Executive Restraint CP
Executive Restraint CP.......................................................................................................................... 1
1NC Executive Restraint CP .................................................................................................................. 3
Generic Solvency ...................................................................................................................................... 5
Solves Detention .................................................................................................................................. 6
AT Cant Declare War Over ................................................................................................................... 8
AT No Funds ......................................................................................................................................... 9
AT Obama Ignores the CP................................................................................................................... 10
XOs Solve - Military Policy .................................................................................................................. 11
2NC Blocks .............................................................................................................................................. 12
2NC CP Avoids Politics – Restraint Version ........................................................................................ 13
2NC CP Avoids Politics – XO Version .................................................................................................. 15
AT Perm Do Both ................................................................................................................................ 17
AT Perm Do CP ................................................................................................................................... 18
Agent CP’s Good – XOs Version.......................................................................................................... 19
Agent CP’s Good – Restraint Version ................................................................................................. 21
AT Future Prez Rollback ..................................................................................................................... 22
AT Congress Rollback ......................................................................................................................... 23
AT Court Rollback ............................................................................................................................... 24
AT No Funding .................................................................................................................................... 25
AT Tyranny Turn ................................................................................................................................. 26
Flexibility ................................................................................................................................................. 27
2NC Link Wall ..................................................................................................................................... 28
2NC CP Avoids Flex DA ....................................................................................................................... 32
Impact – Terrorism ............................................................................................................................. 33
2NC Yes Solves Terror ........................................................................................................................ 35
Impact – WMD ................................................................................................................................... 37
AT Flexibility Bad – Unchecked Power ............................................................................................... 38
Aff ................................................................................................................................................................ 39
Agent CP Bad ...................................................................................................................................... 40
No Solvency/A2 Flex NB ..................................................................................................................... 41
Rollback – Future Presidents .............................................................................................................. 42
Rollback – Congress and Courts ......................................................................................................... 43
No Funding ......................................................................................................................................... 44
AT Politics NB ..................................................................................................................................... 45
AT Flexibility NB.................................................................................................................................. 47
AT Prez Powers NB ............................................................................................................................. 49
AT Hegemony Impact ......................................................................................................................... 50
AT Terrorism Impact........................................................................................................................... 51
Perm ................................................................................................................................................... 52
2ac- Solvency Deficit/Offense ............................................................................................................ 53
XO=>Tyranny ...................................................................................................................................... 55
XO=>Unchecked Prez Power .............................................................................................................. 56
Congress K2 Check Prez Power .......................................................................................................... 57
Congress K2 SOP................................................................................................................................. 58
A2- 1 Instance Not Key ....................................................................................................................... 59
Unix- Prez Power Expanding Now ...................................................................................................... 60
1NC Executive Restraint CP
Text: The Executive branch of the United States should require that terrorism suspects
are tried in federal court within 18 months of detention or release the suspects.
CP solves the aff
Posner 13
(Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and
Climate Change Justice, “President Obama Can Shut Guantanamo Whenever He Wants” May 2, 2013,
http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wan
ts_to.html, KB)
The NDAA does not, however, ban the president from releasing detainees. Section 1028 authorizes him to release
them to foreign countries that will accept them—the problem is that most countries won’t, and others, like Yemen, where about 90 of the 166
detainees are from, can’t guarantee that they will maintain control over detainees, as required by the law.¶ There is another section of the
NDAA, however, which has been overlooked.
In section 1021(a), Congress “affirms” the authority of the U.S. armed
forces under the AUMF to detain members of al-Qaida and affiliated groups “pending disposition under the
law of war.” Section 1021(c)(1) further provides that “disposition under the law of war” includes “Detention
under the law of war without trial until the end of the hostilities authorized by” the AUMF. Thus, when
hostilities end, the detainees may be released.¶ The president has the power to end the hostilities
with al-Qaida—simply by declaring their end. This is not a controversial sort of power. Numerous
presidents have ended hostilities without any legislative action from Congress—this happened with the
Vietnam War, the Korean War, World War II, and World War I. The Supreme Court has confirmed that the president
has this authority.
Aff kills flexibility
Vermeule 6
Adrian Vermeule, Professor of Law, Harvard Law School, 2006,¶ “THE EMERGENCY CONSTITUTION IN THE POST-SEPTEMBER 11 WORLD ORDER:
SELF-DEFEATING¶ PROPOSALS: ACKERMAN ON EMERGENCY POWERS,” Fordham Law Review, Nov., pp. LN.
The reason for the failure of statutory frameworks is plain. When an emergency or war or
crisis arises, the executive needs flexibility; because statutory limitations determined in¶ advance
can only reduce flexibility , and do so in a way that does not anticipate the particular¶ requirements of
a new emergency, no one has any ex post interest in insisting that these limitations be respected.¶ Ackerman acknowledges the grim
historical record but provides no valid reason for thinking that his framework statute - which is far¶ more ambitious than the other ones - might
fare differently.
That causes extinction
Yoo 12
(John Yoo, American attorney, law professor, and author. He served as a political appointee, the Deputy Assistant US Attorney General in the
Office of Legal Counsel, Department of Justice (OLC), during the George W. Bush administration. “War Powers Belong to the President”¶ Posted
Feb 1, 2012,¶ http://www.abajournal.com/magazine/article/war_powers_belong_to_the_president, KB)
A radical change in the system for making war might appease critics of presidential power. But it could
also seriously threaten American national security. In order to forestall another 9/11 attack, or to take
advantage of a window of opportunity to strike terrorists or rogue nations, the executive branch
needs flexibility . It is not hard to think of situations where congressional consent cannot be obtained in time to
act. Time for congressional deliberation, which leads only to passivity and isolation and not smarter decisions, will come at the price of speed
and secrecy.¶ The Constitution creates a presidency that can respond forcefully to prevent serious threats to our national security. Presidents
can take the initiative and Congress can use its funding power to check them. Instead of demanding a legalistic process to begin war, the
framers left war to politics. As
we confront the new challenges of terrorism, rogue nations and WMD
proliferation , now is not the time to introduce sweeping, untested changes in the way we make war.
Executive action avoids politics
Sovacool 9
Dr. Benjamin K. Sovacool 2009 is a Research Fellow in the Energy Governance Program at the Centre on Asia and Globalization., Kelly E.
Sovacool is a Senior Research Associate at the Lee Kuan Yew School of Public Policy at the National University of SingaporeArticle: Preventing
National Electricity-Water Crisis Areas in the United States, Columbia Journal of Environmental Law 2009 34 Colum. J. Envtl. L. 333,
The President does not have to expend scarce political capital
trying to persuade Congress to adopt his or her proposal. Executive Orders thus save ¶ ¶ presidential
attention for other topics. E x ecutive O rder s bypass congressional debate and opposition, along
¶ Executive Orders also save time in a
second sense.
with all of the horsetrading and compromise such legislative activity entails.¶ ¶ 292¶ ¶ Speediness of
implementation can be especially important when challenges require rapid and decisive action. After
the September ¶ ¶ 11, 2001 attacks on the Pentagon and World Trade Center, for ¶ ¶ instance, the Bush Administration
almost immediately passed ¶ ¶ Executive Orders forcing airlines to reinforce cockpit doors and ¶ ¶
freezing the U.S. based assets of individuals and organizations ¶ ¶ involved with terrorist groups.¶ ¶ 293¶ ¶
These actions took Congress ¶ ¶ nearly four months to debate and subsequently endorse with ¶ ¶ legislation.
Executive Orders therefore enable presidents to ¶ ¶ rapidly change law without having to wait for congressional action ¶ ¶ or agency regulatory
rulemaking.
Generic Solvency
Solves Detention
Only the CP solves – Guantanamo proves - the problem is not congressional
opposition, it’s the administration fearing the danger of transferring the detainees
which means presidential action alone is sufficient to solve
Joscelyn 13
(Thomas Joscelyn, senior fellow at the Foundation for Defense of Democracies, “Obama, Not Congress, Is the Reason Guantánamo Is Still Open”
May 3, 2013, http://www.thedailybeast.com/articles/2013/05/03/obama-not-congress-is-the-reason-guantanamo-is-still-open.html, KB)
During a news conference earlier this week, President Obama was asked about the mass hunger strike at the Guantánamo Bay detention
facility. The president said it does not surprise him “that we’ve got problems in Guantánamo,” and it’s why he still believes “that we’ve got to
close” it down. Obama ordered Guantánamo shuttered as one of his first acts in office, but more than four years later it is open. The president
blamed Congress for the failure to deliver on his pledge. “I’m going to go back at this” and “reengage with Congress,” Obama vowed.¶
Congressional restrictions have made it more difficult to transfer or relocate Guantánamo detainees.
But congressional opposition is not the only reason Guantánamo’s cells are occupied. Closing Guantánamo
has always been a tricky proposition—one that is far more difficult than the president’s rhetoric implies.¶ Consider the findings of Obama’s
own Guantánamo Review Task Force, which reviewed the files on the 240 detainees held as of January 2009. The task force’s final
report, issued in January 2010, outlined the various national security challenges closing Guantánamo entails. Indeed, the report goes a long way
toward explaining why 166 detainees remain in their cells to this day.¶ The task force split
the detainee population into three
general categories: those who will stay in indefinite detention, those who should be prosecuted, and
detainees who have been approved for transfer.¶ Forty-eight detainees were placed in the first category, as they were
“determined to be too dangerous to transfer but not feasible for prosecution.” They will stay in indefinite detention at Guantánamo or some
other location for the foreseeable future.¶ Oddly, the president’s discussion of Guantánamo this week was at odds with his own task force’s
recommendations. The president ticked off the reasons why he believes indefinite detention is unnecessary. “Why are we doing this?” Obama
asked rhetorically. “I mean, we’ve got a whole bunch of individuals who have been tried who are currently in maximum-security prisons around
the country. Nothing’s happened to them. Justice has been served.”¶ But the
Obama administration has determined that
dozens of men must remain in detention without prosecution. Moving them to a maximum-security prison without
trial simply substitutes Gitmo North for Gitmo South.¶ The task force referred a second category of detainees, 36 in all,
“for prosecution either in federal court or a military commission.” These proceedings have progressed far too slowly,
and few trials have been brought to a close. Still, the task force slated these detainees for prosecution, not
freedom.¶ The precise counts have changed since the task force issued its final report in 2010, but about half of today’s detainee population
falls into these first two categories. According to a recent article published by Reuters, 80 of the 166 detainees are held in
indefinite detention, awaiting prosecution, or have already been either charged or convicted by a
military commission.¶ The final 86 detainees have been “approved for transfer,” but their status is widely
misunderstood. The press frequently reports that these detainees have been “cleared for release.” The implication is that these detainees have
been deemed innocent and can be safely released without any cause for concern. If that were true, of course it would be outrageous for the
U.S. government to continue holding them.¶ It is not true, however. Obama’s task force made it clear that other than 17 Chinese Uighur
detainees, most of whom have since been released from Guantánamo, “no detainees were approved for ‘release’ during the course” of its
review. Instead, the task force “approved for transfer” 126 detainees “subject to security measures.” Dozens of the detainees “approved for
transfer” have since left Cuba, but 86 of them remain in detention.¶ The task force did not “clear” these men of any wrongdoing, nor does the
Obama administration think transferring them out of Guantánamo is a risk-free endeavor.¶ “There were considerable variations among the
detainees approved for transfer,” the task force wrote in its final report. “For a small handful of these detainees, there was scant evidence of
any involvement with terrorist groups or hostilities against Coalition forces in Afghanistan.” However, “for most of the detainees approved for
transfer, there were varying degrees of evidence indicating that they were low-level foreign fighters affiliated with al-Qaida or other groups
operating in Afghanistan.”¶ The task force stressed “that a
decision to approve a detainee for transfer does not reflect
a decision that the detainee poses no threat or no risk of recidivism.” On the contrary, the task force concluded that
“any threat posed by the detainee can be sufficiently mitigated through feasible and appropriate
security measures in the receiving country.”¶ And there’s the rub. Mitigating the threat posed by transferred
detainees is an inherently difficult proposition. The Obama administration worked hard to transfer detainees, to both their
home countries and allied nations. But 56 of the remaining 86 detainees who have been “approved for transfer” are from Yemen. The task
force approved 30 of the 56 Yemeni detainees for “conditional” detention. They can only be transferred home if security conditions improve
and other measures are met. That isn’t happening anytime soon.¶ Obama himself issued a moratorium on transfers to Yemen on Jan. 5, 2010.
The move was in response to al Qaeda in the Arabian Peninsula’s attempted attack on a Detroit-bound airliner on Christmas Day 2009. The
White House said this week that the moratorium “remains in place,” despite the president’s pledge “to go back at this.”¶ Look at the numbers
again. Obama’s task force slated 80 of the current detainees for indefinite detention or prosecution. An additional 56 Yemeni detainees have
been approved for transfer but are in custody because of al Qaeda’s rise in their home country and the president’s subsequent moratorium on
transfers.¶ The bottom line is that most
that is where
the
Obama
of the Guantánamo detainees—136 out of 166—are in U.S. custody because
administration
thinks they belong.
The power of indefinite detention lies with the Executive
Zheng 12
(Henry Zheng, “NDAA Terrorism Law: Obama and His Unchecked Power Grab” 2012, http://www.policymic.com/articles/14856/ndaa-terrorismlaw-obama-and-his-unchecked-power-grab, KB)
Holder's response to the criticism is, "There is, quite simply, no inherent contradiction between using military commissions in appropriate cases
while still prosecuting other terrorists in civilian courts. Without question, there are differences between these systems that must be – and will
continue to be – weighed carefully. Such decisions about
how to prosecute suspected terrorists are core Executive
Branch functions." ¶ Essentially, Holder is saying that the power to determine suspects who will be tried in a
normal civilian court or a military tribunal still lies with the president and those under his authority,
not Congress or the Supreme Court.
Past attempts prove
Reilly 13
(Ryan J. Reilly, reporter who covers the Justice Department and the Supreme Court for The Huffington Post, “Obama's Guantanamo Is Never
Going To Close, So Everyone Might As Well Get ComfortableӦ 02/16/2013, http://www.huffingtonpost.com/2013/02/16/obamaguantanamo_n_2618503.html, KB)
Obama shut down the military tribunals as soon as he took office and began exploring ways to transfer the
suspected terrorists to American soil -- possibly to a prison in Illinois -- and try them in federal courts. Throughout
the long, hot summer of 2009, however, as the Tea Party movement blossomed, Republicans charged that closing Guantanamo would put
Americans in danger, potentially even leading to terrorist prison breaks. Senate Democrats, lead by Majority Leader Harry Reid (D-Nev.), also
opposed transfering the detainees and cut off $80 million Obama had requested to do so, claiming the administration had done too little to
outline its plans.
AT Cant Declare War Over
Obama can declare the war with al-Qaida over – Korea and Vietnam prove
Posner 13
(Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and
Climate Change Justice, “President Obama Can Shut Guantanamo Whenever He Wants” May 2, 2013,
http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wan
ts_to.html, KB)
Nor is there any reason why President Obama couldn’t declare the war with al-Qaida at an end. The
group’s original core is essentially gone. A Department of Defense official recently hinted that the end of the
conflict with al-Qaida is approaching , while the troop drawdown in Afghanistan will be completed next year. Associates
and fellow travelers continue to exist, but the president is free to end hostilities even so; this, too, has
happened many times before, like in Korea and Vietnam.
AT No Funds
The executive will receive funding – the courts will defer to Obama
Posner 13
(Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and
Climate Change Justice, “President Obama Can Shut Guantanamo Whenever He Wants” May 2, 2013,
http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wan
ts_to.html, KB)
It’s true that section
1027, the provision of the NDAA that flatly prohibits the use of funds to transfer Guantanamo
detainees to U.S. soil, appears to make it impossible to transfer them to prisons inside the U.S. But if that’s the case, and
detainees can’t be transferred to foreign countries under section 1028 either, then section 1027 essentially
orders the president to detain non-combatants indefinitely, and such an order is of dubious
constitutionality at best. When the Supreme Court approved indefinite detention of members of alQaida and the Taliban in Hamdi v. Rumsfeld in 2004, the premise was the president’s military authority under
the AUMF and the “active combat operations against Taliban fighters” in Afghanistan. When active
combat operations cease, this pillar of the Supreme Court’s opinion falls. And while courts have been
reluctant to grant rights to detainees that constrain the president’s power, they are likely to take the
opposite view if he advances those rights while declaring that hostilities have ended. ¶ The better
interpretation of section 1027, one that avoids constitutional difficulties, bans transfers from Guantanamo to the
U.S. only as long as hostilities continue. Courts have recognized repeatedly that the president can act on
reasonable interpretations of statutes when they are ambiguous or contain internal contradictions; that
statutes should be read to avoid constitutional problems like the one mentioned above; and that the president is entitled to
special deference when laws touch on his foreign affairs and military powers. Yet another rule discourages
interpretations of statutes that violate international law—which requires enemy combatants to be released at the end of hostilities unless they
are convicted of crimes. For all these reasons, if President Obama
were to declare an end of hostilities with al-Qaida
and release detainees, he would be on reasonable legal ground. And it’s not as though Obama has
been shy about asserting executive power when Congress blocks an objective he cares about. His military
intervention in Libya in defiance of the War Powers Act (and legal advice from some of his own lawyers) is one example.
