adi starter - executive restraint cp

7/28/2019 ADI Starter - Executive Restraint CP

1/59

Executive Restraint CPExecutive Restraint CP .......................................................................................................................... 1

1NC Executive Restraint CP .................................................................................................................. 3

Generic Solvency ...................................................................................................................................... 5

Solves Detention.................................................................................................................................. 6

AT Cant Declare War Over ................................................................................................................... 8

AT No Funds ......................................................................................................................................... 9

AT Obama Ignores the CP ................................................................................................................... 10

XOs Solve - Military Policy .................................................................................................................. 11

2NC Blocks .............................................................................................................................................. 12

2NC CP Avoids Politics Restraint Version ........................................................................................ 13

2NC CP Avoids Politics XO Version .................................................................................................. 15

AT Perm Do Both ................................................................................................................................ 17

AT Perm Do CP ................................................................................................................................... 18

Agent CPs Good XOs Version .......................................................................................................... 19

Agent CPs Good Restraint Version ................................................................................................. 21

AT Future Prez Rollback ..................................................................................................................... 22

AT Congress Rollback ......................................................................................................................... 23

AT Court Rollback ............................................................................................................................... 24

AT No Funding .................................................................................................................................... 25

AT Tyranny Turn ................................................................................................................................. 26

Flexibility ................................................................................................................................................. 27

2NC Link Wall ..................................................................................................................................... 28

2NC CP Avoids Flex DA ....................................................................................................................... 31

Impact Terrorism ............................................................................................................................. 32

2NC Yes Solves Terror ........................................................................................................................ 34

Impact WMD ................................................................................................................................... 36

AT Flexibility Bad Unchecked Power ............................................................................................... 37

Aff ................................................................................................................................................................ 38Agent CP Bad ...................................................................................................................................... 39

No Solvency/A2 Flex NB ..................................................................................................................... 40

Rollback Future Presidents .............................................................................................................. 41

Rollback Congress and Courts ......................................................................................................... 42

No Funding ......................................................................................................................................... 43


2/59

AT Politics NB ..................................................................................................................................... 44

AT Flexibility NB .................................................................................................................................. 46

AT Prez Powers NB ............................................................................................................................. 48

AT Hegemony Impact ......................................................................................................................... 49

AT Terrorism Impact ........................................................................................................................... 50

Perm ................................................................................................................................................... 51

2ac- Solvency Deficit/Offense ............................................................................................................ 52

XO=>Tyranny ...................................................................................................................................... 54

XO=>Unchecked Prez Power .............................................................................................................. 55

Congress K2 Check Prez Power .......................................................................................................... 56

Congress K2 SOP ................................................................................................................................. 57

A2- 1 Instance Not Key ....................................................................................................................... 58

Unix- Prez Power Expanding Now ...................................................................................................... 59


3/59

1NC Executive Restraint CP

Text: The Executive branch of the United States should require that terrorism suspects

are tried in federal court within 18 months of detention or release the suspects.

CP solves the aff

Posner 13(Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and

Climate Change Justice, President Obama Can Shut Guantanamo Whenever He Wants May 2, 2013,

http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wan

ts_to.html, KB)

The NDAA does not, however, ban the president from releasing detainees. Section 1028 authorizes him to releasethem to foreign countries that will accept themthe problem is that most countries wont, and others, like Yemen, where about 90 of the 166

detainees are from, cant guarantee that they will maintain control over detainees, as required by the law. There is another section of the

NDAA, however, which has been overlooked. In section 1021(a), Congress affirms the authority of the U.S. armed

forces under the AUMF to detain members of al-Qaida and affiliated groups pending disposition under the

law of war. Section 1021(c)(1) further provides that disposition under the law of war includes Detention

under the law of war without trial until the end of the hostilities authorized by the AUMF . Thus, whenhostilities end, the detainees may be released.The president has the power to end the hostilities

with al-Qaidasimply by declaring their end. This is not a controversial sort of power. Numerous

presidents have ended hostilities without any legislative action from Congressthis happened with the

Vietnam War, the Korean War, World War II, and World War I. The Supreme Court has confirmed that the president

has this authority.

Aff kills flexibility

Vermeule 6Adrian Vermeule, Professor of Law, Harvard Law School, 2006, THE EMERGENCY CONSTITUTION IN THE POST -SEPTEMBER 11 WORLD ORDER:

SELF-DEFEATING PROPOSALS: ACKERMAN ON EMERGENCY POWERS, Fordham Law Review, Nov., pp. LN.

The reason for the failure of statutory frameworks is plain. When an emergency or war orcrisis arises, the executive needs flexibility; because statutory limitations determined in advance

can only reduce flexibility , and do so in a way that does not anticipate the particular requirements of

a new emergency, no one has any ex post interest in insisting that these limitations be respected. Ackerman acknowledges the grimhistorical record but provides no valid reason for thinking that his framework statute - which is far more ambitious than the other ones - might

fare differently.

