death forms the nucleus of modern politics. Unable
to come to terms with the symbolic reversibility of death, the system
reduces life to mere industrial prolongation, encoding the conditions
of possibility for all exclusion.
Robinson ‘12 (Andrew, Political Theorist, Activist Based in the UK and research
fellow affiliated to the Centre for the Study of Social and Global Justice (CSSGJ),
University of Nottingham, “Jean Baudrillard: The Rise of Capitalism & the
Exclusion of Death”, March 30,
Symbolic exchange – or rather, its suppression – plays a central role in the emergence of capitalism. Baudrillard sees a change
happening over time. Regimes
based on symbolic exchange (differences are exchangeable and related) are
replaced by regimes based on equivalence (everything is, or means, the same). Ceremony gives way to
spectacle, immanence to transcendence. Baudrillard’s view of capitalism is derived from Marx’s analysis of value.
Baudrillard accepts Marx’s view that capitalism is based on a general equivalent. Money is the
general equivalent because it can be exchanged for any commodity. In turn, it expresses the
value of abstract labour time. Abstract labour-time is itself an effect of the regimenting of processes of life, so that
different kinds of labour can be compared. Capitalism is derived from the autonomisation or separation of
economics from the rest of life. It turns economics into the ‘reality-principle’. It is a kind of sorcery,
connected in some way to the disavowed symbolic level. It subtly shifts the social world from an exchange of
death with the Other to an eternal return of the Same. Capitalism functions by reducing
everything to a regime based on value and the production of value. To be accepted by capital,
something must contribute value. This creates an immense regime of social exchange. However, this
social exchange has little in common with symbolic exchange. It ultimately depends on the mark of value itself being
unexchangeable. Capital
must be endlessly accumulated. States must not collapse. Capitalism thus
introduces the irreversible into social life, by means of accumulation. According to Baudrillard,
capitalism rests on an obsession with the abolition of death. Capitalism tries to abolish
death through accumulation. It tries to ward off ambivalence (associated with death) through value (associated with life).
But this is bound to fail. General equivalence – the basis of capitalism – is itself the ever-presence of
death. The more the system runs from death, the more it places everyone in solitude, facing
their own death. Life itself is fundamentally ambivalent. The attempt to abolish death through fixed value is itself deathly.
Accumulation also spreads to other fields. The idea of progress, and linear time, comes from the
accumulation of time, and of stockpiles of the past. The idea of truth comes from the
accumulation of scientific knowledge. Biology rests on the separation of living and non-living. According to
Baudrillard, such accumulations are now in crisis. For instance, the accumulation of the past is undermined,
because historical objects now have to be concealed to be preserved – otherwise they will be
destroyed by excessive consumption. Value is produced from the residue or remainder of an
incomplete symbolic exchange. The repressed, market value, and sign-value all come from this remainder. To destroy the
remainder would be to destroy value. Capitalist exchange is always based on negotiation, even when it is
violent. The symbolic order does not know this kind of equivalential exchange or calculation.
And capitalist extraction is always one-way. It amounts to a non-reversible aggression in which
one act (of dominating or killing) cannot be returned by the other. It is also this regime which produces scarcity –
Baudrillard here endorses Sahlins’ argument. Capitalism produces the Freudian “death drive”, which is actually an effect of the
capitalist culture of death. For
Baudrillard, the limit to both Marx and Freud is that they fail to theorise
the separation of the domains they study – the economy and the unconscious. It is the
separation which grounds their functioning, which therefore only occurs under the regime of the
code. Baudrillard also criticises theories of desire, including those of Deleuze, Foucault, Freud and Lacan. He believes desire
comes into existence based on repression. It is an effect of the denial of the symbolic. Liberated
energies always leave a new remainder; they do not escape the basis of the unconscious in the
remainder. Baudrillard argues that indigenous groups do not claim to live naturally or by their desires – they simply claim to
live in societies. This social life is an effect of the symbolic. Baudrillard therefore criticises the view that human
liberation can come about through the liberation of desire. He thinks that such a liberation will
keep certain elements of the repression of desire active. Baudrillard argues that the processes which operate
collectively in indigenous groups are repressed into the unconscious in metropolitan societies. This leads to the autonomy of the
psyche as a separate sphere. It is only after this repression has occurred that a politics of desire becomes conceivable. He professes
broad agreement with the Deleuzian project of unbinding energies from fixed categories and encouraging flows and intensities.
