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DDI Executive Self Restraint CP + Prez Powers DA – Starter Pack
Read Me
This is a counterplan (CP) that has the executive impose limits on its own ability to conduct domestic surveillance. It does not
mandate congressional oversight and so could be considered both a PIC (plan inclusive counterplan) out of Congress as the agent as
well as the plan mandate of congressional oversight approval. The counterplan thus does less than the affirmative to limit surveillance
but claims a unique advantage over the affirmative of allowing the president future flexibility in times of crises.
The net benefit for this counter plan is (in this starter pack) only the included Presidential Powers DA. The terrorism DA in
the other files is not a net benefit of this counterplan because both the plan and the counterplan immediately curtail mass surveillance
which is the link to the terrorism DA. The CP objects to the constraints placed on the president by rigorous congressional oversight
rather than the short term limitation on surveillance authority that the terrorism DA objects to. So the only way to win that this CP is
more desirable than the aff is to also extend the prez powers DA thoughout the debate.
CP+DA 1NC
Text: The United States executive branch should substantially curtail the United States federal
government’s surveillance of data stored in the United States including requiring surveillance agencies to
provide proof of reasonable suspicion against an individual target.
Executive self-restreaint solves surveillance – post hoc review can solve credibility
Bellia ’11 (Patricia L, Notre Dame Law School, Arizona State Law Journal, Vol. 43, No. 293, 2011, Notre Dame Legal Studies
Paper No. 12-58, 2011, “Designing Surveillance Law,” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2033217)
1.
executive rule selection—that is, where the executive branch adopts a
surveillance practice in the absence of any legislative action or outside the contours of existing
statutes. In other words, Congress has not specifically spoken with respect to the particular practice at issue (or
so the executive claims). Rather, it is left to the executive in the first instance to decide whether the practice is
sufficiently privacy-invasive to require judicial authorization (and, if so, what kind of authorization to seek) or whether
it can risk proceeding without judicial involvement. When the executive seeks judicial authorization under a too-weak
Executive Rule-Selection I begin with disputes focusing on
standard, it runs the risk that the authorizing court will reject the request or that a target will successfully challenge the standard after the fact. When the
executive does not seek such authorization, it runs the risk that a target will challenge the practice and claim that prior judicial authorization was necessary.
Instances of executive rule-selection that ultimately triggered judicial decisions on the constitutionality
of executive conduct include the following: certain wiretapping and eavesdropping activities until the Court’s decisions in Katz (and Berger v. New York48 in
the immediately preceding term); 49 warrantless national security surveillance of purely domestic targets in the era
prior to the Keith decision; the use of pen registers and similar devices before the Supreme Court’s decision in Smith v. Maryland; 50 the use of
covert video surveillance tactics in the absence of specific legislative authorization; 51 and the
implementation of the NSA’s terrorist surveillance program outside of FISA’s requirements. 52
Limiting the President’s intelligence capabilities though aggressive oversight kill presidential powers
Deats ’10 (Caleb, J.D. Candidate, Columbia Law School, 7/2/10, “Obliging The Executive Branch To Control Itself,”
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633922)
restraining the
executive’s interpretive power might devastatingly weaken the country’s ability to confront
emergencies, particularly threats to national security. As Professor Goldsmith notes, “sharp disagreement over the requirements of national
2. Restraining the Executive’s Interpretive Power Weakens the Government’s Ability to Respond to Crises. --- Second, one might argue that
security law and the meaning of the imponderable phrases of the U.S. Constitution” exists even within the executive branch: “Whether and how aggressively to check the terrorist
threat, and whether and how far to push the law in so doing, are rarely obvious, especially during blizzards of frightening reports, when one is blinded by ignorance and
Disagreement in Congress over these issues would presumably prove more
intractable than that within the executive branch. Moreover, airing these issues in courts would likely require disclosure of classified
desperately worried about not doing enough.”51
information. Thus, requiring the executive to defer to other branches when parsing these “imponderable phrases” prevents the swift resolution of controversy that results from
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consolidating authority in the President. As Hamilton writes, “A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad
execution . . . .”52 However, while the this paper’s proposal may prescribe procedures that cannot adequately resolve emergencies,
designing procedures with
emergencies in mind seems more likely to pervert normal politics than it does to adequately resolve such
extraordinary situations. No set of procedures can provide for every eventuality. Moreover, as Justice Jackson wrote, dissenting
in Korematsu, “if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient.” 53
Once we incorporate emergency exceptions into the Constitution, such exceptions will increase in number until they cease to
be exceptional.54 Professor Goldsmith adverts to the danger of confusing the exception with the norm when he describes the terrorist threat as a “permanent
if we must in emergencies rely on “leaders who will be beholden to constitutional values,”
we should do so completely, i.e. without creating procedural justifications for doing so. A different approach
emergency.”55 Thus,
might substitute “leaders” for procedures simply by making the two indistinguishable.
Prespowers solves multiple scenarios for war
South China Morning Post 2K (“Position of Weakness” 12-11-00, p. L/N)
A weak president with an unclear mandate is bad news for the rest of the world. For better or worse, the person who
rules the United States influences events far beyond the shores of his own country. Both the global economy
and international politics will feel the effect of political instability in the US. The first impact will be on American financial markets, which will
have a ripple effect on markets and growth across the world. A weakened US presidency will also be felt in global hotspots
across the world. The Middle East, the conflict between India and Pakistan, peace on the Korean peninsula, and
even the way relations between China and Taiwan play out, will be influenced by the authority the next US president brings to his job. There are
those who would welcome a weakening of US global influence. Many Palestinians, for example, feel they would benefit from a less interventionist American policy in the
Middle East. Even within the Western alliance, there are those who would probably see opportunities in a weakened US presidency. France, for example, might feel that a less
the dangers of having a weak, insecure US presidency
outweigh any benefits that it might bring. US global economic and military power cannot be wished away. A president with a shaky mandate will still
command great power and influence, only he will be constrained by his domestic weakness and less certain about how to use his authority.
This brings with it the risks of miscalculation and the use of US power in a way that heightens
conflict. There are very few conflicts in the world today which can be solved without US influence.
The rest of the world needs the United States to use its power deftly and decisively.
assertive US might force the European Union to be more outward looking. But
***Solvency***
2NC Solvency – A2: No Precedent/Future Admins
Political barriers check future rollback – 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.
Yes precedent – constitutional obligation
Atkinson ’13 (L Rush, Center on the Administration of Criminal Law, U.S. Department of Justice, National Security Division, law
clerk to the Honorable Julia Smith Gibbons, U.S. Court of Appeals for the Sixth Circuit, J.D., New York University; M.Phil.,
University of Cambridge, A.B., The University of Chicago, fellow at the Center for the Administration of Criminal Law at New York
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University School of Law, 10/1/13 forthcoming, Vanderbilt Law Review, “The Fourth Amendment's National Security Exception: Its
History and Limits,” https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2226404)
C. The Constitutional Gloss of Early Executive Practice The history examined here primarily involves executive
conduct, which can carry precedential weight, even in matters of constitutional law.42 In Youngstown
Sheet & Tube Co. v. Sawyer, Justice Frankfurter explained how executive practice informs our constitutional
understanding: [A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never
before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such
exercise of power part of the structure of our government, may be treated as a gloss on “executive Power” vested in the
President by §1 of Art. II.43 Subsequent Supreme Court decisions embrace the probative value of executive practice.44
Historical conduct is particularly important in the national security context. “National security law and
foreign affairs law,” Julian Mortenson explains, has a “pronounced concern for post-enactment history as a
source of constitutional meaning.”45 Neil Katyal and Richard Caplan note that “[i]n the crucible of legal
questions surrounding war and peace, few judicial precedents will provide concrete answers,” making
executive practice one of the few constitutional guides.46 When identifying constitutional
parameters for the executive, it is particularly instructive to look at historical moments when the
executive is restrained. When congressional prohibition draws executive power to its “ebb,” for example, one can
identify the executive’s core inextinguishable powers.47 Constitutional boundaries are similarly discernible in
some cases where the executive branch limits its own conduct. Specifically, the executive’s selfrestraint is precedential when it stems from a sense of constitutional obligation.48 Such fealty
towards the Constitution might be unprompted by judicial command or legislative action, and there
may be no record as obvious as a judicial opinion or legislative bill. Nevertheless, where a discernible opinio
juris has shaped executive action, such legal opinion should be considered both for its persuasive power and a historical
understanding about what protections the Constitution establishes.49
Executive has powerful incentives to tie its hands
Sales ’12 (Nathan Alexander, Assistant Professor of Law at George Mason University where he teaches national security law,
administrative law, and criminal law, J.D. magna cum laude, Duke University, A.B., Miami University, former Deputy Assistant
Secretary for Policy Development at the U.S. Department of Homeland Security, served at the Office of Legal Policy at the U.S.