AT Obama Ignores the CP
Obama would follow the CP – past statements prove
Jackson 11
(David Jackson, White House and political campaign reporter, “Obama objects to plans to bar domestic trials of terrorist suspects” Jan 07, 2011,
http://content.usatoday.com/communities/theoval/post/2011/01/obama-objects-to-plans-to-bar-domestic-trials-of-terrorist-suspects/1#.Uff6z42fhE8, KB)
President Obama signed the military funding bill today, but vowed
to roll back a rule that would bar the use of
federal money to try Khalid Sheikh Mohammed and other Guantanamo Bay terrorist suspects in U.S. civilian courts.¶
That section "represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to
prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests," Obama wrote in
a signing statement.¶ The
president also said he would seek repeal of a provision that would make it harder to
transfer Gitmo detainees to other countries -- thereby making it harder to close the controversial
prison facility.¶ The Obama administration's 2009 proposal to try Khalid Sheik Mohammed in federal court in New York City drew fierce
criticism from city officials, congressional Republicans, and some families of 9/11 victims who said he should be subject to a military trial at
Guantanamo Bay, Cuba.¶ The controversy inspired a provision in the defense authorization bill that prevents the use of federal funds to
transfer Gitmo detainees to the U.S. and put them on trial in U.S. courts.¶ "The
prosecution of terrorists in Federal court is a
powerful tool in our efforts to protect the Nation and must be among the options available to us," Obama wrote in his
signing statement. "Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the
potential to harm our national security."
XOs Solve - Military Policy
XOs can solve military actions
Cooper 2
Phillip J. Cooper, Gund Professor of Liberal Arts at the University of Vermont and was the first recipient of the Charles Levin Award given by the
American Society for Public Administration and the National Association of Schools of Public Affairs and Administration. By Order of the
President: The Use & Abuse of Executive Direct Action pg.33 University Press of Kansas, 2002
Among the standard executive orders issued by each administration is a variety of actions
concerning military personel including adjustments of rates of pay and allowances for the
uniform services and amendments to the manual for court marshall. Particularly during periods
of heightened national security activity, orders are regularly used to transfer responsibility, people
or resources from one part of the government to the military or the reverse. Many orders have been used to manage
public lands, but it is often not recognized that frequently the lands are part of military
reservations or sites. In fact, many of the orders issued by presidents in time of war or national
emergency are very focused actions of this sort. Even in peace time there are manifold
organizational issues to detail for statuettes but that require action beyond the Department of
Defense. President Clinton’s order of succession of officers to act as secretary of the army is a typical example. (pg. 33)
President can do anything with military
Powell 99
(Prof of Law, George Washington Law Review March, 1999 67 Geo. Wash. L. Rev. 527 ESSAY: The President's Authority over Foreign Affairs: An
Executive Branch Perspective NAME: H. Jefferson Powell *Professor, Duke Law School, l/n)
The President's power of operational control of the armed forces is autonomous, neither dependent
on congressional authorization nor subject to congressional regulation that interferes with the President's
discretion. 218 This principle is settled: the Supreme Court, for example, long ago stated that Congress has no
authority to "interfere[] with the command of the forces and the conduct of campaigns. That power and
duty belong to the President as commander-in-chief." 219 Attorney General Jackson's 1941 opinion was equally emphatic: "in virtue of his rank
as head of the forces, [the President] has certain powers and duties with which Congress cannot interfere. For instance, he may regulate the
movements of the army and... of the vessels of the navy, sending them wherever in his judgment it is expedient." 220 Many other judicial and
executive branch opinions are to the same effect. 221 The exclusive character of the President's operational control over the military rests on
the assumption, embedded in the Constitution as it has been interpreted, that military success can depend on a clear, unified chain of
command. "The
object of the [Commander in Chief Clause] is evidently to vest in the President the
supreme command over all the military forces, - such supreme and undivided command as would be
necessary to the prosecution of a successful war." 222 Congress therefore has no power to direct the President in the
planning or execution of lawful missions, and it may not lawfully interfere with the President's decisions about which military units to employ:
"This power or right of command extends as much to one portion of the Army as to any other, and includes the assignment of any portion
thereof to such duty as the Commander in Chief deems best." 223 The power
of operational control extends as well to
choices about individual service members. 224 The executive therefore has consistently resisted
congressional attempts to superintend or constrict the President's discretion.
2NC Blocks
2NC CP Avoids Politics – Restraint Version
Backlash against Obama on executive action won’t gain traction
Ramsey 12
(MICHAEL D. RAMSEY, is Professor of Law at the University of San Diego School of Law, “THE FEDERALIST SOCIETY NATIONAL LAWYERS
CONVENTION--2011: MEET THE NEW BOSS: CONTINUITY IN PRESIDENTIAL WAR POWERS?” Summer, 2012, Harvard Journal of Law & Public
Policy, LexisNexis, KB)
Thus there
has been an escalation in the use of unconstitutional executive war power under President
Obama, yet there has not been an outcry against him resembling the outcry against the Bush
Administration, which was routinely attacked for exceeding the limits of executive power. n29 Although some voices have
been raised against President Obama's claims of executive power, n30 they have been marginalized . They have not
[*871] been taken up by the mainstream in the manner of similar criticisms of President Bush. My speculation is that there is
an identification by legal and media elites with the establishment Democratic Party that makes it
difficult for these criticisms to gain traction in the way they did in the Bush Administration.¶ I think this makes it easier
for Democratic presidents than for Republican presidents to unconstitutionally extend executive
power. Thus Obama's policies, which are much more deserving of constitutional criticism, do not generate the popular
pushback
that we saw, perhaps unjustifiably, against President Bush. In any event, what is most striking about executive war power under
President Obama is not the commonly recognized continuity as compared to the prior administration, but rather the increased disregard of
constitutional limits.
Their evidence doesn’t assume foreign policy which is uniquely shielded from backlash
Moe and Howell 99
(Terry Moe, William Bennett Munro professor of political science at Stanford University, a senior fellow at Stanford University's Hoover
Institution, and a member of the Hoover Institution’s Koret Task Force on K-12, William Howell, the Sydney Stein Professor in American Politics
in the Harris School, a professor in the Department of Political Science and the College, and a co-director of the Program on Political
Institutions, “The Presidential Power of Unilateral Action” 1999, Oxford University Press,
http://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdf, KB)
Yet statutory constraint cannot be counted upon to work especially well as¶ a check on unilateral action by presidents. In the first place,
legislators may¶ actually prefer broad delegations of authority on many occasions, granting presidents
substantial discretion to act unilaterally. This can happen, for instance,¶ (1) when their policy goals are
similar to those of presidents, (2) when they are¶ heavily dependent on the expertise and experience of
the administration, (3)¶ when they want to avoid making conflictual decisions within the legislature,¶
and thus find it attractive to “shill the responsibility" to the executive, (4) when¶ Congress, as a collective institution, really doesn't
have specific preferences¶ and can only decide on the broad outlines of a policy, (5) when, in complex pol-¶ icy areas with changing
environments, it is impossible to design a decent policy¶ that promises to meet its objectives unless
substantial authority is delegated¶ to the executive, and (6) when certain policies require speed,
flexibility, and¶ secrecy if they are to be successful (Moe, 1990, 1998; Epstein and O'l-ialloran,¶ I999). Most of these
conditions , we should point out, are more likely to be met in foreign rather than domestic policy , so there is
good reason to expect broad¶ delegations to be more common in that realm.
CP preserves PC - avoids having to rally and compromise
Howell ’05
(William, Associate Prof @ Harvard, “Unilateral Powers: A Brief Overview”, September 2005, Presidential Quarterly, http://www.blackwellsynergy.com/doi/full/10.1111/j.1741-5705.2005.00258.x)
The actions that Bush and his modern predecessors have taken by fiat do not fit easily within a theoretical framework of executive power that
emphasizes weakness and dependence, and offers as recourse only persuasion. For at least two reasons, the ability to act unilaterally is
conceptually distinct from the array of powers presidents rely upon within a bargaining framework. First, when
presidents act
unilaterally, they move policy first and thereby place upon Congress and the courts the burden of
revising a new political landscape. If they choose not to retaliate, either by passing a law or ruling against the president, then the
president's order stands. Only by taking (or credibly threatening to take) positive action can either adjoining institution limit the president's
unilateral powers. Second, when the president acts unilaterally, he acts alone. Now of course, he relies upon numerous advisers to formulate
the policy, to devise ways of protecting it against congressional or judicial encroachment, and to oversee its implementation (more on this
below). But
in order to issue the actual policy, 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. Doing so, the modern president is in a unique position to lead, to break through the
stasis that pervades the federal government, and to impose his will in new areas of governance.
2NC CP Avoids Politics – XO Version
Backlash against Obama on executive actions won’t gain traction
Ramsey 12
(MICHAEL D. RAMSEY, is Professor of Law at the University of San Diego School of Law, “THE FEDERALIST SOCIETY NATIONAL LAWYERS
CONVENTION--2011: MEET THE NEW BOSS: CONTINUITY IN PRESIDENTIAL WAR POWERS?” Summer, 2012, Harvard Journal of Law & Public
Policy, LexisNexis, KB)
Thus there
has been an escalation in the use of unconstitutional executive war power under President
Obama, yet there has not been an outcry against him resembling the outcry against the Bush
Administration, which was routinely attacked for exceeding the limits of executive power. n29 Although some voices have
been raised against President Obama's claims of executive power, n30 they have been marginalized . They have not
[*871] been taken up by the mainstream in the manner of similar criticisms of President Bush. My speculation is that there is
an identification by legal and media elites with the establishment Democratic Party that makes it
difficult for these criticisms to gain traction in the way they did in the Bush Administration.¶ I think this makes it easier
for Democratic presidents than for Republican presidents to unconstitutionally extend executive
power. Thus Obama's policies, which are much more deserving of constitutional criticism, do not generate the popular
pushback
that we saw, perhaps unjustifiably, against President Bush. In any event, what is most striking about executive war power under
President Obama is not the commonly recognized continuity as compared to the prior administration, but rather the increased disregard of
constitutional limits.
Their evidence doesn’t assume foreign policy which is uniquely shielded from backlash
Moe and Howell 99
(Terry Moe, William Bennett Munro professor of political science at Stanford University, a senior fellow at Stanford University's Hoover
Institution, and a member of the Hoover Institution’s Koret Task Force on K-12, William Howell, the Sydney Stein Professor in American Politics
in the Harris School, a professor in the Department of Political Science and the College, and a co-director of the Program on Political
Institutions, “The Presidential Power of Unilateral Action” 1999, Oxford University Press,
http://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdf, KB)
Yet statutory constraint cannot be counted upon to work especially well as¶ a check on unilateral action by presidents. In the first place,
legislators may¶ actually prefer broad delegations of authority on many occasions, granting presidents
substantial discretion to act unilaterally. This can happen, for instance,¶ (1) when their policy goals are
similar to those of presidents, (2) when they are¶ heavily dependent on the expertise and experience of
the administration, (3)¶ when they want to avoid making conflictual decisions within the legislature,¶
and thus find it attractive to “shill the responsibility" to the executive, (4) when¶ Congress, as a collective institution, really doesn't
have specific preferences¶ and can only decide on the broad outlines of a policy, (5) when, in complex pol-¶ icy areas with changing
environments, it is impossible to design a decent policy¶ that promises to meet its objectives unless
substantial authority is delegated¶ to the executive, and (6) when certain policies require speed,
flexibility, and¶ secrecy if they are to be successful (Moe, 1990, 1998; Epstein and O'l-ialloran,¶ I999). Most of these
conditions , we should point out, are more likely to be met in foreign rather than domestic policy , so there is
good reason to expect broad¶ delegations to be more common in that realm.
Empirics are on our side
Warshaw ’06
(Shirley Anne, Prof of Pol. Science @ Gettysburg College, “Administrative Strategies of President George W. Bush” Extensions Journal, Spring
2006, http://www.ou.edu/special/albertctr/extensions/spring2006/Warshaw.pdf)
However, in recent administrations, particularly since
the Reagan administration, presidents have often bypassed
Congress using administrative actions. They have opted for a strategy through administrative actions
that is less time-consuming and clearly less demanding of their political capital. Using an array of both formal
and informal executive powers, presidents have effectively directed the executive departments to implement
policy without any requisite congressional authorization. In effect, presidents have been able to govern without
Congress. The arsenal of administrative actions available to presidents includes the power of appointment, perhaps the
most important of the arsenal, executive orders, executive agreements, proclamations, signing statements, and a host of
1
national security directives. More than any past president, George W. Bush has utilized administrative actions as his primary tool for
governance.
CP preserves PC - avoids having to rally and compromise
Howell ’05
(William, Associate Prof @ Harvard, “Unilateral Powers: A Brief Overview”, September 2005, Presidential Quarterly, http://www.blackwellsynergy.com/doi/full/10.1111/j.1741-5705.2005.00258.x)
The actions that Bush and his modern predecessors have taken by fiat do not fit easily within a theoretical framework of executive power that
emphasizes weakness and dependence, and offers as recourse only persuasion. For at least two reasons, the ability to act unilaterally is
conceptually distinct from the array of powers presidents rely upon within a bargaining framework. First, when
presidents act
unilaterally, they move policy first and thereby place upon Congress and the courts the burden of
revising a new political landscape. If they choose not to retaliate, either by passing a law or ruling against the president, then the
president's order stands. Only by taking (or credibly threatening to take) positive action can either adjoining institution limit the president's
unilateral powers. Second, when the president acts unilaterally, he acts alone. Now of course, he relies upon numerous advisers to formulate
the policy, to devise ways of protecting it against congressional or judicial encroachment, and to oversee its implementation (more on this
below). But
in order to issue the actual policy, 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. Doing so, the modern president is in a unique position to lead, to break through the
stasis that pervades the federal government, and to impose his will in new areas of governance.
AT Perm Do Both
Links to politics - has congressional action, requires the president to ensure he doesn’t
have his agenda upended, and cause congressional members to waste time debating
the plan.
Doesn’t solve prez powers - congressional silence is key
Bellia 2
[Patricia, Professor of Law @ Notre Dame, “Executive Power in Youngstown’s Shadows” Constitutional Commentary, , 19 Const. Commentary
87, Spring, Lexis]
To see the problems in giving dispositive weight to inferences from congressional action (or inaction), we need only examine the
similarities between courts' approach to executive power questions and courts' approach to federal-state preemption questions. If a state
law conflicts with a specific federal enactment, n287 or if Congress displaces the state law by occupying the field, n288 a court cannot give
the state law effect. Similarly, if executive action conflicts with a specific congressional policy (reflected in a statute or, as Youngstown
suggests, legislative history), or if Congress passes related measures not authorizing the presidential conduct, courts cannot give the
executive action effect. n289 When Congress is silent, however, the state law will stand; when Congress is silent, the executive action will
stand. This analysis makes much sense with respect to state governments with reserved powers, but it makes little sense with respect to an
Executive Branch lacking such powers. The
combination of congressional silence and judicial inaction has the
practical effect of creating power. Courts' reluctance to face questions about the scope of the President's constitutional
powers - express and implied - creates three other problems. First, the implied presidential power given effect by
virtue of congressional silence and judicial inaction can solidify into a broader claim. When the
Executive exercises an "initiating" or "concurrent" power, it will tie that power to a textual provision or
to a claim about the structure of the Constitution. Congress's silence as a practical matter tends to
validate the executive rationale, and the Executive Branch may then claim a power not only to
exercise the disputed authority in the face of congressional silence, but also to exercise the
disputed authority in the face of congressional opposition. In other words, a power that the Executive Branch claims
is "implied" in the Constitution may soon become an "implied" and "plenary" one. Questions about presidential power to terminate
treaties provide a [*151] ready example. The Executive's claim that the President has the power to terminate a treaty - the power in
controversy in Goldwater v. Carter, where Congress was silent - now takes a stronger form: that congressional efforts to curb the power
are themselves unconstitutional. n290
Simultaneous legislative and executive action creates a mixed precedent, undermining
presidential authority
Bellia 2
[Patricia, Professor of Law @ Notre Dame, “Executive Power in Youngstown’s Shadows” Constitutional Commentary, , 19 Const. Commentary
87, Spring, Lexis]
Second, courts'
failure to resolve the contours of the President's constitutional powers creates uncertainty
about whether some forms of constitutionally based executive action have the same legal force as a federal statute. Returning to Dames &
Moore, the fact that the Court rested the President's authority on grounds of congressional approval
rather than implied constitutional authority avoided the difficult question of how the President
could by his sole authority displace the application of the federal statutes that had provided the basis for Dames & Moore's
original cause of action against the Iranian enterprises. 291 Similar questions arise with respect to the displacement of state law by operation of sole executive
agreements. The
result is confusion about whether sole executive agreements are the "supreme Law of
the Land," 292 with the available precedents suggesting that they are 293 and the weight of recent commentary suggesting that they are not.