However, he is concerned that capitalism can recuperate such releases of energy, disconnecting them so they can eventually
reconnect to it. Unbinding
and drifting are not fatal to capitalism, because capitalism itself unbinds
things, and re-binds things which are unbound. What is fatal to it is, rather, reversibility.
Capitalism continues to be haunted by the forces it has repressed. Separation does not
destroy the remainder. Quite the opposite. The remainder continues to exist, and gains power from its
repression. This turns the double or shadow into something unquiet, vampiric, and threatening. It becomes an image of the
forgotten dead. Anything which reminds us of the repressed aspects excluded from the subject is experienced as uncanny and
threatening. It
becomes the ‘obscene’, which is present in excess over the ‘scene’ of what is
imagined. This is different from theories of lack, such as the Lacanian Real. Baudrillard’s remainder is an excess
rather than a lack. It is the carrier of the force of symbolic exchange. Modern culture dreams of
radical difference. The reason for this is that it exterminated radical difference by simulating it.
The energy of production, the unconscious, and signification all in fact come from the repressed remainder. Our culture is
dead from having broken the pact with monstrosity, with radical difference. The
West continues to perpetrate genocide on indigenous groups. But for Baudrillard, it did the
same thing to itself first – destroying its own indigenous logics of symbolic exchange. Indigenous
groups have also increasingly lost the symbolic dimension, as modern forms of life have been imported or imposed. This according
to Baudrillard produces chronic confusion and instability. Gift-exchange is radically subversive of the system.
This is not because it is rebellious. Baudrillard thinks the system can survive defections or exodus. It is because it counterposes a
different ‘principle of sociality’ to that of the dominant system. According
to Baudrillard, the mediations of
capitalism exist so that nobody has the opportunity to offer a symbolic challenge or an
irreversible gift. They exist to keep the symbolic at bay. The affective charge of death remains present among the oppressed,
but not with the ‘properly symbolic rhythm’ of immediate retaliation. The Church and State also exist based on the elimination of
symbolic exchange. Baudrillard is highly critical of Christianity for what he takes to be a cult of suffering, solitude and death. He sees
the Church as central to the destruction of earlier forms of community based on symbolic exchange. Baudrillard
seems to
think that earlier forms of the state and capitalism retained some degree of symbolic exchange,
but in an alienated, partially repressed form. For instance, the imaginary of the ‘social contract’ was based on the
idea of a sacrifice – this time of liberty for the common good. In psychoanalysis, symbolic exchange is displaced onto the
relationship to the master-signifier. I haven’t seen Baudrillard say it directly, but the impression he gives is that this is a distorted,
authoritarian imitation of the original symbolic exchange. Nonetheless, it retains some of its intensity and energy. Art, theatre and
language have worked to maintain a minimum of ceremonial power. It is the reason older orders did not suffer the particular
malaise of the present. It is easy to read certain passages in Baudrillard as if he is bemoaning the loss of these kinds of strong
significations. This is initially how I read Baudrillard’s work. But on closer inspection, this seems to be a misreading. Baudrillard
is nostalgic for repression only to the extent that the repressed continued to carry symbolic force
as a referential. He is nostalgic for the return of symbolic exchange, as an aspect of diffuse,
autonomous, dis-alienated social groups. Death Death plays a central role in Baudrillard’s theory,
and is closely related to symbolic exchange. According to Baudrillard, what we have lost above
all in the transition to alienated society is the ability to engage in exchanges with death.
Death should not be seen here in purely literal terms. Baudrillard specifies early on that he does not mean an event affecting a body,
but rather, a form which destroys the determinacy of the subject and of value – which returns things to a state of indeterminacy.
Baudrillard certainly discusses actual deaths, risk-taking, suicide and so on. But he also sees death figuratively, in relation to the
decomposition of existing relations, the “death” of the self-image or ego, the interchangeability of processes of life across different
categories. For instance, eroticism or sexuality is related to death, because it leads to fusion and communication between bodies.