Department of Justice, recipient of the Attorney General’s Award for Exceptional Service for his role in drafting the USA PATRIOT
Act, formerly clerked for the Honorable David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit, practiced at the
Washington, DC law firm Wiley Rein LLP, John M. Olin Fellow at the Georgetown University Law Center, Journal of National
Security Law & Policy, Vol. 6, No. 1, 8/24/12, pp. 227-289, “Self-Restraint and National Security,” http://jnslp.com/wpcontent/uploads/2012/08/08__Sales_Master_6-28-12-NS.pdf)
Why does the government sometimes tie its own hands in national security operations? Much of the case law and
scholarship concerning national security rests on the assumption that the executive branch is institutionally prone to overreach – that,
left to its own devices, it will inch ever closer to the line that separates illegal from legal, and sometimes
enthusiastically leap across it. The obvious conclusion is that external, principally judicial, checks are needed to keep the Executive in line.2 In many cases the
Executive does indeed push the envelope. But not always.3 The government often has powerful
incentives to stay its own hand – to forbear from military and intelligence operations that it believes
are perfectly legal. Officials may conclude that a proposed mission – a decapitation strike on al Qaeda’s
leadership, say, or the use of mildly coercive interrogation techniques on a captured terrorist – is entirely
permissible under domestic and international law. Yet they nevertheless might rule it out. In other words, the
government sometimes adopts self-restraints that limit its ability to conduct operations it regards as
legally justified; it “fight[s] with one hand behind its back,” to borrow Aharon Barak’s memorable phrase.4 This article
tries to explain these restraints by consulting public choice theory – in particular, the notion that government
officials are rationally self interested actors who seek to maximize their respective welfare. Part I develops an
analytical framework. Part II identifies four examples of selfrestraint. Parts III and IV offer hypotheses for why the government adopts them. One example of
self-restraint is Executive Order 13,491, which limits counterterrorism interrogations, including those
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conducted by the CIA, to the techniques listed in the Army Field Manual. The AFM prohibits or severely restricts a number of fairly mild interrogation methods such as low-
A second example, sketched above, is the
White House’s onetime reluctance to use targeted killings against Osama bin Laden, despite its
belief that doing so would be consistent with domestic and international laws against assassination.
grade threats, the “good cop, bad cop” routine, and other staples of garden-variety law enforcement investigations.
2NC Solvency – A2: Doesn’t Solve Credibility
Obama sould take the lead – key to cred
Wu ’06 (Edieth,- Associate Dean and Professor, Thurgood Marshall School of Law “DOMESTIC SPYING AND WHY AMERICA
SHOULD AVOID THE SLIPPERY SLOPE”)
The recent revelations regarding domestic spying have led to much criticism, skepticism and suspicion, forcing President Bush to defend his
decision.101 Bush insists that he has not broken any laws in authorizing the surveillance of Americans suspected of having ties to terrorism.102 Further,
the president said he would continue to approve the program, despite concern that it eroded civil liberties.103 But as the president attempts to maneuver
through the criticism to better position himself, he subjects himself to further attack. For example, the president has recently come under severe
bipartisan attack for “using scores of ‘signing statements’ to reserve the right to ignore or reinterpret provisions of measures that he has signed into
law.”104 In effect, the president is attempting to “cherry-pick the provisions he likes and exclude the ones he doesn’t like.”105 Due to “the scope and
aggression of Bush’s [defense] that he can bypass laws,” many fear that the president’s actions “represent a concerted effort to expand his power at the
the U.S. government must
establish itself, with the president taking the lead, as a supporter of the rule of law in order to retain
the country’s support. Failure to do so may have devastating ramifications for the country as a whole.
expense of Congress, upsetting the balance between the branches of government.”106 Consequently,
A2: Congress Key
Executive solves better – efficiency and precedent
McGinnis ’93 (John O, George C. Dix Professor in Constitutional Law at Northwestern Law School, JD magna cum laude from
Harvard Law School where he was an editor of the Harvard Law Review, BA magna cum laude from Harvard College, MA degree
from Balliol College, Oxford, in philosophy and theology, former clerk on U.S. Court of Appeals for the District of Columbia, past
winner of Paul Bator Award given by the Federalist Society to an outstanding academic under 40, Law and Contemporary Problems
Vol. 56, No. 4, August 1993, “Constitutional Review By The Executive In Foreign Affairs And War Powers: A Consequence Of
Rational Choice In The Separation Of Powers,” http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4213&context=lcp)
the structure of the presidency as a single office possessed by one person also gives the
executive unique capabilities of acting with "secrecy and dispatch giving him a comparative
advantage in carrying out these functions. Thus, because of the president's constitutional powers and
because of expectations that have developed about his responsibilities in the area of foreign affairs and
war powers, the president generally places a very high value on control of the rights of governance
in foreign affairs.62 On the other hand, Congress's structure is so much more diffuse than the
executive that it impedes the rapid decisionmaking necessary in the fluctuating world of foreign
affairs.63 Thus, because of its comparative disadvantage as an institution, operational control of foreign
affairs may actually be at odds with its interests because such control threatens Congress with
responsibilities it is not well-equipped to handle. In determining how much interest Congress has in exercising this power as compared to
Additionally,
the executive, one must compare this interest to other rights of governance. Spending on constituents, for example, is more highly prized by Congress since it can directly help
even if Congress rationally shuns operational control of war and
foreign policy matters, it may be interested in increasing its mechanisms to criticize the executive's
performance after the fact, so that it can act in effect as the ululating Greek chorus that comments on the executive's tragic choices.'
individual members of Congress retain office.' Of course,
Congressional checks on national security powers fail – inefficient, politically unfeasible, and reactionary
Kelly ‘93 (Michael, Major, Judge Advocate General’s Corps, US Army, 1993, “Fixing the War Powers”, Military Law Review,
from Lexis Nexis, 141 Mil. L. Rev. 83)
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The Constitution arms Congress with several powerful checks. Within the war powers arena, these
checks have proven to be unwieldy, time consuming to use, and dependent on normally nonexisting
bipartisan support. These checks have lacked consistent effectiveness. Congress, when using its
checks, has not always exercised sound discretion and self-restraint. Congress typically uses its checks
in a reactionary mode. For example, in the latter stages of the Vietnam War, after the United States' main
withdrawal, Congress aggressively used its checks and "legislated peace in Indochina." Congress was reacting to
what it perceived as presidential abuse of the war powers. Congress's acts unduly interfered with the
President's war powers and may have contributed to the unsatisfactory outcome by restricting the use
of funds to support the war.
A2: Rollback Ext.
Most exos 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)
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
Clearly, Mr. Clinton knew what some detractors do not:
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.
0.2% risk of an overturn
Krause and Cohen 2K (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 president-centered 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 addition, 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
Congress won’t roll back decisions
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Howell ‘3 (William G, Assistant Professor of Gov’t @ Harvard, Powers without Persuasion: The Politics of Direct Presidential
Action pg. 112)
The real world, obviously, is much more complicated than the unilateral politics model supposes. Uncertainties abound, and
presidents frequently set policies without any assurance of congressional acquiescence. It is worth considering then,
how presidents fare on those occasions when Congress does respond to a presidential directive. Do
presidents tend to win most of the time? Or does Congress consistently crack the legislative whip,
effectively enervating imperialistic presidents? Our theoretical expectation are relatively clear. Because
the president has access to more (and better) information about goings-on in the executive branch, members
of Congress will try to change only a small fraction of all status quo policies in any legislative session,
and we should anticipate that members will leave alone the majority of unilateral directives that the
president issues. While the president may occasionally overreach on a particularly salient issue, provoking a congressional
response, in most instances Congress either will do nothing at all or will endorse the president’s
actions.
2NC A2: Perm
Congressional silence key to presidential power
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
No cooperation or balancing – the perm means congress’ power always wins out
Lisa M. Ivey, 2003, Cumberland Law Review, 33 Cumb. L. Rev. 107
In the
Youngstown Sheet & Tube Co. case itself, Jackson found President Truman's actions in seizing steel mills was
The third "zone" of presidential power occurs when the President's actions are "incompatible with the [express] or implied will of Congress."
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incompatible with Congressional will because Congress had not been silent on the subject of seizure of private
property. Thus, there was no "open field" in which the President could operate. Similarly, in enacting the Executive Order
establishing military tribunals, the President is probably operating in the third "zone." Congress has specifically indicated its intention to exercise its
constitutional powers and enact anti-terrorist legislation. Where
Congress has indicated an intention to occupy the field of
legislation and exercise its full power, none is left over for the President. In the case of the Executive Order,
Congress has already covered the playing field, and the President's power is at its lowest ebb.
Only unilateral executive action solves the DA.
