ADI Courts CP
ADI Courts CP ............................................................................................................................................................ 1
***Courts CP 1NC*** ............................................................................................................................................ 2
1NC Courts CP ........................................................................................................................................................... 3
***Solvency*** .................................................................................................................................................... 4
General War Powers Solvency .................................................................................................................................. 5
Targeted Killing Solvency .......................................................................................................................................... 7
A2 Political Question Doctrine (AUMF) ..................................................................................................................... 9
A2 Political Question Doctrine (Targeted Killing) .................................................................................................... 10
Detention Solvency ................................................................................................................................................. 11
OCO Solvency .......................................................................................................................................................... 14
Movements Solvency .............................................................................................................................................. 16
***A2 Courts Solvency*** .................................................................................................................................. 17
2NC Non-Compliance .............................................................................................................................................. 18
2NC Politics Net Benefit .......................................................................................................................................... 19
A2 Harrison Evidence .............................................................................................................................................. 20
A2 Congressional Rollback ...................................................................................................................................... 21
A2 Wartime Rollback .............................................................................................................................................. 24
A2 FoPo Flexibility Solvency Deficit ......................................................................................................................... 25
A2 Courts Can’t Do Secrecy/Intel ............................................................................................................................ 26
A2 Violates SOP ....................................................................................................................................................... 27
A2 No Test Case ...................................................................................................................................................... 28
A2 Legitimacy DA .................................................................................................................................................... 30
A2 Court Stripping ................................................................................................................................................... 32
Courts DA Thumper--- Controversial Decisions Now .............................................................................................. 35
***Perms & Theory*** ....................................................................................................................................... 36
2NC Perm Do Both .................................................................................................................................................. 37
2NC Agent CPs Good ............................................................................................................................................... 38
***Aff Answers*** ............................................................................................................................................. 39
Courts Fail--- Congress Key ..................................................................................................................................... 40
Courts Fail--- War on Terror .................................................................................................................................... 42
Courts Fail--- Expertise ............................................................................................................................................ 44
Courts Fail--- Certainty/Speed................................................................................................................................. 45
Courts Fail--- Rapid Response ................................................................................................................................. 46
Lower Courts Rollback ............................................................................................................................................ 47
A2 Politics Net Benefit ............................................................................................................................................ 49
Perm Shields Politics ............................................................................................................................................... 51
SOP Links ................................................................................................................................................................. 52
***Courts CP 1NC***
1NC Courts CP
Text: The Supreme Court of the United States should [plan]
CP solves--- Courts can restrict war powers
Fisher 2005 (Louis Fisher, senior specialist in separation of Powers with the Congressional Research Service,
September 2005, “Judicial Review of the War Power,” Presidential Studies Quarterly, Vol 35, No 3,
http://www.constitutionproject.org/pdf/422.pdf)
The terrorist attacks of 9/11, followed by the creation of a military tribunal, treatment of
detainees, and passage of the USA Patriot Act, brought to the fore again the ¶ question of
what role federal courts should play in policing the war power. Contempo-¶ rary legal studies often
argue that foreign affairs-and particularly issues of war and ¶ peace-lie beyond the scope of judicial jurisdiction and
competence. However, the record ¶
over the past two centurie s demonstrates that not only have
courts decided war power ¶ issues many times, they have curbed presidential military
actions in time of war.
Courts don’t link to politics- avoids political fallout for Congress and Obama
Whittington, 2005 (Keith E. Whittington, Professor of Politics - Princeton University, "Interpose Your Friendly
Hand: Political Supports for the Exercise of Judicial Review by the United States Supreme Court”, The American
Political Science Review, Nov., (99)4, p. 583)
There are some issues that politicians cannot easily handle. For individual legislators, their constituents may be sharply divided on a
given issue or overwhelmingly hostile to a policy that the legislator would nonetheless like to see adopted. Party leaders, including
presidents and legislative leaders, must similarly sometimes manage deeply divided or cross-pressured coalitions.
When faced with such issues, elected officials may actively seek to turn over controversial political questions
to the courts so as to circumvent a paralyzed legislature and avoid the political fallout that
would come with taking direct action themselves. As Mark Graber (1993) has detailed in cases such as
slavery and abortion, elected officials may prefer judicial resolution of disruptive political issues
to direct legislative action, especially when the courts are believed to be sympathetic to the politician's own substantive
preferences but even when the attitude of the courts is uncertain or unfavorable (see also, Lovell 2003). Even when politicians do
not invite judicial intervention, strategically minded courts will take into account not only the policy preferences of well-positioned
policymakers but also the willingness of those potential policymakers to act if doing so means that they must assume responsibility
for policy outcomes. For cross-pressured politicians and coalition leaders, shifting
blame for controversial decisions
to the Court and obscuring their own relationship to those decisions may preserve electoral
support and coalition unity
without threatening active judicial review (Arnold 1990; Fiorina 1986; Weaver 1986). The
conditions for the exercise of judicial review may be relatively favorable when judicial invalidations of legislative policy can be
managed to the electoral benefit of most legislators. In the cases considered previously, fractious coalitions produced legislation
that presidents and party leaders deplored but were unwilling to block. Divisions within the governing coalition can also prevent
legislative action that political leaders want taken, as illustrated in the following case.
***Solvency***
General War Powers Solvency
The court empirically can and should limit war powers
Fisher 2005 (Louis Fisher, senior specialist in separation of Powers with the Congressional Research Service,
September 2005, “Judicial Review of the War Power,” Presidential Studies Quarterly, Vol 35, No 3,
http://www.constitutionproject.org/pdf/422.pdf)
The sharp disagreements between Judges Silberman and Tatel in the D.C. Circuit ¶ underscore the rift that still exists
among federal "judges on war power issues and the ¶ political question doctrine. Contrary to the general
impression that war power disputes ¶ present delicate political issues beyond the scope of
judicial scrutiny, courts have generally regarded the exercise of war powers by the political
departments as subject to independent judicial scrutiny. Throughout the past two centuries,
federal courts accepted ¶ decided a broad range of issues involving military operations. Most of
those lawsuits ¶ were brought by private individuals who expected their legal claims to be settled on the ¶ legal and
constitutional merits. ¶ While courts often acknowledge the president's broad discretionary powers
in ¶ foreign policy and military actions, they usually do so after interpreting what Congress ¶
has authorized by statute. Even at the height of judicial unwillingness to reach the
constitutional merits of the Vietnam War, the courts looked for some form of congressional ¶
approval or at least ratification of presidential war initiatives. They also intimated, ¶ repeatedly, that
absent such a support (express or implicit) the decisions they reached ¶ might have turned against the president.
Courts have a key role to play in defining contemporary war powers
Scheindlin 2004 (Hon. Shira A. Scheindlin, United States District Judge for the Southern District of New York, &
Matthew L. Schwartz, clerk for Hon. Shira A. Scheindlin (2002-2004); Columbia College, B.A., 2000; Columbia Law
School, J.D., 2002, “WITH ALL DUE DEFERENCE: ¶ JUDICIAL RESPONSIBILITY IN A TIME OF CRISIS,” Hofstra Law Review,
Vol 32, No 4, http://www.hofstra.edu/PDF/law_lawrev_scheindlin_vol32no4.pdf)
Since the declaration of the “War on Terror,” there appears to be a ¶ palpable and rising
distrust of the judiciary by the political branches, a ¶ distrust that may be exacerbated by a fear that the
courts will not tolerate ¶ significant departures from constitutional standards even when actions ¶ that so depart are
taken in the name of national defense. This distrust ¶ manifests itself through executive and legislative actions that
prevent the ¶ judiciary from fulfilling its mandate to act as a check on the political ¶ branches—by excluding it entirely,
drastically curtailing its authority, or ¶ by outright intimidation of judges in the hope of dissuading them from ¶
rejecting initiatives that might not withstand constitutional scrutiny. ¶ Historically, courts have shown great
deference to decisions of the ¶ political branches in times of war. But the current war is
different. It is a ¶ war without borders or duration. We are not fighting a foreign country or ¶ a regular
army. In that sense, the line between battlefield hostilities and ¶ domestic crime is blurred. Because of this
difference, courts today have ¶ been less deferential than in the past—at least at the trial level. The
¶ record
in the appellate courts has been more mixed, with some panels ¶ reverting to the high level of deference
traditionally accorded to military decisions, while others have applied near plenary review. It remains to ¶ be seen
what the high court will do; in a span of eight days in April ¶ 2004, the Court heard four cases challenging government
actions taken ¶ in furtherance of the War on Terror. ¶ While the tension between guarding constitutional rights and ¶
pursuing military goals exists, we continue to believe that the judiciary ¶ must play its traditional role as the guardian
of the Constitution. Neither ¶ knee-jerk rejection of, nor blind deference to, the administration’s ¶
policies are acceptable. But a careful balancing of the twin goals of ¶ liberty and security , which
may both be achievable, is the judiciary’s ¶ role and its mandate. It may not be easy, but a judge’s oath
requires ¶ nothing less.
The judiciary can interpret laws to limit war powers
Smith 2007 (R. Andrew Smith, graduated from the Valparaiso University School of Law in 2006 and is licensed to
practice in the state of Illinois, Valparaiso University Law Review, Volume 41, Number 4, “Breaking the Stalemate: The
Judiciary's¶ Constitutional Role in Disputes over the War¶ Powers,”
http://scholar.valpo.edu/cgi/viewcontent.cgi?article=1194&context=vulr)
The judiciary has the responsibility to interpret the language and ¶ structure of the
Constitution to determine when government action is in ¶ violation of its various attributed
powers.108 In a situation like the one ¶ presented with President Bush’s NSA electronic surveillance program, ¶ the
judiciary must determine whether the executive has exceeded its ¶ constitutional authority. Even though the
Supreme Court has refused to ¶ address the scope of presidential power during times of war
under the ¶ political question doctrine,109 the Court should review this situation because its
existing precedent demonstrates that the Court should ¶ mediate the dispute. In addition, the
Court’s constitutionally-mandated ¶ role in the operation of separate powers requires the
Court’s ¶ involvement.
Targeted Killing Solvency
Judicial review to limit targeted killing authority solves
Jaffer 2013 (Jameel Jaffer, Director of the ACLU's Center for Democracy, April 2013, “Judicial Review of Targeted
Killings,” Harvard Law Review, http://www.harvardlawreview.org/issues/126/april13/forum_1002.php)
Since 9/11, the CIA and Joint Special Operations Command (JSOC) have used armed drones to kill
thousands of people in places far removed from conventional battlefields. Legislators, legal
scholars, and human rights advocates have raised concerns about civilian casualties, the legal basis for the strikes, the
process by which the executive selects its targets, and the actual or contemplated deployment of armed drones into
additional countries. Some have proposed that Congress establish a court to approve (or disapprove) strikes before
the government carries them out.¶ While judicial engagement with the targeted killing program is
long overdue , those aiming to bring the program in line with our legal traditions and moral intuitions should think
carefully before embracing this proposal. Creating a new court to issue death warrants is more likely to normalize the
targeted killing program than to restrain it.¶ The argument for some form of judicial review is
compelling, not least because such review would clarify the scope of the government’s authority
to use lethal force. The targeted killing program is predicated on sweeping constructions of
the 2001 Authorization for Use of Military Force (AUMF) and the President’s authority to use military force in
national self-defense. The government contends, for example, that the AUMF authorizes it to use
lethal force against groups that had nothing to do with the 9/11 attacks and that did not even exist
when those attacks were carried out. It contends that the AUMF gives it authority to use lethal force against
individuals located far from conventional battlefields. As the Justice Department’s recently leaked white paper makes
clear, the government also contends that the President has authority to use lethal force against those deemed to
present “continuing” rather than truly imminent threats.¶ These claims are controversial. They have been
rejected or questioned by human rights groups, legal scholars, federal judges, and U.N. special
rapporteurs. Even enthusiasts of the drone program have become anxious about its legal soundness. (“People in
Washington need to wake up and realize the legal foundations are crumbling by the day,” Professor Bobby Chesney, a
supporter of the program, recently said.) Judicial review could clarify the limits on the government’s
legal authority and supply a degree of legitimacy to actions taken within those limits. It could
also encourage executive officials to observe these limits. Executive officials would be less likely to exceed
or abuse their authority if they were required to defend their conduct to federal judges. Even
Jeh Johnson, the Defense Department’s former general counsel and a vocal defender of the targeted killing program,
acknowledged in a recent speech that judicial review could add “rigor” to the executive’s
decisionmaking process. In explaining the function of the Foreign Intelligence Surveillance Court, which
oversees government surveillance in certain national security investigations, executive officials have often
said that even the mere prospect of judicial review deters error and abuse .
Judicial review solves
Jaffer 2013 (Jameel Jaffer, Director of the ACLU's Center for Democracy, April 2013, “Judicial Review of Targeted
Killings,” Harvard Law Review, http://www.harvardlawreview.org/issues/126/april13/forum_1002.php)
Second, judicial engagement with the targeted killing program does not actually require the
establishment of a new court. In a case pending before Judge Rosemary Collyer of the District Court for the District
of Columbia, the ACLU and the Center for Constitutional Rights represent the estates of the three U.S. citizens whom
the CIA and JSOC killed in Yemen in 2011. The complaint, brought under Bivens v. Six Unknown Named
Agents, seeks to hold senior executive officials liable for conduct that allegedly violated the
Fourth and Fifth Amendments. It asks the court to articulate the limits of the government’s
legal authority and to assess whether those limits were honored. In other words, the complaint asks the court to
conduct the kind of review that many now seem to agree that courts should conduct.¶ This kind of review—ex
post review in the context of a Bivens action—could clarify the relevant legal framework in the same way
that review by a specialized court could. But it also has many advantages over the kind of review that would likely
take place in a specialized court. In a Bivens action, the proceedings are adversarial rather than ex
parte, increasing their procedural legitimacy and improving their substantive accuracy. Hearings
are open to the public, at least presumptively. The court can focus on events that have already
transpired rather than events that might or might not transpire in the future. And a kind of
accountability that could not be supplied by a specialized court reviewing contemplated strikes ex ante a Bivens
action can also provide: redress for family members of people killed unlawfully, and civil liability for officials whose
conduct in approving or carrying out the strike violated the Constitution. (Of course, in one profound sense a Bivens
action will always come too late, because the strike alleged to be unlawful will already have been carried out. Again,
though, if “imminence” is a requirement, ex ante judicial review is infeasible by definition.)¶ Another advantage of the
Bivens model is that the courts are already familiar with it. The courts quite commonly adjudicate wrongful
death claims and “survival” claims brought by family members of individuals killed by law enforcement
agents. In the national security context, federal courts are now accustomed to considering habeas
petitions filed by individuals detained at Guantánamo. They opine on the scope of the
government’s legal authority and they assess the sufficiency of the government’s evidence — the same
tasks they would perform in the context of suits challenging the lawfulness of targeted
killings. While Congress could of course affirm or strengthen the courts’ authority to review the lawfulness of
targeted killings if it chose to do so, or legislatively narrow some of the judicially created doctrines that have
precluded courts from reaching the merits in some Bivens suits, more than 40 years of Supreme Court
precedent since Bivens makes clear that federal courts have not only the authority to hear
after-the-fact claims brought by individuals whose constitutional rights have been infringed but also the
obligation to do so.
A2 Political Question Doctrine (AUMF)
Judicial review of the AUMF is appropriate and solves
McKelvey 2011 (Benjamin McKelvey, Executive Development Editor on the Editorial Board of the Vanderbilt
Journal of Transnational Law, JD 2012, November 2011, “Due Process Rights and the Targeted Killing of Suspected
Terrorists: The Unconstitutional Scope of Executive Killing Power,” Vanderbilt Journal of Transnational Law, Lexis)
In Aulaqi, the DOJ asserted that the President has the authority to conduct targeted killing
pursuant to congressionally granted war power, 81 but this argument relies on an overbroad
interpretation of the AUMF. It is debatable whether the scope of the AUMF and the powers it grants the
Executive Branch encompass the circumstances of the Aulaqi case. Furthermore, the scope of a congressional
authorization for the use of military force is certainly an appropriate subject for judicial
review, particularly where powers under the authorization may infringe on due process rights.