AT Perm Do CP
Perm severs the agent of the plan text - that’s a voting issue because it makes the plan
a moving target and allows the aff to circumvent all neg ground by altering the plan’s
meaning or text
The counterplan competes - “statutory restrictions” require congressional action
Mortenson 11
(Julian Davis Assistant Professor, University of Michigan Law School, “Review: Executive Power and the Discipline of History Crisis and
Command: The History of Executive Power from George Washington to George W. Bush John Yoo. Kaplan, 2009. Pp vii, 524,” Winter 2011,
University of Chicago Law Review 78 U. Chi. L. Rev. 377)
At least two of Yoo's main examples of presidential power are actually instances of presidential
deference to statutory
restrictions during times of great national peril. The earliest is Washington's military suppression of
the Whiskey Rebellion (III, pp 66-72), a domestic disturbance that Americans viewed as implicating adventurism by European powers
and threatening to dismember the new nation. n60 The Calling Forth Act of 1792 n61 allowed the President to
mobilize state militias under federal control, but included a series of mandatory procedural checks-including judicial [*399] approval--that restricted his ability to do so. n62 Far from defying these comprehensive
restrictions at a moment of grave crisis, Washington satisfied their every requirement in scrupulous detail. He issued a proclamation ordering
the Whiskey Rebels to disperse. n63 When they refused to do so, he submitted a statement to Justice James Wilson of the Supreme Court
describing the situation in Pennsylvania and requesting statutory certification. n64 Only when Wilson issued a letter precisely reciting the
requisite statutory language (after first requiring the President to come back with authentication of underlying reports and verification of their
handwriting n65) did Washington muster the troops. n66 Washington's
compliance with statutory restrictions on his
use of force continued even after his forces were in the field. Because Congress was not in session when
he issued the call-up order, Washington was authorized by statute to mobilize militias from other states besides
Pennsylvania--but only "until the expiration of thirty days after the commencement of the ensuing [congressional] session." n67 When it
became clear that the Pennsylvania campaign would take longer than that, Washington went back to Congress to petition
for extension of the statutory time limit that would otherwise have required him to [*400] disband his troops.
n68 Far from serving as an archetypal example of presidential defiance, the Whiskey Rebellion demonstrates exactly the opposite. FDR's
efforts to supply the United Kingdom's war effort before Pearl Harbor teach a similar lesson. During the
run-up to America's entry into the war, Congress passed a series of Neutrality Acts that supplemented
longstanding statutory restrictions on providing assistance to foreign belligerents. Despite these restrictions,
FDR sent a range of military assistance to the future Allies. n69 Yoo makes two important claims about the administration's actions during this
period. First, he claims the administration asserted that "[a]ny statutory effort by Congress to prevent the President from transferring military
equipment to help American national security would be of 'questionable constitutionality'" (III, p 300). Second, he suggests that American
military assistance in fact violated the neutrality statutes (III, pp 295-301, 310, 327-28).
Agent CP’s Good – XOs Version
1 – Education - 90% debate is implementation
Elmore 80
Prof. Public Affairs at University of Washington, PolySci Quarterly 79-80, p. 605, 1980
The emergence of implementation as a subject for policy analysis coincides closely with the discovery by policy analysts that decisions are not
self-executing. Analysis
of policy choices matter very little if the mechanism for implementing those choices is
poorly understood in answering the question, "What percentage of the work of achieving a desired
governmental action is done when the preferred analytic alternative has been identified?" Allison
estimated that in the normal case, it was about 10 percent, leaving the remaining 90 percent in the realm
of implementation.
2 – Fairness - Aff gets to pick their agent and have advantages tied to that agent we
should get to test it.
3 – Predictable - XOs are a core part of war powers literature
Rudalevige ‘12
[Rudalevige, A. (March 2012). The contemporary presidency: executive orders and presidential unilateralism. Presidential Studies
Quarterly, 42, 1. p.138(23). ETB]
In the last decade or so, students
of the American presidency have renewed their interest in the formal authorities
possibilities of presidential power, driven both by methodological logic and by events. On the theoretic side,
scholars working within the broad framework of the "new institutionalism," especially its rational choice variant, have made a case
that the formal, legal, and organizational aspects of the presidency--and the incentives and
constraints for presidential behavior these implied--had been too long neglected in favor of
impressionistic accounts of the "personal presidency." A focus on the formal powers that underlay the
presidential office, and the way these could be used to enhance an incumbent's influence, was needed to fill that gap (e.g., Howell
2003; Kelley 2007; Moe 1985, 1993; Moe and Howell 1999). After all, as Kenneth Mayer argued (2001, 11), "in most cases, presidents
retain a broad capacity to take significant action on their own, action that is meaningful both in
substantive policy terms and in the sense of protecting and furthering the president's political and strategic
interests."¶ The assertive--even "imperial"--stance taken by recent presidents provided empirical grist for
this mill. President George W. Bush was particularly notable in acting aggressively to expand his office's
powers vis-a-vis other political actors (Cooper 2002; Goldsmith 2007; Rudalevige 2005, 2010; Savage 2007). Redressing the
and unilateral
perceived constriction of the presidential office after the Watergate/Vietnam years provided a new rationale for unilateral command--even
before the terrorist attacks of September 11, 2001. Barack
Obama , while disavowing some of his predecessor's rationales, has acted
in a similar manner in a number of areas.
The assassination of American citizens acting with al-Qaeda in Yemen; the evasion
of the War Powers Resolution in Libya; the use of the state secrets act in fending off judicial inquiry--all these suggest a continuing approach to
presidential authority that overrides shifts in the incumbent's personality. ¶ From either direction, the
upshot has been important
recent work on a presidential administrative toolkit that includes appointments (Lewis 2008), signing
statements (Evans 2011; Kelley and Marshall 2010; Korzi 2011), executive agreements (Krutz and Peake 2009),
proclamations (Rottinghaus and Bailey 2010; Rottinghaus and Maier 2007), rulemaking and guidance (Graham 2010; Kerwin
and Furlong 2010), and especially executive orders (Gibson 2009; Howell 2003; Mayer 1999, 2001; Rodrigues 2007; Warber 2006;
Wigton 1996). Indeed, at this point it is safe to say that a standard textbook in the field could not--as it did even after Watergate-exclude "executive orders" and "signing statements" from the index (Koenig 1975). The study of the
contemporary presidency thus requires serious attention
to that office's executive authority.
4. Reject the arg, not the team
Agent CP’s Good – Restraint Version
1 – Education - 90% debate is implementation
Elmore 80
Prof. Public Affairs at University of Washington, PolySci Quarterly 79-80, p. 605, 1980
The emergence of implementation as a subject for policy analysis coincides closely with the discovery by policy analysts that decisions are not
self-executing. Analysis
of policy choices matter very little if the mechanism for implementing those choices is
poorly understood in answering the question, "What percentage of the work of achieving a desired
governmental action is done when the preferred analytic alternative has been identified?" Allison
estimated that in the normal case, it was about 10 percent, leaving the remaining 90 percent in the realm
of implementation.
2 – Fairness - Aff gets to pick their agent and have advantages tied to that agent we
should get to test it.
3. Its predictable – Executive action v Congress is a core debate in the literature
Bejesky 12
(ROBERT BEJESKY, M.A. Political Science (Michigan), M.A. Applied Economics (Michigan), LL.M. International Law ¶ (Georgetown), St. Mary's
Law Journal ARTICLE: WAR POWERS PURSUANT TO FALSE PERCEPTIONS AND ASYMMETRIC INFORMATION IN THE "ZONE OF TWILIGHT" 2012,
LexisNexis, KB)
There are many reasons the expansion of the Executive Branch make it more difficult for Congress to preserve its institutional power. n372
First, Congress loses control over aspects of an agency's jurisdiction after delegating authority because Congress
can only fund and
oversee the bureaucracy, but cannot interfere with rule-making or otherwise retain a legislative
veto.n373 Second, Congress lacks the institutional memory that [*62] exists in administrative agencies. n374
Agency employees are civil servants working within the history of the organization, while members of Congress have more
frequent turnover rates and concentrate their attention on current affairs. Third, the resources and
privilege to information available to the Executive Branch vastly outweighs those resources available
to the Legislative Branch. n375 For example, Congress has a workforce of 30,000 and a total budget of $ 4.7
billion, while defense- and security-related agencies have three million employees and a budget of $
639 billion. n376 Hence, even if Congress did attempt to announce a preferred foreign policy, it has few
institutions to execute it. n377 Fourth, the President appoints agency leadership with similar political
predispositions, which in turn increases conformity to preferred policies within the agency. n378 Congress has
some authority to set parameters for executive appointments, but may not infringe upon the President's main power of appointment. n379 For
example, with
regard to war powers, [*63] Congress cannot divest Commander in Chief functions to
another official, even though Congress has considerable power to assign specific functions to
executive officials or employees who are "independent" of the President. n380 Fifth, the President possesses
the authority to enter into treaties and executive agreements, conduct diplomacy, and interact with
international organizations, which give the Executive substantial dominion over foreign policy. n381
Thus, Congress is more effective in constraining the President's powers with regard to domestic affairs. n382
AT Future Prez Rollback
Most executive orders aren’t overturned.
Murray 99
[Frank, “Clinton’s Executive Orders are Still Packing a Punch: Other Presidents Issued More, but His are Still Sweeping” Washington Times
http://www.englishfirst.org/13166/13166wtgeneral.html]
Clearly, Mr. Clinton knew what some detractors do not: Presidential
successors of the opposite party do not lightly wipe
the slate clean of every order, or even most of them. Still on the books 54 years after his death are 80 executive
orders issued by Franklin D. Roosevelt. No less than 187 of Mr. Truman's orders remain, including one to end military
racial segregation, which former Joint Chiefs of Staff Chairman Colin Powell praised for starting the "Second Reconstruction." "President Truman gave us the
order to march with Executive Order 9981," Mr. Powell said at a July 26, 1998 ceremony marking its 50th anniversary. Mr. Truman's final order, issued one day
before he left office in 1953, created a national security medal of honor for the nation's top spies, which is still highly coveted and often revealed only in the
obituary of its recipient.
Political barriers check – new, stronger constituencies
Branum 2
[Tara L, Associate, Fulbright & Jaworski L.L.P, “President or King? The Use and Abuse of Executive Orders in Modern Day America” Journal of
Legislation]
Congressmen and private citizens besiege the President with demands [*58] that action be taken on various issues. n273 To make matters worse, once
a
president has signed an executive order, he often makes it impossible for a subsequent administration
to undo his action without enduring the political fallout of such a reversal. For instance, President Clinton issued a
slew of executive orders on environmental issues in the weeks before he left office. n274 Many were controversial and the
need for the policies he instituted was debatable. n275 Nevertheless, President Bush found himself unable to reverse
the orders without invoking the ire of environmentalists across the country. n276 A policy became law by the
action of one man without the healthy debate and discussion in Congress intended by the Framers.
Subsequent presidents undo this policy and send the matter to Congress for such debate only at their own peril. This is not the way it is supposed to be.
AT Congress Rollback
Congress only rolled back one XO in 25 years
Olson 99
William Olson of William Olson, PC, Attorneys at Law, “The Impact of Executive Orders on the Legislative Process”
http://www.cato.org/testimony/ct-wo102799.html October 27, 1999
Congress has done little more than the courts in restricting presidential lawmaking. Nevertheless, Congress did
make one bold step to check executive powers in the related arenas of executive orders, states of emergency and
emergency powers. The Congressional concern led to the creation of a Special Senate Committee on the Termination of the National
Emergency, co-chaired by Sens. Frank Church (D-ID) and Charles Mathias, Jr. (R-MD),
more than 25 years ago.
There is a 0.2% risk of an overturn
Krause and Cohen 2000
[George and David, Professors of Political Science @ South Carolina, “Opportunity, Constraints, and the Development of the Institutional
Presidency: The Issuance of Executive Orders” The Journal Of Politics, Vol. 62, No. 1, February 2000, JSTOR]
We use the annual number of executive orders issued by presidents from 1939 to 1996 to test our hypotheses. Executive orders possess a
number of properties that make them appropriate for our purposes. First, the series of executive orders is long, and we can cover the
entirety of the institutionalizing and institutional-ized eras to date.6 Second, unlike research on presidential vetoes (Shields and Huang
1997) and public activities (Hager and Sullivan 1994), which have found support for presidency-centered variables but not presidentcentered factors, ex-ecutive orders offer a stronger possibility that the latter set of factors will be more prominent in explaining their use.
One, they are more highly discretionary than vetoes.7 More critically, presidents take action first and unilaterally. In ad-dition, Congress
has tended to allow executive orders to stand due to its own collective action problems and the
cumbersomeness of using the legislative process to reverse or stop such presidential actions. Moe
and Howell (1998) report that between 1973 and 1997, Congress challenged only 36 of more than 1,000 executive
orders issued. And only two of these 36 challenges led to overturning the president's executive
order. Therefore, presidents are likely to be very successful in implementing their own agendas
through such actions. In fact, the nature of executive orders leads one to surmise that idiopathic factors will be relatively more
important than presidency-centered variables in explaining this form of presidential action. Finally, executive orders have rarely been
studied quantitatively (see Gleiber and Shull 1992; Gomez and Shull 1995; Krause and Cohen 1997)8, so a description of the factors
motivating their use is worth-while.9 Such a description will allow us to determine the relative efficacy of these competing perspectives on
presidential behavior.10
Unilateral action defuses opposition
Moe and Howell 99
(Terry Moe, William Bennett Munro professor of political science at Stanford University, a senior fellow at Stanford University's Hoover
Institution, and a member of the Hoover Institution’s Koret Task Force on K-12, William Howell, the Sydney Stein Professor in American Politics
in the Harris School, a professor in the Department of Political Science and the College, and a co-director of the Program on Political
Institutions, “The Presidential Power of Unilateral Action” 1999, Oxford University Press,
http://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdf, KB)
On the other hand, the second form of agenda control, rooted as it is in unilateral
action, gives the president what he
wants immediately – a shift in the status quo, and perhaps a new increment to his new power – and depends
for its success on Congress’s not being able to pass new (and veto-proof) legislation that would overturn or
change it. Such a requirement is much more readily met, for it is far easier, by many order of magnitude, to
block congressional action than it is to engineer new legislation. And if this were not enough, the new status
quo initiated by the president may in itself defuse legislative opposition and do away with the need to
block at all. When a president unilaterally launches an invasion of another country, for instance,
Congress faces a drastically different set of options than it did before the conflict started, and may
find itself politically compelled to support and provide funds for an exercise it never would have
agreed to beforehand. Needless to say, these advantages of agenda control give modern presidents strong
incentives to favor an “administrative strategy” of leadership as opposed to a “legislative strategy”
(Nathan, 1983).
AT Court Rollback
Courts won’t rollback the CP – fears of angering the executive
Moe and Howell 99
(Terry Moe, William Bennett Munro professor of political science at Stanford University, a senior fellow at Stanford University's Hoover
Institution, and a member of the Hoover Institution’s Koret Task Force on K-12, William Howell, the Sydney Stein Professor in American Politics
in the Harris School, a professor in the Department of Political Science and the College, and a co-director of the Program on Political
Institutions, “The Presidential Power of Unilateral Action” 1999, Oxford University Press,
http://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdf, KB)
In addition to appointments, there is a second—-and probably more important—factor that works to the presidents advantage with the Courts.
This one¶ is rooted in the basic design of separation of powers: under
the Constitution,¶ the court is not empowered to
enforce its own decisions, but must rely on the executive branch to enforce them. While the Court is said
to be an independent branch of government, then, its power and prestige are profoundly depend on the executive. The
decisions that it renders, however well reasoned or legally ¶ significant in the abstract, are little more than meaningless
slips of paper unless¶ they are put into effect, and they can only be put into effect if the executive¶ is
willing to implement them. If the executive refuses to cooperate—or more¶ likely, if it purposely acts
very slowly, ineffectively, or in ways that alter or¶ distort judicial intent—the policy pronouncements
of the Court threaten to be¶ empty, and its integrity and social standing as a political institution are
put¶ seriously at risk (Corwin, 1984).
History proves
Washington Times ‘99
Frank J. Murray THE WASHINGTON TIMES August 23, 1999¶ http://www.washtimes.com/news/news1.html#link
Presidents have issued executive orders that exceeded the wishes of Congress since George
Washington's 1793 "neutrality order" demanding that citizens stay out of foreign disputes. Such orders have been withdrawn under political
pressure or derailed internally before they were signed, but
only twice in history have federal courts directly
overturned one, legal experts say. They included Mr. Clinton's 1995 directive barring federal contractors from hiring striker
replacements, which conflicted with existing law, and President Truman's 1952 order seizing steel mills in order to avoid a nationwide strike.
The Supreme Court nullified the latter because the president acted during the Korean conflict under "emergency" war powers even though no
war was declared. "Unfortunately,
the Supreme Court has essentially ruled over time that the executive
orders have the force and effect of law. Well, they don't, but if nobody's there to challenge them
they continue to carry the effect and force of law ," argued Rep. Jack Metcalf, Washington Republican, leader of a
brewing rebellion in the House for which he predicts only symbolic success.
AT No Funding
Presidents have discretionary spending to fund their objectives.
Pika 02
(Joseph A Pika, John Anthony Maltese, and Norman Thomas, professors of political science, The Politics of the Presidency, 5th edition, p. 233)
In addition to budgeting, presidents have certain discretionary spending powers that increase their leverage
over the bureaucracy. They have substantial nonstatutory authority, based on understandings with
congressional appropriations committees, to transfer funds within an appropriation and from one
program to another. The committees expect to be kept informed of such "reprogramming" actions.81 Fund transfer authority
is essential to sound financial management, but it can be abused to circumvent congressional
decisions. In 1970, for example, Nixon transferred funds to support an extensive unauthorized covert military operation in Cambodia.
Nevertheless, Congress has given presidents and certain agencies the authority to spend substantial
amounts of money on a confidential basis, the largest and most controversial of which are for intelligence activities.