Moe and Howell, Fellow for the Hoover Institution and Harvard Professor, 99
Terry M. Moe and William G. Howell, senior fellow for the Hoover Institution and Associate Professor for the Government
Department at Harvard University, “Unilateral Action and Presidential Power: A theory”, LexisNexus.com 12-99
If the president had the power to act unilaterally in this same situation, as depicted in Figure 1B, things would
turn out much more favorably. He would not have to accept Congress's shift in policy from [SQ.sub.2] to
[SQ.sub.2*] and could take action on his own to move the status quo from [SQ.sub.2*] to V--using his veto
to prevent any movement away from this point. V would be the equilibrium outcome (as it was in the earlier case
of unilateral action). And although the president would still lose some ground as policy moves from the original [SQ.sub.2]
to V, unilateral action allows him to keep policy much closer to his ideal point--and farther from Congress's
ideal point--than would otherwise have been the case. He clearly has more power over outcomes when
he can act unilaterally.
Doesn’t solve presidential power – 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.
***Prez Powers DA***
PP High Now
Prez Powers are high
Ginsburg and Menashi ‘10
Douglas H. Ginsburg, Circuit Judge, U.S. Court of Appeals for the District of Columbia Circuit and Steven Menashi, Olin/Searle
Fellow, Georgetown University Law Center. “Symposium: Presidential Power In Historical Perspective: Reflections on Calabresi and
Yoo's the Unitary Executive: Nondelegation and the Unitary Executive”. 12 U. Pa. J. Const. L. 251. February 2010.
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Surely President Obama, no less than his predecessors, wants to determine the policies of the executive branch as he goes
about the execution of the laws. The President may not always resist delegations of authority to executive agencies, but at least when the Congress
attempts to dictate policies to the executive and to those agencies, every American President has advanced the constitutional principle that the executive is unitary.
n111 Most recently, President Obama has pursued two principal strategies to strengthen his control over the executive. First,
he has tried to insulate policymakers in the executive branch from legislative control. In his first year he has appointed
about twice as many "czars" as the Romanov dynasty had in [*275] 300 years; they help to formulate the President's policies on everything
from economic recovery to domestic violence to peace in the Middle East - and they operate outside the morass of congressional oversight
and agency rulemaking. n112 Second, like his recent predecessors, President Obama has taken to issuing signing statements.
During the 2008 presidential campaign, candidate Obama promised he would "sign legislation in the light of day without attaching signing statements that
undermine the legislative intent" n113 and would "not use signing statements to nullify or undermine congressional instructions as enacted into law." n114 Since
assuming office, however, the President has pointed out that Presidents have issued signing statements "for nearly two centuries," opined that "such signing
statements serve a legitimate function in our system," and announced that he intends to continue the practice "when it is appropriate to do so as a means of
discharging my constitutional responsibilities." n115 President Obama has so far employed signing statements to indicate he is not
bound to press for certain policies within international organizations, follow format requirements for budget requests,
accept congressional limitations upon his appointments to a commission, condition American participation in United Nations peacekeeping
missions upon the approval of U.S. military leaders, or honor whistle-blower protections for federal employees who give information to the Congress. n116
Predictably, the czars and the signing statements have [*276] raised hackles from the Congress, which understandably prefers to have its own way in matters of
policy. n117 But so does the President. That, in the end, is the last and, for that reason alone, the best hope for our system of separated powers. As Madison put it,
"the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the
necessary constitutional means and personal motives to resist encroachments of the others." n118 With the constitutional means now lost, the
great security has come down to personal motive - that is, to the fortitude of the President.
2NC Link Wall
CP is curical to preserve prez powers
a. Oversight – overbearing of congression destroys the speed and effectiveness of presidential decision
making in crises – key to national security powers
b. Ambiguity
CP’s ambiguity is key to allow future use of presidential powers when needed
Marshall ‘8 (William, William Rand Kenan, Jr. Distinguished Professor of Law at UNC, J.D., University of Chicago (1977)
B.A., University of Pennsylvania (1972), Deputy White House Counsel and Deputy Assistant to the President of the United States
during the Clinton Administration, “Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters,” Boston
University Law Review, https://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf)
the question whether a President has exceeded her authority is seldom immediately obvious
because the powers of the office are so open-ended. This fluidity in definition, in turn, allows presidential
power to readily expand when factors such as national crisis, military action, or other matters of expedience
call for its exercise. Additionally, such fluidity allows political expectations to affect public perceptions of
the presidential office in a manner that can lead to expanded notions of the office’s power. This
perception of expanded powers, in turn, can then lead to the perceived legitimacy of the President actually
exercising those powers. Without direct prohibitions to the contrary, expectations easily translate into political
reality.
Accordingly,
c. Spill Over
Congress will inevitably use the plan’s oversight to cut prez powers across the board – spills over to all
sectors
Posner 2K (Michael, Professor Emeritus at the University of Oregon and Adjunct Professor at the Weill Medical College in New
York “Blocking the Presidential Power Play” National Journal, Jan 1,
http://www.nationaljournal.com/njmagazine/nj_20000101_15.php)
Some legal experts counsel Congress to be careful not to usurp legitimate presidential power. One expert urging caution is
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Douglas Cox, a lawyer who was deputy assistant attorney general in the Office of Legal Counsel at the Justice Department
during the Bush Administration. "When a President overreaches and uses executive orders to invade or
supersede the legislative powers of Congress, Congress may be sufficiently provoked to consider an
across-the-board approach to rein in those abuses," he told the House Rules subcommittee. "Although that
reaction is understandable, Congress must be careful to understand the extent to which executive orders are
a necessary adjunct of the President's constitutional duties," Cox added. "At all times, Congress has
ample legislative and political means to respond to abusive or lawless executive orders, and thus
Congress should resist the temptation to pursue more sweeping, more draconian, and more questionable responses."
Congressional oversight of surveillance would require massively curtailing presidential powers
Hastendt 13
(GLENN, Evaluating Congressional Oversight of Intelligence, AUG 23 2013, http://www.e-ir.info/2013/08/23/evaluatingcongressional-oversight-of-intelligence/)
Oversight of intelligence is consistent with the more general pattern of reactive and limited congressional
oversight, a pattern that has led some to identify intelligence oversight as a failure.[8] Yet, voluntarily changing the
nature of intelligence oversight would seem to require a broader change in the practice of
congressional oversight. While that is unlikely there are signs that simply continuing in this fashion may prove
counterproductive and create a future intelligence oversight crisis. Perhaps most obvious is the problem
presented to congressional oversight by a seemingly ever expanding stock of presidential powers surrounded in secrecy.
Obama came into office promising to curb the Bush administration’s excesses in fighting the war on terror, but in the use of
drones and warrantless surveillance has come to embrace and expand upon them. A second change is the identity of the
NSA. Oversight of secret governmental intelligence gathering is one thing. Oversight of a secret public-private partnership
in intelligence gathering involving private contractors and cutting edge communications companies is quite another.
Firefighting may be increasingly ineffective as a means of oversight here, but how does one engage in police
patrolling in this context? Finally, where Snowden’s revelations have fixated public and policy maker attention on the
need to place limits on data collection, the bureaucratic reality for the NSA is that they are under pressure from other
intelligence agencies to share their information and intelligence gathering tools. Rather than being a self-contained
problem, Congress may be looking at only the tip of a potentially large ice berg.[9]
2NC PP Good – Turns Heg
Pres powers key to leadership
a) Pursuit of national interests
Mallaby 2K (Sebastian, member, Washington Post’s Editorial Board, Foreign Affairs, Jan/Feb)
some will object that the weakness of the presidency as an institution is not the main explanation
for the inadequacies of American diplomacy, even if it is a secondary one. The ad hominem school of thought argues instead that Bill Clinton
Finally,
and his advisers have simply been incompetent. Others make various sociological claims that isolationism or multiculturalism lies at the root of America's diplomatic troubles.
But the evidence cited by both camps can be better explained by the structural
weakness of the presidency. Take, for example, one celebrated error: President Clinton's declaration at the start of the Kosovo war that the Serbs need not
All of these arguments may have merit.
fear NATO ground troops. This announcement almost certainly cost lives by encouraging the Serbs to believe that America was not serious about stopping ethnic cleansing. The
ad hominem school sees in this example proof of Clinton's incompetence; the sociological school sees in it proof of isolationist pressure, which made the option of ground troops
untenable. But a third explanation, offered privately by a top architect of the Kosovo policy, is more plausible. According to this official, the president knew that pundits and
Congress would criticize whichever policy he chose. Clinton therefore preemptively took ground troops off the table, aware that his critics would then urge him on to a ground
war -- and also aware that these urgings would convince Belgrade that Washington's resolve would stiffen with time, rather than weaken. The president's stand against ground
troops was therefore the logical, tactical move of a leader feeling vulnerable to his critics. Other failings of American diplomacy can likewise be accounted for by the advent of
the nonexecutive presidency. Several commentators, notably Samuel Huntington and Garry Wills in these pages, have attacked the arrogance of America's presumption to offer
moral leadership to the world. But American leaders resort to moral rhetoric largely out of weakness. They fear that their policy will be blocked unless they generate moral
momentum powerful enough to overcome domestic opponents. Likewise, critics point to the hypocrisy of the United States on the world stage. America seeks U.N. endorsement
when convenient but is slow to pay its U.N. dues; America practices legal abortion at home but denies funds to organizations that do the same abroad. Again,
this
hypocrisy has everything to do with the weak executive. The president has a favored policy but is powerless to make Congress follow it.