82 As a matter of law, courts may properly review this issue.¶ Congress passed the AUMF in response to the terrorist
attacks of September 11, but the actual text of the Authorization casts doubt [*1364] on whether this authority
extends to all suspected terrorists or only those responsible for the September 11 attacks. 83 The AUMF authorizes
the President to use "all necessary and proper force" against those "he determines planned, authorized, committed,
or aided the terrorist attacks that occurred on September 11, 2001." 84 The purpose of this authorization is to
"prevent any future acts of international terrorism against the United States by such nations, organizations, or
persons." 85 Although the goal of the Authorization is the prevention of more terrorist attacks, the designated
authority appears to rest on a September 11 predicate. 86 In other words, those involved in the September 11
terrorist attacks are legal targets, but do all suspected terrorists fall within this construction?¶ In its brief in response,
the DOJ never alleged that Aulaqi was connected to the September 11 attacks. 87 However, the DOJ did assert that
Aulaqi had emerged as a senior leader in al-Qaeda in the Arabian Peninsula. 88 So, while it appears that Aulaqi did not
personally satisfy the September 11 predicate of the AUMF, it can be argued that membership or affiliation with alQaeda is enough to satisfy the AUMF. 89 Al-Qaeda planned and executed the terrorist attacks of September 11, and
the AUMF authorizes lethal force against al-Qaeda. 90 Yet, the scope of the AUMF is unclear, as is the conclusion that
Aulaqi fit within this scope. 91¶ More importantly, the argument that the AUMF grants the President
authority to conduct targeted killings of Americans is itself likely subject to judicial review.
Contrary to the DOJ's assertion, there is ample precedent to suggest that the scope of
congressionally authorized war power is a matter subject to judicial review and not an
exclusively political question. 92 Whether Anwar al-Aulaqi satisfies [*1365] the September 11 predicate in
specific circumstances may be a political question, but the targeted killing of Americans without due process is a
matter of law subject to judicial review. 93 The court in Aulaqi should have focused on this broader question of law
and probably erred in declining to do so. 94¶ If a court were to decide whether the AUMF permits the
targeted killing of Americans, it would likely exercise restraint so that the AUMF does not
operate to permit total global military power. 95 An unrestrained interpretation would allow
the Executive to use lethal force against any person, anywhere in the world, simply by accusing
that person of a relationship to terrorist organizations that were involved in the September 11 attacks. 96 A more
balanced interpretation would not go as far while still enabling the Executive to effectively confront the threat of
global terrorism. 97 A demonstration of specific evidence that Aulaqi was a senior leader with al-Qaeda would have
gone a long way toward establishing the AUMF as the proper source of authority in this situation. 98 However, the
DOJ argued that no such demonstration of evidence or independent review was even required. 99 This position
supports an unrestrained interpretation of the AUMF in which the Executive can use lethal force against any person in
any location simply on the basis of an unsubstantiated accusation. This is arguably an improper interpretation of the
congressional purpose and intent behind the passage of the AUMF. 100
A2 Political Question Doctrine (Targeted Killing)
Judicial review of targeted killing is appropriate and solves
McKelvey 2011 (Benjamin McKelvey, Executive Development Editor on the Editorial Board of the Vanderbilt
Journal of Transnational Law, JD 2012, November 2011, “Due Process Rights and the Targeted Killing of Suspected
Terrorists: The Unconstitutional Scope of Executive Killing Power,” Vanderbilt Journal of Transnational Law, Lexis)
In the alternative, and far more broadly, the DOJ argued that executive authority to conduct targeted
killings is constitutionally committed power. 101 Under this interpretation, the President has the authority
to defend the nation against imminent threats of attack. 102 This argument is not limited by statutory parameters or
congressional authorization, such as that under the AUMF. 103 Rather, the duty to defend the nation is inherent in
the President's constitutional powers and is not subject to judicial interference or review. 104¶ The DOJ is correct in
arguing that the President is constitutionally empowered to use military force to protect the nation from imminent
attack. 105 As the DOJ noted in its brief in response, the Supreme Court has held that the president has the authority
to protect the nation from "imminent attack" and to decide the level of necessary force. 106 The same is true in the
international context. Even though Yemen is not a warzone and al-Qaeda is not a state actor, international law
accepts the position that countries may respond to specific, imminent threats of harm with lethal force. 107 [*1367]
Under these doctrines of domestic and international law, the use of lethal force against Aulaqi was valid if he
presented a concrete, specific, and imminent threat of harm to the United States. 108¶ Therefore, the President
was justified in using lethal force to protect the nation against Aulaqi, or any other American,
if that individual presented a concrete threat that satisfied the "imminence" standard. 109
However, the judiciary may, as a matter of law, review the use of military force to ensure that it
conforms with the limitations and conditions of statutory and constitional grants of authority.
110 In the context of targeted killing, a federal court could evaluate the targeted killing
program to determine whether it satisfies the constitutional standard for the use of defensive
force by the Executive Branch. Targeted killing, by its very name, suggests an entirely premeditated and
offensive form of military force. 111 Moreover, the overview of the CIA's targeted killing program revealed a rigorous
process involving an enormous amount of advance research, planning, and approval. 112 While the President has
exclusive authority over determining whether a specific situation or individual presents an imminent threat to the
nation, the judiciary has the authority to define "imminence" as a legal standard. 113 These [*1368] are general
concepts of law, not political questions, and they are subject to judicial review. 114¶ Under judicial review, a
court would likely determine that targeted killing does not satisfy the imminence standard for
the president's authority to use force in defense of the nation. Targeted killing is a premeditated
assassination and the culmination of months of intelligence gathering, planning, and coordination. 115 "Imminence"
would have no meaning as a standard if it were stretched to encompass such an elaborate and exhaustive process.
116 Similarly, the concept of "defensive" force is eviscerated and useless if it includes entirely premeditated and
offensive forms of military action against a perceived threat. 117 Under judicial review, a court could easily and
properly determine that targeted killing does not satisfy the imminence standard for the constitutional use of
defensive force. 118
Detention Solvency
Supreme court can limit detention authority
Vladeck 2011 (Stephen Vladeck, Winter 2011, “The Supreme Court, the War on Terrorism, and the Separation
of Powers,” ABA Human Rights, Volume 38, No 1,
http://www.americanbar.org/publications/human_rights_magazine_home/human_rights_vol38_2011/human_rights
_winter2011/supreme_court_war_on_terrorism_separation_of_powers.html)
At least on the surface, a reaffirmation of the separation of powers may be the dominant theme of the Supreme
Court’s terrorism jurisprudence during the past decade. For example, the decisions in Hamdi v. Rumsfeld,
542 U.S. 507 (2004), and Rasul v. Bush, 542 U.S. 466 (2004), affirmed that the federal courts had a
meaningful role to play in reviewing detentions of “enemy combatants” as part of the war on
terrorism; the decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), invalidated military
commissions established by President George W. Bush almost entirely on the ground that
they were inconsistent with that which Congress had authorized; and the decision in Boumediene
v. Bush, 553 U.S. 723 (2008), went the furthest, holding that, largely because of separation-ofpowers concerns, Congress lacked the power to divest the federal courts of jurisdiction to
entertain habeas petitions from noncitizens detained at Guantanamo. As Justice Anthony
Kennedy there explained, “Within the Constitution’s separation-of-powers structure, few
exercises of judicial power are as legitimate or as necessary as the responsibility to hear
challenges to the authority of the Executive to imprison a person.” Thus, access to the writ for the
detainees “is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief
they seek.” (Id. at 797.)
The court can rule to limit indefinite detention--- previous cases prove
Waxman 2009 (Matthew C. Waxman, “Can Courts Be ‘Trusted’ in National Security Crises?,” The Foundation
for Law, Justice and Society ¶ in affiliation with¶ The Centre for Socio-Legal Studies, University of Oxford,
http://www.fljs.org/sites/www.fljs.org/files/publications/Waxman.pdf)
A survey of the Supreme Court and lower court cases¶ reviewing Bush administration enemy
combatant¶ detention practices illustrates familiar historical¶ arguments and patterns of judicial behaviour
during¶ national security crises.1¶ However, it also highlights¶ unique features of the current terrorist
emergency¶ and the Bush administration’s peculiarly extreme¶ legal response.¶ In 2004, nearly three years after
the September¶ 2001 attacks and soon after the Abu Ghraib scandal¶ surfaced, the Supreme Court issued two
rulings that¶ began to cut back expansive executive detention¶ powers. In Hamdi v. Rumsfeld, it
held that a ¶ Saudi-born US citizen captured in the Afghanistan¶ theatre of war and detained without trial or
judicial¶ proceeding in a South Carolina military facility was¶ entitled, as a matter of constitutional due process, ¶
to contest his detention before a ’neutral‘ decisionmaker. In Rasul v. Bush, the Court held that
federal¶ courts had statutory jurisdiction to hear habeas¶ corpus petitions of Guantanamo
detainees. The Bush¶ administration responded with new administrative¶ review procedures for Guantanamo and
US-held¶ detainees, and the administration and Congress¶ together further responded with the Detainee¶ Treatment
Act of 2005, which set minimum statutory¶ treatment and interrogation standards for detainees¶ and seemingly
restricted federal court jurisdiction to¶ consider claims of those held as ’enemy combatants‘¶ seeking to challenge
their detentions.¶ The following year, the Supreme Court decided¶ Hamdan v. Rumsfeld, which,
among other things,¶ held that Common Article 3 of the Geneva¶ Conventions applies to war
on terror detainees.¶ Again, the Bush administration and Congress¶ responded with legislation, this time the
Military¶ Commissions Act, which seemingly further restricted¶ federal court jurisdiction over detainee cases. ¶ In
2008, the Supreme Court decided Boumediene v.¶ Bush. It held that constitutional habeas corpus rights¶ apply to
Guantanamo detainees (and left open the¶ possibility that they would apply to detainees held¶ elsewhere), and that
existing administrative review¶ and limited judicial review procedures inadequately¶ protect detainees from
erroneous or illegal¶ imprisonment. Lower courts are now reviewing¶ individual Guantanamo habeas cases, and in
the¶ process working through the complex substantive¶ and procedural legal issues involved.¶ To those who look
to courts as guardians of liberty¶ and restraints on power during crises, the detention¶ cases
offer some vindication. Even a conservative Supreme Court each time has ruled against the
government. This has led dissenting Justices to warn,¶ for example, that the resulting judicial checks would¶ ’sorely
hamper the President’s ability to confront and¶ defeat a new and deadly enemy‘ (Justice Thomas in¶ Hamdan) and
’almost certainly cause more Americans¶ to be killed‘ (Justice Scalia in Boumediene).
Courts solve detention
Manget 2006 (Fred Manget, a member of the Senior Intelligence Service and a former Deputy General Counsel
of the Central Intelligence Agency, “Intelligence and The Rise of Judicial Intervention,” National Security Law,
http://www.nationalsecuritylaw.org/files/pubs/Manget.pdf)
After the 911 attacks on the United States, the ensuing global war on terrorism ¶ became a fertile
ground for legal issues. On the one hand, unfettered and rapid action by ¶ the Executive Branch became
essential to prevention of further terrorist attacks. On the ¶ other hand, the federal judiciary was asked to
decide what are the legal boundaries to ¶ such executive action. As terrorists were captured
on battlefields and in foreign venues ¶ around the world, federal courts stepped into the fray.
Interrogation of captured ¶ combatants is a highly important intelligence method, especially when directed towards ¶
future threats of armed attack. The treatment of individuals incarcerated by the U.S. ¶ government
is a highly important aspect of Constitutional due process rights. Federal ¶ courts are in the
middle of addressing the issues that occur when these two principles ¶ meet.¶ In the Hamdi
case, the Supreme Court was asked to consider the legality of the ¶ Government's detention of an American
citizen on American soil as an enemy combatant ¶ and to address the process that the constitution requires for
challenging that status. The ¶ federal appeals court held that Hamdi's detention was legally authorized and that he
was ¶ entitled to no further opportunity to challenge his enemy-combatant classification. The ¶ Supreme Court
vacated the appeals decision and remanded the case, holding that while ¶ Hamdi could be detained, due
process requires that a U.S. citizen held in the United ¶ States as an enemy combatant be
given a meaningful opportunity to contest the factual ¶ basis for that detention before a
neutral decision maker.
CP solves detention policy--- even if courts are normally ineffective at limiting
war powers
Waxman 2009 (Matthew C. Waxman, “Can Courts Be ‘Trusted’ in National Security Crises?,” The Foundation
for Law, Justice and Society ¶ in affiliation with¶ The Centre for Socio-Legal Studies, University of Oxford,
http://www.fljs.org/sites/www.fljs.org/files/publications/Waxman.pdf)
To those who view courts as too deferential to¶ executive power and assertions of security
need¶ during crises, however, the detention cases display¶ familiar judicial caution. While
incrementally imposing¶ stricter and stricter requirements on executive¶ detention for instance, at the time of writing
federal¶ courts have yet to order released a single detainee¶ whom the government insists is a dangerous enemy¶
combatant. And, with the notable exception of¶ Boumediene, the Supreme Court has in most cases¶ refused to rule
out the executive’s actions, instead¶ insisting that it seek legislative approval. In siding¶ with the majority against the
government in¶ Hamdan, for example, Justice Breyer went out of his¶ way to note that ‘[n]othing prevents the
President¶ from returning to Congress to seek the authority he¶ believes necessary.’ ¶ One reason why even a
conservative-leaning¶ Supreme Court has ruled mostly against the Bush¶ administration in each
case is the sheer extent of ¶ the administration’s assertions of implicit executive¶
constitutional powers and the depth of its overt hostility to regulation of national security
powers ¶ by either courts or Congress. Even measured against¶ controversial wartime assertions of
legal powers¶ during World War II and the Korean War, for ¶ example, the Bush
administration’s stance is ¶ extreme in pressing them as unilateral powers,¶ beyond
regulation by the other branches. It is not ¶ so surprising that courts would bristle at this
view,¶ and the familiar wartime pendulum swing from¶ judicial deference to push-back has therefore
been¶ relatively swift.
OCO Solvency
Courts should rule to clarify OCO war powers
Rollins and Henning 2009 (John Rollins, Specialist in Terrorism and National Security at CRS, and Anna
Henning, Legislative Attorney, March 10, 2009, Congressional Research Service,
http://www.fas.org/sgp/crs/natsec/R40427.pdf)
Assuming that the President’s war or foreign affairs powers extend to national security efforts ¶ such as the CNCI, the
next question is whether, and in what circumstances, the executive branch ¶ exercise of such powers might be
constrained by congressional action. As discussed, Congress ¶ and the President share powers to address matters of
national security, and no precise line divides ¶ the powers of the two political branches. Some have identified a
narrow sphere of Article II ¶ authority, sometimes called “preclusive” power,46 which congressional action cannot
limit. For ¶ most situations, however, Justice Robert Jackson’s concurring opinion in Youngstown Steel & ¶ ¶ Tube
Co.47 establishes the leading doctrine governing the executive’s inherent constitutional ¶ ¶ authority vis-a-vis
Congress.48 Justice Jackson’s three-category framework requires courts to ¶ ¶ evaluate, where
possible, the interplay between congressional intent and executive action in the ¶ ¶ context of
the Constitution’s allocation of powers. This exercise is made more difficult by the ¶ ¶ murky nature of a
small category of inherent constitutional powers some believe are reserved to ¶ ¶ the President alone. ¶ ¶ During the
Korean War, President Truman signed an executive order directing the Commerce ¶ ¶ Secretary to take control of the
nation’s steel mills in order to prevent a national steelworkers’ ¶ ¶ strike. In Youngstown, also known as the “Steel
Seizure Case,” the government claimed that ¶ ¶ presidential powers inherent in Article II provisions, most notably the
Commander-in-Chief ¶ ¶ power, authorized President Truman’s action.49 To prove this claim, the government
characterized ¶ ¶ the industry seizure as an action of a Commander in Chief, prompted by exigencies of war: steel ¶ ¶
production was necessary for military operations in Korea.50 The Supreme Court rejected this ¶ ¶ claim,51 but justices
reached the conclusion by different analytical routes. ¶ ¶ Writing for the majority, Justice Black took the hard-line view
that the Commander-in-Chief ¶ ¶ clause gives the President no substantive authority. He emphasized that controlling
private ¶ ¶ property to affect labor disputes “is a job for the nation’s lawmakers.”52¶ ¶ In contrast, Justice Jackson
argued that the President’s inherent constitutional powers “fluctuate,” ¶ ¶ from relatively high when authorized by
Congress, to their “lowest ebb” when a president “takes ¶ ¶ measures incompatible with the express or implied will of
Congress.”53 Specifically, Justice Jackson articulated three categories of executive action: (1) action
supported by an express or ¶ ¶ implied grant of authority from Congress; (2) a “zone of twilight”
between the other categories, in ¶ ¶ which “congressional inertia” can occasionally “enable, if
not invite, measures on independent ¶ ¶ presidential responsibility”; and (3) action that
conflicts with statutes or congressional intent.54¶ ¶ Actions in the first category enjoy congressional
support and thus might not need to rely solely on ¶ ¶ an inherent constitutional powers argument; assuming that
Congress acted pursuant to an ¶ ¶ enumerated Article I power in delegating the authority, these actions are clearly
authorized unless ¶ ¶ they violate another constitutional provision. Actions in the second, “zone of twilight”55
category ¶ ¶ prompt a complicated, totality-of-the circumstances inquiry, in which courts determine ¶ ¶ congressional
intent vis-a-vis executive action. Actions that fall within the third category – that is, ¶ ¶ actions that conflict with
statutory law – generally lack constitutional authority, unless the action ¶ ¶ is one of the few types of actions over
which the President has exclusive authority. In ¶ ¶ Youngstown, Justice Jackson found that President Truman’s actions
fit within the third category, ¶ ¶ because Congress had not left the issue of property seizure during labor disputes to an
“open ¶ ¶ field”; rather, Congress had passed statutes designed to stabilize markets when government ¶ ¶ required
supplies.56 On this basis, Justice Jackson joined the majority to strike down President ¶ ¶ Truman’s seizure of the steel
industry.57¶ ¶ Given the existing statutory framework, at least some potential responses to cyber
threats would ¶ ¶ likely fall outside of the first of Justice Jackson’s categories. Congress has not
expressly ¶ ¶ authorized the cybersecurity reforms proposed by the CNCI, nor do the Federal
Information ¶ ¶ Security Management Act or related statutes appear to impliedly authorize all
potential ¶ ¶ cybersecurity protections. In addition, although the use of cyber force might have
congressional ¶ ¶ authorization under the 2001 Authorization for Use of Military Force58 if
directed against an al ¶ ¶ Qaeda or Taliban operative, the Supreme Court has appeared to
foreclose reliance on the ¶ ¶ Authorization as a basis for any action that is not a “fundamental”
incident to the use of force ¶ ¶ against those responsible for the 9/11 attacks. The 2001 joint
resolution authorized the use of “all ¶ ¶ necessary and appropriate force against those nations, organizations, or
persons he determines ¶ ¶ planned, authorized, committed, or aided” the 9/11 attacks.59 In Hamdi v. Rumsfeld, the
Supreme ¶ ¶ Court held that capture and detention of Taliban members constituted “so fundamental and ¶ ¶ accepted
an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress ¶ ¶ has authorized the
President to use.”60 The Court seemed reluctant to interpret the Authorization ¶ ¶ as extending to detentions beyond
this “limited category.”61 Cyber security efforts that focus on ¶ ¶ information gathering activities may parallel the role
of intelligence collection as a “central component of the war on terrorism.”62 However, not all cybersecurity
threats fit logically within ¶ ¶ the scope of the so-called War on Terror. Cyber intrusions
conducted by individual computer ¶ ¶ hackers, not supported by or aligned with a nation or
terrorist organization, are perhaps best ¶ ¶ characterized as ordinary criminal activity whereas
orchestrated intrusions by foreign security or ¶ ¶ intelligence entities might belong in a category of routine foreignintelligence gathering. Neither ¶ ¶ activity appears to fit the mold of wartime operations. On the other hand, to the
extent that the ¶ ¶ primary aim of the War on Terror is to prevent terrorists from harming U.S. civilians or assets, ¶ ¶
one might argue that defending the United States against threats to the U.S. cyber and ¶ ¶ telecommunications
infrastructure fits squarely within the War’s parameters.63 Nonetheless, it ¶ ¶ seems unlikely that all aspects
of the CNCI would fit within the Hamdi interpretation of the 2001 ¶ ¶ Authorization.