Kennedy proves
Howell 5
William G. Howell, Associate Professor of Government @ Harvard University, September 2005, Presidential Studies Quarterly, Unilateral
Powers: A Brief Overview
recall Kennedy's 1961 executive order creating the Peace Corps. For several
years prior, Congress had considered, and rejected, the idea of creating an agency that would send volunteers abroad to perform
As evidence of this last scenario,
public works. Republicans in Congress were not exactly thrilled with the idea of expending millions on a "juvenile experiment" whose principal
purpose was to "help volunteers escape the draft"; and Democrats refused to put the weight of their party behind the proposal to ensure its
passage (Whitnah 1983). By
unilaterally creating the Peace Corps in 1961, and then using contingency accounts
to fund it during its first year, Kennedy managed to change all of this. For when Congress finally got around to
considering whether or not to finance an already operational Peace Corps in 1962, the political landscape had changed
dramatically-the program had almost 400 Washington employees and 600 volunteers at work in eight countries. Congress, then,
was placed in the uncomfortable position of having to either continue funding projects it opposed, or
eliminate personnel who had already been hired and facilities that had already been purchased. Not surprisingly, Congress
stepped up and appropriated all the funds Kennedy requested.
AT Tyranny Turn
Congressional and Judicial oversight prevent tyrannical power
Wetzel ‘7
[Alissa C., Juris Doctor and Master of Science in international commerce and policy degrees May 17 from Valparaiso University, The School of
Law, 2007 Valparaiso University Law Review. 42 Val. U.L. Rev. 385. Beyond the Zone of Twilight: How Congress and the Court Can Minimize the
Dangers and Maximize the Benefits of Executive Orders. Lexis. Accessed 6/13/09]
As this Part has shown, though
executive orders may seem to leave open the possibility of Presidential
abuse, in practice, the system, though not perfect, creates appropriate blocks to executive tyranny. n165
First, executive orders allow the President to issue bold prerogatives on [*425] politically sensitive
issues. n166 Second, Congress is able to appropriately check any potential for Presidential abuse,
though it does not often do so. n167 Finally, the Court's test for the validity of executive orders is
proper, though it is improperly applied to intelligence and classification. n168 In short, the Constitutional dialogue on executive orders has been a
productive one, producing a test that, if applied correctly, can guard against executive tyranny and abuse. However, Congressional oversight has not been
sufficiently effective and the Court's application of the Jackson test is flawed in the area of intelligence and classification. n169 Now, it is up to Congress to take
a bolder stance on such issues in order for the Court to apply the test correctly. n170 V. CONCLUSION For two centuries, executive orders have allowed
Presidents to exercise enormous power. At times, that power has been used to implement important measures to advance the country. At other times,
executive orders have bred scandal and national shame. Upon
closer examination of 200 years of Constitutional dialogue among the three
becomes clear that although
executive orders may appear tyrannical based on the broad power they afford Presidents, in
practice executive orders are useful tools of the Presidency, able to be checked by Congressional
oversight and controlled by the Court. If correctly wielded, such Congressional and judicial
oversight can guarantee that executive orders will not allow Presidents to become the despots so
feared by the founding generation. Instead, by moving out of the zone of twilight and exercising proper oversight Congress and the Court
branches of government concerning how much unilateral power a President ought to have, however, it
can ensure that the President is able to [*430] administer the executive branch effectively, pass measures quickly, and occasionally rise above political
divisions and do the right thing.
Flexibility
2NC Link Wall
Restrictions destroy flexibility – empirically causes partisan bickering that guarantees
rampant terrorism
Turner 5
Robert F. Turner, Professor, University of Virginia School of Law, The War Powers¶ Resolution: An Unnecessary, Unconstitutional Source of
"Friendly Fire" in the War Against¶ International Terrorism?, Feb 15, 2005, http://www.fed-soc.org/publications/detail/the-warpowers-¶
resolution-an-unnecessary-unconstitutional-source-of-friendly-fire-in-the-war-againstinternational-¶ terrorism
Sadly, the
idea that the War Powers Resolution might endanger American lives in the struggle¶ against
terrorism is more than just a hypothetical. Indeed, more Americans were murdered by¶ terrorists as a
direct result of the War Powers Resolution than were killed in all of our military¶ operations since the
end of the Vietnam War. The War Powers Resolution was a primary¶ factor in the decision by Middle
Eastern terrorists to blow up the Battalion Landing Team¶ Headquarters at the Beirut International
Airport on October 23, 1984, killing 241 sleeping marines, sailors,¶ and soldiers. When President Reagan sent the
Marines to Lebanon as part of an international peacekeeping force¶ alongside British, French, and Italian forces, the decision was not even
arguably an infringement upon the power of Congress "to declare War." We¶ were not going to "War," we were sending a contingent of U.S. forces at
the request of all of the warring factions in Lebanon to stand between them so¶ they could meet in confidence and try to negotiate a peaceful end to
their conflict. Every country in the region originally endorsed the deployment, and¶ no one in Congress spoke against it on the merits. But several noted
there were risks involved-risks the President openly acknowledged-and soon the¶ demands
started coming in for a report under
Section 4(a)(1) of the War Powers Resolution, the¶ provision governing the sending of U.S. Armed Forces "into hostilities or into
situations where imminent involvement in hostilities is clearly indicated by¶ the circumstances." To begin with, to send such a report to
Congress might well have undermined the¶ mission in Beirut.
There were numerous, highly paranoid factions engaged in
the Lebanese quarrels who had consented to the American¶ presence on the theory that it was going to be a peacekeeping mission. Had
the
President notified Congress that he was¶ taking the nation to "War," militia leaders who had been
assured the Americans were coming¶ in peace might well have concluded that they were going to be
the object of the American¶ hostilities. Why else would President Reagan or his representatives have lied to them about the nature
of the mission? As it turned out, the¶ congressional critics were wrong about "imminent involvement in
hostilities," as nearly a year¶ passed before any of the marines came under hostile fire. During that
year, the situation in¶ Beirut became more dangerous because the debate in Congress took a highly
partisan turn.¶ Democrats like Senator Alan Cranston of California and former Majority Leader Robert Byrd
announced that¶ they would not authorize the President to continue the deployment unless he first
told Congress, as Cranston put it, "exactly how and when we propose to extricate them." [59] One of the points on which there was no apparent¶
discord at the Federal Convention in Philadelphia was that Congress had no role in the actual conduct of military operations. They were given only a¶
"veto" over certain kinds of commitments, leaving to the President such decisions as where to deploy troops, when to attack or redeploy troops, and¶
when to bring them home. As Locke explained, such decisions are heavily dependent upon the behavior of external actors, and it would have been¶
foolish for the President to declare in advance that U.S. forces would be withdrawn on a given date irrespective of those realities. Imagine the reaction¶
of Franklin D. Roosevelt had Congress demanded a withdrawal deadline before it would consider authorizing the President to defend the United
States¶ following Pearl Harbor? Once they knew the artificial date on which the United States would withdraw, opponents of a peace settlement in
Beirut¶ would be able to orchestrate their strategy for maximum advantage. For much of the press and many Americans, the issue no longer became
whether¶ the United States should assist the parties in an important Middle Eastern country to resolve differences and achieve peace, but whether the
President¶ was "above the law." Legislation to authorize the President to continue the deployment led to more partisan debate, and the Washington
Post noted¶ that the active involvement of Senate Democratic Campaign Chairman Lloyd Bentsen in the debate suggested that "the Democrats are
doing push-ups"¶ for the 1984 elections [60]. Marine Corps Commandant P.X. Kelley became so concerned about the partisan debate that he testified
before the Senate¶ Foreign Relations Committee that the partisan debate could "encourage hostile forces or forces inimical to the best interest, the life
and limb of the¶ Marines." General Kelley warned that "hostile forces would use this as an opportunity to up the ante against our Marines." [61] A few
days later, when¶ an unidentified White House staff member repeated General Kelley's concern, the Washington Post reported that Senate Democrats
were outraged:¶ "To suggest . . . that congressional insistence that the law be lived up to is somehow giving aid and comfort to the enemy is totally
unacceptable," said¶ Sen. Thomas F. Eagleton (D-Mo.). . . . "The Administration has thrown out a red herring," Eagleton said, with "an attempt to
intimidate the Congress¶ and frighten the American people with this kind of ludicrous argument." This partisan nature of the debate became even more
apparent when the¶ Foreign Relations Committee split completely upon party lines on the deployment, and the minority report was entitled "Minority
Views of All¶ Democratic Members of the Committee." In the end, with several references to avoiding future "Vietnams," the Senate voted 54-46 to
allow the¶ Marines to remain, with but two Senate Democrats supporting the President. But even then, the issue was not over, as Republicans and
All of this¶
partisan bickering was not lost on radical states in the Middle East, and the Syrian Foreign ¶ Minister
announced that the United States was "short of breath." [62] The message had also not¶ escaped
radical Muslim militia members in Beirut, and in October U.S. intelligence intercepted¶ a message
between two terrorist units saying: "If we kill 15 Marines, the rest will leave."¶ Inadvertently, by its
partisan debate and repeated pronouncements that further Marine¶ casualties could provoke another
Democrats¶ alike emphasized that Congress could reconsider the issue at any time if there were further casualties among the Marines.
debate and a withdrawal of funds for the deployment (such¶ legislation had already been reported out of a key House
subcommittee), in their partisan effort to invoke the War¶ Powers Resolution, Congress had essentially
placed a bounty on the lives of American forces .¶ The rest is history. Early on the morning of Sunday, October 23, 1983, a
Mercedes truck loaded with highly-sophisticated explosives drove into the¶ Marine Corps compound at the Beirut International Airport and exploded.
America's terrorist enemies had capitalized on¶ the congressional signals of weakness by murdering
241 sleeping marines, sailors, and¶ soldiers-more Marines than had been lost on any single day since
the height of the Vietnam¶ War in 1968 and more American military personnel than had been killed in
the Gulf War, Grenada, Haiti, Somalia, the Former Yugoslavia, and all other military operations since¶
Vietnam until the September 11, 2001 attack on the Pentagon.
Congressional restrictions make the US look weak – enemies will exploit our weakness
Kahn 2k
Paul W. Kahn, Robert W. Winner Professor of Law and Humanities at Yale Law¶ School, “THE SEVENTH ANNUAL FRITZ B. BURNS LECLTURE THE
WAR POWERS RESOLUTION¶ AND KOSOVO: WAR POWERS AND THE MILLENNIUM,” Loyola of Los Angeles Law Review,¶ November, 2000, pp.
LN.
Domestically, Congress
often works best through a process of articulation of policy differences and¶ then
compromise. The parties set out widely divergent positions as an initial matter. This allows them to establish distinct¶ identities, which in
turn allows appeals to different groups of constituents. Difference is then overcome through a process of ¶ negotiated compromise.
Compromise is often made possible by the fact that it can be multidimensional: in seeking to achieve a compromise in one area, bargains can
be made in other areas. Compromise
occurs not only within Congress, but¶ in the process of negotiation
between the Congress and the executive. n58 To fully understand the act¶ of negotiating compromise, moreover, one must
consider the role of Washington lobbyists who provide information and coordinate¶ interest group positions. n59 This process of party
differentiation followed by compromise produces¶ consensus around the middle, which is generally
the safest position in American politics.¶ Americans tend to distinguish between politics and government, and do not like it
when government [*29] is driven too explicitly by¶ political ends. n60 They generally expect their politicians to shed the party differentiating
ideologies that get them elected and to¶ tend to the task of governance under standards of policy rationality. When this process of compromise
appears too risky, when it¶ cuts too deeply into the entrenched political positions of the parties, we have seen appeals to bipartisan, expert
commissions, the¶ responsibility of which is to articulate the middle ground and so to relieve the pressure on the politicians as they move
toward a¶ common ground. n61 With
respect to foreign affairs, however, these techniques of congressional ¶
decision-making work poorly. The differentiation that marks the parties as distinct and separate, and is domestically an¶ initial step
toward compromise, serves the same differentiating function in foreign policy, but there it tends to freeze party¶ positions. Treaties come
before the Senate too late in the process for compromise to be an option, particularly when they are¶ multiparty covenants. n62 Moreover,
compromises can look like concessions of U.S. interests to foreign states, rather than a¶ distribution among competing elements of the polity.
Nor is there a great deal of pressure to compromise. Rejecting foreign policy¶ initiatives is a way of preserving the [*30] status quo, and
preserving the international status quo is rarely a policy for which one is¶ held politically accountable. It is hard to make an issue out of a failure
to change the conditions that prevail internationally, when¶ the country is enjoying power, prestige, and wealth. Unable to compromise, the
Senate can end up doing nothing, and then treaty¶ ratification fails. Difference leads to stalemate, rather than to negotiation. The problem is
greatly exacerbated by the two-thirds¶ requirement for ratification. n63 This structural bias toward inaction accounts in part for the use of
executive agreements in place of¶ treaties. n64 These agreements make use of some of the tactical advantages of presidential initiative. Many
of the structural¶ problems remain, however, when executive agreements require subsequent congressional approval. If
the issue
involves¶ the use of force, compromise is particularly difficult. A compromise that produces a less ¶
substantial response to a foreign policy crisis can look like a lack of commitment.¶ Disagreement now
threatens to appear to offer an "exploitable weakness" to adversaries .¶ Congress cannot simply give the president
less of what he wants, when what he wants is a military deployment. There cannot¶ easily be compromises on a range of
unrelated issues in order to achieve support for a military¶ deployment. While that may happen, it has the look of
disregard for the national interests and of putting politics ahead of the¶ public interest. Nor can Congress easily adopt the technique of the
expert commission. n65 The timeframe of a crisis usually will not¶ allow it. More importantly, the military - particularly in the form of the Joint
Chiefs of Staff - has already preempted the claim of¶ expertise, as well as the claim to be "apolitical." [*31] Finally, there is little room for the
private lobbyist with respect to these¶ decisions. Congress, in short, is
not capable of acting because it only knows how
to reach¶ compromise across dissensus. When disagreement looks unpatriotic, and compromise¶
appears dangerous, Congress is structurally disabled . This produces the double consequence for American¶ foreign policy
of a reluctance to participate in much of the global development of international law - outside of those trade and¶ finance arrangements that
are in our immediate self-interest - and a congressional abdication of use of force decisions to the¶ president. The same structural incapacities
are behind these seemingly contradictory results.
2NC CP Avoids Flex DA
CP is key to flexibility
Yoo 12
(John Yoo, American attorney, law professor, and author. He served as a political appointee, the Deputy Assistant US Attorney General in the
Office of Legal Counsel, Department of Justice (OLC), during the George W. Bush administration. “War Powers Belong to the President”¶ Posted
Feb 1, 2012,¶ http://www.abajournal.com/magazine/article/war_powers_belong_to_the_president, KB)
Those in the pro-Congress camp call upon the anti-monarchical origins of the American Revolution for support. If the framers rebelled against
King George III’s dictatorial powers, surely they would not give the president much authority. It is true that the revolutionaries rejected the
royal prerogative, and they created weak executives at the state level. Americans have long turned a skeptical eye toward the growth of federal
powers. But this may mislead some to resist the fundamental difference in the Constitution’s treatment of domestic and foreign affairs. For
when the framers wrote the Constitution in 1787 they rejected these failed experiments and restored an independent, unified chief executive
with its own powers in national security and foreign affairs.¶ The most important of the president’s powers are commander in chief and chief
executive. As Alexander Hamilton
wrote in Federalist 74, “The direction of war implies the direction of the
common strength, and the power of directing and employing the common strength forms a usual and
essential part in the definition of the executive authority.” Presidents should conduct war, he wrote,
because they could act with “decision, activity, secrecy and dispatch.” In perhaps his most famous words, Hamilton
wrote: “ Energy in the executive is a leading character in the definition of good government. ... It is
essential to the protection of the community against foreign attacks.Ӧ The framers realized the obvious.
Foreign affairs are unpredictable and involve the highest of stakes, making them unsuitable to
regulation by pre-existing legislation. Instead, they can demand swift, decisive action —sometimes under
pressured or even emergency circumstances—that is best carried out by a branch of government that does not
suffer from multiple vetoes or is delayed by disagreements. Congress is too large and unwieldy to take
the swift and decisive action required in wartime. Our framers replaced the Articles of Confederation, which had failed in
the management of foreign relations because they had no single executive, with the Constitution’s single president for precisely this reason.
Even when it has access to the same intelligence as the executive branch, Congress’ loose,
decentralized structure would paralyze American policy while foreign threats grow. ¶ Congress has no
political incentive to mount and see through its own wartime policy. Members of Congress, who are
interested in keeping their seats at the next election, do not want to take stands on controversial
issues where the future is uncertain. They will avoid like the plague any vote that will anger large segments of
the electorate. They prefer that the president take the political risks and be held accountable for
failure.¶ Congress’ track record when it has opposed presidential leadership has not been a happy one. Perhaps the most telling example
was the Senate’s rejection of the Treaty of Versailles at the end of World War I. Congress’ isolationist urge kept the United States out of Europe
at a time when democracies fell and fascism grew in their place. Even as Europe and Asia plunged into war, Congress passed the Neutrality Acts
designed to keep the United States out of the conflict. President Franklin Roosevelt violated those laws to help the Allies and draw the nation
into war against the Axis. While pro-Congress critics worry about a president’s foreign adventurism, the real threat to our national security may
come from inaction and isolationism.