Still other critics decry American diplomacy as a rag-bag of narrow agendas: Boeing lobbies for China trade while Cuban-Americans demand sanctions on Cuba. Here, too,
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A strong presidency might see to it that America pursues its broader national
interest, but a weak one cannot. This is why Clinton signed the Helms-Burton sanctions on Cuba even though he knew that these would do
disproportionate harm to U.S. relations with Canada and Europe. What if America's nonexecutive presidency is indeed at the root of its diplomatic inadequacy? First, it
follows that it is too optimistic to blame America's foreign policy drift on the weak character of the
current president. The institution of the presidency itself is weak, and we would be unwise to assume that a President Gore or
Bradley or Bush will perform much better. But it also follows that it is too pessimistic to blame America's foreign policy
drift on cultural forces that nobody can change, such as isolationism or multiculturalism.
presidential power is the issue.
b) Alliance building
Deans 2K (Bob, “Will Global Tech Trends Make Presidents Less Important” Cox News Service Jan 23, Lexis)
As President Clinton prepares to deliver the State of the Union address Thursday, officially slipping into the twilight of his time in office, many believe the presidency itself
might be on the wane. The White House, some say, perhaps even government itself, is losing its steam as an engine of influence, hopelessly outpaced by the thundering
the U.S. presidency, long regarded as the most
powerful institution in the world, arguably has assumed more authority and reach than at any time in its
history. While no one can doubt the growing impact of the Internet, Silicon Valley and Wall Street on the daily lives of all
Americans, only the president can rally truly global resources around American ideals to further the
quest for equality and to combat the timeless ills of poverty and war. It is that unique ability to build and
harness a worldwide consensus that is widening the circle of presidential power. ''The presidency will remain as
convergence of technology, borderless information flows and the rise of the global marketplace. Yet
important as it is or will become more important,'' predicted presidential scholar Michael Nelson,
professor of political science at Rhodes College in Memphis, Tenn. The voice of all Americans The taproot of
presidential power is the Constitution, which designates the chief executive, the only official elected in a national vote, as
the sole representative of all the American people. That conferred authority reflects the state of the nation, and it would be
hard to argue that any country in history has possessed the military, economic and political preeminence that this country
now holds. And yet, the nation's greatest strength as a global power lies in its ability to build an
international consensus around values and interests important to most Americans. On Clinton's
watch, that ability has been almost constantly on display as he has patched together multinational responses to war in the
Balkans, despotism in Haiti, economic crises in Mexico, Russia, Indonesia and South Korea, and natural disasters in Turkey
and Venezuela. The institutions for putting together coalition-type action --- the United Nations, the North Atlantic Treaty
Organization, the International Monetary Fund, the World Bank and the World Trade Organization among them --- are
hardly tools of American policy. But the United States commands a dominant, in some cases decisive, position in each of
those institutions. And it is the president, far more than Congress, who determines how the United States
wants those institutions to be structured and to perform. ''Congress is a clunky institution of 535 people
that can't negotiate as a unit with global corporations or entities,'' said Alan Ehrenhalt, editor of Governing
magazine. ''It's the president who is capable of making deals with global institutions.'' It is the president,
indeed, who appoints envoys to those institutions, negotiates the treaties that bind them and delivers the
public and private counsel that helps guide them, leaving the indelible imprint of American priorities
on every major initiative they undertake. ''That means, for example, that we can advance our interests in resolving
ethnic conflicts, in helping address the problems of AIDS in Africa, of contributing to the world's economic development,
of promoting human rights, '' said Emory University's Robert Pastor, editor of a new book, ''A Century's Journey,'' that
elaborates on the theme.
2NC PP Good – Turns Credibility
Turns credibility advs – weak presidents are net-worse for foreign affairs
Koh ‘95 (Harold Hongju, Sterling Professor of International Law at Yale Law School, 22nd Legal Adviser of the U.S. Department
of State, M.A., Oxford, 1996, J.D., Harvard, 1980, Developments Editor of the Harvard Law Review, B.A., Oxford, 1977 (Marshall
Scholar), A.B., Harvard, 1975, former U.S. Assistant Secretary of State for Democracy, Human Rights and Labor, former law clerk
for Justice Harry A. Blackmun of the United States Supreme Court and Judge Malcolm Richard Wilkey of the U.S. Court of Appeals
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for the D.C. Circuit, former Attorney-Adviser for the Office of Legal Counsel, U.S. Department of Justice,, Yale Law School 50 U.
Miami L. Rev. 1)
Both precedents have obvious parallels today, not to mention a third possibility: that temptation might draw the executive
branch into a "splendid little war" - like Grenada or Panama - with an eye toward a possible presidential bounce in the polls.
That possibility raises Maxim Two: that weak presidents are more dangerous than strong ones. Jimmy
Carter, for example, in the last two years of his presidency, engaged in perhaps the most dramatic
nonwartime exercise of emergency foreign power ever seen, not because he was strong but because he
was so politically weak. 43 In foreign policy, weak presidents all too often have something to prove.
44 In a gridlock situation, the president's difficulty exhibiting strength in domestic affairs - where
Congress exercises greater oversight and must initiate funding proposals - makes it far easier for him to
show leadership in foreign affairs. At the same time, weak presidents may underreact to looming crises
that demand strong action, for fear that they cannot muster the legislative support necessary to generate the
appropriate response. But when these weak presidents do finally respond, they tend to overreact: either to
compensate for their earlier underreaction, or because by that time, the untended problem has escalated
into a full-blown crisis, Bosnia and Haiti being the two prime Clinton Administration examples. 45 When
private parties bring suits to challenge these presidential policies, courts tend to defer to weak presidents, because
they view them not as willful, so much as stuck in a jam, [*12] lacking other political options. Finally, weak
presidents are more prone to give away the store, namely, to undercut their own foreign policy program
in order to preserve their domestic agenda. This raises the question of whether this Democratic president may be
forced to sign restrictive congressional legislation - or whether Congress might pass such legislation over presidential veto,
as Congress did with the War Powers Resolution in 1974 - which may later come back to haunt future presidents. Nor, in
this media age, is any president's strength truly secure. These days every president, whatever his current popularity rating, is
potentially weak. We sometimes forget that just after the Gulf War, George Bush's popularity rating stood at 91%, only ten
months before he lost reelection, and five years before he recanted about his actions during the war itself.
PP Good – War
Presidential powers are key to solve nuclear war.
Paul 98
J.R. Paul, Professor, Law, University of Connecticut, “The Geopolitical Constitution: Executive Expediency and Executive
Agreements,” CALIFORNIA LAW REVIEW v. 86, July 1998, p. 699-701
Whatever the complexity of causes that led to the Cold War - ideology, economics, power politics, Stalin's personality, Soviet intrigue, or American ineptitude
- the tension of the bipolar order seemed real, immutable, and threatening to the U.S. public. <=136> n135 The broad consensus of U.S. leadership
held that the immediacy of the nuclear threat, the need for covert operations and intelligence gathering, and the
complexity of U.S. relations with both democracies and dictatorships made it impractical to engage in congressional
debate and oversight of foreign policy-making. <=137> n136 The eighteenth-century Constitution did not permit a rapid response to twentiethcentury foreign aggression. The reality of transcontinental ballistic missiles collapsed the real time for decision-making to a
matter of minutes. Faced with the apparent choice between the risk of nuclear annihilation or amending the
constitutional process for policy-making, the preference for a powerful executive was clea r. <=138> n137 Early in the Cold War
one skeptic of executive power, C.C. Rossiter, acknowledged that the steady increase in executive power is unquestionably a cause for worry, but so, too, is the
steady increase in the magnitude and complexity of the problems the president has been called upon by the American people to solve in their behalf. They still
have more to fear from the ravages of depression, rebellion, and especially atomic war than they do from whatever decisive actions may issue from the White
House in an attempt to put any such future crises to rout....It is not too much to say that the destiny of this nation in the Atomic Age will rest in the [*700]
capacity of the Presidency as an institution of constitutional dictatorship. <=139> n138The call for executive leadership in the face of
international crisis came not only from members of the executive branch , <=140> n139 but also from members of
Congress, <=141> n140 academics, <=142> n141 and legal commentators. <=143> n142 Reviewing the history of this period, the Senate
Foreign Relations Committee reported at the height of the Vietnam War, our country has come far toward the concentration in its national executive of
unchecked power over foreign relations, particularly over the disposition and use of the Armed Forces. So far has this process advanced that in the committee's
view, it is no longer accurate to characterize our government, in matters of foreign relations, as one of separated powers checked and balanced, against each
other.... <=144> n143 [*701] In the committee's view, the continuing series of Cold War crises and the perceived need to expedite decisionmaking in the nuclear age led to a concentration of power in the executive : Since 1940 crisis has been chronic and, coming as
something new in our experience, has given rise to a tendency toward anxious expediency in our response to it. The natural expedient - natural because of the
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real or seeming need for speed - has been executive action....Perceiving, and sometimes exaggerating, the need for prompt action, and lacking traditional
guidelines for the making of decisions in an emergency, we have tended to think principally of what needed to be done and little, if at all, of the means of doing
it. <=145> n144
[sex modified]
PP Good – War/Heg
Only presidential powers can solve hegemony – the impact is global conflict
Paul 98
J.R. Paul, Professor, Law, University of Connecticut, “The Geopolitical Constitution: Executive Expediency and Executive
Agreements,” CALIFORNIA LAW REVIEW v. 86, July 1998, p. LN.