Movements Solvency
Court action is necessary for social change – it links movement politics to
political power.
Burstein 1991 Paul Burstein, pub. date: 1991, Professor of sociology and political science at the University of
Washington, “Legal Mobilization as a Social Movement Tactic: The Struggle for Equal Employment Opportunity”,
JSTOR
What types of actions should we examine? For most sociologists, and for many political scientists studying social
movements,
the distinction between political action "inside the system" and that taking place "outside” is
critical. They see groups resorting to a "politics of protest" when they are not allowed to use institutionalized channels to
express their political demands or when such channels prove ineffective. Those interested in social movements
see themselves as examining political behavior not directed into "proper channels "-that is,
demonstrations, strikes and boycotts, as opposed to election campaigns, lobbying, or legal proceedings. This distinction is often
Those using outsider tactics are often
trying, first, to gain access to power holders and, then, to influence their decisions. By defining
their interests in terms of particular tactics, those studying social movements virtually
force themselves to abandon the field of inquiry when the groups they are interested in begin to have
influence-when they gain access to proper channels. I suggest that successful movements generally utilize
proper channels as well as outsider tactics and that an adequate understanding of movements must therefore consider both. In fact, social movement analysts seem to recognize this, even if only implicitly.
useful, but at times it impedes progress in understanding political change.
This implicit recognition takes two forms: in definitions of social movement and in analyses of particular movements. As for
definitions, consider one of Tilly's recent attempts to define social movement (1984, p. 305; italics in original): "The
term
social movement applies most usefully to a sustained interac-tion between a specific set of
authorities and various spokespersons for a given challenge to these authorities. The interaction is
a coherent, bounded unit in roughly the same sense that a war or political campaign is a unit." Tilly struggles to limit the definition
to outsider groups, but nothing in it excludes the legal tactics often employed by the civil rights movement, even though such
tactics involved going through proper channels In fact,
analysts of American social movements frequently
ascribe im- portance to court cases. McAdam,
for example, shows that a Supreme Court decision on segregation
had a critical effect on the bus boycotts (1983, p. 741), while Harding (1984, pp. 3 93-95) argues that the decisions of a federal
judge undermined the hegemony of white-supremacist ideol- ogy in Mississippi (also see Jenkins and Eckert 1986, p. 827). The
role of the courts is seldom the subject of theorizing because so much emphasis is placed on
demonstrating the importance of outsider tactics. Yet deep historical knowledge of particular
movements consistently forces social movement analysts to report how critical court
decisions are.
***Courts Solvency***
2NC Non-Compliance
Yes compliance--- respect for the judiciary overwhelms, specific evidence
Manget 2006 (Fred Manget, a member of the Senior Intelligence Service and a former Deputy General Counsel
of the Central Intelligence Agency, “Intelligence and The Rise of Judicial Intervention,” National Security Law,
http://www.nationalsecuritylaw.org/files/pubs/Manget.pdf)
The developing history of judicial review of intelligence activities shows that it ¶ occurs in those areas
where government secrecy and the need for swift executive action ¶ conflict with wellestablished legal principles of individual rights: an accused’s right to a ¶ fair criminal trial; freedom from
unreasonable searches and seizures; rights of privacy; ¶ freedom of speech and the press. Judges thus get involved
where an informed citizenry ¶ would instinctively want judicial review of secret intelligence activities. The
involvement ¶ of the federal judiciary is limited but salutary in its effect on executive branch
actions. ¶ Nothing concentrates the mind and dampens excess so wonderfully as the
imminent ¶ prospect of explaining one’s actions to a federal judge. ¶ The Constitution’s great
genius in this area is a system of government that ¶ reconciles the nation’s needs for order
and defense from foreign aggression with ¶ fundamental individual rights that are directly
affected by intelligence activities. Nations ¶ devising statutory charters and legislative oversight of their
foreign intelligence services ¶ might well include an independent judiciary in their blueprints. Federal judges are
the ¶ essential third part of the oversight system in the United States, matching requirements
of ¶ the laws to intelligence activities and watching the watchers.
Internal link turn--- Citizens United proves tempered criticism can actually
increase the legitimacy of the court and ensure compliance
Ross 2010 (William G. Ross, professor of law at the Cumberland School of Law of Samford University; his
publications include several studies of political controversies involving the U.S. Supreme Court, Jurist, “Constructive
Criticism: Presidential Opposition to Supreme Court Rulings” February 2, online)
Roosevelt did not make these remarks in front of any judges because State of the Union addresses were not delivered in person
between 1801 and 1913. Much of the criticism of Obama’s remarks last week are based not on what he said but on where he said it.
Many critics of Obama’s remarks about Citizens United complain that Obama was unfair to the Court to the extent that the justices
had no immediate way to respond, other than in the ill-advised manner used by Alito. But while extrajudicial comments by judges
about their own decisions are inappropriate, there are plenty of lawyers,
journalists, scholars, and pundits who
can defend the Court’s opinions. Although a president naturally should be careful to avoid demonstrating any
disrespect for the Court, particularly when the justices are present, Obama’s remarks in his State of the Union address were
limited to only one case and did not in any way derogate judicial independence or encourage any
defiance of the Court’s decision. Indeed, such measured criticism of the Court can actually enhance
public respect for the judiciary. As Theodore Roosevelt observed in his 1906 State of the Union address, “just and
temperate criticism” of the judiciary helps to prevent “that intemperate antagonism towards
the judiciary which...if it became widespread among the people...would constitute a dire menace to the Republic.
2NC Politics Net Benefit
Court involvement allows Obama to blame the Court.
Rosenberg 1991 (Gerald Rosenberg, assistant professor of political science at the University of Chicago, The
Hollow Hope, p. 34)
Finally, court
orders can simply provide a shield or cover for administrators fearful of political
reactions. This is particularly helpful for elected officials who can implement required reforms and
protest against them at the same time. This pattern is often seen in the school desegregation area. Writing in 1967,
one author noted that “a court order is useful in that it leaves the official no choice and a perfect excuse” (Note 1967, 361). While
the history of court ordered desegregation unfortunately shows that officials often had many choices other than implementing court
orders, a review of school desegregation cases did find that “many school boards pursue from the outset a course designed to shift
the entire political burden of desegregation on the courts” (Kalodner 1978, 3). This was also the case in the Alabama mental health
litigation where “the mental health administrators wanted [Judge] Johnson to take all the political heat associated with specific
orders while they enjoyed the benefits of his action” (Cooper 1988, 186). Thus Condition IV: Courts
may effectively
produce significant social reform by providing leverage, or a shield, cover, or excuse, for persons crucial to
implementation who are willing to act.
Courts don’t link to politics- shielded from political pressure
Ward 2009 (Artemus Ward, Professor at NIU, Political Foundations of Judicial Supremacy, Congress and The
Presidency, pg. 119)
After the old order has collapse the once- united, new-regime coalition begins to fracture as original commitments are extended to
new issues. In chapter 3 Whittington combines Skowronek's articulation and disjunctive categories into the overarching "affiliated"
presidencies as both seek to elaborate the regime begun under reconstructive leaders. By this point in the ascendant regime, Bourts
are staffed by justices from the dominant ruling coalition via the appointment process - and Whittington spends time on
appointment politics here and more fully in chapter 4. Perhaps counter-intuitively, affiliated political actors - including presidents encourage Courts to exercise vetoes and operate in issue areas of relatively low political salience. Of course, this "activism" is never
used against the affiliated president per se. Instead, affiliated Courts correct for the overreaching of those who operate outside the
preferred constitutional vision, which are often state and local governments who need to be brought into line with nationally
dominant constitutional commitments. Whittington explains why it
is easier for affilitated judges, rather than affiliated
presidents, to rein in outliers and conduct constitutional maintenance. The latter are saddled
with controlling opposition political figures, satisfying short-term political demands, and navigating intraregime
gridlock and political thickets. Furthermore, because of their electoral accountability, politicians engage in positiontaking, credit-claiming, and blame-avoidance behavior. By contrast, their judicial counterparts are
relatively sheltered from political pressures and have more straightforward decisional processes. Activist Courts
can take the blame for advancing and legitimizing constitutional commitments that might
have electoral costs. In short, a division of labor exists between politicians and judges affiliated with the dominant regime.
A2 Harrison Evidence
The Harrison evidence is not qualified, not supported by evidence, and should
not be evaluated; this is not an ethics challenge.
Harrison, 2007(Lindsay Harrison, edebate, “Please post this email to edebate on my behalf” March 3, online)
It has come to my attention that teams are reading "evidence" from a debate blog that I ran last year when the high school topic was
a legal one. I started the blog because, in judging debates on the topic, I was frustrated by what I saw as misunderstandings of the
legal system by many in the debate community. I also was frustrated by a lack of creativity in devising arguments as a result of a lack
of broad legal knowledge. I intended the blog both to educate and to generate new ideas for argumentation. I
did NOT intend
the blog to be used as evidence, especially not in college debates where I figured the community would
recognize that none of my posts were peer-reviewed (or reviewed by anyone at all), none of my posts were backed
up by specific research, and none of my posts would ever qualify as "legal scholarship." In fact, I am
merely giving people ideas for arguments and I do not necessarily advocate any of the ideas as my own - I consider evidence to be
taken out of context if it says, "debaters should argue that bush would get credit" and folks read only the part suggesting "bush
would get credit," thereby attributing that idea to me. When I found out that people were reading "Harrison 06" evidence from the
blog as link cards on the court politics argument, I made an effort to end this. Whenever anyone read this evidence in front of me, I
asked that they not do so in the future. I also posted something on the blog that I intended as a disclaimer for people not to read
"evidence" from the blog. I have been traveling internationally for several months and, upon my return, I found out that people have
continued to read this evidence in debate rounds. Accordingly, I am now sending this to edebate in the hope that the community
will recognize definitively that
I do not want blog posts from my debate education blog to be read as
"evidence" in rounds. Please do not read evidence from my debate education blog in rounds. I consider it to be
taken out of context. I hope that if people do read this evidence in rounds that judges will penalize those teams for reading
evidence that the author considers out of context.
A2 Congressional Rollback
Prioritization of political resources.
Treanor and Sperling, 1993 (Associate Professor of Law, Fordham University; and Gene B. Sperling, J.D.,
Yale Law School, Columbia Law Review, December, lexis)
First, full examination of the revival issue demonstrates the interactive nature of the relationship between judicial
invalidation of statutes and majoritarian decision-making. Judicial review is not purely external to the legislative
process: the very act of judicial invalidation
powerfully shapes subsequent legislative
deliberations. Belief in the finality of judicial judgments is so pervasive that, when a statute is struck
down or when a judicial decision establishes a rule of law under which a statute is unconstitutional, its
opponents frequently act as if the statute were gone for all time. At the very least, even if political
actors realize the potential for reversal, the finding of unconstitutionality alters the way in which they
spend their political capital. As a result, rather than seek to repeal a statute that appears to be, for all
practical purposes, a nullity, they devote their political resources to other - more clearly consequential matters. Revival in such circumstances can produce a result contrary to what the political process would have
produced in the absence of the initial judicial decision.
Authority overwhelms popularity of a ruling.
Baum 1999 (Lawrence Baum, Prof of Constitutional Law Ohio State University, The Supreme Court, p. 22)
Acceptance of the Court’s Authority. Policy makers may implement the Supreme Court’s decision even when they
have incentives to resist them. One important reason is the Court’s authority as interpreter of the law. Most
people believe that the Court’s decisions are authoritative judgments about the law and that there is an
obligation to comply with those decisions. Largely as a result the Court’s association with an
unpopular policy may help to foster public acceptance of that policy. For the same reason, even
officials who are disposed to disobey the courts decisions may choose not to do so. Certainly a
policy maker who is indifferent toward a Supreme Court policy will be inclined to go along because of the Court’s
authority.
Future lawsuits and threats thereof.
Spriggs, 1997 (Spriggs, professor of political science at U Cal Davis, Political Research Quarterly, v50)
These data also raise a question that is not answered directly by the statistical model: Why did agencies never defy nor evade
Supreme Court opinions? My argument is that this outcome most likely results because of the ongoing and close relationship
between the Supreme Court, federal agencies, and other relevant actors. A variety of societal interests – from winning litigants to
other interested parties – scrutinize carefully how bureaucracies implement Court opinions (see Songer, Segal, and Cameron 1994:
688-90). After
prevailing at the Supreme Court, these participants do not want their efforts undercut by
They are therefore likely to sue an agency in federal court if the bureaucracy’s
implementation did not comply with the Court’s legal rule. As repeat players, federal bureaucracies also have
reasonable expectations of interacting with federal courts in the future, and they therefore
realize that defiance or evasion may harm their future success in court. Consequently, federal agencies
have few incentives to defy or evade the Court’s opinions because they understand that such
behavior is likely to be punished.
agency noncompliance.
No chance of rollback—culture of obedience and persistence.