Impact – Terrorism
Only the CP solves flexibility – need appropriate punishment and rapid action to solve
terrorism
Royal 11
JOHN PAUL ROYAL, Institute of World Politics, “War Powers and the Age of Terrorism,” Center¶ for the Study of the Presidency & Congress The
Fellows Review, 2010-2011
Proliferation of weapons of mass destruction (WMD), especially nuclear weapons, into the hands of¶ these
terrorists is the most dangerous threat to the United States. We know from the 9/11¶ Commission
Report that Al Qaeda has attempted to make and obtain nuclear weapons for at¶ least the past fifteen
years. Al Qaeda considers the acquisition of weapons of mass destruction¶ to be a religious obligation
while “more than two dozen other terrorist groups are pursing¶ CBRN [chemical, biological, radiological, and
nuclear] materials” (National Commission 2004, 397). Considering these¶ statements, rogue regimes that are openly hostile
to the United States and have or seek to develop nuclear weapons capability¶ such as North Korea and Iran, or extremely unstable
nuclear countries such as Pakistan,
pose a special threat to¶ American national security interests . These nations
were not necessarily a direct threat to the Unite d States in the¶ past. Now, however, due to proliferation of nuclear weapons and
missile technology, they can inflict damage at considerably higher¶ levels and magnitudes than in the past. In addition, these
regimes may pursue proliferation of nuclear weapons and missile¶ technology to other nations and to allied terrorist organizations.
The United States must pursue condign¶ punishment and appropriate, rapid action against hostile
terrorist organizations, rogue nation¶ states, and nuclear weapons proliferation threats in order to
protect American interests both¶ at home and abroad. Combating these threats are the “top national
security priority for the¶ United States... with the full support of Congress, both major political parties, the
media, and the American¶ people” (National Commission 2004, 361). Operations may take the form of pre-emptive
and sustained¶ action against those who have expressed hostility or declared war on the United
States. Only¶ the executive branch can effectively execute this mission , authorized by the 2001 AUMF. If the
national¶ consensus or the nature of the threat changes, Congress possesses the intrinsic power to rescind and limit these powers.
Terrorism causes extinction
Hellman 8
(Martin E, emeritus prof of engineering @ Stanford, “Risk Analysis of Nuclear Deterrence” SPRING, THE BENT OF TAU BETA PI,
http://www.nuclearrisk.org/paper.pdf)
The threat of nuclear terrorism looms much larger in the public’s mind than the threat of a full-scale nuclear war, yet this article focuses primarily on the latter. An
explanation is therefore in order before proceeding. A terrorist attack involving a nuclear weapon would be a catastrophe
of immense proportions: “A 10-kiloton bomb detonated at Grand Central Station on a typical work day would likely kill some half a million people, and inflict over a trillion dollars in direct
economic damage. America and its way of life would be changed forever.” [Bunn 2003, pages viii-ix]. The likelihood of such an attack is also significant .
Former Secretary of Defense William Perry has estimated the chance of a nuclear terrorist incident within the next decade to be
roughly 50 percent [Bunn 2007, page 15]. David Albright, a former weapons inspector in Iraq, estimates those odds at less than one percent, but notes, “We would never accept a situation where
the chance of a major nuclear accident like Chernobyl would be anywhere near 1% .... A nuclear terrorism attack is a low-probability event, but we can’t live in a world where it’s anything but extremely low-probability.”
In a survey of 85 national security experts, Senator Richard Lugar found a median estimate of 20 percent
for the “probability of an attack involving a nuclear explosion occurring somewhere in the world in the
next 10 years,” with 79 percent of the respondents believing “it more likely to be carried out
by terrorists” than by a government [Lugar 2005, pp. 14-15]. I support increased efforts to reduce the threat of nuclear terrorism, but that is not inconsistent with the
approach of this article. Because terrorism is one of the potential trigger mechanisms for a full-scale nuclear war, the risk analyses
[Hegland 2005].
proposed herein will include estimating the risk of nuclear terrorism as one component of the overall risk. If that risk, the overall risk, or both are found to be unacceptable, then the proposed remedies would be directed
to reduce which- ever risk(s) warrant attention. Similar remarks apply to a number of other threats (e.g., nuclear war between the U.S. and China over Taiwan). his article would be incomplete if it only dealt with the
threat of nuclear terrorism and neglected the threat of full- scale nuclear war. If both risks are unacceptable, an effort to reduce only the terrorist component would leave humanity in great peril. In fact,
society’s almost total neglect of the threat of full-scale nuclear war makes studying that risk
all the more important. The cosT of World War iii The danger associated with nuclear deterrence depends on both the cost of a failure and the failure rate.3 This section explores the cost
of a failure of nuclear deterrence, and the next section is concerned with the failure rate. While other definitions are possible, this article defines a failure of deterrence to mean a full-scale exchange of all nuclear weapons
available to the U.S. and Russia, an event that will be termed World War III. Approximately 20 million people died as a result of the first World War. World War II’s fatalities were double or triple that number—chaos
prevented a more precise deter- mination. In both cases humanity recovered, and the world today bears few scars that attest to the horror of those two wars. Many people therefore implicitly believe that a third World
War would be horrible but survivable, an extrapola- tion of the effects of the first two global wars. In that view, World War III, while horrible, is something that humanity may just have to face and from which it will then
have to recover. In contrast, some of those most qualified to assess the situation hold a very different view. In a 1961 speech to a joint session of the Philippine Con- gress, General Douglas MacArthur, stated, “Global war
No longer does it possess even the chance
of the winner of a duel. It contains now only the germs of double suicide.” Former Secretary of Defense Robert
McNamara ex- pressed a similar view: “If deterrence fails and conflict develops, the present U.S. and NATO strategy carries with it a high risk that Western civilization will be
destroyed” [McNamara 1986, page 6]. More recently, George Shultz, William Perry, Henry Kissinger, and Sam Nunn4 echoed those concerns when they quoted President Reagan’s belief that nuclear
has become a Frankenstein to destroy both sides. … If you lose, you are annihilated. If you win, you stand only to lose.
weapons were “totally irrational, totally inhu- mane, good for nothing but killing, possibly destructive of life on earth and civilization.” [Shultz 2007] Official studies, while couched in less emotional terms, still convey the
horrendous toll that World War III would exact: “
The resulting deaths would be far beyond any precedent. Executive branch calculations show
a range of U.S. deaths from 35 to 77 percent (i.e., 79-160 million dead) … a change in targeting could kill somewhere between 20 million and 30 million additional people on each side .... These calculations reflect only
deaths during the first 30 days. Additional millions would be injured, and many would eventually die from lack of adequate medical care … millions of people might starve or freeze during the follow- ing winter, but it is not
possible to estimate how many. … further millions … might eventually die of latent radiation effects.” [OTA 1979, page 8] This OTA report also noted the possibility of serious ecological damage [OTA 1979, page 9], a
nuclear explosions and their resultant firestorms could usher in a nuclear winter that might erase homo sapiens from the face of the earth ,
concern that as- sumed a new potentiality when the TTAPS report [TTAPS 1983] proposed that the ash and dust from so many nearly simultaneous
much as many scientists now believe the K-T Extinction that wiped out the dinosaurs resulted from an impact winter caused by ash and dust from a large asteroid or comet striking Earth. The TTAPS report produced a
even a limited
nuclear exchange or one between newer nuclear-weapon states, such as India and Pakistan, could have devastating long-lasting climatic
consequences due to the large volumes of smoke that would be generated by fires in modern megacities. While it is uncertain how destructive World War III would be, prudence dictates that we apply
the same engi- neering conservatism that saved the Golden Gate Bridge from collapsing on its 50th anniversary and assume that preventing World War III is a
necessity—not an option.
heated debate, and there is still no scientific consensus on whether a nuclear winter would follow a full-scale nuclear war. Recent work [Robock 2007, Toon 2007] suggests that
2NC Yes Solves Terror
Flexibility is key to defeat al-Qaeda
Li 09
(Zheyao, JD Georgetown 2009; “War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare,” 7
Geo. J.L. & Pub. Pol'y 373, Lexis – JAK)
By now it
should be clear just how different this conflict against the extremist terrorists is from the type of
warfare that occupied the minds of the Framers at the time of the Founding. Rather than maintaining the geographical and political
isolation desired by the Framers for the new country, today's United States is an international power targeted by individuals and groups that
will not rest until seeing her demise. The
Global War on Terrorism is not truly a war within the Framers'
eighteenth-century conception of the term, and the normal constitutional provisions regulating the
division of war powers between Congress and the President do not apply. Instead, this "war" is a struggle for
survival and dominance against forces that threaten to destroy the United States and her allies, and the fourth-generational nature
of the conflict, highlighted by an indiscernible distinction between wartime and peacetime, necessitates an evolution of
America's traditional constitutional warmaking scheme.¶ As first illustrated by the military strategist Colonel John Boyd,
constitutional decision-making in the realm of war powers in the fourth generation should [*399] consider the implications of the OODA Loop:
Observe, Orient, Decide, and Act. n144 In
the era of fourth-generational warfare, quick reactions, proceeding
through the OODA Loop rapidly, and disrupting the enemy's OODA loop are the keys to victory. "In order
to win," Colonel Boyd suggested, "we should operate at a faster tempo or rhythm than our adversaries." n145 In the words of Professor
Creveld, "[b]oth organizationally and in terms of the equipment at their disposal, the armed forces of the world will have to adjust themselves
to this situation by changing their doctrine, doing away with much of their heavy equipment and becoming more like police." n146
Unfortunately, the existing constitutional understanding, which diffuses war power between two
branches of government, necessarily (by the Framers' design) slows down decision-making. [*400] In
circumstances where war is undesirable (which is, admittedly, most of the time, especially against other nation-states), the
deliberativeness of the existing decision-making process is a positive attribute.¶ In America's current
situation, however, in the midst of the conflict with al-Qaeda and other international terrorist
organizations, the existing process of constitutional decision-making in warfare may prove a fatal
hindrance to achieving the initiative necessary for victory. As a slow-acting, deliberative body,
Congress does not have the ability to adequately deal with fast-emerging situations in fourth-generational
warfare. Thus, in order to combat transnational threats such as al-Qaeda, the executive branch must
have the ability to operate by taking offensive military action even without congressional
authorization, because only the executive branch is capable of the swift decision-making and action
necessary to prevail in fourth-generational conflicts against fourth-generational opponents.
Restrictions make no sense in the context of terrorism
Li 09
(Zheyao, JD Georgetown 2009; “War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare,” 7
Geo. J.L. & Pub. Pol'y 373, Lexis – JAK)
As discussed in Part III, supra, the
power of Congress to declare war operates only vis-a-vis other nation-states,
and it does not apply to transnational organizations, the primary traits of which are that "none is contained completely within a
recognized nation's borders, none has official members that must report back to a government, and none owes loyalty to any nation--and sometimes very little
loyalty to its own organization." n147 Congress's
ability to control whether to plunge the United States into war or
to sue for peace makes perfect sense when the adversary is another nation-state, which has its own
policy goals and is merely using the possibility of war as one means of attaining that policy end. In contrast, for Congress to possess the
ability to declare war (and to withhold such a declaration) when the adversary is a transnational organization that
has sworn to destroy the United States makes no sense at all. n148¶ The question then naturally becomes, what may Congress
constitutionally do in the fourth generation of warfare? To say that the President can unilaterally commit American forces to action in response to terrorist attacks
or in preemption of terrorist threats is not to say that Congress has no role to play in such conflicts. Congress retains the power to "define and punish . . . offences
against [*401] the law of nations," n149 to "make rules concerning captures on land and water," n150 to "make rules for the government and regulation" of the
armed forces, including those that participate in military action against fourth-generational opponents. n151 Thus,
while Congress may
regulate the treatment of detainees in the GWOT pursuant to the aforementioned Article I powers, and it may cut off funding via the spending
power as a post hoc matter, it may not prohibit the President from sending armed forces into combat against
non-state actors ex ante. Thus, the President need not have waited for Congress to enact the Authorization for Use
of Military Force (AUMF) on September 18, 2001 before acting military to combat the terrorists responsible for the September 11 attacks. Furthermore,
insofar as the AUMF limits the President's action to those "nations, organizations, or persons" having
a specific connection to the September 11 attacks, n152 it is unconstitutional except with respect to
nation-states.¶ In reviewing the legislative history of the AUMF, Professors Curtis Bradley and Jack Goldsmith write of how the White House initially sought
broad authority to "deter and preempt any future acts of terrorism or aggression against the United States" without regard to any connection they may had to
September 11. n153 Congress declined to do so, and instead chose to prescribe a September 11 nexus limitation on the President's ability to use force. n154 As
discussed in Part III, supra, Congress's
decision to include this September 11 nexus requirement is consistent
with the original understanding of the Declare War Clause only with respect to the President's ability
to target nation-states, but, in light of the completely unique nature of the conflict against
international terrorist organizations, Congress has no power to enact this nexus requirement to
control the President's actions with regard to non-state actors.
Here’s comparative evidence
Li 09
(Zheyao, JD Georgetown 2009; “War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare,” 7
Geo. J.L. & Pub. Pol'y 373, Lexis – JAK)
On the other hand, the
slow-moving, deliberative Congress has no role to play in authorizing military action
against non-state actors in the fourth generation of warfare. The President must have the ability to
react quickly in conducting offensive military action against these transnational enemies, both in
response to terrorist attacks that have already occurred and to prevent imminent attacks. Congress's
powers over the initiation of war or the seeking of peace have no role in this civilizational conflict
against extremist terrorists who will not rest until they destroy the United States and who have made such
intentions known. In light of the fundamental difference in the nature of the threats posed, the nature of the adversaries,
and the different strategies and tactics necessary to combat them, these parallel constitutional
decision-making processes in the area of war--one conforming to the Framers' conception of traditional Westphalian warfare against
nation-states, and the other adapting to the realities of asymmetric warfare waged by non-state actors--are both necessary to ensure the
survival and prosperity of the United States in the twenty-first century and beyond.
Impact – WMD
Status quo flexibility is sufficient but the plan’s statutory restrictions guarantees WMD
attacks on the US
Yoo 12
John Yoo, law professor at University of California, Berkeley. He was Deputy¶ Assistant Attorney General in the Office of Legal Counsel at the
US Department¶ of Justice from 2001 to 2003, “Exercising Wartime Powers,” Harvard International¶ Review28. 1 (Spring 2006): 22-25.
Critics of these conflicts want to upend long practice by appealing to an "original
understanding" of the Constitution. But the text and structure of the Constitution, as well as its application over the¶ last two
centuries, confirm that the president can begin military hostilities without the approval of Congress. The Constitution¶ does not
establish a strict warmaking process because the Framers understood that war¶ would require the
speed, decisiveness, and secrecy that only the presidency could bring. "Energy¶ in the executive," Alexander
Hamilton argued in the Federalist Papers, "...is essential to the protection of the community against¶ foreign attacks." He continued, "the
direction of war most peculiarly demands those qualities which distinguish the exercise of¶ power by a single hand." Rather
than
imposing a fixed, step-by-step method for going to war, the¶ Constitution allows the executive and
legislative branches substantial flexibility in shaping the¶ decisionmaking process for engaging in
military hostilities. Given the increasing ability of¶ rogue states to procure weapons of mass destruction
(WMDs) and the rise of international¶ terrorism, maintaining this flexibility is critical to preserving US
national security.
AT Flexibility Bad – Unchecked Power
Political consequences prevent a reckless president
Moe and Howell 99
(Terry Moe, William Bennett Munro professor of political science at Stanford University, a senior fellow at Stanford University's Hoover
Institution, and a member of the Hoover Institution’s Koret Task Force on K-12, William Howell, the Sydney Stein Professor in American Politics
in the Harris School, a professor in the Department of Political Science and the College, and a co-director of the Program on Political
Institutions, “The Presidential Power of Unilateral Action” 1999, Oxford University Press,
http://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdf, KB)
This does not mean presidents will be reckless in their pursuit of power .¶ Should they go too far or
too fast, or move in to the wrong areas at the wrong¶ time they would find that there are heavy
political costs to be paid—perhaps in¶ being reversed on the specific issue by Congress or the courts, but
more generally¶ by creating opposition that could threat other aspects of the presidential policy¶
agenda or even its broader success. It is a matter of strategy. Presidents have¶ to calculate ex ante the costs as well as
the benefits of any attempt to expand¶ their power and take action when the situation looks promising. They have to¶ pick
their spots.
Congress can still check the president
Yoo 12
(John Yoo, American attorney, law professor, and author. He served as a political appointee, the Deputy Assistant US Attorney General in the
Office of Legal Counsel, Department of Justice (OLC), during the George W. Bush administration. “War Powers Belong to the President”¶ Posted
Feb 1, 2012,¶ http://www.abajournal.com/magazine/article/war_powers_belong_to_the_president, KB)
Presidents, of course, do not have complete freedom to take the nation to war. Congress has ample
powers to control presidential policy, if it wants to. Only Congress can raise the military, which gives it the power
to block, delay or modify war plans. Before 1945, for example, the United States had such a small peacetime military that presidents who
started a war would have to go hat in hand to Congress to build an army to fight it. Since World War II, it has been Congress that has authorized
and funded our large standing military, one primarily designed to conduct offensive, not defensive, operations (as we learned all too tragically
on 9/11) and to swiftly project power worldwide. If
Congress wanted to discourage presidential initiative in war, it
could build a smaller, less offensive-minded military.¶ Congress’ check on the presidency lies not just in the long-term
raising of the military. It can also block any immediate armed conflict through the power of the purse. If Congress
feels it has been misled in authorizing war, or it disagrees with the president’s decisions, all it need do is cut off funds, either all at once or
gradually. It
can reduce the size of the military, shrink or eliminate units, or freeze supplies. Using the
power of the purse does not even require affirmative congressional action. Congress can just sit on its hands and
refuse to pass a law funding the latest presidential adventure, and the war will end quickly. Even the Kosovo war, which lasted little
more than two months and involved no ground troops, required special funding legislation.¶ The framers expected Congress’
power of the purse to serve as the primary check on presidential war. During the 1788 Virginia ratifying convention, Patrick Henry attacked the
Constitution for failing to limit executive militarism. James Madison responded: “The sword is in the hands of the British king; the purse is in the
hands of the Parliament. It is so in America, as far as any analogy can exist.” Congress ended America’s involvement in Vietnam by cutting off all
funds for the war.