Borchard's Yale colleagues, Professors Myers McDougal and Asher Lans, answered his [or her] argument in a highly influential law review article that
justified the interchangeability of treaties and congressional-executive agreements in light of the new post-war responsibilities facing the United States.
<=386> n385 McDougal and Lans argued that the Constitution adapted to changed circumstances . <=387> n386 In the
aftermath of the Second World War, the nation recognized the need for creating international institutions for collective
security: Above the holocaust of the present war has arisen a demand from the people of the United States for a foreign
policy that will do everything humanly possible to prevent future wars and to secure their other interests in the
contemporary world. <=388> n387 Technological changes in communication, transportation, and production shrank the
modern world. Both developments in military technology and economic interdependence made it impossible for the
United States to maintain its traditional isolation: This basic condition of interdependence, the profound weakness of
the world's present system of organization, and, conversely, the strong power position of the United States in the world
society make it imperative that the United States not only participate, but take a leading part, in establishing a new order of
political, economic, and cultural relationships and institutions, both in direct association with other nations, great and small, and through
international organizations. <=389> n388 The United States could not exercise world leadership without a shift in power from
Congress to the executive. "Other governments must know, if they are to be willing to undertake indispensable joint
commitments, that the United States can so act to implement integrated and responsible [*748] policy." <=390> n389 In
McDougal and Lans' view, a foreign policy led by a powerful executive unhampered by Congress best served democracy. In
the new world environment, the values of efficiency, flexibility, and secrecy took precedence over the deliberative
process: Executive officers, who are charged with the task of conducting negotiations with other governments, must be able to treat the
national body politic as a whole and must be able to canvass it promptly and efficiently as a whole for the minoritie s.... A
leisurely diplomacy of inaction and of deference to dissident minority interests supposedly characteristic of past eras when economic and political change proceeded at a slower pace
and the twin ocean barriers gave us an effortless security is no longer capable, if it ever was, of securing the interests of the United States. <=391> n390 McDougal and Lans'
expediency discourse ultimately triumphed over Borchard's appeal to constitutional process. Courts
or other legal commentators never clearly drew on
McDougal and Lans' distinction between sole executive agreements and congressional-executive agreements. Instead, the
expediency argument created a legal justification for a new executive power to make agreements that legally bound
future generations both internationally and domestically .
PP Good – Terror
Prez powers key to the war on terrorism
Taylor 5
Stuart Taylor, Jr., journalist, “The Roberts Court,” THE NATIONAL JOURNAL, v. 37 n. 37, September 10, 2005, LN.
Given the unsettled state of the law in this area, a Chief Justice Roberts and another Bush justice could play crucial roles in
determining how strong a check the Court will provide on presidential moves to override civil liberties, international
treaties, and congressional objections. And one critical question to be explored during Roberts's testimony next week is whether, as some experts
fear and others hope, his record suggests an inclination to push for greater deference to the president. These two vacancies come at a time when jihadists bent
on mass murder -- and eager to obtain nuclear or biological weapons -- pose a domestic security threat graver than any
we have faced since World War II, perhaps even since the Civil War. There is a broad consensus that the magnitude of
this threat requires a muscular presidential response and considerable judicial deference.
Unfettered prez powers are the only way to prevent terrorism – impact is war and extinction
Yoo 4
John Yoo, Professor of Law, University of California at Berkeley School of Law STANFORD LAW REVIEW, December 2004, LN.
These developments in the international system may demand that the United States have the ability to use force earlier
and more quickly than in the past. Use of force under international law, to be consistent with the United Nations Charter, must
be justified by self-defense against an imminent attack (in those cases when not authorized by the Security Council). Elsewhere, I
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argue that the rise of WMD proliferation, rogue states, and terrorism ought to lead to a reformulation of self-defense away
from temporal imminence and toward a calculation of expected harm of an attack. If we understand the use of force as a
function of the magnitude of possible harm from an attack adjusted by the probability of such an attack, the United States
might need to use force in situations when an attack is not temporally imminent, but nonetheless threatens massive
casualties and remains probable. In order to forestall a WMD attack, or to take advantage of a window of opportunity to
strike at a terrorist cell, the executive branch needs the flexibility to act quickly, possibly in situations where congressional
consent cannot be obtained in time to act on the intelligence. By acting earlier, perhaps before WMD components have
been fully assembled or before an al Qaeda operative has left for the United States, the executive branch might also be
able to engage in a more limited, more precisely targeted, use of force.
A2: PP Bad – Top Level
Presidents won’t abuse prez powers – no risk of any negative impact
-fear of impeachment
-power of the purse
-voters
Goldstein 99
Joel K. Goldstein, Professor, Law, St. Louis University, “The Presidency and the Rule of Law: Some Preliminary Explorations,” ST.
LOUIS LAW JOURNAL v. 43, Summer 1999, p. 791+.
Would these concessions to executive interpretive autonomy leave us naked before a Chief Executive prone to self-aggrandizement? Do we jeopardize the
Rule of Law once we allow the President this leeway to apply the Constitution as he, not the Court, sees it? I think not. Protection would come from several
sources. First, Presidents like other officials, could be expected to consider respectfully the constitutional arguments of
judges and legislators. The people who hold public office and staff those two institutions are neither fools nor traitors;
generally their conclusions will be reasonable and persuasive. Even when the President disagrees he [or she]will need to
decide whether the benefits of acting on his [or her] different interpretation justify the costs of defiance. Departure
from legislative and judicial interpretations, though possible, would require some articulated rationales which would, of
course, be subject to discussion, analysis and scrutiny. Second, customs of presidential interpretive humility could be
expected to develop. Many of the restraints on the judiciary - justiciability doctrines, immunities, Article I bodies - were created or endorsed by courts.
Similar patterns of presidPresidents ential deference should be encouraged. n342 [*848] For instance, might proceed cautiously in areas where no other
institution is likely to review their interpretation. It may be appropriate to expect Presidents to articulate a strong constitutional rationale in such cases. A
third set of democratic restraints - public opinion and elections - would provide incentive for measured presidential
conduct. A President will think at least twice about taking a constitutional position at odds with the Court or Congress
if it will cause him to be pilloried by the New York Times or on Larry King Live, will cost him dearly on his [or her]
approval ratings, or will jeopardize his [or her] legislative program. Finally legislative controls would check the
President. Congress could use its control of the purse and legislative hearings in response to presidential
interpretations. Impeachment and removal would be available to redress any presidential actions deemed to constitute
"high crimes and misdemeanors."
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***Aff***
2AC Strategy Notes
The core weakness of this CP is that the advantages of the Aff stem primarily from the perception of unfettered surveillance
rather than the actual existence of the program. If the executive cutails surveillance but no checks exist to prevent this from happening
in the future (or continue in secret) and other countries don’t change their perception of the US then the CP would solve very little of
the affirmative harms.
So the most important arguments in the 2AC is to challenge the solvency of the CP for the aff harms and to make an
argument that a permutation (a combination of the Aff and Neg) would resolve the potential harms to presidential power. That said,
don’t forget to make a “no link” argument – if you only rely on answering the CP but don’t answer the impact or link to the
presidential power DA the other team could just win on the DA alone and not make any more arguments about the CP.
I’ve put stars (**) next to some of the cards I think should be in the 2AC but don’t forget to include analytic arguments. We
have multiple cards in the 1AC that argue for the necessity of oversight for international credibility/solvency, don’t let those great
cards get lost! Try to make at least one analytic argument between every card and don’t forget to make a permutation!