Sexual reproduction carries shades of death because one generation replaces another. Baudrillard’s concept of death is thus quite
similar to Bakhtin’s concept of the grotesque. Death
refers to metamorphosis, reversibility, unexpected
mutations, social change, subjective transformation, as well as physical death. According to
Baudrillard, indigenous groups see death as social, not natural or biological. They see it as an
effect of an adversarial will, which they must absorb. And they mark it with feasting and rituals. This is a way of
preventing death from becoming an event which does not signify. Such a non-signifying event is absolute disorder from the
standpoint of symbolic exchange. For
Baudrillard, the west’s idea of a biological, material death is
actually an idealist illusion, ignoring the sociality of death. Poststructuralists generally maintain that the
problems of the present are rooted in the splitting of life into binary oppositions. For Baudrillard, the division
between life and death is the original, founding opposition on which the others are
founded. After this first split, a whole series of others have been created, confining particular
groups – the “mad”, prisoners, children, the old, sexual minorities, women and so on – to
particular segregated situations. The definition of the ‘normal human’ has been narrowed over time. Today, nearly
everyone belongs to one or another marked or deviant category. The original exclusion was
of the dead – it is defined as abnormal to be dead. “You livies hate us deadies”. This first split and
exclusion forms the basis, or archetype, for all the other splits and exclusions – along lines of
gender, disability, species, class, and so on. This discrimination against the dead brings into being the modern
experience of death. Baudrillard suggests that death as we know it does not exist outside of this separation between living and dead.
The modern view of death is constructed on the model of the machine and the function. A
machine either functions or it does not. The human body is treated as a machine which similarly, either functions or
does not. For Baudrillard, this misunderstands the nature of life and death. The modern view of death is also
necessitated by the rise of subjectivity. The subject needs a beginning and an end, so as
to be reducible to the story it tells. This requires an idea of death as an end. It is counterposed to the immortality
of social institutions. In relation to individuals, ideas of religious immortality is simply an ideological cover for the real exclusion of
the dead. But institutions try to remain truly immortal. Modern
systems, especially bureaucracies, no longer
know how to die – or how to do anything but keep reproducing themselves. The internalisation
of the idea of the subject or the soul alienates us from our bodies, voices and so on. It creates a split,
as Stirner would say, between the category of ‘man’ and the ‘un-man’, the real self irreducible to such categories. It also
individualises people, by destroying their actual connections to others. The symbolic haunts
the code as the threat of its own death. The society of the code works constantly to ward off the
danger of irruptions of the symbolic. The mortal body is actually an effect of the split introduced by the foreclosure of
death. The split never actually stops exchanges across the categories. In the case of death, we still ‘exchange’
with the dead through our own deaths and our anxiety about death. We no longer have
living, mortal relationships with objects either. They are reduced to the instrumental. It is as if we
have a transparent veil between us. Symbolic exchange is based on a game, with game-like rules. When this disappears, laws and the
state are invented to take their place. It is the process of excluding, marking, or barring which allows concentrated or transcendental
power to come into existence. Through
splits, people turn the other into their ‘imaginary’. For instance,
westerners invest the “Third World” with racist fantasies and revolutionary aspirations; the
“Third World” invests the west with aspirational fantasies of development. In separation, the
other exists only as an imaginary object. Yet the resultant purity is illusory. For Baudrillard, any
such marking or barring of the other brings the other to the core of society. “We all” become
dead, or mad, or prisoners, and so on, through their exclusion. The goal of ‘survival’ is fundamental to the
birth of power. Social control emerges when the union of the living and the dead is shattered, and
the dead become prohibited. The social repression of death grounds the repressive socialisation of life. People are
compelled to survive so as to become useful. For Baudrillard, capitalism’s original relationship to death has
historically been concealed by the system of production, and its ends. It only becomes fully visible now this system is collapsing, and
production is reduced to operation. In
modern societies, death is made invisible, denied, and placed
outside society. For example, elderly people are excluded from society. People no longer expect their own death.
As a result, it becomes unintelligible. It keeps returning as ‘nature which will not abide by
objective laws’. It can no longer be absorbed through ritual. Western society is arranged so death is never done by someone
else, but always attributable to ‘nature’. This creates a bureaucratic, judicial regime of death, of which the concentration camp is the
ultimate symbol. The
system now commands that we must not die – at least not in any old way. We
may only die if law and medicine allow it. Hence for instance the spread of health and safety regulations. On the
other hand, murder and violence are legalised, provided they can be re-converted into economic value. Baudrillard sees this as a
regressive redistribution of death. It is wrested from the circuit of social exchanges and vested in centralised agencies. For
Baudrillard, there is not a social improvement here. People are effectively being killed, or left to die, by a process which never treats
them as having value. On
the other hand, even when capitalism becomes permissive, inclusive and
tolerant, it still creates an underlying anxiety about being reduced to the status of an object or a
marionette. This appears as a constant fear of being manipulated. The slave remains within the master’s
dialectic for as long as ‘his’ life or death serves the reproduction of domination.