Aff
Agent CP Bad
Agent counterplans are a voting issue- they moot the 1ac with no 2ac recourse due to
lack of comparative solvency evidence between congress and the executive.
No Solvency/A2 Flex NB
Congressional authorization is key and CP can’t solve flex because it isn’t binding
Myers’ 9
[Zach Myers, JD Candidate, 2014, Georgetown University Law Center.
http://zcmyers.blogspot.com/2009/01/yoo-vs-fisher-on-presidential-war.html ETB]
Yoo is correct in asserting that institutional flexibility is necessary in dealing with rising globalization. Ironically, he looks
for this flexibility in anachronistic models of international law – i.e. John Locke’s international state of nature. Flexibility is
necessary so far as it empowers law makers and the executive to enforce international law, which is the essential element in stabilizing the
rising global order. Furthermore, this seemingly extra-constitutional law must be binding to be effective. Fisher is
correct, insofar, as he agrees with Jackson’s opinion that “The Presidents power is at its lowest ebb’ when he takes measures incompatible with
the expressed or implied will of Congress (p. 265).” Essentially, Curtiss-Wright correctly established that “[t]he president might act in internal
affairs without congressional authority, but not that [s]he might act contrary to an act of Congress.” Since both Fisher and Yoo agree that
treaties are at least in part an act of legislation, then the basic understanding of the relationship between legislative and executive roles should
control. Yoo resoundingly fails to create saliency with his constitutional foreign policy framework. Fisher does a slightly better job by requiring
the executive to execute Congressional foreign policy directives.
Yoo’s textual analysis, however, trumps Fisher’s. Fisher is forced to awkwardly adopt the extra-constitutional Presidential power to “repel
sudden attacks” in order to justify his framework. Without this extra-textual assertion, Fisher’s framework would render the President
completely helpless in the face of an actual emergency (Yoo p. 159). This would be exactly the opposite of the Framer’s intentions. When they
wrote the constitution, they set up a government specifically in order to deal with attacks – such as Shay’s rebellion – which threatened to
throw the nation into disarray.
To a large degree the opinions in Hamdi vs. Rumsfeld support Fisher’s view of the proper structuring of US foreign policy. The plurality says that
“detention of individuals falling into the category we’re considering is so fundamental and accepted… as to be an exercise of the ‘necessary and
appropriate force’ authorized by the AUMF (p. 518)” The plurality shows some deference towards the implied powers of the executive branch –
point Yoo – but by not directly addressing the question of Presidential power in the absence of Congressional authority, the plurality tacitly
accepts Fisher’s understanding of Presidential war power only in cases of Congressional authorization. Secondly, all the justices, with the
exception of Thomas, agree that the
President does need Congressional authorization to indefinitely detain
citizens. The inquiry naturally devolves, then, to whether the AUMF was properly authorized the suspension of habeas corpus rights. In
response, even the somewhat conciliatory plurality concludes that the implied power of the executive does not
provide sufficient legal ground for “perpetual detention” of Hamdi (p. 521). “We have long since made it clear that a
state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens (p. 537).” This undermines
somewhat Yoo’s assertion that the executive can use force without the authorization of Congress.
Rollback – Future Presidents
CP will get rolled back by future presidents
Friedersdorf 13
(CONOR FRIEDERSDORF, staff writer, “Does Obama Really Believe He Can Limit the Next President's Power?” MAY 28 2013,
http://www.theatlantic.com/politics/archive/2013/05/does-obama-really-believe-he-can-limit-the-next-presidents-power/276279/, KB)
Obama doesn't seem to realize that his legacy won't be shaped by any perspicacious limits he places on the executive branch, if he ever gets
around to placing any on it. The
next president can just undo those "self-imposed" limits with the same wave
of a hand that Obama uses to create them. His influence in the realm of executive power will be to expand it.
By 2016 we'll be four terms deep in major policy decisions being driven by secret memos from the
Office of Legal Counsel. The White House will have a kill list, and if the next president wants to add
names to it using standards twice as lax as Obama's, he or she can do it, in secret, per his precedent.
Future presidents will rollback XOs – Obama proves
SEJ 9
(Society of Environmental Journalists, “Obama Orders Rollback of Bush Secrecy on 1st Day” January 22, 2009,
http://www.sej.org/publications/watchdog-tipsheet/obama-orders-rollback-bush-secrecy-1st-day, KB)
President Barack Obama
signalled that open access to information will be a top priority for his
administration on January 21, 2009, his first full day in office.¶ Obama issued two memos to all executive agencies
and one executive order at a Wednesday session open to reporters and cabinet members — all reversing Bush-era secrecy
directives.
Rollback – Congress and Courts
Congress and the courts will roll back the CP
Howell 5
(William G. Howell, Associate Prof Gov Dep @ Harvard 2005 (Unilateral Powers: A Brief¶ Overview; Presidential Studies Quarterly, Vol. 35,
Issue: 3, Pg 417)
Plainly, presidents
cannot institute every aspect of their policy agenda by decree. The checks and
balances that define our system of governance are alive, though not always well, when presidents contemplate unilateral
action. Should the president proceed without statutory or constitutional authority, the courts stand to
overturn his actions, just as Congress can amend them, cut funding for their operations, or eliminate
them outright. (4) Even in those moments when presidential power reaches its zenith--namely, during times
of national crisis--judicial and congressional prerogatives may be asserted (Howell and Pevehouse 2005, forthcoming;
Kriner, forthcoming; Lindsay 1995, 2003; and see Fisher's contribution to this volume). In 2004, as the nation braced itself for another domestic
terrorist attack and images of car bombings and suicide missions filled the evening news, the courts extended new protections to citizens
deemed enemy combatants by the president, (5) as well as noncitizens held in protective custody abroad. (6) And while Congress, as of this
writing, continues to authorize as much funding for the Iraq occupation as Bush requests, members have imposed increasing numbers of
restrictions on how the money is to be spent.
No Funding
Double bind - either the CP can’t solve because there is no funding or it causes
Congress to act which magnifies the link to politics
Moe and Howell 99
Terry M. Moe (Professor of Political Science at Stanford University) and William G. Howell (Graduate Student of Political Science at Stanford
University) December 1999 “Unilateral Action and Presidential Power: A Theory,” Presidential Studies Quarterly
There is one crucial consideration, however, that we have yet to discuss and that gives Congress a trump card of far-reaching consequence. This
is the fact that Congress
has the constitutional power to appropriate money--which means that, to
the extent that unilateral actions by presidents require congressional funding, presidents are
dependent on getting Congress to pass new legislation that at least implicitly (via appropriations) supports
what they are doing. When appropriations are involved, in other words, presidents cannot succeed by simply
preventing Congress from acting. They can only succeed if they can get Congress to act--which, of course, is much more
difficult and gives legislators far greater opportunities to shape or block what presidents want to do.
AT Politics NB
Links to politics – immense opposition to bypassing debate
Hallowell 13
(Billy Hallowell, writer for The Blaze, B.A. in journalism and broadcasting from the College of Mount Saint Vincent in Riverdale, New York and an
M.S. in social research from Hunter College in Manhattan, “HERE’S HOW OBAMA IS USING EXECUTIVE POWER TO BYPASS LEGISLATIVE
PROCESS” Feb. 11, 2013, http://www.theblaze.com/stories/2013/02/11/heres-how-obamas-using-executive-power-to-bylass-legislativeprocess-plus-a-brief-history-of-executive-orders/, KB)
“In an era of polarized parties and a fragmented Congress, the opportunities to legislate are few and far between,” Howell said. “So
presidents have powerful incentive to go it alone. And they do.”¶ And the political opposition howls.¶ Sen.
Marco Rubio, R-Fla., a possible contender for the Republican presidential nomination in 2016, said that on the gun-control front in
particular, Obama is “abusing his power by imposing his policies via executive fiat instead of allowing
them to be debated in Congress.Ӧ The Republican reaction is to be expected, said John Woolley, co-director of
the American Presidency Project at the University of California in Santa Barbara.¶ “For years there has been a growing concern
about unchecked executive power,” Woolley said. “It tends to have a partisan content, with contemporary
complaints coming from the incumbent president’s opponents.”
Links to politics – the narrative inevitably gets twisted
Gyatso 13
(Ngawang Gyatso, B.A. in Political Economies from the University of California, Berkeley, “Obama’s Counterterrorism Strategy Isn’t Popular or
Idealistic. It’s Realistic!” May 24, 2013, http://jamandbutter.com/2013/05/24/obamas-counterterrorism-strategy-isnt-popular-or-idealistic-itsrealistic/, KB)
No sooner had the President delivered his speech, than superficial narratives on Obama not living up
to humanitarian image and campaign promises surfaced in the media. And what is especially
disappointing is reputable sources like the New York Times joining in unison with sensationalist news
outlets like Huffington Post and Slate in drumming the blame-it-on-Obama beat , when they surely understand
the enormous weight Obama shoulders in carefully repairing a failed and messy neoconservative American foreign policy in the Middle-East –
while his administration aggressively confronts the undeniable reality of terrorism.
Unpopular XOs spark massive congressional backlash
Risen 4
[Clay, Managing editor of Democracy: A Journal of Ideas, M.A. from the University of Chicago “The Power of the Pen: The Not-So-Secret
Weapon of Congress-wary Presidents” The American Prospect, July 16, http://www.prospect.org/cs/articles?article=the_power_of_the_pen]
The most effective check on executive orders has proven to be political. When
it comes to executive orders, “The president
is much more clearly responsible,” says Dellinger, who was heavily involved in crafting orders under Clinton. “Not only is there no
involvement from Congress, but the president has to personally sign the order.” Clinton's Grand StaircaseEscalante National Monument executive order may have helped him win votes, but it also set off a massive congressional
and public backlash. Right-wing Internet sites bristled with comments about “dictatorial powers,” and Republicans warned of an end to
civil liberties as we know them. “President Clinton is running roughshod over our Constitution,” said then–House Majority Leader Dick Armey.
an unpopular executive order can have immediate--and lasting--political consequences. In 2001,
for example, Bush proposed raising the acceptable number of parts per billion of arsenic in drinking
water. It was a bone he was trying to toss to the mining industry, and it would have overturned Clinton's order lowering the levels. But the
overwhelmingly negative public reaction forced Bush to quickly withdraw his proposal--and it painted
him indelibly as an anti-environmental president.
Indeed,
Plan popular with dems, CP isn’t
Nzelibe ‘11
[Jibe, Professor of Law, Northwestern University Law School. William and Mary Law Review 53:389.
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1216&context=facultyworkingpapers ETB]
But there is also reason to think that the long-term effects of an¶ expansion of presidential war powers will not be symmetric across¶ rightleaning and left-leaning parties. A growing literature in¶ foreign policy shows that the use of force generates more electoral¶ and ideological
benefits for right-leaning governments than for leftleaning governments.86 More specifically, Foster and Palmer argue¶ that Republican
Presidents in the United States are more prone to¶ view the use of force as an instrumentally desirable political option¶ because their core
supporters are more likely to reward, and less¶ likely to sanction, these Presidents for foreign military engagements¶ than their liberal
counterparts.87 If this is the case, and if politicians¶ are sensitive to the institutional conditions that make it more likely¶ that they will achieve
their favored policy objectives, then we would¶ expect Republican politicians to generally prefer more presidential¶ flexibility in the use of
force. By contrast, we
would expect leftleaning politicians to view expansive war powers as an obstacle to¶
their preferred policy and electoral objectives. In other words, not¶ only may Democrats prefer less
presidential flexibility in war¶ powers because of their supporters’ dovish preferences, but they¶ might
also be concerned that if issues like national security and¶ antiterrorism dominate the political
agenda, they will crowd out¶ issues such as health care, education reform, or welfare in which¶
Democrats are likely to have an electoral advantage over¶ Republicans.88
AT Flexibility NB
Yoo evidence says congress and the exec being flexible together is best- perm solves
Double bind- either CP doesn’t solve case or it can’t preserve flexibility. And flexibility
causes terrorism, turns the internal link
Englehardt ‘5
[Tom Engelhardt created and runs the Tomdispatch.com website, a project of The Nation Institute where he is a Fellow. Each spring he is a
Teaching Fellow at the Graduate School of Journalism at the University of California, Berkel. http://www.tomdispatch.com/post/32668/ ETB]
Here it is worth reviewing the positions Yoo advocated while in the executive branch and since, and their consequences in the "war on terror."
At every
turn, Yoo has sought to exploit the "flexibility" he finds in the Constitution to advocate an approach to
the "war on terror" in which legal limits are either interpreted away or rejected outright. Just two weeks after
the September 11 attacks, Yoo sent an extensive memo to Tim Flanigan, deputy White House counsel, arguing that the President had unilateral authority to use
military force not only against the terrorists responsible for the September 11 attacks but against terrorists anywhere on the globe, with or without congressional
authorization.¶ Yoo followed that opinion with a series of memos in January 2002 maintaining, against the strong objections of the State Department, that the
Geneva Conventions should not be applied to any detainees captured in the conflict in Afghanistan. Yoo argued that the president could unilaterally suspend the
conventions; that al-Qaeda was not party to the treaty; that Afghanistan was a "failed state" and therefore the president could ignore the fact that it had signed the
conventions; and that the Taliban had failed to adhere to the requirements of the Geneva Conventions regarding the conduct of war and therefore deserved no
protection. Nor, he argued, was the president bound by customary international law, which insists on humane treatment for all wartime detainees. Relying on Yoo's
reasoning, the Bush administration claimed that it could capture and detain any person who the president said was a member or supporter of al-Qaeda or the
Taliban, and could categorically deny all detainees the protections of the Geneva Conventions, including a hearing to permit them to challenge their status and
restrictions on inhumane interrogation practices.¶ Echoing Yoo, Alberto Gonzales, then White House counsel, argued at the time that one of the principal reasons
for denying detainees protection under the Geneva Conventions was to "preserve flexibility" and make it easier to "quickly obtain information from captured
terrorists and their sponsors." When CIA officials reportedly raised concerns that the methods they were using to interrogate high-level al-Qaeda detainees -- such
as waterboarding -- might subject them to criminal liability, Yoo was again consulted. In response, he drafted the August 1, 2002, torture memo, signed by his
superior, Jay Bybee, and delivered to Gonzales. In that memo, Yoo "interpreted" the criminal and international law bans on torture in as narrow and legalistic a way
as possible; his evident purpose was to allow government officials to use as much coercion as possible in interrogations. ¶ Yoo
wrote that threats of
death are permissible if they do not threaten "imminent death," and that drugs designed to disrupt
the personality may be administered so long as they do not "penetrate to the core of an individual's
ability to perceive the world around him." He said that the law prohibiting torture did not prevent
interrogators from inflicting mental harm so long as it was not "prolonged." Physical pain could be inflicted so long as
it was less severe than the pain associated with "serious physical injury, such as organ failure, impairment of bodily function, or even death."¶ Even this
interpretation did not preserve enough executive "flexibility" for Yoo. In a separate section of the
memo, he argued that if these loopholes were not sufficient, the president was free to order outright
torture. Any law limiting the president's authority to order torture during wartime, the memo claimed, would "violate the Constitution's sole vesting of the
Commander-in-Chief authority in the President."¶ Since leaving the Justice Department, Yoo has also defended the practice of "extraordinary renditions," in which
the United States has kidnapped numerous "suspects" in the war on terror and "rendered" them to third countries with records of torturing detainees. He has
argued that the federal courts have no right to review actions by the president that are said to violate the War Powers Clause. And he has defended the practice of
targeted assassinations, otherwise known as "summary executions."¶ In short, the
flexibility Yoo advocates allows the
administration to lock up human beings indefinitely without charges or hearings, to subject them to
brutally coercive interrogation tactics, to send them to other countries with a record of doing worse,
to assassinate persons it describes as the enemy without trial, and to keep the courts from interfering
with all such actions.¶ Has such flexibility actually aided the U.S. in dealing with terrorism ? In all likelihood,
the policies and attitudes Yoo has advanced have made the country less secure. The abuses at
Guantánamo and Abu Ghraib have become international embarrassments for the United States, and
by many accounts have helped to recruit young people to join al-Qaeda. The U.S. has squandered the sympathy it had on
September 12, 2001, and we now find ourselves in a world perhaps more hostile than ever before. ¶ With respect to detainees, thanks to Yoo, the U.S. is now in an
untenable bind: on the one hand, it has become increasingly unacceptable for the U.S. to hold hundreds of prisoners indefinitely without trying them; on the other
hand our coercive and inhumane interrogation tactics have effectively granted many of the prisoners immunity from trial. Because the evidence we might use
against them is tainted by their mistreatment, trials would likely turn into occasions for exposing the United States' brutal interrogation tactics. This predicament
was entirely avoidable. Had we given alleged al-Qaeda detainees the fair hearings required by the Geneva Conventions at the outset, and had we conducted
humane interrogations at Guantánamo, Abu Ghraib, Camp Mercury, and elsewhere, few would have objected to the U.S. holding some detainees for the duration of
the military conflict, and we could have tried those responsible for war crimes. What has been so objectionable to many in the U.S. and abroad is the government's
refusal to accept even the limited constraints of the laws of war. ¶ The
consequences of Yoo's vaunted "flexibility" have been
self-destructive for the U.S. -- we have turned a world in which international law was on our side into
one in which we see it as our enemy. The Pentagon's National Defense Strategy, issued in March 2005, states,¶ "Our strength as a nation
state will continue to be challenged by those who employ a strategy of the weak, using international fora, judicial processes, and terrorism."¶ The proposition that
judicial processes -- the very essence of the rule of law -- are to be dismissed as a strategy of the weak, akin to terrorism, suggests the continuing strength of Yoo's
influence. When the rule of law is seen simply as a device used by terrorists, something has gone perilously wrong. Michael Ignatieff has written that "it is
the
very nature of a democracy that it not only does, but should, fight with one hand tied behind its back.