No Solvency – Long Term – 2AC
**CP doesn’t limit authority and future presidents roll back
Bendix and Quirk 15 (assistant professor of political science at Keene State College; Phil Lind Chair in U.S. Politics and
Representation at the University of British Columbia)
(William Bendix and Paul J. Quirk, Secrecy and negligence: How Congress lost control of domestic surveillance, Issues in
Governance Studies, March 2015, http://www.brookings.edu/~/media/research/files/papers/2015/03/02-secrecy-negligence-congressurveillance-bendix-quirk/ctibendixquirksecrecyv3.pdf)
For the immediate future, however, Congress appears to have gone out of the business of determining policy for
antiterrorism surveillance. In the near term, the best hope for privacy interests is for President Obama to make good on his
post-Snowden pledge, repeated in his 2015 State of the Union Address, to reform surveillance programs in order to instill
“public confidence…that the privacy of ordinary people is not being violated.” He promised to work with Congress on the
issue. If Congress is not capable of acting, the executive branch can impose its own constraints on
surveillance practices.57 But the maintenance of self-imposed executive-branch constraints would
depend entirely on the strength of the administration’s commitment—and, in two years’ time, on the
disposition of the next president. Because of the president’s central responsibility for national security, the
presidency is hardly a reliable institutional champion for privacy interests.
No Solvency – Long Term – 1AR
Not using a power doesn’t set a precedent
Marshall ‘8 (William, William Rand Kenan, Jr. Distinguished Professor of Law at UNC, J.D., University of Chicago (1977)
B.A., University of Pennsylvania (1972), Deputy White House Counsel and Deputy Assistant to the President of the United States
during the Clinton Administration, “Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters,” Boston
University Law Review, https://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf)
2. The Precedential Effects of Executive Branch Action 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
one-way ratchet in favor of expanding the power of the presidency. The fact is that every President but
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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.
No Solvency – Credibility/Signal – 2AC
key to solve global perceptions – that’s the ONLY relevant solvency question. None of our
advantages stem directly from the surveillance itself
Lewis 14 (senior fellow and director of the Strategic Technologies Program at the Center for
**Oversight
Strategic and International Studies)
(James Andrew, Underestimating Risk in the Surveillance Debate, http://csis.org/files/publication/141209_Lewis_UnderestimatingRisk_Web.pdf)
These six steps would address the concerns created by surveillance programs. Now is not the time to dismantle them. But
the use of communications surveillance for security must be reexamined and carried out in ways that do not pose risks to
the values that are the ultimate foundation of our strength. Strong oversight mechanisms and greater
transparency are the keys to acceptance and credible accountability. While every nation must undertake
some activities in secret, democracies require that national priorities and policies be publicly debated and
that government be accountable to the citizens for its actions. To rebuild trust and strengthen oversight,
particularly for collection programs that touch U.S. persons, greater openness is essential. Too much secrecy
damages national security and creates the risk that Americans will perceive necessary programs as
illegitimate.
No Solvency – Credibility/Signal – 1AR
Only a clear signal can solve
Otto 14
(Greg, JULY 30, 2014 9:22 AM, Is NSA's PRISM program ruining cloud computing's growth?, http://fedscoop.com/nsa-prism-cloudcomputing/)
"Ensuring that a strong version of USA
FREEDOM becomes law is only the first step toward repairing the
damage that the NSA has done to America's tech economy, its foreign relationships, and the security of
the Internet itself," said Kevin Bankston, OTI's policy director
Castro said even with meaningful reform, he doesn't think it will change the perception that companies are fighting an
uphill battle with NSA in order to protect their products
"I don't think the companies themselves can solve this problem," he said. " The issue is that these foreign and
domestic buyers don't trust the U.S. government right now. Until there is a clear signal that the
intelligence community is turning the page through policies, I don't think we are going to see a change
in perception."
Perm Solves Credibility
**Working together solves global cred which is the only determinate of solvency
FitzGerald ’13 (12-18 Ben,- senior fellow and director of the Technology and National Security Program at the Center for a New
American Security “NSA revelations: Fallout can serve our nation”)
Loss of trust, however, remains the fundamental issue. Washington cannot fix this just by acceding to reforms suggested by
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others. The
administration, with congressional support, must launch a proactive reform agenda, which
would demonstrate an understanding of citizens’ concerns — allies and businesses alike. The components are
straightforward: public outreach to concerned constituencies, such as Tuesday’s meeting with technology leaders, amendments to policy and law — for
example, updating the Safe Harbor frameworks for privacy protection — and review of the National Security Agency’s oversight mechanisms. While
these procedural steps are clear, the
government can do more. The Snowden revelations are about trust as much as technological frontiers —
efforts must focus on confidence building. Security and openness need not be mutually exclusive and
technological capability should not be the key to defining operational limits. Confidence can be re-established through
government-led development of the explicit principles that set a better balance between security and openness. These principles
so Washington’s
must be formalized in government agencies’ policies, federal laws, Supreme Court rulings and congressional oversight establishing the government
mechanisms to balance security and openness. Credibly addressing this balance represents Washington’s best chance to rebuild the trust that has been so
eroded. It is also an opportunity to recast the Snowden revelations as a reason to establish international norms that will govern all nations that are now
What is required is to establish standards that Washington can
hold itself and others to in terms of healthy collaboration with business, productive relationships with allies and appropriate
developing and using similar surveillance capabilities.
protections for the data of private citizens. Powerful surveillance capabilities will only grow over time. The United States must therefore establish a new
“higher ground” in the international community to lead morally as well as technologically and ensure mutual accountability among governments. The key
is to act quickly. Though the United States needs to retain robust foreign surveillance, it is clear that the fallout from the NSA revelations will continue
until proactive steps — rooted in trust, policy and law — are taken.
Perm Solves the Link – Congress Takes Cover – 2AC
**Perm solves pres powers – congress will follow his lead
Bendix and Quirk 15 (assistant professor of political science at Keene State College; Phil Lind Chair in U.S. Politics and
Representation at the University of British Columbia)
(William Bendix and Paul J. Quirk, Secrecy and negligence: How Congress lost control of domestic surveillance, Issues in
Governance Studies, March 2015, http://www.brookings.edu/~/media/research/files/papers/2015/03/02-secrecy-negligence-congressurveillance-bendix-quirk/ctibendixquirksecrecyv3.pdf)
Lacking any settled disposition on surveillance issues, Congress
will respond to the leadership, and sometimes
merely the political cover, provided by other institutions—especially the president, the intelligence
agencies, and the FISA Court. It may take cues from the Justice Department or other executive agencies, and it will defer to
rulings by the regular federal courts. In the end, Congress’s performance in protecting privacy may depend on
the design of the legislative arrangements for dealing with secret programs and on the structures and
missions of relevant administrative and judicial institutions.
Perm Solves the Link – Key to PP – 2AC
Domestic backlash to spying crushes prez powers – only the perm can preserve presidential power
Wu ’06 (Edieth,- Associate Dean and Professor, Thurgood Marshall School of Law “DOMESTIC SPYING AND WHY AMERICA
SHOULD AVOID THE SLIPPERY SLOPE”)
In response to the recent revelations of secret domestic surveillance and the concomitant upset of the balance
of government powers, a disturbing divide has developed among the American public.107 According to an APIpsos poll, 56% of respondents said the government should be required to obtain a warrant before conducting domestic
surveillance, while 42% do not believe that a warrant should be required.108 If the government continues with
the current spying program, the divide in public opinion will surely become more contentious, and it
will likely result in protests and legal attacks reminiscent of those which addressed the overzealous immigration enforcement immediately following September 11.