Carter 1986 (Stephen L. Carter, Professor of Law, Yale University) Summer 53 U. Chi. L. Rev. 819)
The force with which the American people (and just as important, those who govern them) are
socialized into obedience to the rule of law as articulated by the Supreme Court is tremendous. Children
are taught obedience to law from early in their school years; as adolescents, they learn in civics that the Supreme
Court authoritatively interprets the Constitution; as adults, they are warned that disobedience to the courts is
subversive. This general respect for law, even if the law is considered unjust, is probably the most powerful bulwark
the American legal and political culture offers against revolution. This socialization and the concomitant
responsibilities it surely carries are the most powerful weapons the Court can bring to bear in any struggle with the
Congress. Although the public may be angry, the Justices, if they possess sufficient fortitude, will nearly
always win -- at least for the near term. But the fact that the Congress is likely to lose its battle to convince the
Court (if it is a fact) cannot be the argument against undertaking it. The point is that by enacting a statute that the
Supreme Court will likely find patently unconstitutional, the Congress may nevertheless play a role in constitutional
dialogue. This is surely what Abraham Lincoln had in mind when, in debate with Stephen Douglas, he declined to
assign to the Dred Scott decision n117 the force some claimed for it: We do not propose that when Dred Scott has
been decided to be a slave by the court, we, as a mob, will decide him to be free. . . . [W]e nevertheless do oppose
that decision as a political rule . . . which shall be binding on the members of Congress or the President to favor no
measure that does not actually [*856] concur with the principles of that decision. . . . We propose so resisting it as to
have it reversed if we can, and a new judicial rule established upon this subject. n118 His argument was not for mob
justice or revolution. His method, after all, would not succeed unless the Justices changed their minds. Thus the
torturous judicial and academic searches for authority to explain and rules to limit the scope of the congressional
authority enunciated in Katzenbach v. Morgan may be somewhat misguided. After all, a sufficiently determined
Supreme Court might have countered section 4(e) with an opinion boiling down to this: "Look, we told you before
that literacy tests do not violate the fourteenth or fifteenth amendments, so quit trying to find a way around our
decision." Instead it said in effect: "Well, okay, if you're really sure that literacy tests are so bad, we're content to go
along." Oregon v. Mitchell, n119 in which the Justices sustained the nationwide suspension of literacy tests, might be
explained the same way. To take a contrary case, in Mississippi University for Women v. Hogan, n120 wherein they
rejected a claim that the Congress possessed and had exercised authority under section 5 of the fourteenth
amendment to permit the states to operate single-sex nursing schools, the Justices were plainly unpersuaded that
sexually segregated schools run by the state were a good thing. Following the same reasoning, in the unlikely event
that the Congress were to enact a Human Life Bill, judicial independence would not necessarily be threatened: The
Justices could certainly strike the legislation as patently unconstitutional. On the other hand, the Justices might vote
to sustain it. Were they to do so, the best explanation would be not that they had yielded their constitutional
prerogative, but rather that they had been convinced by the reasoning (or the depth) of the congressional opposition.
If all of this is so, then the place of the Morgan power in the dialogue between the Court and its constituents should
be plain. I earlier outlined the ideal of symbiotic progress, in which the Congress and the Supreme Court take turns
leading the way toward a better future. An exercise of the Morgan power may fit into that progression in a special
way, as the Congress's most effective tool for expressing its strong disapproval of a judicial decision accepting
[*857]or rejecting a claim of fundamental right without risking the Court's legitimacy, hence the Constitution's, hence
ultimately its own. To be sure, the Congress might try to do the same thing by enacting apparently unconstitutional
legislation under the authority granted by any number of constitutional provisions, but proceeding under section 5
reduces the likelihood that the moral authority of the Court will be diminished should the Justices alter their
decisions. As clever lawyers, the Justices can always accommodate the congressional action without unduly
expanding congressional authority. Justice Brennan tried to do exactly this through his footnote 10 in Morgan.
Furthermore, reliance on the special power granted to the Congress under the fourteenth amendment is consistent
with the distinction I have drawn here and elsewhere between types of constitutional provisions. When the decision
that the Congress calls into question is one regarding governmental structure, flowing therefore from the document's
structural provisions, the Court may properly decline to enter the dialogue. By hypothesis, the Justices construe the
Constitution's structural clauses under a set of rules chosen to channel their discretion narrowly. But under the opentextured clauses, where there is less to guide the Court in its decisions, it is particularly important that the Congress
be able to engage the Court in dialogue without being accused of defiance. The Court may reaffirm its decisions, and
in most cases -- including, I suspect, Roe v. Wade -- it presumably will, but it must do so with the knowledge that
there exists a congressional consensus adequate to bring about affirmative and contrary legislation. Denying to the
Congress the authority to enact the legislation is in a sense to deny to the Justices the knowledge that this contrary
consensus exists. Permitting the legislation, even when it might subsequently be overturned, forces the Court to
make an informed choice. And in the continuing dialogue, informed choices are the ones that matter most. This
understanding of the Morgan power seems entirely consistent with the separation of powers. There is no violation of
the rule of United States v. Klein, n121 because the Congress is not requiring the courts to decide cases in a particular
way. After all, the Supreme Court still has the power to say "No," thus preventing enforcement of
the congressional plan. No matter how many plans are presented, the Court may strike all of
them down until the [*858] Congress gets tired of trying, as Texas apparently did in the "white primary"
cases. n122 Or the Justices may instead be the first to tire and may reverse themselves, as they apparently did during
the New Deal. n123 But as long as the decision rests with the Justices alone, a judicial change of mind cannot
be barred by separation of powers, even when the change is brought on by congressional or public
pressure. The doctrine of separation of powers insulates the courts from force, not from persuasion.
This argument is backward—judicial review shapes behavior; non-compliance is
too risky.
Law 2009 (David S. Law, Professor of Law and Professor of Political Science, Washington University, Georgetown
Law Journal, March, lexis)
It is thus inaccurate--if not backward--to argue that judicial review of government action undermines
popular rule. Rather, judicial review can be understood as an institutional mechanism that facilitates popular
control over government by conveying information and shaping beliefs about how the government
behaves and how the people are likely to respond. 24 The fact that courts perform these monitoring and
coordinating functions helps, in turn, to solve the puzzle of why powerful government actors obey
seemingly powerless courts. The ability of the courts to mobilize the public against the
government means that government disobedience of the courts carries potentially severe
consequences.
A2 Wartime Rollback
This links to the aff—political pressures would rollback or circumvent the plan
as well.
The CP leads to adoption of the plan with legal support; this is offense for the
counterplan.
And, rule of law will overwhelm executive circumvention even in times of stress
Wood 2003 (Diane P. Wood, Circuit Judge, United States Court of Appeals for the Seventh Circuit; Senior
Lecturer in Law, The University of Chicago Law School, University of Chicago Law Review, Winter, lexis)
The message from history--and particularly the history of the United States from the end of World War II to the present-is that the rule of law can be upheld even during times of stress. Even though the [*470] Supreme Court
and other governmental institutions did not always live up to society's highest aspirations, many of the lapses from the rule
of law (such as the Japanese internments) are now widely regarded as shameful episodes that should
never be repeated. Living under the rule of law may call for courage at times, as any citizen of Israel or Northern Ireland
could affirm. Even in the United States this was necessary during the often-tense battle to ensure civil rights in the states of the old
Confederacy. Jack Bass's account of the federal judges who upheld the Supreme Court's decisions forbidding discrimination on the
basis of race is an inspiring tale of strong and committed patriots who were determined to live under rules of law rather than the
rules of the street or lynch mob. 90 The same kind of courage will be necessary for all citizens now: postal workers, commuters on
trains, airline pilots and their passengers, and people living their daily lives. What they will be protecting, however, when they insist
on continued adherence to the rule of law, is the very essence of the United States. The
rule of law becomes more
vital, not less so, when democracy is attacked. As President Franklin Delano Roosevelt said in his first Inaugural
Address, "the only thing we have to fear is fear itself." We do not need to fear the perceived shackles on government power that the
rule of law imposes. They are not shackles at all; they are instead agreed constraints on the power of any particular officials or
individuals, so that any measures that are necessary are seen to be, and are in fact, evenhanded, nondiscriminatory, subject to
testing for accuracy, and transparent. Enemies--foreign and domestic--have been conquered effectively in the past without
sacrificing everything that has made the United States a country with a strong record of exemplifying the rule of law. Those same
enemies, in whatever guise they take in the future, can still be foiled in the same way.
A2 FoPo Flexibility Solvency Deficit
Courts solve flexibility and are key to legitimacy that is essential to foreign
policy credibility
Waxman 2009 (Matthew C. Waxman, “Can Courts Be ‘Trusted’ in National Security Crises?,” The Foundation
for Law, Justice and Society ¶ in affiliation with¶ The Centre for Socio-Legal Studies, University of Oxford,
http://www.fljs.org/sites/www.fljs.org/files/publications/Waxman.pdf)
As to the continuing relationship between the¶ executive and the courts, those favouring a strong¶ executive
minimally checked by deferential courts are¶ correct that the government needs speed,
flexibility,¶ and secrecy to combat terrorism effectively. But it is¶ equally true that speed,
flexibility, and secrecy may¶ come at high cost, not just to liberty but to the¶ accuracy with which
coercive state powers are¶ applied and the level of public trust in their careful¶ use. Those
latter objectives play to courts’ strengths.¶ Furthermore, the experience with enemy combatant¶
detentions also illuminates the strategic importance¶ of legitimacy; that is, that to be
effective in¶ furthering long-term national security goals,¶ government programmes must be
widely seen at¶ home and abroad as reflecting constitutional values¶ and deriving from constitutional
processes. As the¶ United States moves forward in its efforts to combat¶ terrorism, it would do well to observe that its
British,¶ Israeli, and other democratic allies that have faced¶ long-term terrorism threats have eventually come to¶
similar conclusions. Whatever their limitations, courts¶ are uniquely well-suited to provide
decision-making¶ legitimacy because of their relative political¶ independence and their
deliberative virtues.
A2 Courts Can’t Do Secrecy/Intel
Judges can be trusted and court involvement is key to balance state secrecy
Manget 2006 (Fred Manget, a member of the Senior Intelligence Service and a former Deputy General Counsel
of the Central Intelligence Agency, “Intelligence and The Rise of Judicial Intervention,” National Security Law,
http://www.nationalsecuritylaw.org/files/pubs/Manget.pdf)
The exposure of federal judges to intelligence activities leads to number of ¶ conclusions. One is that judicial oversight
operates to an extent overlooked in the debate ¶ over who is watching the intelligence community. Judicial oversight
is limited, in ¶ contrast to expansive Congressional oversight. Judicial oversight deals with legal issues, ¶ as
opposed to policy issues. Judges are deferential to the executive branch in intelligence ¶ matters,
something not often true of Congress. But judges do act as arbiters of ¶ governmental society in a
powerful way. ¶ The basic conundrum for intelligence is that is requires secrecy to be effective, ¶ but
widespread government secrecy in a Western liberal democracy is generally ¶ undesirable.
Government secrecy can destroy the legitimacy of government institutions. ¶ It can cripple
accountability of public servants and politicians. It can hide abuses of ¶ fundamental rights of citizens. Excessive
government secrecy can make excessive ¶ government activities more likely, because it hides
them from the usual checks and ¶ balances.65¶ In the United States, federal judges dampen the tendency
toward excess in secret ¶ government. They counterbalance the swing in that direction. In those areas most ¶
important to particular rights of citizens, they act as arbiters of governmental secrecy. The federal judiciary
ameliorates the problems of government secrecy by providing a ¶ secure forum for review of
intelligence activities under a number of laws, as surrogates ¶ for the public.
Federal judges have experience with sensitive information
Manget 2006 (Fred Manget, a member of the Senior Intelligence Service and a former Deputy General Counsel
of the Central Intelligence Agency, “Intelligence and The Rise of Judicial Intervention,” National Security Law,
http://www.nationalsecuritylaw.org/files/pubs/Manget.pdf)
If only it were such an exercise in glorious outlawry as all that! It is widely ¶ believed that the intelligence agencies of
the U.S. government are not subject to laws and ¶ the authority of judges to apply them. No television cop show,
adventure movie, or ¶ conspiracy book in two decades has left out characters that are sinister intelligence ¶ officials
beyond the reach of the law. ¶ The reality, however, is that the federal judiciary now examines a wide
range of ¶ intelligence activities under a number of laws, including the Constitution. In order to ¶
decide particular issues under the law, federal judges and their cleared clerks and other ¶ staff are
shown material classified at the highest levels. There is no requirement that ¶ federal judges
be granted security clearances – their access to classified information is an ¶ automatic aspect
of their status. Their supporting staffs must be vetted, but court ¶ employees are usually granted all clearances
necessary for them to effectively assist the ¶ judiciary in resolving legal issues before the courts. ¶ Judges currently
interpret the laws that affect national security to reach ¶ compromises necessary to reconcile
the open world of American jurisprudence and the closed world of intelligence operations.
They have now been doing it long enough to ¶ enable practitioners in the field to reach a number of conclusions. This
article proposes ¶ that judicial review of issues touching on intelligence matters has developed into a ¶ system of
oversight.
A2 Violates SOP
Other WOT decisions prove courts are moving away from deference
Fisher 2005 (Louis Fisher, senior specialist in separation of Powers with the Congressional Research Service,
September 2005, “Judicial Review of the War Power,” Presidential Studies Quarterly, Vol 35, No 3,
http://www.constitutionproject.org/pdf/422.pdf)
The shock of 9/11 initially produced a compliant judiciary, willing to defer to ¶ executive
initiatives and judgments. The executive branch continued to flex its muscles, ¶ insisting that it had
the constitutional authority to detain hundreds of individuals in ¶ Guantanamo Bay and hold them indefinitely until
the government decided it was time ¶ for their release. President Bush, on November 13, 2001, issued a military order
author-¶ izing the creation of military tribunals to try noncitizens who had given assistance to al ¶ Qaeda. He claimed
that he had authority to designate U.S. citizens "enemy combatants" ¶ and hold them for years without giving them
access to an attorney, charging them with ¶ a crime, or bringing them before a court for trial. ¶ These sweeping
assertions of presidential power finally led to the Supreme Court's ¶ decisions onJune 28, 2004. Writing for
the plurality in Hamdi v. Rumsfeld, Justice Sandra ¶ Day O'Connor rejected the government's position
that separation of powers principles ¶ "mandate a heavily circumscribed role for the courts."
A state of war, she said, "is not a ¶ blank check for the President when it comes to the rights
of the Nation's citizens."145 ¶ This judicial rhetoric was not matched by the issuance of clear standards from the
Court, ¶ either in this case or Rasul v. Bush (Fisher 2005b, 210-49).
Judicial deference to military risks nuclear war
Kellman 1989 (Barry Kellman, Professor, DePaul University College of Law, Duke Law Journal, December, lexis)
[*1599] Standing at the vanguard of "national security" law, 13 these three decisions elevate the task of preparing for war to a level
beyond legal [*1600] accountability. They suggest that determinations of both the ends and the means of national security are
inherently above the law and hence unreviewable regardless of the legal rights transgressed by these determinations. This
conclusion signals a dangerous abdication of judicial responsibility. The very underpinnings of constitutional governance are
threatened by those who contend that the rule of law weakens the execution of military policy. Their argument -- that because our
adversaries are not restricted by our Constitution, we should become more like our adversaries to secure ourselves -- cannot be
sustained if our tradition of adherence to the rule of law is to be maintained. To the contrary, the
judiciary must be
willing to demand adherence to legal principles by assessing responsibility for weapons decisions .
This Article posits that judicial abdication in this field is not compelled and certainly is not desirable. The legal system can provide a
useful check against dangerous military action, more so than these three opinions would suggest. The
judiciary must
rigorously scrutinize military decisions if our 18th century dream of a nation founded in musket smoke is to
remain recognizable in a millennium ushered in under the mushroom cloud of thermonuclear
holocaust . History shows that serious consequences ensue when the judiciary defers excessively to
military authorities. Perhaps the most celebrated precedent for the deference to military discretion reflected in these recent
decisions is the Supreme Court's 1944 decision in Korematsu v. United [*1601] States. 14 Korematsu involved the conviction of an
American citizen of Japanese descent for violating a wartime exclusion order against all persons of Japanese ancestry. That order,
issued after Japan's attack on Pearl Harbor, declared that "the successful prosecution of the war requires every possible protection
against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities." 15
Justice Hugo Black's opinion for the Court, upholding the exclusion order and Korematsu's conviction, stressed the hardships
occasioned by war and held that "the power to protect must be commensurate with the threatened danger." 16
A2 No Test Case
The court can always find a test case
Adamany 1990 (David, Professor at Wayne State, The American Courts: A Critical Assessment, p. 9)
Since Congress adopted the Judges Bill of 1925, most cases on the appellate and miscellaneous dockets have been by writ of
certiorari — a request for the justices to hear cases that they may, but are not required, to hear. Under Supreme Court Rule 17,
which gives broad categories of cases that the Court may hear, at least four justices must agree to hear a case before it is considered
by the Court. Some cases on the appellate docket have been “appeals by right,” certain cases involving the constitutionality of state
or federal laws or state constitutional provisions. By law, the Court was required to hear these cases; but the justices developed
broad discretion by rejecting cases that failed to pose a substantial federal question as defined by the justices. In 1988, Congress
revised the law virtually to eliminate appeals by right, thus giving the justices almost complete choice about what cases to decide.
With more than 5.000 cases pending annually, the Supreme Court can almost always find a
case to raise any policy issue that the justices wish to decide. Chief Justice Earl Warren apparently
asked his law clerks to find a case on the Court’s docket that would allow the justices to overrule a previous
decision holding that there was no right for the poor to have an attorney in every criminal trial. The clerks found such a
case, and the Court used it to announce a new constitutional rule guaranteeing the right to counsel (Danelski and Danelski 1989,
508). The Court has sometimes gone to great lengths to find the issue it wants to decide. In the
landmark case of Mapp v. Ohio (367 U.S. 617 [1961]), the Court held that illegally seized evidence could not be used in state criminal
trials. But the dissenting justices accused the majority of “reaching out” to find that issue in the brief of amicus curiae, because the
jurisdictional statements, briefs, and oral arguments of the parties had all been devoted to First Amendment free speech issues.