It is also in the nature of democracy that it prevails against its enemies precisely because it does." Yoo
persuaded the Bush administration to untie its hand and abandon the constraints of the rule of law.
Perhaps that is why we are not prevailing.
A multitude of other actors hamper presidential flexibility
Rozell 12
(Mark Rozell, Professor of Public Policy, George Mason University, “From Idealism to Power: The Presidency in the Age of Obama” 2012,
http://www.libertylawsite.org/book-review/from-idealism-to-power-the-presidency-in-the-age-of-obama/, KB)
A substantial portion of Goldsmith’s book presents in detail his case that various
forces outside of government, and some within, are
responsible for hamstringing the president in unprecedented fashion: Aggressive, often intrusive, journalism, that
at times endangers national security; human rights and other advocacy groups, some domestic and other
cross-national, teamed with big resources and talented, aggressive lawyers, using every legal category
and technicality possible to complicate executive action; courts thrust into the mix, having to decide critical
national security law controversies, even when the judges themselves have little direct knowledge or expertise on the topics
brought before them; attorneys within the executive branch itself advising against actions based on often narrow legal
interpretations and with little understanding of the broader implications of tying down the president with legalisms.
Flexibility will inevitability limited- ideological and electoral incentives
Nzelibe ‘11
[Jibe, Professor of Law, Northwestern University Law School. William and Mary Law Review 53:389.
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1216&context=facultyworkingpapers ETB]
The problem, I suggest below, is that these institutional
accounts¶ do not capture the full range of pressures that
influence the¶ preferences of elected officials for expanding or contracting presidential authority.
Although Presidents and their copartisans in¶ Congress may be pushed towards an expansive vision of presidential¶ authority by a shared
desire to maintain maximum policy flexibility,¶ they are often pulled by their partisan commitments to try to¶
embrace constraints that limit the President’s policy flexibility on¶ those issues that may be owned by
the political opposition.21 Indeed,¶ both electoral and ideological incentives may explain why politicians¶
are sometimes willing to commit to institutional arrangements they¶ hope will constrain their
successors even if it comes at the expense¶ of maintaining policy flexibility. To be clear, some constitutional¶
scholars have recognized that societal actors may try to usher in¶ new constitutional orders for partisan objectives, but these scholars¶ have
focused largely on tactics like stacking the judiciary, exerting¶ greater influence over administrative agencies, or establishing¶ policy agendas in
a way that demobilizes political opponents.22¶ However, these scholars have neither focused specifically on the¶ separation of powers nor
examined the interaction between partisan¶ issue ownership and constitutional structure, which is a crucial¶ aspect of the approach this Essay
advances.
AT Prez Powers NB
Obama has issued ton 149 XOs – the CP isn’t key prez powers
UPI 13
(“Report: Obama issued 149 orders so far” March. 28, 2013, http://www.upi.com/Top_News/US/2013/03/28/Report-Obama-issued-149orders-so-far/UPI-61551364483129/, KB)
Obama is on track to issue about as many executive orders in his two terms as his predecessor George W.
Bush, records indicated.¶ As of Wednesday, records showed Obama issued 149 executive orders , 147 from his first term and
two this year, The Hill reported Thursday.
AT Hegemony Impact
Presidential powers crush public support for the military
Paul 98
[Paul R, Professor @ University of Connecticut School of Law “The Geopolitical Constitution: Executive Expediency and Executive Agreements”
California Law Review, 86 Calif. L. Rev. 671, Lexis]
Second, the
growth of executive power has created a bias in favor of internationalism that has often led
to failure. Possessing a virtual monopoly power over foreign relations has tempted presidents to send
troops abroad or to make foreign commitments. Time and again the executive has stumbled into foreign
conflicts, like Bosnia, Lebanon, Iran and Somalia, with tragic results. n32 At a minimum, congressional [*680] participation
might have slowed decision-making, leaving time for public deliberation. n33 Third, the absence of
congressional debate has often accounted for the lack of public support for foreign commitments.
When U.S. forces have suffered casualties, such as in Somalia or Beirut, public opinion turned against the executive. Without the
popular will to stay the course, presidents have withdrawn U.S. forces in some cases. As a result, U.S. policy
has often lacked coherence. Though Congress was blamed for this inconsistency in many cases, one reason members of Congress so readily
changed their minds was that they were not politically invested in the policy.
Public support is key to sustained leadership
Gray 4
Gray 4 [Colin, Professor of International Politics and Strategic Studies at the University of Reading, England, The Sheriff: America’s Defense of
the New World Order, pp. 94-5]
Seventh, the American sheriff cannot police world order if domestic opinion is not permissive. The
longevity of U.S. guardianship
depends vitally upon the skill, determination, and luck with which the country protects and burnishes
its reputation for taking strategically effective action. But it also depends upon the willingness of
American society to accept the costs that comprise the multi-faceted price of this particular form of
glory. The American public is probably nowhere near as casualty-shy as popular mythology insists, though the same cannot be said with equal
confidence of the profes¬sional American military. Such, at least, are the conclusions of the major recent study on this much debated subject."
It is the opinion of this author that popular American attitudes toward casualties stem fairly directly from the sense of involvement, or lack of
the same, in the matters at issue. If valid, this judgment is good news for the fea¬sibility of U.S. performance in the sheriff's role, but a dire
systemic problem may still remain. Specifically, as principal global guardian, the
United States risks being thwarted on the
domestic front by the central and inalienable weakness that mars attempts to practice the theory of
collective security. Bacevich and others advance powerful arguments connecting American strategic behavior to the promotion of what
they see, not wholly implausibly, as an informal American empire. But many, if not most, American voters will be hard to convince that U.S.
military action is warranted save in those mercifully rare instances when it is directed to thwart some clear and present danger. A doctrine of
military preemption, typically meaning preven¬tion, no matter how strategically prudent, will be as difficult to justify domestically as abroad.
There is an obvious way to diminish the amount, intensity, and duration of domestic political opposition to military operations conducted for
purposes that do not resonate loudly on Main Street. That solution is to adopt a style of warfare that imposes few costs on American society,
especially in the most human of dimensions-casualties. But since war is a duel, the United States' ability to perform all but painlessly as sheriff
can never lie totally within its own control. Nonetheless, the potential problem of a reluctant domestic public should be eased if care is taken in
select¬ing policing duties and if the troops who must execute the strategy are tactically competent. All of this would be more reassuring were
we not respectful students of Clausewitz's teaching that "War is the realm of chance," an aphorism that we have had occasion to quote before
AT Terrorism Impact
Congressional power is critical to a successful War on Terror
Dean 2
[John, White House Counsel to Nixon and FindLaw Writ Columnist, “Tom Ridge's Non- Testimonial Appearance Before Congress: Another Nixonstyle Move By The Bush Administration, Find Law, April 12 http://writ.news.findlaw.com/dean/20020412.html]
Congressional oversight and the collective wisdom of Congress are essential in our dealing with
terrorism.. Presidents don't issue press releases about their mistakes Nor do they report interagency squabbles that
reduce executive effectiveness. They don't investigate how funds have been spent poorly or unwisely. And they're not
inclined to explain even conspicuous problems in gathering national security intelligence. When did anyone hear of a President rooting out
incompetent appointees (after all, they chose them in the first place)? In contrast, Congress
wants to do all these things,
thereby keeping a President on his toes. Its oversight is crucial - for the Presidential and Executive Branch
limitations I've suggested are only a few of the myriad problems that might hamper the efficacy of the
Executive in its efforts to deal with terrorism, and that Congress can help to correct. Justifiably, Americans are worried, but
they are getting on with their lives. Shielding and hiding the man in charge of homeland security from answering the questions of Congress is
entirely unjustified. This talk of "separation of powers" and "executive privilege" is unmitigated malarkey. It is a makeshift excuse to keep the
Congress from policing the White House
Perm
Permutation is the only thing that can give an executive order the power of law and
prevent roll back
Leanna Anderson (clerk for H.R. Lloyd, U.S. Magistrate) Hastings Constitutional Law Quarterly 2002
To be challengeable, an executive order must have the force and effect of law. Under the United States Code, federal court jurisdiction is
limited to "federal questions." "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States." For federal courts to have jurisdiction over a civil action challenging an executive order, the order must have the
if the order is issued in
accordance with Congressional statutory mandate or delegation, the order has the force and effect
of law. However, if the order is not based on an express Congressional grant of authority, federal
courts may either look for an implied Congressional basis for the order or find that no statutory basis exists so that the
order does not have the force and effect of law.
"force and effect of law." There are two different branches of analysis under this requirement. First,
2ac- Solvency Deficit/Offense
CP is meaningless- refraining from using indefinite detention fails to prevent future
president’s from using it- impact is unchecked prez power and violation of civil
liberties
Policy Mic ‘12
[Henry Zheng. http://www.policymic.com/articles/14856/ndaa-terrorism-law-obama-and-hisunchecked-power-grab ETB]
Despite his promises to end the war, President Obama has continued to expand his presidential powers in the War on
Terror, which are legal executive privileges that began in the Bush administration. The key difference is that Obama's authority
seems to be more ambiguous, more powerful, and less defined than in the previous administrations .
When Obama was accused of violating the Constitution with the passage of his Affordable Care Act, at least the Supreme Court could justify the legitimacy of the
legislation by invoking the Constitution's Taxing and Spending Clause. However, with the passage of the National Defense Authorization Act for Fiscal Year 2012, he
is vested with extrajudicial powers that at times contradict the very principles codified by the Founding Fathers. ¶ One such power is granted under the NDAA's
section 1021 and 1022, which contain the provisions that allow the president to indefinitely detain a terrorist suspect without a trial. In an interview with John
Cusack on Truthout.com, the George
Washington University law professor Jonathan Turley observes that this effectively
undermines the due process guaranteed by the Fifth Amendment of the Constitution that could be detrimental to our civil
liberties if the power is used irresponsibly.¶ This violation of the due process of law is viewed by Turley as a dangerous concession by U.S. citizens that
could lead to greater encroachment on our liberties in the future. According to Turley, it is "meaningless" that
Obama has pledged to not use his powers against U.S. citizens because he still possesses the legal
authority to do so. It is uncertain whether future administrations will be so "disciplined" in its refrain
from indefinitely detaining or killing U.S. citizens (on home soil) who speak out against the government, tasks
that can be legally accomplished by labeling them terrorists and subsequently circumventing the
mechanisms of the judicial process guaranteed by the Constitution.¶ In response to such concerns, President Obama
issued a policy directive in February that narrows the coverage of indefinite detention to non-U.S. citizens and does not
allow those under his administration to detain citizens or legal permanent residents captured on U.S. soil. ¶ However, legal columnist Joanne Mariner
still finds the issue unresolved because the directive could just as easily be rescinded by future presidents. She suggests that
American citizens on U.S. soil have not ensured that their constitutional liberties are protected as long as section
1021 and section 1022 of the NDAA remain as they are now because we are subjected to the executive branch's "discretion" unless there are changes to the statute
itself. Currently, a bill called the Due Process Guarantee Act that would make it illegal to detain a citizen or lawful permanent resident has been in review by the
Senate Judiciary Committee since last year.
Congress key- future presidents won’t restrain themselves
Froomkin ‘12
[Dan, contributing editor, Nieman Reports. http://www.huffingtonpost.com/dan-froomkin/obama-white-house-leaks_b_1973649.html ETB]
Troubling legal and moral issues left behind by the previous administration remain unresolved. Far from
reversing the Bush-Cheney executive power grab, President Barack Obama is taking it to new extremes by
unilaterally approving indefinite detention of foreign prisoners and covert targeted killings of terror suspects, even when they
are American citizens.¶ There is little to none of the judicial and legislative oversight Obama had promised, so
the executive branch's most controversial methods of violence and control remain solely in the hands of the
president -- possibly about to be passed along to a leader with less restraint.
Unfettered presidential powers cause nuclear war; ev is gender modified
Forrester 89 - Professor, Hastings College of the Law (Ray, August 1989, ESSAY: Presidential Wars in the Nuclear Age: An
Unresolved Problem, 57 Geo. Wash. L. Rev. 1636)
one man [person] alone has the ability to start a nuclear war. A basic theory--if
concentration of power in any one person, or one group, is dangerous to mankind
[humanity]. The Constitution, therefore, contains a strong system of checks and balances, starting with the
On the basis of this report, the startling fact is that
not the basic theory of our Constitution--is that
separation of powers between the President, Congress, and the Supreme Court. The message is that no one of them is safe with unchecked power. Yet, in what is probably
the most dangerous governmental power ever possessed, we find the potential for world destruction lodged in the discretion of one person. As a result of public indignation aroused by the
Vietnam disaster, in which tens of thousands lost their lives in military actions initiated by a succession of Presidents, Congress in 1973 adopted, despite presidential veto, the War Powers
Resolution. Congress finally asserted its checking and balancing duties in relation to the making of presidential wars. Congress declared in section 2(a) that its purpose was to fulfill the intent of
the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces
into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.
The law also stated in section 3 that [t]he President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations
where imminent involvement in hostilities is clearly indicated. . . . Other limitations not essential to this discussion are also provided. The intent of the law is clear. Congress undertook to check
the President, at least by prior consultation, in any executive action that might lead to hostilities and war. [*1638] President Nixon, who initially vetoed the resolution, claimed that it was an
unconstitutional restriction on his powers as Executive and Commander in Chief of the military. His successors have taken a similar view. Even so, some of them have at times complied with
the law by prior consultation with representatives of Congress, but obedience to the law has been uncertain and a subject of continuing controversy between Congress and the President.
Ordinarily, the issue of the constitutionality of a law would be decided by the Supreme Court. But, despite a series of cases in which such a decision has been sought, the Supreme Court has
refused to settle the controversy. The usual ground for such a refusal is that a "political question" is involved. The rule is well established that the federal judiciary will decide only "justiciable"
controversies. "Political questions" are not "justiciable." However, the standards established by the Supreme Court in 1962 in Baker v. Carr, 369 U.S. 186, to determine the distinction between
"justiciable controversies" and "political questions" are far from clear. One writer observed that the term "political question" [a]pplies to all those matters of which the court, at a given time,
will be of the opinion that it is impolitic or inexpedient to take jurisdiction. Sometimes this idea of inexpediency will result from the fear of the vastness of the consequences that a decision on
the merits might entail. Finkelstein, Judicial Self-Limitation, 37 HARV. L. REV. 338, 344 (1924)(footnote omitted). It is difficult to defend the Court's refusal to assume the responsibility of
decisionmaking on this most critical issue. The Court has been fearless in deciding other issues of "vast consequences" in many historic disputes, some involving executive war power. It is to be
But in the meantime the spectre of single-minded power persists, fraught
with all of the frailties of human nature that each human possesses, including the President. World
history is filled with tragic examples. Even if the Court assumed its responsibility to tell us whether the Constitution gives Congress the necessary power to check
hoped that the Justices will finally do their duty here.
the President, the War Powers Resolution itself is unclear. Does the Resolution require the President to consult with Congress before launching a nuclear attack? It has been asserted that
"introducing United States Armed Forces into hostilities" refers only to military personnel and does not include the launching of nuclear missiles alone. In support of this interpretation, it has
been argued that Congress was concerned about the human losses in Vietnam and in other presidential wars, rather than about the weaponry. Congress, of course, can amend the Resolution
to state explicitly that "the introduction of Armed Forces" includes missiles as well as personnel. However, the President could continue to act without prior consultation by renewing the claim
first made by President [*1639] Nixon that the Resolution is an unconstitutional invasion of the executive power. Therefore, the real solution, in the absence of a Supreme Court decision,
would appear to be a constitutional amendment. All must obey a clear rule in the Constitution. The adoption of an amendment is very difficult. Wisely, Article V requires that an amendment
may be proposed only by the vote of two-thirds of both houses of Congress or by the application of the legislatures of two-thirds of the states, and the proposal must be ratified by the
legislatures or conventions of three-fourths of the states. Despite the difficulty, the Constitution has been amended twenty-six times. Amendment can be done when a problem is so important
that it arouses the attention and concern of a preponderant majority of the American people. But the people must be made aware of the problem. It is hardly necessary to belabor the relative
importance of the control of nuclear warfare. A constitutional amendment may be, indeed, the appropriate method. But the most difficult issue remains. What should the amendment
provide? How can the problem be solved specifically? The Constitution in section 8 of Article I stipulates that "[t]he Congress shall have power . . . To declare War. . . ." The idea seems to be
that only these many representatives of the people, reflecting the public will, should possess the power to commit the lives and the fortunes of the nation to warfare. This approach makes
much more sense in a democratic republic than entrusting the decision to one person, even though he may be designated the "Commander in Chief" of the military forces. His power is to
There is a recurring
relevation of a paranoia of power throughout human history that has impelled one leader after another to draw their
people into wars which, in hindsight, were foolish, unnecessary, and, in some instances, downright insane. Whatever may be the psychological influences that drive the single
decisionmaker to these irrational commitments of the lives and fortunes of others, the fact remains that the behavior is a predictable one in any
government that does not provide an effective check and balance against uncontrolled power in the
hands of one human. We, naturally, like to think that our leaders are above such irrational behavior. Eventually, however, human nature, with all its weakness, asserts itself
command the war after the people, through their representatives, have made the basic choice to submit themselves and their children to war.
whatever the setting. At least that is the evidence that experience and history give us, even in our own relatively benign society, where the Executive is subject to the rule of
law. [*1640] Vietnam and other more recent engagements show that it can happen and has happened here. But the "nuclear football"--the ominous "black bag" --remains in the sole
[the] decision to launch a nuclear missile would be, in fact if not in law, a
declaration of nuclear war, one which the nation and, indeed, humanity in general, probably would be unable to survive.
possession of the President. And, most important, his
[insert Petro ’74]
XO=>Tyranny
XO’s cause tyranny
Sterling 2k
[John A. Sterling is the Executive Director of Law and Liberty, a non-profit foundation for education in the public interest with its main office in
Chesapeake, Virginia. John is an adjunct professor at Tidewater Community College in Chesapeake, VA. 31 U. West. L.A. L. Rev. 99. ETB]
Executive Orders are not inherently evil and, subject to the same checks and balances to which the entire federal apparatus is subject, may be
used to effectively administer public policy through the administrative agency. History and prudence agree that, absent such controls,
administrative rule-making promulgated by executive order is tyranny. It is no less tyranny because some
people have not yet felt its sting. The Republic was anchored in the fundamental principles of the
Constitution whereby the democratic political process maintained effective control of the rudder.