In April 2002, for example, the Center for Constitutional Rights filed a nationwide class action challenging the “government’s pretextual use of immigration authority to detain Arab and Muslim foreign
citizens long after they ha[d] agreed to leave the country.”109 Contentious litigation effectually results in a filtering down of information to the American public. Other legal battles over “rule of law”
violations have occurred in New York, New Jersey and the District of Columbia.110 As a result of such litigation, and particularly due to outcomes favoring civil liberties, information is filtering down to
the American public and creating in it a broader appreciation of the importance of respecting the rule of law in the United States.111 Specifically, the propositions stating that (1) “respect for basic human
rights is as integral to our security as fighting terrorism,” and (2) “we are in danger of losing sight In response to the recent revelations of secret domestic surveillance and the concomitant upset of the
balance of government powers, a disturbing divide has developed among the American public.107 According to an AP-Ipsos poll, 56% of respondents said the government should be required to obtain a
warrant before conducting domestic surveillance, while 42% do not believe that a warrant should be required.108 If the government continues with the current spying program, the divide in public opinion
will surely become more contentious, and it will likely result in protests and legal attacks reminiscent of those which addressed the overzealous immigration enforcement immediately following
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September 11. In April 2002, for example, the Center for Constitutional Rights filed a nationwide class action challenging the “government’s pretextual use of immigration authority to detain Arab and
Muslim foreign citizens long after they ha[d] agreed to leave the country.”109 Contentious litigation effectually results in a filtering down of information to the American public. Other legal battles over
“rule of law” violations have occurred in New York, New Jersey and the District of Columbia.110 As a result of such litigation, and particularly due to outcomes favoring civil liberties, information is
filtering down to the American public and creating in it a broader appreciation of the importance of respecting the rule of law in the United States.111 Specifically, the propositions stating that (1)
“respect for basic human rights is as integral to our security as fighting terrorism,” and (2) “we are in danger of losing sight law, which “has never been more critical”120 than at this juncture in America’s
history. In an age where the American public is generally aware of the restrictions on presidential powers, people are increasingly reluctant to accept that “the commander in chief clause” of the
The president must remember that the commander in chief powers are at their
strongest when the president acts in conjunction with congressional authorization.122 Consequently, a
divided nation, and thus a divided Congress, will make it difficult for the president to act within the
“expressed or implied will of Congress, [and] his power [will be] at its lowest ebb.”123
Constitution trumps all others.121
Perm Solves the Link – Key to PP – 1AR
The perm gives president the most power
Bellia, Law Professor at Notre Dame, 02
Patricia L Bellia, Associate Law Professor for Notre Dame Law School, “Executive power in Youngstown’s shadows”,
LexisNexus.com, 02
Justice Jackson suggested that presidential powers "are not fixed but fluctuate, depending upon their disjunction or
conjunction with those of Congress." (59) He offered the following grouping of presidential actions and their legal
consequences: 1. When the President acts pursuant to an express or implied authorization of
Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that
Congress can delegate. 2. When the President acts in absence of either a congressional grant or denial of authority, he can
only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent
authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may
sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this
area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than
on abstract theories of law. 3. When the President takes measures incompatible with the expressed or
implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own
constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain
exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. (60)
No Link – Aff Doesn’t Kill Pres Powers
**Congressional oversight in one small area of surveillance doesn’t spill over to destroy all the powers
that their impact evidence assumes – war powers prove
Linn 2K (Alexander C., “INTERNATIONAL SECURITY AND THE WAR POWERS RESOLUTION”, in William & Mary Bill of
Rights Journal, from Lexis Nexis 8 Wm. & Mary Bill of Rts. J. 725)
Both the executive and legislative branches have a constitutional role to play in the use of force, but
the legislative branch has primacy in committing forces to hostile theatres. History reveals,
however, a shift in the war power from the legislative to the [*727] executive branch. Executive authority in Vietnam
revealed a strong need for Congress to check executive power. An
amended view of war powers and the Resolution should now be constructed
to meet the modern parameters of international politics. A small subset of Congress should have the ability to
play an influential role in executive troop commitments in a way that does not unconstitutionally
impair the President's ability to commit U.S. forces quickly to multilateral operations.
CP Doesn’t Solve Pres Powers
Doesn’t solve pres powers – no spillover
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Kreider ‘6 (Kyle L. Kreider, Assistant Professor of Political Sciences at the Political Science Department, Wilkes University June
2006 [http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/warber0606.htm)
A part of the strategic environment surrounding executive orders is what Congress is likely to do in response. As Warber sees it, Congress has two options: apply verbal
pressure or pass legislation “to nullify or reform existing executive orders” (p.108). While Congress has these two options, the data show that
“Congress devotes
a small portion of its time debating executive orders” (p.114) and “has been relatively inactive in reforming and eliminating specific
executive orders issued by presidents who served between the Kennedy and George H. W. Bush administrations” (p.120). Warber concludes with a cursory examination of
President George W. Bush’s use of executive orders and some thoughts on where future research should go. While his political opponents and some members of the media
criticize President Bush for his penchant for acting unilaterally (in both domestic and foreign affairs), expanding the powers of the presidency, and sometimes bypassing the
expertise found in Congress, “the results demonstrate that Bush has not significantly departed from previous presidents regarding the types and quantity of executive orders that
he issued during his first term” (p.124). However, what has been different under President Bush is his willingness to change existing public policy by revoking, superseding, or
amending executive orders made by previous presidents. Yearly averages show President Bush to be second only to President Carter in revising inherited executive orders. A
“presidents have not dramatically expanded their power with [executive orders]
across the modern presidency” (p.128). Though Warber does not have the specific answers as to
why presidents have not increased their use of executive orders over time, he speculates the stasis in
presidential directives to a number of [*437] factors, one being the continued existence of separation of
powers—specifically Congress’s ability to pass legislation to revoke or revise executive orders and the federal courts’ authority to decide upon their constitutionality
key finding of this book is that
PP Bad – Heg
**Pres powers collapse heg – enables entanglements abroad
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)
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
Second,
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.
Empirically proven – Iraq
Holt ‘7 (Pat, former chief of staff of the Senate Foreign Relations Committee “Between Congress and the president, a power
seesaw” Christian Science Monitor, Feb 1, Lexis)
American involvement in Iraq appears to be an unresolvable dilemma: the United States can neither stay in nor get out. It
cannot stay in because the public will not support it. It cannot get out because, after four years there, the US has wrecked
the country. It would be unconscionable now simply to walk away and leave a nation of impoverished Iraqis among the
ruins. America cannot start writing a new policy on a clean slate. But what it can do is adjust the
imbalance of power between the executive and legislative branches. Too much deference to the
White House got the US into this predicament. A more-assertive Congress might help bring about a
solution, and more important, avoid a similar situation in the future. The Iraq war represents a
constitutional failure of American government, but it was not the institutions of government that failed; it was the
people who were supposed to make those institutions work. The Constitution provides for a separation of powers among
the legislative, executive, and judicial branches. It is the separation of powers that creates the crucial checks
and balances that enable one branch to keep another in line. A good deal of the thinking that went into this
structure was based on skepticism and distrust. From long experience, the framers of the Constitution were skeptical and
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distrustful of power, and they wanted to build this into the new government. Perhaps
the biggest failure with respect
to Iraq was in Congress. Members were far too deferential to the White House; they failed to question
President Bush's reactions to 9/11 as they were duty-bound to do. Among Republicans on Capitol Hill, there was an
exaggerated sense of party loyalty to the president. Among both parties, there was an exaggerated sense of partisanship.
The party system and the separation of powers are incompatible. Parties do not work well without cohesion and discipline.
The separation of powers does not work well without independence. This conflict was foreseen by the framers. In one of
the Federalist papers, James Madison warns against "the pestilential influence of party animosities." The Constitution
has been called "an invitation to struggle" between the president and Congress for the control of
foreign policy. On Iraq, Congress did not accept the invitation. Republicans reveled in Mr. Bush's popularity.
Democrats were afraid of it. Only after the public began to turn against the war did Congress began to
follow. Meanwhile, the president was left unchecked. The history of the constitutional struggle
between president and Congress is a seesaw with first one branch up and then the other. Congress
probably reached its post-World War II high at the end of the Vietnam War when it used its control of money to force the
US to end its support of South Vietnam. When President Johnson left office in 1969, a congressional observer remarked
that it would take to the end of the 20th century to restore presidential powers to where Johnson found them. Bush became
president in 2001 determined to hasten that restoration. He showed his hand early when he supported Vice President Dick
Cheney's refusal to name the participants in a committee studying energy policy. The war on terror provided further
opportunities. By 2006, the president's end of the seesaw was at a post-World War II high. Now there is an opposite
movement propelled, as before, by an unpopular war. With respect to both Vietnam and Iraq, Congress did not assert itself
until corrective action became prohibitively difficult. The principal lesson we can learn from the Iraq dilemma
is that Congress should join the struggle with the president earlier in the development of a problem. It
should combat the natural tendency to let the president take the lead in foreign crises.