Suruveillance = non public information
Metadata is surveillance – expert consensus.
Schneir 14 (Bruce, Chief Technology Officer of Resilient Systems, a fellow at Harvard's
Berkman Center, and a board member of EFF., “Metadata = Surveillance”, 3/13/14,, accessed
Ever since reporters began publishing stories about NSA activities, based on documents
provided by Edward Snowden, we've been repeatedly assured by government officials that it's
"only metadata." This might fool the average person, but it shouldn't fool those of us in the
security field. Metadata equals surveillance data, and collecting metadata on people means
putting them under surveillance.
An easy thought experiment demonstrates this. Imagine that you hired a private detective to
eavesdrop on a subject. That detective would plant a bug in that subject's home, office, and car.
He would eavesdrop on his computer. He would listen in on that subject's conversations, both
face to face and remotely, and you would get a report on what was said in those conversations.
(This is what President Obama repeatedly reassures us isn't happening with our phone calls. But
am I the only one who finds it suspicious that he always uses very specific words? "The NSA is
not listening in on your phone calls." This leaves open the possibility that the NSA is recording,
transcribing, and analyzing your phone calls -- and very occasionally reading them. This is far
more likely to be true, and something a pedantically minded president could claim he wasn't
lying about.)
Now imagine that you asked that same private detective to put a subject under constant
surveillance. You would get a different report, one that included things like where he went, what
he did, who he spoke to -- and for how long -- who he wrote to, what he read, and what he
purchased. This is all metadata, data we know the NSA is collecting. So when the president says
that it's only metadata, what you should really hear is that we're all under constant and
ubiquitous surveillance.
No Brightline between metadata and content.
Kayyali 14 (Nadia, a member of EFF’s activism team, “In Klayman v. Obama, EFF Explains
Why Metadata Matters and the Third-Party Doctrine Doesn't”, 11/3/14,, accessed 7/28/15)//RZ
The argument that the bulk collection of private information from millions of Americans is no
big deal because it’s “just metadata” is a tired one. It’s been disproven by research—and it
doesn't stand up to common sense. First, there’s no bright line. What is deemed “metadata” is
often murky (such as subject lines and URLs) and context dependent—and not clearly
distinguishable from content, which everyone agrees is protected by the Fourth Amendment.
Third Party Doctrine shouldn’t apply to surveillance debate – it is
outdated in the legal age
Talai, 14 - Andrew B., J.D., University of California, Berkeley, School of Law (“Drones and Jones: The
Fourth Amendment and Police Discretion in the Digital Age,” June 2014, California Law Review, 102
Calif. L. Rev. 729, Lexis,//BR/)
Justice Sotomayor's concurrence, on the other hand, began
by embracing the trespass approach as a
"longstanding protection ... inherent in items of property that people possess or control." n209 But like Justice Alito, she was
troubled by "electronic or other novel modes of surveillance that do not depend upon physical
invasion." n210 Justice Sotomayor's approach went a step further than Alito's, considering several factors discussed in Part I: (1) the wealth
of detail collected over intimate matters, n211 (2) exceedingly resource-efficient collection of data by law enforcement, n212 (3) the specter of
governmental [*760] abuse, n213 and (4) the chilling effects on citizens' autonomy by pervasive surveillance. n214 While Justice
Sotomayor's concurrence also treated the mosaic theory as a special application of the Katz test - assessing society's expectations
in the digital age - it was different in two respects. First, Justice Sotomayor embraced a democratic rationale (that is,
abuse of discretion and chilling effects) for the Fourth Amendment. n215 Second, she recognized
that democratic concerns arise "in cases involving even short-term monitoring." n216
Ultimately, her solution was to grapple with the public thoroughfare doctrine and third-party
doctrines, n217 finding that in their present state, these are "ill suited to the digital age." n218 While
the exact contours of the mosaic theory are far from clear, the Jones plurality "suggests that a majority of the Court is ready to embrace some
form of the D.C. Circuit's mosaic theory." n219
States CP
States – not the federal government – are the crucial agents of
national security policy
Howard ‘4
[Peter. Prof Intl Service at American. “The Growing Role of States in US Foreign Policy: The
Case of the State Partnership Program” International Studies Perspectives, Vol 5 N2, 2004.