Once the anchor is lost, the great ship of state is bound for shipwreck on the reefs of self-destruction.
Part Two will look at the [*117] Executive Orders of Presidents Kennedy through Clinton to see how far we have drifted and ponder whether, if
it be possible, we may set a truer course.
The impact is value to life – moral side constraint
Petro, Wake Forest Professor in Toledo Law Review, 1974
(Sylvester, Spring, page 480)
However, one may still insist, echoing Ernest Hemingway - "I believe in only one thing: liberty." And it is always well to bear in mind David
Hume's observation: "It
is seldom that liberty of any kind is lost all at once." Thus, it is unacceptable to say
that the invasion of one aspect of freedom is of no import because there have been invasions of so
many other aspects. That road leads to chaos, tyranny, despotism, and the end of all human
aspiration. Ask Solzhenitsyn. Ask Milovan Dijas. In sum, if one believed in freedom as a supreme value and the proper ordering
principle for any society aiming to maximize spiritual and material welfare, then every invasion of freedom must be
emphatically identified and resisted with undying spirit.
XO=>Unchecked Prez Power
XO’s allow the prez to gain unchecked power- merits of the CP are irrelevant
Ben ‘12
[Ben is a 2011 graduate of Taylor University where he received his Bachelor of Arts in History. He is currently enrolled at Denver Seminary and
is a candidate for a Master of Arts in New Testament Biblical Studies. http://faithfulpolitics.org/2012/08/31/the-threat-of-executive-orders/
ETB]
In an op-ed piece this week entitled “ ‘Issues’ or America?,” American economist Thomas Sowell denounced presidential executive orders,
pointing out that people often become so focused on debating the merits or demerits of policy they forget
that the legislative process is being circumvented and our Constitution and freedoms silently eroded.
What are executive orders and is Sowell right to criticize them? ¶ Executive orders have been around for centuries, although they have morphed over the years. We
would not have recognized early “executive orders,” which are more accurately described as presidential directives and proclamations. The idea of the President of
the United States issuing a directive is natural and appropriate, the first one being given by George Washington himself in 1789. The actual term “executive order”
was not used until 1862 when Abraham Lincoln used a number of orders to run the early months of the Civil War, and later when he issued the Emancipation
Proclamation on January 1, 1863. Lincoln issued only three official executive orders, but later presidents, starting with Theodore Roosevelt and FDR in the early
twentieth century, issued hundreds and even thousands. However, from Lyndon B. Johnson onward, the amount of executive orders per president has remained
consistent: Clinton signed 364; G.W. Bush signed 291; President Obama is currently up to 134.¶ In the beginning executive orders were used for a number of
different purposes, most of them legitimate exercises of authority. Most executive orders are used for one of the following reasons: to exercise constitutionally
authorized executive power, to interpret and implement statutory laws passed by Congress, or to organize and delegate responsibility within the executive branch.
Constitutionally, the president has broad powers as described in Article II to issue directives in the following areas: 1) Commander in Chief of the armed forces (Art.
II, § 2, cl. 1); 2) as the Head of State in carrying out foreign policy, including negotiating treaties (Art. II, § 2, cl. 2, and § 3); 3) as Chief Law Enforcement Officer to
make sure that the “laws be faithfully executed” (Art. II, § 3); 4) as Head of the Executive Branch in order to appoint officers, delegate authority, and organize
administration (Art. II, § 3); and finally, 5) to grant pardons (Art. II, § 2, cl. 1). ¶ With such broad powers, executive orders can be far reaching and encompass many
areas of governance. But is there a limit? Is there anything the president cannot do with executive orders? In fact there is. When our founding fathers wrote and
debated the Constitution during the Constitutional Convention of 1787, they purposely set out to create government by the people (known as People’s Law), not by
a single individual (known as Ruler’s Law). Thus they invested all law-making power in Congress, which represented the people equally through the Senate, and
proportionally through the House of Representatives. Having just won an unlikely war against King George III of England for their independence, the framers of our
government were explicitly trying to avoid arbitrary rule by one person that can so easily become abusive and dictatorial. This is why Article I, Section 1 of the
Constitution reads, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of
Representatives” [italics mine].¶ The president and executive branch do not have the authority to create new laws, for this would have violated one of the most
fundamental purpose of our government, representative rule. The broad powers covered by executive orders exclude the following: 1) creating new legislation
apart from Congress; 2) revising current laws without congressional initiative; 3) repealing current laws after they have been signed into law; and 4) creating
bureaucracy in connection with the three previous violations. While there is some overlap between legislative and executive powers, the authority to write, alter,
and repeal laws lies only with Congress. The only time the president has the authority to tamper with current law is if Congress has delegated authority to him to
interpret and implement the law. But this power has already been invested in the executive branch pursuant Art. II, § 3. ¶ Unfortunately, since FDR presidents have
used executive orders as legislative tools to sidestep Congress and accomplish their own policy objectives. This is a clear abuse of executive power and is illegal. The
last three presidents have all abused their power in this manner. Clinton often flaunted his ability to create laws through executive order, and he readily publicized
his legislative executive orders when Congress failed to achieve his policy goals. At one point the Supreme Court actually struck down one of Clinton’s executive
orders and forced him to rewrite it. George W. Bush did not amend such abuses, but continued to use his executive power in near dictatorial ways during
emergencies with the National Security and Homeland Security Presidential Directive in 2007, among others. Currently, President Obama has followed suit, rolling
out his “We Can’t Wait” campaign after the 2010 midterm elections saw the Republicans take control of the House of Representatives and Congress become
deadlocked. President Obama explicitly states that “we can’t wait for an increasingly dysfunctional Congress to do its job. Where they won’t act, I will.” This could
accurately be translated to mean, “since Congress won’t pass laws, I will myself.” ¶ When
we take a look at recent executive orders,
no one can deny that many of them are good policy and were signed by the president with the best
intentions. But this is exactly the problem that Sowell was getting at in his opinion piece. When we become entangled
in debating the pros and cons of policy set forth in executive orders, we fail to realize that such
legislative executive orders – no matter how good they sound or how much they will benefit us – are
explicitly an illegal usurpation of power. This is one of many steps in the deconstruction of our
Constitution, the loss of freedoms and liberty, and the eventual rise of a tyrant.
Congress K2 Check Prez Power
Executive power is expanding through absence of congressional checks on war powers
Kogan ‘11
[Mark Kogan is a lawyer working in public affairs in Washington, D.C.. He holds a J.D. from the American University Washington College of Law.
http://www.policymic.com/articles/425/mark-my-words-the-myth-of-presidential-war-powers ETB]
In 1973, Congress passed the War Powers Resolution, giving the president unilateral power to commit
U.S. forces anywhere in the world, for any reason, for a period of up to 90 days. This act has been mired in controversy since
passage and for good reason; the act effectively transferred Congress’ exclusive and enumerated power to declare war to the president, no
questions asked. It was, and remains, an appallingly unconstitutional
transfer of power that the executive has
joyously abused to this day.¶ President Obama’s action in Libya is merely the latest exercise of
presidential war powers that were invented in the 1930s and enshrined in the 1970s. Obama is not the first president, nor will he be
the last, to send our young men and women into harm’s way without so much as informing Congress, much
less asking their permission.¶ Unfortunately, few members of Congress are willing to be the first to try and
reverse course on this unconstitutional status quo. The dangers of being labeled unpatriotic, as well as
the convenience of having the ability to go to war at will when your man is in power, have kept our
elected officials criticizing the President’s actions, but never doing anything about their constitutional
legitimacy.¶ Nobody wants to give away their ace in the hole and, in our modern political environment, who can blame them? Well me, for
starters.¶ What we seem to forget is that in the hyperbolic rhetoric being thrown around by our politicians hang the lives of men and women
who have volunteered to serve and protect our country: 4,441 men and women have died in Iraq. Nearly 33,000 have been injured, many
irreversibly so. 1,517 more lay dead in Afghanistan. How many more of our bravest are we willing to throw to the political winds?¶ No
president, regardless of party, history, or politics, should have the unilateral and unchallengeable right to send
Americans to their death. It is long overdue that our elected representatives stand up for American
soldiers and return the power to declare war where the constitution put it, with the people, not one man.
Vacuum created by congressional and judiciary inaction means CP inevitably expands
unchecked presidential power
Burnham ‘3
[Margaret Burnham is a law professor at Northeastern University School of Law. She co-authored the
Plaintiffs' brief in Doe v. Bush. http://jurist.law.pitt.edu/forum/forumnew99.php ETB]
Implicated in the questions raised by the suit are the larger debates over originalism and separation of powers that have recently occupied
clarifying constitutional meaning on the war powers question holds
special urgency today.¶ But in Doe v. Bush the district court declined to join the debate at all. Instead, it opted out of the debate
altogether, adopting the Government's position claim that the matter is a non-justiciable political question. Under the political
question doctrine, of course, the judiciary declines to wade into certain supposed "political thickets,"
theoretically leaving the underlying constitutional issue undecided. But, especially given the nature of the debate, invocation of the
doctrine - ostensibly to avoid decision - still adds "precedent" to the pro-executive side of the scale. Judicial
demurral leaves a vacuum that the executive will fill on its own terms - thereby creating new facts to
support its exclusivity claim. The executive's evidence that it possesses the trigger power is that it has
many times in the past exercised it absent congressional authority and without judicial interference .
This is a win-win syllogism for unchecked executive authority: its use of the power is an unreviewable
political prerogative and, ipso facto, proof of its legitimacy, and so the evidence in its favor is infinitely
accumulative.
much attention in the Supreme Court. Clearly,
Congress K2 SOP
Executive power is expanding in the squo- continuing the trend will destroy separation
of powers- congressional checks are key to solve
Marshall ‘8
[William P. Marshall, Kenan Professor of Law, University of North Carolina. Boston Law Review 88:505.
http://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf ETB]
Specifically, I contend that the power of the Presidency has been expanding ¶ since the Founding, and that we need to
consider the implications of this ¶ expansion within the constitutional structure of separation of
powers, no matter ¶ which party controls the White House. Part I of this Essay makes the ¶ descriptive case by briefly canvassing a series of
factors that have had, and ¶ continue to have, the effect of expanding presidential power. Part II suggests ¶ this expansion in
presidential power has created a constitutional imbalance ¶ between the executive and legislative
branches, calling into doubt the ¶ continued efficacy of the structure of separation of powers set forth by
the ¶ Framers. Part III then offers some suggestions as to how this power imbalance ¶ can be alleviated, but it does not present a silver bullet
solution. Because ¶ many, if not all, the factors that have led to increased presidential power are ¶ the products of inevitable social and
technological change, they are not easily remedied.3¶ Thus, the Essay ends with only the modest conclusion that ¶ regardless of who wins the
it is critical that those on both sides of ¶ the aisle work to assure that the growth in
presidential power is at least ¶ checked, if not reversed.¶
Presidency,
Strong SOP key to heg
G. John Ikenberry, Professor @ Georgetown University, Spring 2001 (The National Interest)
First, America's
mature political institutions organized around the rule of law have made it a relatively
predictable and cooperative hegemon. The pluralistic and regularized way in which U.S. foreign and security
policy is made reduces surprises and allows other states to build long-term, mutually beneficial relations.
The governmental separation of powers creates a shared decision-making system that opens up the process
and reduces the ability of any one leader to make abrupt or aggressive moves toward other states . An active press
and competitive party system also provide a service to outside states by generating information about U.S. policy and determining its seriousness of purpose.
The messiness of a democracy can, indeed, frustrate American diplomats and confuse foreign observers. But
over the long term, democratic institutions produce more consistent and credible policies--policies that do
not reflect the capricious and idiosyncratic whims of an autocrat . Think of the United States as a giant corporation that seeks
foreign investors. It is more likely to attract investors if it can demonstrate that it operates according to accepted accounting and fiduciary principles. The rule
of law and the institutions of policymaking in a democracy are the political equivalent of corporate transparency and accountability. Sharp shifts in policy must
ultimately be vetted within the policy process and pass muster by an array of investigatory and decision-making bodies. Because
it is a
constitutional, rule-based democracy, outside states are more willing to work with the U nited States-or, to return to
the corporate metaphor, to invest in ongoing partnerships.
A2- 1 Instance Not Key
Link is linear- every expansion in presidential power expands power for future
presidents
Marshall ‘8
[William P. Marshall, Kenan Professor of Law, University of North Carolina. Boston Law Review 88:505.
http://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf ETB]
Presidential power also inevitably expands because of the way executive ¶ branch precedent is used to support later exercises of power.34
Many of the defenders of broad presidential power cite historical examples, such as ¶ President Lincoln’s suspension of habeas corpus, as
authority for the position ¶ that Presidents have considerable powers in times of war and national ¶ emergency.35 Their position is straightforward. The
use of such powers by ¶ previous Presidents stands as authority for a current or future
President to ¶ engage in similar actions.36 Such arguments have considerable force, but they ¶ also create a oneway ratchet in favor of expanding the power of the ¶ presidency. The fact is that every President but Lincoln did not
suspend ¶ habeas corpus. But it is a President’s action in using power, rather than ¶ forsaking its use, that has the precedential significance.37 In
this manner, every
extraordinary use of power by one President expands the availability of ¶ executive
branch power for use by future Presidents.
¶
Unix- Prez Power Expanding Now
Executive power is expanding now
Marshall ‘8
[William P. Marshall, Kenan Professor of Law, University of North Carolina. Boston Law Review 88:505.
http://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf ETB]
The notion that presidential power has expanded exponentially since the ¶ time of the framing is, of
course, uncontestable.4¶ The extent of that growth, ¶ however, is not always fully appreciated. At the time of the framing, for ¶ example,
Madison, among others, believed the legislature was the most ¶ powerful branch,5¶ and for that reason he supported the creation of a
bicameral ¶ legislature.6¶ Congress needed to be divided into two branches so that it would ¶ not overwhelm the other branches.7¶
Correspondingly, the executive needed to ¶ be unitary so that it would not be weakened in its battles with the legislature.8¶ Two hundred years
later, any
suggestion that Congress is twice as powerful ¶ as the executive would be deemed ludicrous.9¶
Presidency has become the far more powerful
branch. 11 In 2006, for example, a new Congress was elected based ¶ in large part on the desire of the
American people to get out of an unpopular ¶ war.12 Yet, the President was able to use his authority to
continually out ¶ maneuver the newly-elected Congress and pursue a war that even many of ¶ those in
his own party opposed.13
Particularly in the areas of ¶ national security and foreign affairs,10 the
Obama is working towards unrestrained presidential war powers
Greenwald ‘11
[Glenn is a former Constitutional and civil rights litigator. http://www.salon.com/2011/03/31/executive_power_2/ ETB]
Initially, I
defy anyone to identify any differences between the administration’s view of its own authority
— that it has the right to ignore Congressional restrictions on its war powers — and the crux of Bush
radicalism as expressed in the once-controversial memos by John Yoo and the Bush DOJ. There is none. That’s why Yoo went to The
Wall Street Journal to lavish praise on Obama’s new war power theory: because it’s Yoo’s theory (as I was finishing this post, I saw that Adam
Serwer makes a similar point today). If anything, one could argue that Yoo’s theory of unilateral war-making was more reasonable, as it was at
least tied to an actual attack on the U.S.: the 9/11 attacks. Here, the Obama administration is
arrogating unto the President
the unilateral, unrestrained right to start wars in all circumstances, whether or not the U.S. is
attacked.