Where the Court cannot find an issue on its docket, it may order parties to argue an issue
that the justices want to consider. Over the strong objection of four justices that the majority was raising “a question
not presented” by the parties, five justices ordered the parties in Patterson v. McLean Credit Union (485 U.S. 617 [1988]) to rearue
the case to determine whether the Court’s 1976 interpretation of a federal civil rights statute should be reconsidered and changed.
The majority pointed out four previous cases within the past twenty years when the Court had also ordered reargument to
determine whether an earlier decision should be reconsidered and changed.
Also, there’s no impact
Loewenstein 2001 (Andrew B. Loewenstein, Law Clerk to the Hon. William J. Holloway, Jr., U.S. Court of
Appeals for the Tenth Circuit; J.D., cum laude, Georgetown University Law Center, American Criminal Law Review,
Spring 2001 lexis)
In other words, contrary to those who suggest that by invoking section 3501 the Fourth Circuit transgressed the boundaries imposed
by our system of separation of powers, the court's actions in Dickerson differ significantly in kind from the sorts of prosecutorial
decisions to which the judiciary ordinarily owes deference. Unlike such prosecutorial decisions--determining, for instance, whether
to charge an individual or which specific charges to bring--the Dickerson court's application of section 3501 merely applied statutory
law directly on point and at the explicit instruction of Congress. This distinction is crucial and goes to the heart of the Judiciary's
Article III powers. Since
Marbury v. Madison, it has been firmly [*372] established that "it is
emphatically the province and duty of the judicial department to say what the law is. " 110 Thus,
rather than an infringement on the prosecutorial discretion of the Executive, the Fourth Circuit's consideration of § 3501 sua
sponte is properly seen as an appropriate exercise of the court's constitutionally mandated
function of deciding cases and controversies according to the law. In other words, the court's
consideration of § 3501 sua sponte is not a violation of separation of powers principles that
infringes upon the Executive's prerogatives, but rather a necessary means by which the
Judiciary performs its constitutionally mandated functions. Thus, the critics' objection to the Fourth Circuit's
consideration of § 3501 should be inverted; judicial acquiescence to the Executive's refusal to invoke applicable legislation
represents not an affirmation of separation of powers, but a violation of it. As Justice Scalia observed in his Davis concurrence, "we
shirk from our duty if we systematically disregard that statutory command simply because the Justice Department systematically
declines to remind us of it." 111 From the perspective of the courts, the "point is whether our continuing refusal to consider § 3501
is consistent with the Third Branch's obligation to decide according to the law." 112
A2 Legitimacy DA
Justices will word the ruling to preserve legitimacy.
Dunn, 2003 (Pintip Hompluem Dunn, Yale Law Journal, November, lexis)
Whether or not Lawrence was rightly decided, the Court requires the flexibility of overruling. The Justices
are not trying to
trick us when they use these rhetorical devices. They are not trying to enact bad law through sleight-of-hand
semantics. Rather, these devices allow the Justices to achieve the near impossible - the ability to
overrule effectively when necessary, even as the very legitimacy on which they rely to give their rulings force
is threatened. Judges may be liars, but in this paradoxical world of law in which we live, they have no other
choice. They must lie, or the fiction of legitimacy that we have so carefully constructed will come crashing down, bringing with it
the entire judicial system as we know it. We should thank our lucky stars, then, that they do their job so
well.
Increases legitimacy.
Buys, 2007 (Cindy G. Buys, Assistant Professor at Southern Illinois University School of Law, BYU Journal of Public
Law, lexis)
In any event, a static originalist theory of the Constitution is a bankrupt method of interpretation for those who were not included in
the early Constitutional experiment. As Professor Louis Henkin rightly points out, the social compact made at the time of the
founding of our nation was made by only a small portion of the inhabitants of the United [*40] States. 227 Only property owners
were allowed to vote. Poor men, slaves, and women were excluded. Therefore, the original social compact lacks a certain amount of
legitimacy for these groups. While the Framers of the Constitution laid a very worthwhile foundation, why should today's citizens be
bound by the values of a minority group that lived over 200 years ago? As Henkin has argued, "the Constitution as social compact
requires a contemporary compact by the people today." 228 The continuing legitimacy of the Constitution may depend on whether
it accurately expresses the will and values of the people today. Using
international human rights law to inform
the meaning of the Constitution today may actually increase that constitutional legitimacy
because the U nited S tates has been a leader in helping to create that law and, thus, that law is more likely to reflect our
contemporary values. International human rights law is inclusive of all the groups mentioned above who were excluded from the
original social compact. Today, there
are numerous international treaties specifically designed to guard
against racial discrimination 229 and to protect the rights of women. 230
More ev—decreases judicial activism.
Buys, 2007 (Cindy G. Buys, Assistant Professor at Southern Illinois University School of Law, BYU Journal of Public
Law, lexis)
As a general proposition, however, international
law does have more legitimacy in the U.S. legal system
than foreign law because the U.S. has a greater role in shaping international law than foreign law. 263 As a result, there are
different considerations at work with respect to the use of foreign law in constitutional interpretation. In the Knight v. Florida death
penalty case, Justice Breyer wrote a dissenting opinion in which he suggested some standards for the use of foreign law. 264 He
suggests the use of foreign law is appropriate in two situations. First, it is appropriate when there exists a roughly comparable
question and there is a transnational or global aspect to the case, there are shared standards, or world opinion is implicated.
Second, the use of foreign law is appropriate when roughly comparable legal standards exist, i.e., when the external or foreign
norms resonate internally. Justice Breyer suggests that this last situation is most likely to occur with respect to Europe and its former
colonies because of our shared human rights heritage. 265 These suggestions are worthy of further exploration to determine
whether "roughly comparable questions" or "roughly comparable legal standards" can be identified with some confidence.
However, use of foreign law should be approached with particular caution. A specific nation's laws reflect that nation's history,
culture, and legal system. 266 Thus, any one nation's legal rules are likely to be of limited value to another nation with a different
history, culture and legal system. However, if a worldwide survey is conducted and many or most nations in the world have adopted
a particular legal rule, that rule will reflect a consensus derived from many different cultures and legal systems and will likely be
more useful and persuasive. Finally, persons on both sides of the debate agree that part
regarding the use of international and foreign law is
of what is driving this debate
a concern that such law will be used by judges in an
unprincipled manner to support the judges' personal viewpoints. 267 Justice Breyer responds to [*47] this concern by
arguing that a good way to counter the possibility of judges imposing their own moral values is for judges to look outside themselves
and see how society is dealing with the issue - including looking to foreign societies and international law. 268 Moreover, it may be
argued that international law is a more effective interpretive tool than many other external sources a judge may use because rules
of international law are "a product of years of distillation of principles formed through international consensus," that are evidenced
by state practice and agreements that articulate the relevant principles. 269 As a result, reliance
on a rule of
international law may actually reduce an individual judge's subjectivity when interpreting
constitutional provisions. 270
Key to legitimacy and hegemony.
Buys 2007 (Cindy G. Buys, Assistant Professor at Southern Illinois University School of Law, BYU Journal of Public
Law, lexis)
The most important reason supporting the Supreme Court's continued use of international law is that the Constitution requires it. As
noted above, the Constitution makes treaties part of the supreme law of the land on par with federal statutes. 271 When the
political branches have come together and agreed to sign and ratify a treaty, the Supreme Court should give deference to the
judgment of the other branches as to the rules of international law expressed in that treaty and should assist the United States in
complying with its treaty obligations by adopting an interpretation that is consistent with those treaty obligations whenever [*48]
possible. 272 Even when the Constitution does not expressly incorporate international law, federal statutes, such as in the Foreign
Sovereign Immunities Act 273 or the Alien Tort Statute, may do so. 274 It also seems fairly uncontroversial
that when
the U.S. Supreme Court is interpreting a treaty, it should take into account the practice of states
who are also parties to the treaty and decisions of their courts interpreting the treaty because such evidence would
be relevant and useful evidence of the meaning of the treaty. 275 Thus, the Supreme Court should continue
to use international and foreign legal sources when it is required to do so by the Constitution or by statute. Likewise, the U.S.
Supreme Court must continue to ascertain and apply customary international law principles when called for by the Constitution or
by federal statute. For example, the Court may need to consider customary international law pursuant to the Constitution's grant of
authority to Congress to define and punish offenses against the law of nations, 276 as it did in United States v. Smith. 277 The recent
case of Sosa v. Alvarez-Machain provides a timely example of a statutory requirement to consider customary
international law. In Sosa, the Supreme Court was required by the Alien Tort Statute to determine whether particular conduct
constituted a tort under the law of nations. 278 The Supreme Court affirmed that it was required to ascertain and apply a modernday understanding of international torts, at least where the norm of international character is accepted by the civilized world and
defined with specificity. 279 Use of international treaty law and the customary international law of human rights to inform U.S.
constitutional rights jurisprudence also can be justified under and reconciled with many classic theories of [*49] constitutional
interpretation. 280 From an originalist perspective, such usage is appropriate because the Founding Fathers were heavily influenced
by foreign and international law and incorporated some of these sources and ideas into the Constitution (although a "hard"
originalist might only allow for international law as it existed at the time of the writing of the Constitution). 281 A natural law
proponent should be open to using international human rights law to inform U.S. individual rights jurisprudence because of the
shared natural law foundations and the mutual influence of U.S. law and international law on one another. From a structural
majoritarianism perspective, it may be argued that appropriate use of foreign and international law where it has been created and
approved by the political branches of the federal government demonstrates proper deference to those branches. On the other hand,
an interpretive majoritarianism view might use present-day concepts of sovereignty and international human rights to facilitate our
understanding of the meaning of a "living" constitution that changes over time in response to societal changes. Finally, a pragmatic
approach might encourage examination of foreign legal experiences to better understand the consequences of different legal
solutions for common legal problems. 282 Moreover, using international and foreign law will assist the U.S. government in carrying
out its duty to protect the people. Modern conceptions of sovereignty require that the sovereign state take seriously its
responsibility to protect its citizens. 283 Because "human rights are rights" and not aspirations, the government has an obligation to
protect such rights. 284 While many international human rights are said to be universal and do not differ substantively in different
national legal systems, they depend on national governments for their protection. 285 If the state is not providing a level of
protection for human rights that has been widely adopted elsewhere in the world, perhaps it is time for the [*50] state to reexamine
why this is the case. Such an examination does not necessarily require a change in the law, as there may be important and justifiable
reasons that a state has chosen a particular legal rule, (such as competing human rights values), but at least requiring that
examination could force a state to confront its laws and practices and have to justify them to its own polity and to the world. 286
Finally, the U.S. Supreme Court should take international human rights norms into account because it is good foreign relations
policy. Taking international
human rights norms into account serves foreign relations purposes by
allowing the U nited S tates to maintain a position of leadership in international affairs, earn a
"good" reputation, encourage good human rights practices in other countries, promote conditions conducive to
trade, and encourage peace and stability. In sum, the U.S. Supreme Court should continue to
consider international and foreign legal materials in its work because it is sometimes required to do so by the
constitution or by federal statute, because it increases the legitimacy of the court's jurisprudence, and
because it is good foreign relations policy.
A2 Court Stripping
No risk—attempts also moderate the court.
Ross 2003 (William G. Ross, Professor of Law, Cumberland School of Law of Samford University. A.B., Stanford,;
J.D., Harvard, Wake Forest Law Review, Summer, 2003)
The obstacles that impede any effort to curtail judicial review are so formidable, and the
history of Court-curbing is so rife with failure, that it is hardly surprising that today's
antagonists of the federal judiciary concentrate their attention on influencing the judicial appointments
process. But while organized efforts to curb judicial review may be waning, and public acceptance
of judicial review may have reached an all-time high, study of the reasons why movements to abolish or curtail
judicial review have failed remains relevant. Movements to curtail or limit judicial review are likely to continue to arise among those
whom the Court's decisions seriously aggrieve, and the persistence of attacks on judicial review during the past two centuries
suggests that Marbury might not be invulnerable. Any
organized attack on judicial review will encounter almost
inevitable resistance, since Marbury is so firmly established in the constitutional system of a nation that is so profoundly
conservative in preserving the continuity of its political institutions. Even if the federal judiciary is widely
unpopular, few Americans are likely to countenance the transfer of its powers to Congress,
the President, or the states, all of which are generally viewed as less reliable guardians of
property and personal liberty. Although romantic commentators probably have exaggerated the profundity of public
support for the Court as an institution, respect for the federal judiciary's role in sustaining the rule of law is
deeply embedded in the nation's psyche. Americans therefore have tolerated judicial review
even when they have disagreed with specific decisions. Since any meaningful or lasting curb on judicial power
probably would require a constitutional amendment, proponents of change also face the immense obstacles of the constitutional
amendment process. A successful movement for an amendment requires leadership and unity, which previous Court-curbing
movements have conspicuously lacked because grievances against judicial review were so diffuse that antagonists of the courts
could not forge a viable coalition or agree on remedies or strategies. Court-curbing
movements also are likely to
encounter organized opposition from [*792] powerful elites. Moreover, the Court itself helps to block Courtcurbing movements. Although the Court regularly issues decisions which are unpopular with substantial numbers of persons, these
decisions rarely have contravened the prevailing political consensus on significant issues. Since federal judges are nominated and
confirmed by elected officials and are subject to the same social and economic influences as other citizens, it is unlikely that they
would ever follow a general course of decision-making that was seriously at odds with a clear majority of the American people. Even
when its decisions have provoked significant Court-curbing movements, the Court has demonstrated a remarkable ability to modify
its direction in a manner that has pacified its critics, albeit usually in a subtle and incremental manner. Finally, movements
to curtail federal judicial power have suffered from their own internal contradictions. Most
antagonists of the courts have opposed the manner in which the courts have exercised judicial review rather than the power itself.
Their attacks on the Court therefore have appeared
self-serving and hypocritical, driving away potential
supporters. Moreover, those who oppose judicial review for instrumental reasons have little incentive to effect its abolition
since they have reason to hope that the courts in the future will exercise judicial review in a manner that will serve their political
agenda. Similarly, members
of Congress may perceive that judicial review is useful in its
confrontations with the President and the states, and that judicial review may help Congress to escape the
consequences of unwise legislation that was motivated by political expediency. Although no attack on judicial review has shaken the
doctrine of Marbury, efforts
to curb judicial review often have served a useful purpose by reminding
federal judges and all Americans of the importance of judicial restraint and the need for the
federal judiciary to remain accountable to the people.
No risk of court-stripping.
Hellman 2007 (Arthur D. Hellman, Sally Ann Semenko Endowed Chair and Professor of Law, University of
Pittsburgh School of Law, Arizona State Law Journal, Fall, lexis)
Measures like these are generally unwise, and some may be unconstitutional. But that does
not mean that they are properly viewed as threats to judicial independence. Judicial independence is
threatened by legislative acts that may intimidate judges or (in Justice O'Connor's words) "strong-arm the judiciary into adopting
[the legislature's] preferred policies." 44 I do not think that court-stripping bills - or at least those that have made substantial
headway in Congress - fall within that category. Preliminarily, there is some uncertainty about how broad a point Justice O'Connor is
making. She accepts the legitimacy of some jurisdiction-limiting legislation; what she rejects are measures that can be described as
"retaliation for past federal court decisions." 45 The implication is that she sees a threat to judicial independence whenever
legislators promote court-stripping bills with the intent of intimidating judges - irrespective of the success of their efforts, and even if
there is no realistic prospect that any judges will be influenced by the campaign. On this premise, Justice O'Connor is probably right
in including recent bills such as those I have described. There is good reason to believe that at least some supporters of these
measures, like the proponents of the "JAIL 4 Judges" initiative, hope that by pressing for such legislation they will send an
"intimidation factor flowing through the judicial system." 46 But if this is what Justice O'Connor is saying, I disagree with the
premise. In my view, hopes alone do not pose a threat to judicial independence. What should concern us is the prospect that judges
will alter their behavior in response to legislative initiatives. Consider, then, the two bills that passed the House in recent years - one
that would have removed jurisdiction over cases involving the Pledge of Allegiance, 47 the other centering on the Defense of
Marriage Act. 48 Is it [*855] plausible to suggest that a federal judge would reject a challenge to a governmental practice within the
scope of either of these measures out of fear that the decision would lend fuel to efforts to remove federal-court jurisdiction over
suits of that kind? I do not think so. Some will argue that this conclusion rests on an idealized view of the judicial personality. There
is a developing literature that talks about judges as self-interested actors who want to maximize their prestige and their power. 49
Taking away jurisdiction is taking away power. Is it really so implausible that judges might trim their sails to avoid that outcome?