Analyses of foreign policy that rely solely on a decision-making perspective miss the important role that
states are playing in U.S. foreign and national security policy. While most of the primary decisions
are still made by the president, his administration, and Congress, states are gaining an everincreasing role in implementing those decisions. The SPP is but one example. Guard units are also taking
a greater role in peacekeeping activities in the Balkans, and may do so in a postwar Iraq. The
intense focus on homeland security is yet another policy area where states will implement most
policy decisions. The guard has already been active in domestic security operations, flying
combat air patrols and providing airport security, and several studies and senators have
advocated an even larger role for the guard in homeland security (Miller, 2002). Emergency
response and law enforcement are still state and local responsibilities, and these areas are the
new front lines in homeland security and the war on terrorism. The states, which perform these
duties, have a vital say in how they will be done. As independent and entrepreneurial
implementers, the states are carving out a larger role in shaping the environment in which
federal decision makers act. Policy decisions are important, but many of those decisions lack meaning
unless they create content and action. In the long run, policy implementation—the practice of what states
and countries do with each other—produces the substance that give rules and identities their meaning. It
is this meaning that ultimately forms the environment to which future decision makers respond. It is here
that the federal government's monopoly in international affairs begins to erode and is here that
states are finding an ever-growing role in U.S. foreign policy.
( ) States are international agents – their actions send a sufficient
Robinson ‘7
[Nick. Yale Law School, J.D. 2006. Currently Fox Fellow at Jawaharlal Nehru University, “Citizens Not Subjects: U.S. Foreign
Relations Law and the Decentralization of Foreign Policy” The Akron Law Review, 2007. ln//GBS-JV]
And yet, state and local governments today have become deeply enmeshed in international
affairs as globalization has decentralized foreign relations. On the one hand, localities
have become more autonomous international actors than they ever were or could have
been before. In pursuing interests with international implications, they tread in a sphere
traditionally monopolized by the federal government . On the other hand, the
internationalization of many formerly domestic issues means that an increasing number
of traditional state and local government actions now have foreign policy
implications.The emergence of localities as actors in American foreign policy creates
new possibilities for creating more participatory and democratic international relations. It also
merely reflects a world where increased interconnectivity across borders and the global
regulation of markets and values has collapsed local and international concerns. This
article will argue that U.S. foreign relations law has failed to address this new reality. The
Supreme Court has largely clung either explicitly or implicitly to a jurisprudence that holds that
the country should speak [*649] with "one voice" in foreign relations. Such a position is not
only naive, but it also weakens American democracy. With globalization's commingling of
the local and the international, a strong judicial bias towards federalizing issues with a
bearing on foreign relations will lead to a hollowing out of the decision-making power of
localities. States and municipalities will risk becoming largely units of administrative
( ) Uniform action generates the signal
Chi ‘90
[Keon. Dir of the Council of State Governments, Prof PoliSci @ Georgetown. “Resurgence of Multistate Regionalism” July 90.]
States gain several advantages when taking a regional approach as compared to working
alone. First, a regional approach allows state officials to pool their expertise and
experience. Second, a regional approach raises policy issues more effectively and, as a
result, has a greater impact. Third, such an approach helps states better deal with crisis
situations by sharing resources and facilities. Fourth, a regional approach can exert
more influence and enhance state visibility in Washington and overseas. And, fifth, it is
cost effective.
( ) State governments are representative of the USFG
Robinson ‘7
[Nick. Yale Law School, J.D. 2006. Currently Fox Fellow at Jawaharlal Nehru University, “Citizens Not Subjects: U.S. Foreign
Relations Law and the Decentralization of Foreign Policy” The Akron Law Review, 2007. ln//GBS-JV]
State and local governments are arguably seen as representing the U.S. government abroad
in a more official capacity than U.S. non-state actors. The governments of these localities
are democratically elected and so it is more likely that they will be seen as acting on behalf
of the American people. Additionally, the federal government generally has a greater ability
to control the actions of these localities than non-state actors. Therefore, there is a
greater chance that nonintervention by the federal government to stop offensive activity
will be seen as federal endorsement of such activity.Such logic though should caution
against court intervention in these cases rather than encourage it. If localities' actions damage
U.S. foreign policy interests, the federal government can easily preempt the state or local
policies in question. Further, with the world's increased interconnectedness, it is more
likely that if a foreign government takes offense to a locality's policy it can discriminate
between the policy of the locality and the policy of the federal government. n155
( ) States are perceived as agents of the government – solve relations
Blasé ‘3
[Julie. PhD Student in Govt @ Texas. “Has Globalization Changed US Federalism? The Increasing Role of US States
in Foreign Affairs: Texas-Mexico Relations” Texas Dissertations, 2003. //GBS-JV]
Although what the states and cities are doing may not rise to the level of federal law,
many of these policy initiatives are in harmony with domestic policy goals. Collectively, it
can be argued, they serve to shape the foreign relations of the nation as a whole. Ivo
Duchacek sees no difference in relations conducted by federal actors and by subnational
actors. “If by diplomatic negotiation we mean processes by which governments relate
their conflicting interest to the common ones, there is, conceptually, no real difference
between the goals of paradiplomacy and traditional diplomacy: the aim is to negotiate
and implement an agreement based on conditional mutuality.”45 Brian Hocking objects to
treating the foreign relations of subnational governments as if they were something distinct
from the federal level. Hocking studies what happens in federal systems when foreign policy
issues become local concerns. He sets his approach apart from the complex interdependence
crowd, such as Duchacek, saying that ideas such as “paradiplomacy” places subnational
activities outside of traditional diplomatic patterns. Hocking sees non-central governments
as integrated into a dense web of diplomatic interactions, in which they serve more as
“allies and agents” in pursuit of national objectives rather than as flies in the ointment.