That causes extinction

Yoo 12(John Yoo, American attorney, law professor, and author. He served as a political appointee, the Deputy Assistant US Attorney General in the

Office of Legal Counsel, Department of Justice (OLC), during the George W. Bush administration. War Powers Belong to the President Posted

Feb 1, 2012, http://www.abajournal.com/magazine/article/war_powers_belong_to_the_president, KB)

A radical change in the system for making war might appease critics of presidential power. But it couldalso seriously threaten American national security. In order to forestall another 9/11 attack, or to take

advantage of a window of opportunity to strike terrorists or rogue nations, the executive branch

needs flexibility . It is not hard to think of situations where congressional consent cannot be obtained in time to

act. Time for congressional deliberation, which leads only to passivity and isolation and not smarter decisions, will come at the price of speedand secrecy. The Constitution creates a presidency that can respond forcefully to prevent serious threats to our national security. Presidents

can take the initiative and Congress can use its funding power to check them. Instead of demanding a legalistic process to begin war, the
http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wants_to.htmlhttp://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wants_to.htmlhttp://www.abajournal.com/magazine/article/war_powers_belong_to_the_presidenthttp://www.abajournal.com/magazine/article/war_powers_belong_to_the_presidenthttp://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wants_to.htmlhttp://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wants_to.html


4/59

framers left war to politics. As we confront the new challenges of terrorism, rogue nations and WMD

proliferation , now is not the time to introduce sweeping, untested changes in the way we make war.

Executive action avoids politics

Sovacool 9Dr. Benjamin K. Sovacool 2009 is a Research Fellow in the Energy Governance Program at the Centre on Asia and Globalization., Kelly E.Sovacool is a Senior Research Associate at the Lee Kuan Yew School of Public Policy at the National University of SingaporeArticle: Preventing

National Electricity-Water Crisis Areas in the United States, Columbia Journal of Environmental Law 2009 34 Colum. J. Envtl. L. 333,

Executive Orders also save time in a second sense. The President does not have to expend scarce political capital

trying to persuadeCongress to adopt his or her proposal. Executive Orders thus savepresidential

attention for other topics. E x ecutive O rder s bypass congressional debate and opposition, along

with all of the horsetrading and compromise such legislative activity entails. 292Speediness of

implementation can be especially important when challenges require rapid and decisive action. After

the September 11, 2001 attacks on the Pentagon and World Trade Center, for instance, the Bush Administration

almost immediately passedExecutive Orders forcing airlines to reinforce cockpit doors and

freezing the U.S. based assets of individuals and organizations involved with terrorist groups. 293

These actions took Congress nearly four months to debate and subsequently endorse withlegislation.Executive Orders therefore enable presidents to rapidly change law without having to wait for congressional action or agency regulatory

rulemaking.


5/59

Generic Solvency


6/59

Solves Detention

Only the CP solves Guantanamo proves - the problem is not congressional

opposition, its the administration fearing the danger of transferring the detainees

which means presidential action alone is sufficient to solveJoscelyn 13(Thomas Joscelyn, senior fellow at the Foundation for Defense of Democracies, Obama, Not Congress, Is the Reason Guantnamo Is Still Open

May 3, 2013, http://www.thedailybeast.com/articles/2013/05/03/obama-not-congress-is-the-reason-guantanamo-is-still-open.html, KB)

During a news conference earlier this week, President Obama was asked about the mass hunger strike at the Guantnamo Bay detention

facility. The president said it does not surprise him that weve got problems in Guantnamo, and its why he still believes that weve got to

close it down. Obama ordered Guantnamo shuttered as one of his first acts in office, but more than four years later it is o pen. The president

blamed Congress for the failure to de liver on his pledge. Im going to go back at this and reengage with Congress, Obama vowed.

Congressional restrictions have made it more difficult to transfer or relocate Guantnamo detainees.

But congressional opposition is not the only reason Guantnamos cells are occupied. Closing Guantnamo

has always been a tricky propositionone that is far more difficult than the presidents rhetoric implies. Consider thefindings of Obamas

own Guantnamo Review Task Force, which reviewed the files on the 240 detainees held as of January 2009. The task forces finalreport, issued in January 2010, outlined the various national security challenges closing Guantnamo entails. Indeed, the report goes a long way

toward explaining why 166 detainees remain in their cells to this day. The task force split the detainee population into three

general categories: those who will stay in indefinite detention, those who should be prosecuted, and

detainees who have been approved for transfer. Forty-eight detainees were placed in the first category, as they weredetermined to be too dangerous to transfer but not feasible for prosecution. They will stay in indefinite detention at Guantnamo or some

other location for the foreseeable future.Oddly, the presidents discussion of Guantnamo this week was at odds with his own task forces