Maybe this could happen - but not when the legislation would affect only a narrow class of cases like those involving the Pledge of
Allegiance or the Defense of Marriage Act. Suppose, though, that the proposal is to take away jurisdiction over any claim involving
freedom of religion or rights of privacy, including reproduction. There's a bill in the current Congress that would do just that. 50 It's
called the "We the People Act," and it has been introduced in each of the last two Congresses as well. 51 Maybe some judges would
be influenced by the prospect of losing power on that scale - although I would like to think otherwise. But the "We the People Act"
has never had more than six co-sponsors. 52 It has never been the subject of a hearing. It is not a serious threat. One other scenario
may come to mind. Suppose that Congress were to pass one of the narrow bills I have referred to - the Pledge Protection Act, for
example. Might some judges then hesitate before issuing counter-majoritarian rulings involving other issues out of fear that an
unpopular decision would spur Congress to enact additional or broader restrictions on federal court jurisdiction? It could happen but the fact is that even the Pledge Protection Act could not gain sufficient support to become law in a Congress controlled by
Republicans. And speculation based on counterfactual hypotheticals is of minimal value in assessing threats to judicial
independence. It would be going too far to say that no court-stripping measure could ever have the effect of strong-arming a federal
judge into adopting Congressional policies rather than the judge's own view of what the law requires. But I
am confident that
this will not occur as a consequence of any [*856] of the bills that have been considered by
Congress in recent years. It is not relevant that some of the proponents are motivated by a desire
to retaliate for past rulings, and there is no reason to fear that judges will be intimidated in
their future decisions by the threat of "retaliation" of this kind. 53
No court stripping—institutional checks.
Ross 2003 (William G. Ross, Professor of Law, Cumberland School of Law of Samford University. A.B., Stanford,;
J.D., Harvard, Wake Forest Law Review, Summer, 2003)
Institutional obstacles have seriously impeded all efforts to curtail judicial review. As Professor Choper
once explained, All the dominant forces of inertia - of maintenance of the status quo, of inaction due to the frequent absence of
cohesive majorities and to the fragmentation of power - that are present in the national political process work to
safeguard the Court, and indeed are magnified in the case of an attack on the Court's historic
independence. 74 Recognizing that they would face an arduous and probably futile struggle, 75 even the most ardent opponents of judicial review have [*747]
generally recoiled from active efforts to overturn or significantly abridge Marbury. Moreover, the history of failed assaults on judicial
power has increasingly chilled Court-curbing plans. Since the failure of Roosevelt's Court-packing plan, 76 antagonists of the Court
have at least tacitly abandoned serious efforts to directly confront Marbury. The Court's modern antagonists therefore have conducted less
ambitious assaults on judicial power. Their favorite weapons have been constitutional amendments to overturn judicial
decisions and bills to curtail the Court's jurisdiction over specific subjects, both of which have sometimes come perilously close to success. Since even these efforts have
generally failed, the Court's critics have increasingly tried to change the Court's decision without altering its powers. As described in Section G infra, the favorite device
increasingly has been efforts to influence the appointment of federal judges. The constitutional amendment process provides the most durable means of curtailing the Court's
power or overturning specific decisions. As Professor Lasser has explained, "the amendment process remains an attractive route for the Court's opponents [since] ...
amendments are dramatic, and they are sure ... . They can be justified as involving no affront to the Court, being merely an expression of the popular will." 77 The amendment
process, however, is also perhaps the most difficult means of curtailing judicial review since Article V erects substantial hurdles for any amendment, requiring an amendment to
Not one of the many
proposed amendments to curb federal judicial power has ever made any significant progress,
receive the concurrence of two-thirds of the members of both houses of Congress and the approval of three-quarters of the states. 78
and few amendments have nullified decisions of the Court. The amendment process was [*748] successfully invoked early in the Republic's history to overturn the very first of
the Court's controversial decisions, which permitted states to be sued by citizens of diverse states. 79 The amendment process has subsequently clearly reversed only three
more of the Court's decisions: Dred Scott, 80 the Court's 1895 nullification of the federal income tax, 81 and the Court's disapproval of federal legislation to require states to
permit eighteen-year olds to vote, 82 although one can argue that several other amendments also had the effect of overruling Supreme Court decisions. 83 The difficulty of the
amendment process has therefore inspired at least as much frustration as hope among the Court's critics. As the social reformer and Court critic Herbert Croly complained in
1914, the amendment process had converted democracy into "a golden hoard, to which access could be obtained only at rare intervals and after an heroic effort." 84 In our own
time, Louis Fisher has pointed out that "[a] successful amendment process requires an extraordinary combination of social, economic, and political forces." 85 In several
instances, the high hurdles of the constitutional amendment process prevented the nullification of highly controversial decisions even though opponents of the decisions were
well organized and might well have succeeded in enacting an amendment if the amendment process required approval only by majority vote in Congress and a majority of the
states. The first major example was the movement for a child labor [*749] amendment following the Court's 1918 and 1922 decisions invalidating federal legislation discouraging
child labor. When the Court in Hammer v. Dagenhart 86 in 1918 held that the first child labor statute exceeded Congress's power to regulate interstate commerce, 87 some
opponents of child labor accelerated their support for a pending child labor amendment. Recognizing the obstacles of the amendment process, however, the National Child
Labor Committee and other prominent forces in the child labor movement preferred to work for legislation that was based on the taxing power, 88 which opponents of child
labor hoped the Court would find more palatable. When the Court nullified the second child labor law in Bailey v. Drexel Furniture Co. 89 in 1922 because the tax was not
primarily intended to raise revenue, 90 "advocates of federal child labor reform lacked any practical alternative to a constitutional amendment." 91 During the spring of 1924,
the House of Representatives approved a child labor amendment by a vote of 297 to 69, and the Senate approved it by a vote of 61 to 23. A fierce series of campaigns waged at
the state level by manufacturing interests and conservatives prevented ratification of the amendment by more than a handful of states. 92 Another significant example of the
arduousness of the amendment process is the attempt to overturn the Supreme Court's 1964 decision in Reynolds v. Sims 93 through a constitutional amendment to permit one
house of state legislatures to be apportioned on a basis other than population. The amendment twice received a majority vote in the Senate, 94 falling several votes short of the
requisite two-thirds approval. The amendment's failure underscored the harsh fact that a constitutional amendment cannot succeed even when it enjoys the support of a
substantial majority of U.S. senators. [*750] An even more dramatic example of the obstacles of the amendment process is the persistent failure of school prayer amendments
during the past four decades. Widespread and highly emotional opposition to the Supreme Court's 1962 decision prohibiting state-sponsored prayer in public schools 95
generated a plethora of proposals for constitutional amendments to overturn the decision. 96 An amendment to permit school administrators to allow voluntary prayer in forms
not prescribed by the state received the support of a substantial plurality of the Senate in 1966, but fell a dozen votes short of the requisite two-thirds majority in a 49 to 37
vote. 97 A later movement for an amendment failed when the House in 1971 voted by a margin of 240 to 162 to discharge an amendment resolution from committee. 98
Although the motion carried by a large majority, its failure to attract the votes of two-thirds of the House members caused the movement for the amendment to collapse. 99
During the 1980s, a renewed movement for a school prayer amendment came to naught even though it received at least rhetorical support from President Reagan. 100 The
failure of the school prayer amendments is particularly revealing of the difficulties of the amendment process because public opinion polls indicate that a clear majority of
Americans regularly have opposed the school prayer decision. Movements to overturn Roe v. Wade 101 by constitutional amendment likewise have failed. Although these have
enjoyed considerable public support, they also have encountered determined opposition, for Roe is more popular than are the Court's school prayer decisions. As Professor
Kyvig has pointed out, "the requirements of Article V rendered constitutional amendment impossible without a national consensus that did not exist on the abortion issue." 102
Accordingly, as is explained in more detail in sub-section G, opponents of abortion have concentrated their efforts on [*751] more practical, and often successful, attempts to
impose statutory limitations on the availability of abortion. Daunted by the hurdles of the constitutional amendment process, various critics of judicial review early in the
twentieth century advocated an amendment to relax the process. In 1913, for example, La Follette proposed an amendment to initiate the amendment process by majority vote
of both houses of Congress or the application of ten states and to permit ratification by a majority of the electorate in the majority of states. 103 Other similar bills, aimed
primarily or in part against judicial review, were introduced in Congress during the height of the Progressive Era 104 and again during the renewed controversy over judicial
review after the First World War. 105 In an apparent effort to ameliorate the effects of judicial review of regulatory legislation, the 1912 Progressive platform on which
Theodore Roosevelt ran for president vaguely advocated "a more easy and expeditious method of amending the Federal Constitution." 106 With similar vagueness, the AFL at its
1922 convention called for relaxation of the amendment process. 107 When antagonism against judicial review flared up on a different point along the political spectrum during
the Warren Era, a well-organized group of state officials proposed a constitutional amendment to permit two-thirds of the state legislatures to amend the Constitution without
participation by Congress or any other agency. 108 The amendment was intended in large part to enable states to overturn Supreme Court decisions that nullified state laws.
During a period of only a few months in 1963, the amendment [*752] received the speedy approval of both houses of the legislature in thirteen states and one house in another
four states before defenders of the Court sounded alarms that brought the anti-Court juggernaut to an abrupt halt. 109 Recognizing the difficulties of using the constitutional
amendment process to overturn judicial decisions, some critics of judicial review have sought to circumvent the amendment process. Clark advocated abolition of judicial review
by congressional legislation rather than by the "slow process of constitutional amendment," 110 which he believed that special interests would thwart through opposition in the
state legislatures. 111 One of the reasons why some critics of judicial review during the 1920s favored Borah's super-majoritarian plan over La Follette's congressional override
proposal was because they believed that the former would not require a constitutional amendment. 112 As attacks on La Follette's proposed amendment mounted during the
1924 presidential campaign and La Follette attempted to distance himself from it, he was reduced to assuring audiences that the rigors of the amendment process made its
enactment unlikely. 113 Franklin Roosevelt's choice of Court-packing rather than a remedy that more fundamentally would have affected judicial power was based partly on his
pessimism about the viability of the amendment process, which he regarded as intolerably slow and likely to be thwarted by business interests. 114 Since Congress clearly had
the power to prescribe the number of Justices, no amendment would be necessary. The myopia of Roosevelt's proposal was evident to many of the Court's critics. As Interior
Secretary Harold Ickes observed, "in the end we must have an amendment. We can't depend upon a liberal majority of the Court in the future any more than we can now ... In
the long run there must be a clarification of constitutional powers in the instrument itself." 115 [*753] In addition to the impediments of the constitutional amendment process,
critics of judicial review face formidable institutional obstacles in attempting to enact ordinary
legislation. Powerful committee chairs, for example, have bottled up countless Court-curbing
measures, and the danger of a presidential veto always is a possibility even if the legislation somehow passes both
houses of Congress.
Courts DA Thumper--- Controversial Decisions Now
Lots of controversial decisions crush court approval now
Cohen 7/2 (Ariel Cohen, “Supreme Court out of public favor after controversial term,”
Daily Caller,
http://dailycaller.com/2013/07/02/supreme-court-out-of-public-favor-after-controversial-term/)
After releasing a slew of controversial end-of-term rulings , the United States Supreme Court is
at an unprecedented low in public opinion.¶ A Rasmussen Report poll finds that 30 percent of the
American public rate the Court’s performance as “poor.” Just 28 percent of those polled believe that
the Court is doing a “good” or excellent job,” and 39 percent rated the court as “fair.”¶ During the last two
weeks of the 2013 term, the Supreme Court released controversial decisions on affirmative
action , voting rights and same-sex marriage , decisions that generated much dissent.¶ Just four years
ago, Supreme Court approval ratings were at an all-time high, at 48 percent. Since then, the high
court’s rating has steadily declined. Today’s approval ratings are even lower than when the Supreme Court released
its extremely controversial Health Care decision in 2012.¶ Just before the Court released its final decisions last week,
30 percent of Americans polled gave the Court “good” or “excellent” approval ratings. While the change may seem
minute, it also represents an ideological shift. Positive ratings increased among liberal voters by 13 percent, whereas
they fell among conservative voters by eight percent.
Bigger link than the CP--- recent decisions even outweigh Obamacare backlash
Rasmussen 7/1 (Rasmussen Polling and Analysis, “Public Approval of Supreme Court Falls to All-Time Low,”
http://www.rasmussenreports.com/public_content/politics/mood_of_america/supreme_court_update)
These numbers are even weaker than the numbers recorded following the Supreme Court
ruling upholding the president’s health care law last year. Just before the court heard arguments on the
health care law, 28% gave the justices good or excellent marks. However, disapproval was far lower than it is
today. Then, following those arguments, many thought the court was likely to overturn the law. At that point,
positive ratings for the court shot up to 41%, the highest level in years. However, when the court eventually
upheld the health care law, the numbers fell again. Just 29% offered a positive review early
that September.
***Perms & Theory***
2NC Perm Do Both
Doesn’t solve politics; the Supreme Court must act first to provide political
cover.
Garrett and Stutz 2005 (Robert T. Garrett and Terrence Stutz, Dallas Morning News, “School finance now
up to court Justices to decide if overhaul needed after bills fail in Legislature” lexis)
That could foreshadow the court's response to a chief argument by state attorneys – that the court should butt out
and leave school finance to the Legislature. A court finding against the state would put the ball back in the hands of
lawmakers, who have tended to put off dealing with problems in schools, prisons and mental health facilities
until state or federal judges forced them to act . "It's the classic political response to problems
they don't want to deal with," said Maurice Dyson, a school finance expert and assistant law professor at
Southern Methodist University. "There is no better political cover than to have a court rule that
something must be done, which allows politicians to say their hands are tied."
It’s mutually exclusive—the case would be moot.
Lee 1992 (Evan Tsen Lee, Associate Professor, University of California, Hastings College of the Law, Harvard Law
Review, January, lexis)
ONE of the major impediments to the judicial protection of collective rights 1 is the group of doctrines falling under
the rubric [*606] of "justiciability" -- standing, ripeness, and mootness. 2 These are the gatekeeper doctrines; each
regulates a different dimension of entrance to the federal courts. The law of standing considers whether the plaintiff
is the proper person to assert the claim, the law of ripeness ensures that the plaintiff has not asserted the claim too
early, 3 and the law of mootness seeks to prevent the plaintiff from asserting the claim too late. 4 By keeping certain
public-minded plaintiffs and public-law claims out of federal court, these doctrines have shifted much of the battle for
collective rights to the more steeply pitched fields of state courts or the political process. 5 In particular, defendants
in public law litigation have had considerable success keeping such cases out of the federal courts by invoking the
"case or controversy" requirement [*607] of Article III. 6 Under current Supreme Court precedent, if a
plaintiff cannot demonstrate that she possesses an ongoing "personal stake" in the outcome
of the litigation, a federal court has no jurisdiction to adjudicate the claim on the merits. 7 No
amount of judicial discretion can overcome this jurisdictional defect, because Article III
demarcates the outer limit of federal court power. 8 As a result, many attempts to establish entitlements
to important collective rights fail before courts can give them full consideration.
Even if the ruling happens, it would not make a constitutional claim.
Lee 1992 (Evan Tsen Lee, Associate Professor, University of California, Hastings College of the Law, Harvard Law
Review, January, lexis)
Doubtless some will point to Supreme Court opinions characterizing decisions in moot cases as advisory opinions and stating that
the [*651] court has no jurisdiction to proceed in moot cases. A few such opinions exist, 270 although many more imply
that the mootness and advisory opinions doctrines are distinct (but related) ideas. 271 The most satisfying way
to view the present doctrinal relationship of mootness, advisory opinions, and Article III is as follows:
decisions in moot cases are currently prohibited because they are said to exceed the jurisdictional
grants of Article III; additionally, decisions in moot cases implicate the prudential component of
the advisory opinions doctrine, but they do not implicate the doctrine's constitutional core.
Thus, the constitutional dimension to the prohibition against deciding moot cases stems directly from Article III and
not from an analogy to advisory opinions. If the Court were to repudiate its position that the mootness doctrine is
constitutionally compelled, the analogy to advisory opinions would pose no independent constitutional obstacle to
deciding moot cases on the merits.
2NC Agent CPs Good
No link--- CP PICs out of legislative restrictions, particularly for this topic it’s a
distinct mechanism grounded in the literature
1. Agent education outweighs fairness—
Debate is resilient; good counterplans increase research on the technical
aspects of the plan—link turns topic education.
Fairness creates a race to the corners, distracts from narrow debates. Depth
enhances real world argumentation and transferable knowledge.
2. They still have ground: agent/leadership add-ons, court disadvantages, and
delay. Also they have built in solvency ground—non-compliance.
3. Key to neg ground. Testing the agent checks one-sided lit bases and
represents one-half of the resolution. International fiat is suspect and there’s
no States counterplan on this topic.