PP Bad – Democracy
Restraint solves democracy better – checks and accountability
Deats ’10 (Caleb, J.D. Candidate, Columbia Law School, 7/2/10, “Obliging The Executive Branch To Control Itself,”
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633922)
one might argue that, because only
the executive branch is directly accountable to the public as a whole, restraining the executive’s power
to interpret the Constitution unduly limits the public’s role in that interpretation. Professor Kramer argues that the
1. Restraining the Executive’s Interpretive Power Makes Constitutional Interpretation Less Representative. --- First,
founders intended “‘the people themselves’---working through and responding to their agents in government---[to be] responsible for seeing that [the Constitution] was properly
interpreted and implemented.”43 Today, the public can best play the role celebrated by Professor Kramer through its influence over the executive branch. As Professor Franklin
notes, “the President is the closest thing we have to an embodiment of the national popular will.”44 In contrast to the executive branch, the judiciary is structurally removed
from public control, and Congress’s fragmentation limits its accountability to the electorate as a whole.45 Thus, restraining the executive’s interpretive power by encouraging
deference to the other branches arguably removes the Constitution from the public’s influence, undermining our foundational commitments and diminishing the
while restraining the executive’s interpretive power may
disserve our commitment to popular constitutionalism, doing otherwise might undermine an equally
important founding commitment, namely that to checks and balances.46 As Professor Franklin points out, particular
instances of executive constitutional interpretation---specifically that undertaken in connection with the
NSA’s domestic surveillance program---show “no regard for the checking function of the other
branches.”47 Moreover, even if the public exercises more control over the executive than it does over other
branches, the conclusion that the executive will interpret the Constitution according to the majority’s
wishes does not follow. For example, if the President understands the Constitution to allow her to proceed
in secrecy, as President Bush did with regard to the NSA surveillance program, then the public has no opportunity to hold her
accountable where it disagrees.48 Finally, that the Constitution does not provide for the election of judges raises questions---both of founding intent and of
policy---about how large a role the public should play in constitutional interpretation.49 Thus, while restraining the executive’s interpretive
power may in some ways reduce the public’s influence on our understanding of the Constitution, this
reduction may actually increase the public’s influence on other constitutional matters and best
promote “thicker conceptions of democracy.”50
representativeness of our government’s most fundamental law. However,
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Secrecy destroys the democratic process – turns credibility
Cooper ‘2 (Phillip J, Professor of Public Administration in the Hatfield School of Government at Portland State University, B.A. in
Government at California State University, Sacramento, M.A. and Ph.D. the Maxwell School of Citizenship and Public Affairs of
Syracuse University, “By Order of the President: Use and Abuse of Executive Direct Action,” University of Kansas Press (2002), p.
143-44)
Few Americans really understand the negative impressions that people in other countries have about the
United States. In some parts of the world, particularly in developing countries that were the battlegrounds of the cold war
as the United States and the Soviet Union fought to control ever larger spheres of influence, that attitude today has
something to do with how little Americans know about the way we have conducted ourselves over
time. Is there some particular reason why many Iranians react so badly to anything American? Why is it that Latin
Americans have little or no trust in America's pious pronouncements? How is it that the United States could find itself so
often in difficulty in Asia? One element involved in answering those questions is simply that many Americans do not
know, and have not been truthfully or fully informed, about U.S. policy in a particular part of the
world and by what means that policy was carried out. Nor are many Americans aware that what may
seem to be laudable purposes in the abstract have sometimes been pursued by means that do not fit the
purposes. Frequently, the mechanisms by which those activities have been undertaken have been NSDS.
When Americans come to understand how these directives have been involved in the Iran-Contra debacle, the
U.S.-sponsored coup d'etat in 1953 in Iran that put the Shah back on the throne, the bloody U.S. coup that ousted the
Arbenz government in Guatemala, and the real decisionmaking behind the prosecution of the Vietnam War, it becomes
more obvious that NSDs have been tools for destruction as well as for the straightforward implementation of foreign policy. What may come as far more of a surprise, perhaps even as a shock, is that some
administrations have employed national security directives not only to best foreign adversaries but also for domestic
purposes. Sometimes such practices have even led members of the president's own cabinet to rebel.
PP Bad – A2: Checks Solve
Theoretical checks don’t solve – Congress can’t or won’t
Covington ’12 (Megan, School of Engineering, Vanderbilt University, Vol 8 (2012): July 2012 - Humanities and Social Sciences,
“Executive Legislation and the Expansion of Presidential Power,”
http://ejournals.library.vanderbilt.edu/index.php/vurj/article/view/3556/1738)
Theoretically, the president’s use of executive orders and other forms of
presidential directives is well restrained by the system of checks and balances between the three branches of government.
Challenges to Executive Legislation
Congress can overturn or nullify the effects of any executive order by passing new legislation or refusing to approve any necessary funds.41 In the event the president vetoes this
new piece of legislation, Congress can override its veto with a 2/3 vote in both houses. Congress could pass and then over ride the inevitable veto on a bill specifically designed
to curb executive power, perhaps by banning constitutional signing statements. If the president were to ever seriously overstep his constitutional bounds, Congress could always
draw up articles of impeachment. If Congress is unwilling or unable to challenge executive legislation, the Supreme Court can overturn it through judicial review. All executive
orders must be reported to the Federal Register to be published unless they contain confidential information, preventing presidents from using executive orders in secret. 42 This
requirement also allows for the media to play watchdog and monitor the president’s actions. Finally, any executive order can be nullified by a future president’s executive order,
meaning there is no guarantee that any single executive order is permanent.43 These constraints on the presidency are designed to prevent abuse of executive power and
In actuality, however, Congress is generally unwilling or
unable to respond to the president’s use of executive legislation. Congress can override a presidential
veto but does not do it very often; of 2,564 presidential vetoes in our nation’s history, only 110 have ever been overridden. 44 The 2/3 vote of
both houses needed to override a veto basically means that unless the president’s executive order is grossly
unconstitutional – and thus capable of earning bipartisan opposition - one party needs to have a
supermajority of both houses. Even passing legislation to nullify an executive order can be difficult to
accomplish, especially with Congress as polarized and bitterly divided along party lines as it is
today. Congress could pass legislation designed to limit the power of the president, but such a bill would be difficult to
pass and any veto on it – which would be guaranteed – would be hard to override. In addition, if such legislation was passed over a
veto, there is no guarantee that the bill would successfully limit the president’s actions; the War Powers Act does
preserve the individual authority of the other two branches of government.
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Impeachment is always an option, but the gravity of such a charge
would prevent many from supporting it unless the president was very unpopular and truly abused his power. Congress’s best weapon against
executive legislation is its appropriations power, but this only gives it power over orders that require funding. Members of
little to restrain the president’s ability to wage war.45
Congress may even support a president’s use of executive legislation to establish policy when gridlock occurs on the floor. Congressmen can include policy changes made
through executive legislation as part of their party’s recent accomplishments for the next election cycle, giving them more incentive to support executive legislation.47
These factors combined mean that Congress has only modified or challenged 3.8% of all executive
orders, of which there have been over 13,000 total, leaving them an ineffective check on the
president’s legislative power.48 Essentially the only times Congress can and will challenge an executive order are when the president has extremely low
support, when in a divided government the party in power of Congress has a supermajority of both houses, or when a president seriously and obviously abuses his power in such
a way as to earner opposition from both parties.
The same applies to the courts
Covington ’12 (Megan, School of Engineering, Vanderbilt University, Vol 8 (2012): July 2012 - Humanities and Social Sciences,
“Executive Legislation and the Expansion of Presidential Power,”
http://ejournals.library.vanderbilt.edu/index.php/vurj/article/view/3556/1738)
The Supreme Court constitutes the other major check on presidential power. Executive legislation – specifically executive
orders and signing statements - is considered law, so the Supreme Court has the jurisdiction to deem an executive order
unconstitutional using judicial review.49 If a case challenging a president’s legislation comes before the court, the judges
can choose to hear the case and overturn the legislation if they think it represents a severe violation of the Constitution.50
Unfortunately, the Supreme Court is generally unwilling to intervene in the president’s use of executive
legislation, even when the directives used are “of – at best dubious constitutional authority [or] issued
without specific statutory authority.”51 In addition, the wide and vague grounds the president can use in
his defense can make challenging the president problematic.52 Of the executive orders passed in our
nation’s history, only 14 have actually been challenged by federal courts and only 2 were completely
overturned, showing how very rare it is for the Supreme Court to challenge executive legislation.53
The same applies to the public
Covington ’12 (Megan, School of Engineering, Vanderbilt University, Vol 8 (2012): July 2012 - Humanities and Social Sciences,
“Executive Legislation and the Expansion of Presidential Power,”
http://ejournals.library.vanderbilt.edu/index.php/vurj/article/view/3556/1738)
Public knowledge of executive orders and other forms of executive legislation is extremely low, in part
because presidential directives are not usually part of the basic discussion of the government. Citizens generally are “disconnected from
politics, dislike political conflict, distrust political leaders, [and] possess low levels of information
about specific policies,”54 so there is no reason to believe the average American understands the complex use and nature of executive legislation. Since so
many executive orders, signing statements, and memoranda are used for routine, symbolic, or house-keeping
purposes, their use does not always make for an interesting story, meaning that the press does not always pay attention to or cover
the use of executive legislation and the public hardly ever hears about it. Phillip J. Cooper insists that “the idea that the
president could [...] govern in no small part by decree is a concept of which most Americans are blissfully unaware. If they were alert […], many would most likely be aghast
This ignorance of the masses ensures that the president does not really
have to worry about the people’s opinion when he uses executive legislation, removing one potential limit on his unilateral power.
that the president could, in effect, write law.”55
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