“The nature of contemporary public policy with its dual domestic- international
features, creates a mutual dependency between the levels of government and an interest
in devising cooperative mechanisms and strategies to promote the interests of each
level.”46 Rather than separating the activities of non-central governments from those of
central governments, Hocking’s goal is to “locate” subnational governments in the
traditional diplomatic and foreign policy processes initiated and carried through by the
federal government.
PC key
Obama pc key – prevents override
Jackson 7/29/15 – USA Today reporter (David, Obama works overtime to sell
Iran deal, USA Today,
hard for congressional opponents to derail the Iran nuclear agreement, but President Obama
mounting an aggressive campaign for it anyway. From the golf course to White House receptions to
private briefings behind closed doors, Obama and other backers of the deal are busy making the case that it will deny
Iran the ability to make nuclear weapons and remove the prospect of military confrontation with Tehran. In
making its case, the Obama administration is facing a Republican-run Congress where leaders say the inspections system outlined in
WASHINGTON — It's going to be
and aides are
the agreement is leaky, and will give Iran room to cheat. While congressional Republicans have the numbers to force through a "resolution of disapproval" of the agreement,
Obama would veto it — forcing opponents to round up a two-thirds vote to actually defeat the deal. "I'm confident that
we can prevail ," Treasury Secretary Jack Lew told reporters Wednesday. "But I think the burden is also on us to make the case."
Obama himself is taking an active role , from phone calls to personal appeals. Earlier this month, he played a
round of golf with a unique set of partners, three House Democrats who will be voting on the Iran agreement. Late Wednesday, Obama
hosted a "working reception" in the White House for House Democrats to "discuss his legislative priorities, including the Iran
agreement," according to his schedule. Obama disputes the idea that all this amounts to "lobbying." The
president said this week that he and high-profile aides such as Lew, Secretary of State John Kerry and Energy Secretary Ernest Moniz are simply
presenting the facts of an agreement that they say would shut down potential pathways to Iranian nuclear weapons. "It accomplishes our goal,
which is making sure Iran does not have a nuclear weapon," Obama told reporters during his recent trip to Africa. "In fact, it accomplishes that goal better than any alternative
that has been suggested." Under the agreement, the United States and allies will reduce economic sanctions on Iran as it gives up the means to make nuclear weapons. Critics say
sanctions elimination will provide Iran millions with which to finance terrorism targeting Israel. Sen. John McCain, R-Ariz., chairman of the Senate Armed Services Committee,
said during a hearing Wednesday that "the Iran agreement not only paves Iran's path to a nuclear capability ... it will further Iran's emergence as a dominant military power in
administration's selling efforts also target
Popular opinion . According to a CNN/ORC poll this week, 52% of respondents said Congress should reject the Iran deal, while 44% said
lawmakers should approve it. Most congressional Republicans have indicated opposition to the agreement. Some Democrats have
expressed skepticism, and they are the focus of the Obama administration's sales efforts. Republican majorities —
currently 246-188 in House and 54 of 100 senators — can push through a resolution of disapproval. An Obama veto would require the critics to
muster a two-thirds override vote — an impossible task if Democrats stick together, the primary goal of
agreement supporters.
the Middle East." A 60-day time limit for congressional review of the deal expires in late September. The
another audience:

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