4. Political education key to informed citizenry and legal education is timeless.
5. Key to test the aff. Process DAs don’t outweigh energy cases; leveraging the
case forces the aff to justify every part of the plan.
***Aff Answers***
Courts Fail--- Congress Key
Congress solves better than the courts, especially when dealing with foreign
policy
Bellia 2002 (Patricia Bellia, Professor of Law and Notre Dame Presidential Fellow, Spring 2002, “Executive Power
in Youngstown’s Shadows,” Constitutional Commentary, Lexis)
We can in fact detect the seeds of this reluctance to give content to the President's constitutional powers in Justice
Jackson's concurrence. Recall Justice Jackson's observation about his second category of executive action, where
Congress is silent. Congressional silence, he wrote, may "invite[] measures on independent
presidential responsibility." (269) The outcome of the dispute is likely to turn more on "contemporary
imponderables" than "on abstract theories of law." (270) If Justice Jackson's statement was purely predictive, he was
right. Justiciability doctrines require or permit courts to avoid resolving many significant separation of powers
disputes. (271) But Justice Jackson's claim that powers "fluctuate" according to Congress's will also
yields two related normative conclusions. The first is a prudential point that the task of policing the
Executive should fall to Congress, not the courts, because the political branches are more
likely to arrive at a narrow resolution that will preserve the Government's flexibility in later,
unforeseen circumstances. This view seemed to animate Justice Powell's concurrence in the Supreme Court's
decision to deny review in Goldwater v. Carter, (272) a dispute over President Carter's termination of the United
States' mutual defense treaty with Taiwan. Justice Powell argued that judicial intervention was inappropriate because
Congress and the President had not yet reached a "constitutional impasse." (273) The Senate had considered a
resolution declaring that Senate approval is necessary for termination of a treaty but had taken no final action. (274)
Justice Powell suggested that "[i]t cannot be said that either the Senate or the House has rejected the President's
claim. If the Congress chooses not to confront the President, it is not our task to do so." (275) In other words, so long
as Congress was silent, Justice Powell saw no role for the Court in resolving questions about the appropriate division
of power. (276) The second normative point that flows from Justice Jackson's claim that powers "fluctuate" is
one made by some executive primacy scholars--that because the Constitution confers
authority over foreign affairs and national security to the political branches, there is a "risk
that judicial intervention will itself be a serious violation of separation of powers." (277) Under
this theory, judicial intervention would be inappropriate where Congress is silent, and may not
even be appropriate when there is a conflict between congressional and presidential will . Four
of the Justices who concurred in the decision not to grant review in Goldwater took this view. Because the Justices
found no constitutional provision expressly governing the termination of treaties, the dispute presented a political
question that "should be left for resolution by the Executive and Legislative Branches of the Government." (278) The
concurring Justices observed that a court's resolution of a political question can create "disruption
among the three coequal branches of government."
Congress is better--- Courts are mistake-prone and lack expertise
Berenson 2004 (Bradford Berenson, associate White House counsel to President Bush from January 2001 to
January 2003, Fall 2004, “Uncertain Legacy of Rasul v. Bush ,” Tulsa Journal of Comparative and International Law,
Lexis)
These are just some of the really perverse and dangerous practical consequences that could eventuate if the post-Rasul litigation in
the lower courts turns out wrong. The prospect that the litigation could turn out wrong - or at minimum, take many years and many
trips to the Supreme Court to resolve - forces one to ask a final, important question: is the path we are now on really the right one
institutionally for resolving these questions? What Rasul has made clear is that the
legal landscape governing the
rights of alien military detainees held abroad will not be defined by the Executive Branch
alone, contrary to the Administration's initial hope. Instead, one way or another, the rules
governing military detentions will emerge through an interbranch dialogue. Right now, the
dialogue is ongoing between the Executive and the Judiciary. But the institutional limitations
and disabilities of the Judiciary, and the comparative competence of the Congress in weighing
significant policy implications like those I've just described, almost certainly means that this is
a conversation better had between the political branches. With both Houses of Congress in Republican
hands, the Administration should have far less to fear from a legislative process than it otherwise might. And given
the record of the courts so far in addressing these questions, there is a strong case to made
that a more expeditious, more nuanced, and ultimately more sensible resolution of the
conflicting claims of individual rights and collective security will be arrived at by engaging in a
forthright and constructive policymaking process with the [*52] people's elected
representatives than by continuing to allow the agenda to be set by the detainees and the decisions to be made by unelected
judges who typically have little or no background, training, or expertise in military or national security affairs.
Courts Fail--- War on Terror
Court involvement hinders the War on Terror
Wittes 2008 (Benjamin Wittes, Senior Fellow in Governance Studies at the Brookings Institution, where he is the
Research Director in Public Law, and Co-Director of the Harvard Law School, “The Necessity and Impossibility of
Judicial Review,” in Law and the Long War,
https://webspace.utexas.edu/rmc2289/National%20Security%20and%20the%20Courts/Law%20and%20the%20Long
%20War%20%20Chapter%204.pdf)
The second option, asking judges to okay those decisions, should be at ¶ least as uncomfortable as the possibility of a
more modest conception of the ¶ judicial function in the current conflict. To go back to the capture of Auschwitz
commandant Rudolf Hoess, would we really want a panel of judges, far ¶ from the action and with no conception of
how vulnerable Hoess's wife might ¶ have been to more traditional interrogation, to declare that those British
soldiers' agonizingly coercive interrogation of her was lawful? Would we really ¶ prefer that the interrogation had not
taken place and Hoess gone free? Or are ¶ we perhaps content with what happened? The interrogation happened, the
¶ British caught Hoess, and no court anywhere had to stamp its approval on an 42 ugly action. There is an
honorable place for judicial silence-one that too easy recourse to the courts obliterates-a
place that neither precludes nor validates options. When the Supreme Court, as it has done since
September 11, ¶ positions itself as a central actor in the design of the rules of the war on terror, ¶
it risks obliterating its capacity for silence. Those who cheer its incipient but ¶ growing role need
to think hard about whether they want in the future the ¶ courts to be obliged-by the very
nature of their role in society-to pronounce on the capture of Rudolf Hoesses. ¶ Indeed, if we
don't leave judges space for silence, we will end up either ¶ paralyzing our response to
terrorism or corrupting the judiciary. We will have ¶ to decide as a society whether we want to prohibit highly
coercive interrogation in all circumstances or to put judges in charge of it. If we are entirely ¶ honest, the answer to
this question, which I address in Chapter 7, is that we ¶ don't want to prohibit it in all circumstances-but that we just
as surely don't ¶ want to say that, much less write it into our laws. Insulating judges from such ¶ questions
offers a measure of permission for a kind of constructive hypocrisy ¶ that allows us more
restrictive rules than we could probably otherwise afford. ¶ The gaps let us ban torture and
conduct just shy of it, and when we need to ¶ practice it anyway, protect those we ask to do
the dirty work from branding as war criminals. That hypocrisy, so deplored by human rights groups, seems
to ¶ me valuable. It's a messy marriage of the twin facts that, on the one hand, no ¶ society can survive in the long run
while shrinking from the steps necessary to ¶ secure its survival and, on the other hand, that some ofthese steps are
ones of ¶ which no democracy can be proud.424242
Courts are uniquely bad at reigning in the WOT
Wittes 2008 (Benjamin Wittes, Senior Fellow in Governance Studies at the Brookings Institution, where he is the
Research Director in Public Law, and Co-Director of the Harvard Law School, “The Necessity and Impossibility of
Judicial Review,” in Law and the Long War,
https://webspace.utexas.edu/rmc2289/National%20Security%20and%20the%20Courts/Law%20and%20the%20Long
%20War%20%20Chapter%204.pdf)
Yet the case against a dominant role for the judiciary in designing the legal ¶ architecture of the conflict is a strong
one. The risks of a big judicial footprint ¶ the war on terrorism are significant , far more significant
than those who ¶ keen to leverage judicial power as a counterweight to executive power ¶ acknowledge. What's more,
the judiciary's capacity to design the kind of creative policies America needs in this conflict is
exceptionally limited. Even ¶ as a check on the executive branch, the courts have proven
erratic, useful more ¶ in spurring congressional action than in the restraint they have imposed ¶ themselves-for
notwithstanding the popular mythology, they have not yet ¶ imposed much actual restraint. This is not to say that
judges have no role in ¶ overseeing the legal architecture of the war. But their proper role is not everything
that human rights advocates imagine it to be. And critically, it is not a ¶ leading role in the
design of the architecture but, rather, an important one in ¶ the fabric of that architecture as
designed by others.
Courts Fail--- Expertise
Judicial checks undermine WOT effectiveness--- judges wouldn’t know what to
do with the CP
Wittes 2008 (Benjamin Wittes, Senior Fellow in Governance Studies at the Brookings Institution, where he is the
Research Director in Public Law, and Co-Director of the Harvard Law School, “The Necessity and Impossibility of
Judicial Review,” in Law and the Long War,
https://webspace.utexas.edu/rmc2289/National%20Security%20and%20the%20Courts/Law%20and%20the%20Long
%20War%20%20Chapter%204.pdf)
A broad conception of judicial review in this conflict also suffers from an ¶ unrealistic
assessment of judicial competence and capacity to evaluate military actions. This is true partly
because of the limits of judges as people un-trained in military matters and the limits of evidence collected in a
fashion so ¶ far removed from the one to which judges are accustomed. Even when the ¶ military uses
evidence it did not obtain through any untoward coercion, it will ¶ generally not have
observed such standard law enforcement practices as preserving chains of custody of physical
evidence. Society asks a lot of a judge ¶ who has never been to Afghanistan, who has never
served in the military, and ¶ who has no intimacy with the day-to-day conduct of its overseas
antiterrorism operations to decide not merely how to handle a morass of evidence of ¶
questionable probative value about a detainee who may pose an extreme danger if allowed to
walk free but also to make up the rules and standards under ¶ which he will consider that
evidence. The temptation among some judges in ¶ that situation, understanding their own limitations, will be to
defer absolutely ¶ to the military's judgment. Other judges, like the carpenter whose only tool is ¶ hammer and for
whom every problem therefore resembles a nail, will try to ¶ apply criminal justice evidentiary
standards to combat operations. The public ¶ should find neither reaction an appealing prospect.4444
Judges shouldn’t write foreign policy decisions--- lack of expertise to know their
implications
Ku and Yoo 2006 (Julian Ku, John Yoo. Berkeley Law, January 2006, “Hamdan v. Rumsfeld: The Functional Case
for Foreign Affairs Deference to the Executive Branch,” Constitutional Commentary,
http://scholarship.law.berkeley.edu/?utm_source=scholarship.law.berkeley.edu%2Ffacpubs%2F509&utm_medium=P
DF&utm_campaign=PDFCoverPages)
While courts are the primary institutions in the U.S. system¶ for interpreting and applying
laws, some of their key institutional¶ characteristics undercut their ability in the foreign
affairs law¶ context. In particular, courts have access to limited information¶ in foreign affairs
cases and are unable to take into account the¶ broader factual context underlying the
application of laws in¶ such areas.¶ These limitations are not a failing. They are part of the inherent design
of the federal court system, which is intended to be¶ independent from politics, to allow parties to drive litigation in¶
particular cases, and to receive information in highly formal and¶ limited ways. While these characteristics are
helpful for the purposes of neutral decisionmaking, they also may render courts¶ less
effective tools in resolving ambiguities in laws designed to¶ achieve national goals in
international relations.44
Courts Fail--- Certainty/Speed
Lack of judicial expertise means the CP doesn’t appear credible and takes too
long
Ku and Yoo 2006 (Julian Ku, John Yoo. Berkeley Law, January 2006, “Hamdan v. Rumsfeld: The Functional Case
for Foreign Affairs Deference to the Executive Branch,” Constitutional Commentary,
http://scholarship.law.berkeley.edu/?utm_source=scholarship.law.berkeley.edu%2Ffacpubs%2F509&utm_medium=P
DF&utm_campaign=PDFCoverPages)
Aside from the judiciary's information-gathering limitations, there are strong reasons to doubt the ability of the
members of the federal judiciary to resolve effectively foreign affairs¶ laws ambiguities. Judges are not chosen
based on their expertise¶ in a particular field. Federal judges, with a few minor exceptions,¶ handle a
wide variety of cases without any subject matter specialties. None, for instance, is chosen
because of his or her expertise on matters relating to foreign affairs or foreign affairs laws.¶
Courts are also highly decentralized. With 94 district courts¶ and 667 judges, differing
interpretations of ambiguous foreign¶ affairs laws could result in broad conflicts between
different judicial districts. Although the appellate process can eventually¶ unify inconsistent interpretations, the
process is notoriously slow¶ and limited. The Supreme Court itself hears about 70-85 cases a¶ year compared to the
estimated 325,000 appeals that are filed¶ from district court decisions annually. As a result, the system is¶
poorly designed for achieving a speedy and unified interpretation of an ambiguous statute,
treaty, or rule of customary international law.454545454545
Courts Fail--- Rapid Response
Deference is key to rapid response to military threats
Carter 2003 (Phillip Carter, FindLaw Columnist, “Judicial deference to military may affect gay rights, war on
terror,” July 15, 2003, http://www.cnn.com/2003/LAW/07/15/findlaw.analysis.carter.security/)
As the ratification debates reveal, the
Framers assigned these powers to the President because they
feared that judicial or congressional interference in these areas might render the new nation
weak, or incapable of rapid response to threats from abroad. The Framers also felt that because,
at the time, the majority of national security knowledge and expertise lay in the Executive
Branch, decision making on such issues properly belonged to that branch. Accordingly, while Article II
gives expansive military and foreign policy powers to the President, Article I gives Congress only limited military powers. It may
"define and punish piracies and felonies committed on the high seas, and offenses against the law of nations"; "declare war, grant
letters of marque and reprisal, and make rules concerning captures on land and water"; "raise and support armies, but no
appropriation of money to that use shall be for a longer term than two years"; "provide and maintain a navy"; "make rules for the
government and regulation of the land and naval forces"; and provide for calling forth the militia to execute the laws of the union,
suppress insurrections and repel invasions . . ." But that is all. Finally, Article
III gives the judicial branch no power
at all over the military. As a result, the courts, unlike the other two branches, have no constitutional
mandate to make military policy. The tradition of judicial deference to the military grew out
of this constitutional structure and history. As commander-in-chief, the argument goes, the President should have
the utmost latitude in making decisions that affect the readiness of America's military. Similarly, Congress deserves free rein in
exercising its Constitutional responsibilities to fund the military and make laws for its governance. In contrast, the courts have no
such Constitutional mandate to make military policy; thus, they should yield to decisions by the President and Congress.
Executive Non-Compliance
The president won’t comply with the CP
Druck 2012 (Judah A. Druck, B.A., Brandeis University, 2010; J.D. Candidate, Cornell Law School, 2013,
“DRONING ON: THE WAR POWERS RESOLUTION AND THE NUMBING EFFECT OF TECHNOLOGY-DRIVEN WARFARE,”
Cornell Law Review, Vol. 98:209, http://www.lawschool.cornell.edu/research/cornell-law-review/upload/Druckfinal.pdf)
By now, the general pattern concerning presidential treatment of¶ the WPR should be clear: when faced with a
situation in which the¶ WPR should, by its own terms, come into play, presidents circumvent¶ its
application by proffering questionable legal analyses. Yet, as was¶ frequently the case following the
aforementioned presidential actions,¶ those looking to the courts for support were disappointed to learn¶ that the
judiciary would be of little help. Indeed, congressional and¶ private litigants have similarly been unsuccessful
in their efforts to¶ check potentially illegal presidential action.52¶ The suits arising out of possible WPR violations are
well-documented53 and therefore only require a brief review. Generally, when¶ faced with a question concerning the
legality of presidential military¶ action, courts have punted the issue using a number of procedural¶ tools to avoid
ruling on the merits. For example, when twenty-nine¶ representatives filed suit after President Reagan’s possible WPR
violation in El Salvador, the U.S. District Court for the District of Columbia¶ dismissed the suit on political question
grounds.54 Similar suits were¶ dismissed for issues involving standing,55 mootness,56 ripeness,57 or¶ nonjusticiability
because Congress could better handle fact-finding.58¶ Despite the varying grounds for dismissing WPR suits, a general
theme¶ has emerged: absent action taken by Congress itself, the judiciary cannot be counted on to step in to check
the President.¶ To be sure, the judiciary’s unwillingness to review cases arising¶ from WPR disputes arguably carries
some merit. Two examples illus-47 trate this point. First, although a serviceperson ordered into combat¶ might have
standing to sue, congressional standing is less clear.59 Indeed, debates rage throughout war powers literature
concerning¶ whether congressional suits should even be heard on their merits.60¶ And though some courts have held
that a member of Congress can¶ have standing when a President acts unilaterally, holding that such¶ unauthorized
actions amount to “disenfranchisement,”61 subsequent¶ decisions and commentators have thrown the entire realm
of legislative standing into doubt.62 Though the merits of this debate are beyond the scope of this Note, it is
sufficient to emphasize that a¶ member of Congress arguably suffers an injury when a President violates the WPR
because the presidential action prevents the congressperson from being able to vote (namely, on whether to
authorize¶ hostilities),63 thereby amounting to disenfranchisement by¶ “preclu[ding] . . . a specific vote . . . by a
presidential violation of¶ law . . . .”64 As such, under the right circumstances, perhaps the standing doctrine should
not be as problematic as history seems to indicate¶ when a congressperson attempting to have a say on military
action¶ brings a WPR suit.¶ Secondly, and perhaps more importantly, it is arguably unclear¶ what, if any, remedy is
available to potential litigants. Unlike a private¶ lawsuit, where a court can impose a simple fine or jail sentence,
suits¶ against the executive branch carry a myriad of practical issues. For¶ example, if the remedy
is an injunction, issues concerning enforcement arise: Who enforces it and how?65 Or, if a court
makes a declaratory judgment stating that the President has acted illegally, it might¶ invite
open defiance , thereby creating unprecedented strife among¶ branches. Yet, a number of possible
remedies are indeed available.¶ For one, courts could simply start the WPR clock, requiring a Presi-474747474747
dent to either seek congressional approval or cease all actions within¶ the time remaining (depending on whether the
court starts the clock¶ from the beginning or applies it retroactively).66 In doing so, a court¶ would trigger the WPR in
the same way that Congress would have had¶ it acted alone. On a similar note, a court could declare the relevant¶
military conflict illegal under the WPR, thereby inviting Congress to¶ begin impeachment proceedings.67 Although
both cases require¶ some level of congressional involvement, a court could at least begin¶ the process of providing a
suitable remedy. Thus, the more questionable issues of standing and remedies should not (under the right
circumstances) prevent a WPR suit from moving forward.47
Lower Courts Rollback
Lower courts will erode the CP’s ruling
Borochoff 2008 (Elise Borochoff, JD 2010, Harvard Law, “Lower Court Compliance With Supreme Court
Remands,” Lexis)
The traditional model of the United States legal system envisions the relationship between
federal district courts, appeals courts, and the Supreme Court as strictly hierarchical. n13 The
district courts constitute the base of the judicial pyramid, the appeals court the middle, and the Supreme Court its
peak. n14 This model implies the Supreme Court issues the final edict in any area of law, and
the lower levels of the judicial hierarchy simply implement Supreme Court policy. Consequently,
early legal scholars focused their research solely on Supreme Court decision making, and assumed that both federal
and state lower courts strictly obeyed the Supreme Court's rulings. n15 Supreme Court decisions were viewed as the
reigning law of the land [*856] and compliance was a foregone conclusion.¶ Under the hierarchal view of the federal
judiciary, Supreme Court remands would not be an issue. Lower courts are faithful implementers of Supreme Court
decisions and their decisions are an extension of the Supreme Court's legal views. Thus, all lower court decisions
would comply with the Supreme Court, whether heard on remand or for the first time. B. Recognition of
Noncompliance with the Supreme Court¶ Beginning in the 1950s, legal scholars began to doubt the
hierarchical model's validity. n16 First, some articles noted that state courts would often rely
on state law, effectively ignoring the Supreme Court's reasoning. n17 Others soon noted that
even federal courts, while relying on federal law, also ignored Supreme Court decisions. n18
While authors did not openly criticize the hierarchical model, the increasing profile of noncompliance shed doubt on
its accuracy. Implicit critiques of the hierarchical model became more explicit after the Warren Court's decisions in
Brown v. Board of Education n19 and other controversial civil rights cases. n20 Noncompliance [*857] with the
Supreme Court's decisions undermined the model of the Supreme Court as an apolitical institution ruling over the
entirety of the judicial branch.
A2 Politics Net Benefit
The courts link to politics
Calabresi 2008 (Massimo Calabresi, June 26, 2008, “Obama's Supreme Move to the Center Washington” TIME Magazine,
http://www.time.com/time/politics/article/0,8599,1818334,00.html)
When the Supreme Court issues rulings on hot-button issues like gun control and the death penalty in the middle
of a presidential campaign, Republicans could be excused for thinking they'll have the perfect opportunity to
paint their Democratic opponent as an out-of-touch social liberal. But while Barack Obama may be
ranked as one of the Senate's most liberal members, his reactions to this week's controversial court decisions showed
yet again how he is carefully moving to the center ahead of the fall campaign. On Wednesday, after the Supreme
Court ruled that the death penalty was unconstitutional in cases of child rape, Obama surprised some observers by
siding with the hardline minority of Justices Scalia, Thomas, Roberts and Alito. At a press conference after the
decision, Obama said, "I think that the rape of a small child, six or eight years old, is a heinous crime and if a state
makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially
applicable, that that does not violate our Constitution." Then Thursday, after Justice Scalia released his majority
opinion knocking down the city of Washington's ban on handguns, Obama said in a statement, "I have always
believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need
for crime-ravaged communities to save their children from the violence that plagues our streets through commonsense, effective safety measures. The Supreme Court has now endorsed that view." John McCain's camp wasted no
time in attacking, with one surrogate, conservative Senator Sam Brownback of Kansas, calling Obama's gun control
statement "incredible flip-flopping." McCain advisor Randy Scheunemann was even tougher in a conference call
Thursday. "What's becoming clear in this campaign," Scheunemann said, is "that for Senator Obama the most
important issue in the election is the political fortunes of Senator Obama. He has demonstrated that there
really is no position he holds that isn't negotiable or isn't subject to change depending on how
he calculates it will affect his political fortunes." Politicians are always happy to get a chance to accuse
opponents of flip-flopping, but McCain's team may be more afraid of Obama's shift to the center than their words
betray. Obama has some centrist positions to highlight in the general election campaign on foreign policy and
national security, social issues and economics. His position on the child rape death penalty case, for example, is in line
with his record in Illinois of supporting the death penalty. He is on less solid ground on the gun ban as his campaign
said during the primary that he believed the D.C. law was constitutional. A top legal adviser to Obama says both cases
are consistent with his previous positions. "I don't see him as moving in his statements on the death penalty or the
gun case," says Cass Sunstein, a former colleague of Obama's at the University of Chicago. Sunstein says Obama is
"not easily characterized" on social issues, and says the Senator's support for allowing government use of the Ten
Commandments in public, in some cases, is another example of his unpredictability on such issues. On the issue of
gun control, he says Obama has always expressed a belief that the Second Amendment guarantees a private right to
bear arms, as the court found Thursday. But Obama's sudden social centrism would sound more convincing in a
different context. Since he wrapped up the primary earlier this month and began to concentrate on the independent
and moderate swing voters so key in a general election, Obama has consistently moved to the middle. He hired
centrist economist Jason Furman, known for defending the benefits of globalization and private Social Security
accounts, to the displeasure of liberal economists. On Father's Day, Obama gave a speech about the problem of
absentee fathers and the negative effects it has on society, in particular scolding some fathers for failing to "realize
that what makes you a man is not the ability to have a child — it's the courage to raise one." Last week, after the
House passed a compromise bill on domestic spying that enraged liberals and civil libertarians, Obama announced
that though he was against other eavesdropping compromises in the past, this time he was going to vote for it.
Whether Obama's new centrist sheen is the result of flip-flopping or reemphasizing moderate positions, the Supreme
Court decisions have focused attention again on the role of the court in the campaign season. McCain himself is
vulnerable to charges of using the Supreme Court for political purposes. Earlier this month, when the court granted
habeas corpus rights to accused terrorist prisoners at Guantanamo Bay, McCain attacked the opinion in particularly
harsh language, though advisers say closing the prison there is high on his list of actions to rehabilitate America's
image around the world. Liberals are hoping that despite Obama's moderate response to the Supreme Court
decisions, the issues alone will rally supporters to him. "What both of these decisions say to me is that the Supreme
Court really is an election-year issue," says Kathryn Kolbert, president of People For the American Way. "We're still
only one justice away from a range of really negative decisions that would take away rights that most Americans take
for granted," she says. And Obama's run to the center surely won't stop conservatives from using the
specter of a Democratic-appointed Supreme Court to try to rally support. "Its pretty clear that if he's
elected and Justice Scalia or Kennedy retires that he's going to appoint someone who's very likely to reverse [the gun control decision]," says Eugene
Volokh, a professor at the UCLA School of Law. Given how Obama has been responding to the recent Supreme Court decisions, however, you're not
likely to hear him talking about appointing liberal justices much between now and November.
Congress will backlash against Obama
Canon and Johnson 1999 (Bradley Canon- professor of political science at the University of Kentucky and
Charles Johnson- dept. head of political science at Texas A&M, judicial policies: implementation and impact)
More than any other public agency, Congress tends to be the focal point for public reaction to judicial
policies. As a political body, Congress cannot ignore any sizable or prominent group of constituents. Some
groups become especially agitated when they are unhappy with some judicial decision or
doctrine, and they make their dissatisfaction known to members of Congress. If the pressure is
great enough and is not counterbalanced by pressure from groups that support the judicial policy, Congress will, if
feasible, take action. At the very least, numerous members of Congress will score political points by
showing righteous indignation on behalf of the disaffected groups. Clashes between Congress and
the courts are virtually as old as the two branches. Marbury v. Madison (1803) was a political finesse of a hostile
Congress by the Supreme Court. Constitutional crises have been provoked by such decisions as Dred Scott (Scott v
Sandford, 1857) and several anti-New Deal decisions in the 1930s. Strained relationships just short of crises have
developed from numerous other decisions. Of course, not all differences between the courts and Congress are
emotionally charged. Many of the differences arise over mundane issues such as pension or admiralty law. Either
way, almost every year, Congress reacts to judicial decisions.
Perm Shields Politics
Perm shields--- Courts provide cover
Rosenberg 1991 (Gerald Rosenberg, professor of Political Science at the University of Chicago, “Hollow Hope”,
University of Chicago Press, p. 34-35)
Finally, court orders can simply provide a shield or cover for administrators fearful of political
reaction. This is particularly helpful for elected officials who can implement required reforms and
protest against them at the same time. This pattern is often seen in the school desegregation
era. Writing in 1967 - one author noted that "court order is useful in that it leaves the official no choice
and a perfect excuse". While the history of court-ordered desegregation unfortunately shows that officials often
had many choices other than implementing court orders, a review of school desegregation cases did find that "many
school boards pursue from the outset a course designed to shift the entire political burden of desegregation on the
courts". This was also the case in the Alabama mental health litigation where "the mental health administrators
wanted judge Johnson to take all the political heat associated with specific orders while they enjoyed the benefits of
his action. Thus, Condition IV; Courts may effectively produce significant social reform by providing
leverage, or a shield cover, or excuse for persons crucial to implementation who-are willing to
act.
SOP Links
CP violates the political question doctrine--- wrecks SOP
McKaig 2005 (Ryan McKaig, attorney, “Aid and Comfort: Rasul v. Bush and the Separation of Powers Doctrine in
Wartime,” 28 Campbell L. Rev. 123, http://law.campbell.edu/lawreview/articles/28-1-123.pdf)
The Court should not have reached the merits of Rasul because¶ the case presented a
nonjusticiable political question.64 In fact, the¶ Court erred in not rejecting Eisentrager on such grounds as well.
The¶ Eisentrager decision set the stage for the Court to ultimately intrude¶ into political wartime matters in Rasul. This
in turn could serve as¶ justification for future expansions of judicial review over war powers.¶ The political
question doctrine arises from separation of powers¶ concerns and allows the Court to decline
to exercise judicial review if¶ its decision would intrude into the spheres of the political
branches or¶ be judicially unenforceable.65 This doctrine holds generally that a controversy, though ripe and of
great public interest and debate, may¶ nonetheless be nonjusticiable if judicial review would result in the¶ usurpation
of power from either of the other coordinate branches.66¶ Although this doctrine was not central to the Court’s
analysis in Rasul,¶ it is worth examining the case in its light. In particular, the doctrine¶ illustrates the prudential
concerns the Court has raised when deciding¶ whether to rule on particular cases raising separation of powers issues.¶
The Court tends to evaluate six factors when deciding whether a¶ particular controversy is a nonjusticiable political
question. These factors are laid out generally in Baker v. Carr:¶ 1) Whether an issue is textually committed to a
coordinate¶ branch;¶ 2) Whether the Court lacks judicially discoverable and manageable methods for resolving the
issue;¶ 3) Whether resolution is possible without the Court making an¶ initial policy decision that is clearly for nonjudicial discretion;¶ 4) Whether a decision may be made without showing a lack of¶ respect due to coordinate
branches;¶ 5) Whether a decision would require unquestioning adherence to ¶ a political decision already made;¶ 6)
Whether multifarious pronouncements from different departments will cause embarrassment to the nation on the
world¶ stage.67¶ If the answer to one or more of these questions indicates the controversy is within the purview of
the political branches, the Court may¶ refuse to review the case.68 Of course, as Justice Holmes once noted,¶ the
division of constitutional powers is not always clear,69 and for that¶ reason, the political question doctrine
has always been more than a¶ textual rule.70 It is a rule of judicial prudence and restraint, and was¶ recently
applied in the case of El-Shifa Pharmaceutical Industries Co. v.¶ United States.¶ 71 In that case,
the Federal Circuit Court of Appeals525252 affirmed the dismissal of a claim under the Constitution’s Takings¶
Clause by petitioners whose property was destroyed in a military¶ strike on a Sudanese plant ordered by President Bill
Clinton in 1998.72¶ The court correctly cited the President’s constitutional war powers as¶
commander in chief and rejected the suit as a nonjusticiable political¶ question.73 The court
considered the six-factor Baker test and concluded that if even one of its concerns was implicated, the court¶ should
show restraint.74¶ Under the Baker/El-Shifa test, it is difficult to conclude that Rasul¶ is not complicated by the
political question doctrine. War-making¶ powers are textually committed by the Constitution to
the President75¶ and Congress,76 not the courts,77 which are bound to accept legislative¶
declarations that the nation is at war.78
CP violates SOP--- no role for the courts in reviewing/limiting war powers
Yoo 2003 (John Yoo, Berkeley Law prof, “Judicial Review and the War on Terrorism,” George Washington Law
Review, http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2432&context=facpubs)
With regard to the war power, there simply is no constitutionally-established process that the branches must follow.
Rather, the Constitution allocates different war powers to the two branches without any specified
process¶ which determines their interaction. Article II, for example, vests full control¶ of the United States military
forces in the president. The power of the president is at its zenith under the Constitution when
directing military operations¶ of the armed forces because the power of commander in chief is assigned¶
solely to the president. In The Prize Cases,38 for example, the Court explained that "[wihether the
President in fulfilling his duties as Commander in¶ Chief[ ]" was justified in treating the southern States
as belligerents and instituting a blockade, was a question "to be decided by him[.]"'39 The Court¶ could not
question the merits of his decision, but must leave evaluation to¶ "the political department of
the Government to which this power was entrusted.''40 As the Court observed, the president enjoys full
discretion in determining what level of force to use.41535353535353¶ Congress has power over funding,
and can thus deprive the president of¶ any forces to command. Indeed, by setting the size,
armament, and capabilities of the armed forces, Congress can determine the type, place, and duration of conflicts
that the executive can wage. If Congress wants to prevent¶ the president from waging offensive wars, or wars abroad,
it can appropriate¶ forces sufficient only for homeland and coastal defense, as it did for much of¶ the early nineteenth
century. Through the power to declare war, Congress¶ can determine the legal status of presidentially-ordered
military action. It¶ could conceivably prevent the military from enjoying the benefits and protections of the laws of
war, if it so chose.42¶ Viewing war powers in this manner explains why the political question¶
doctrine applies to war but not perhaps to other separation-of-powers cases.¶ Some have argued,
such as my colleague Jesse Choper, that judicial review¶ should not extend to separation-of-powers disputes because
the executive¶ and legislative branches have sufficient tools at their disposal to defend themselves from
encroachments by the other branches. 43 This observation concerning the distribution of authorities between the
executive and legislative¶ branches is no doubt true of war powers as it is of many other areas. Nonetheless, the
Court has adjudicated many disputes between the president and¶ Congress, with notable
examples being the deficit reduction act in Bowsher v.¶ Synar,44 the legislative veto in INS v. Chadha,45 the
independent counsel law¶ in Morrison v. Olson,46 and the U.S. Sentencing Commission in Mistretta v. ¶ United
States.47 Judicial review may appropriately extend to such cases, however, when it does not to
war powers. These cases involved areas in which¶ the Constitution sets out a specific process for government
action, such as the¶ enactment of legislation or the appointment of federal officers. Courts must¶ review
whether the branches have followed the prescribed procedures to determine whether the final
government actions themselves are valid. War¶ powers would not fall into the same category,
however, because there is no53535353535353 constitutionally-mandated governmental
process, and hence no room or need¶ for judicial review.