recommendations. The president ticked off the reasons why he believes indefinite detention is unnecessary. Why are we doing this? Obama

asked rhetorically. I mean, weve got a whole bunch ofindividuals who have been tried who are currently in maximum-security prisons around

the country. Nothings happened to them. Justice has been served. But the Obama administration has determined that

dozens of men must remain in detention without prosecution. Moving them to a maximum-security prison without

trial simply substitutes Gitmo North for Gitmo South.The task force referred a second category of detainees, 36 in all,

for prosecution either in federal court or a military commission. These proceedings have progressed far too slowly,

and few trials have been brought to a close. Still, the task force slated these detainees for prosecution, not

freedom. The precise counts have changed since the task force issued its final report in 2010, but about half of todays detainee populationfalls into these first two categories. According to a recent article published by Reuters, 80 of the 166 detainees are held in

indefinite detention, awaiting prosecution, or have already been either charged or convicted by a

military commission.The final 86 detainees have been approved for transfer, but their status is widelymisunderstood. The press frequently reports that these detainees have been cleared for release. The implication is that the se detainees have

been deemed innocent and can be safely released without any cause for concern. If that were true, of course it would be outrageous for the

U.S. government to continue holding them.It is not true, however. Obamas task force made it clear that other than 1 7 Chinese Uighur

detainees, most of whom have since been released from Guantnamo, no detainees were approved for release during the course of its

review. Instead, the task force approved for transfer 126 detainees subject to security measures. Dozens of the detainees approved for

transfer have since left Cuba, but 86 of them remain in detention. The task force did not clear these men of any wrongdoing, nor does the

Obama administration think transferring them out of Guantnamo is a risk-free endeavor.There were considerable variations among the

detainees approved for transfer, the task force wrote in its final report. For a small handful of these detainees, there was scant evidence of

any involvement with terrorist groups or hostilities against Coalition forces in Afghanistan. However, for most of the detainees approved for

transfer, there were varying degrees of evidence indicating that they were low-level foreign fighters affiliated with al-Qaida or other groups

operating in Afghanistan.

The task force stressed that a decision to approve a detainee for transfer does not reflecta decision that the detainee poses no threat or no risk of recidivism. On the contrary, the task force concluded that

any threat posed by the detainee can be sufficiently mitigated through feasible and appropriate

security measures in the receiving country.And theres the rub. Mitigating the threat posed by transferred

detainees is an inherently difficult proposition. The Obama administration worked hard to transfer detainees, to both theirhome countries and allied nations. But 56 of the remaining 86 detainees who have been approved for transfer are from Yemen. The task

force approved 30 of the 56 Yemeni detainees for conditional detention. They can only be transferred home if security conditions improve

and other measures are met. That isnt happening anytime soon. Obama himself issued a moratorium on transfers to Yemen on Jan. 5, 2010.

The move was in response to al Qaeda in the Arabian Peninsulas attempted attack on a Detroit-bound airliner on Christmas Day 2009. The

White House said this week that the moratorium remains in place, despite the presidents pledge to go back at this. Look at the numbers
http://www.thedailybeast.com/articles/2013/05/03/obama-not-congress-is-the-reason-guantanamo-is-still-open.htmlhttp://www.thedailybeast.com/articles/2013/05/03/obama-not-congress-is-the-reason-guantanamo-is-still-open.html


7/59

again. Obamas task force slated 80 of the cu rrent detainees for indefinite detention or prosecution. An additional 56 Yemeni detainees have

been approved for transfer but are in custody because of al Qaedas rise in their home country and the presidents subsequent moratorium on

transfers. The bottom line is that most of the Guantnamo detainees136 out of 166are in U.S. custody because

that is where the Obama administration thinks they belong.

The power of indefinite detention lies with the Executive

Zheng 12(Henry Zheng, NDAA Terrorism Law: Obama and His Unchecked Power Grab 2012, http://www.policymic.com/articles/14856/ndaa-terrorism-

law-obama-and-his-unchecked-power-grab,KB)

Holder's response to the criticism is, "There is, quite simply, no inherent contradiction between using military commissions in appropriate cases

while still prosecuting other terrorists in civilian courts. Without question, there are differences between these systems that must be and will

continue to be weighed carefully. Such decisions about how to prosecute suspected terrorists are core Executive

Branch functions." Essentially, Holder is saying that the power to determine suspects who will be tried in a

normal civilian court or a military tribunal still lies with the president and those under his authority,

not Congress or the Supreme Court.

Past attempts prove

Reilly 13(Ryan J. Reilly, reporter who covers the Justice Department and the Supreme Court for The Huffington Post, Obama's Guantanamo Is NeverGoing To Close, So Everyone Might As Well Get Comfortable 02/16/2013,http://www.huffingtonpost.com/2013/02/16/obama-

guantanamo_n_2618503.html,KB)

Obama shut down the military tribunals as soon as he took office and began exploring ways to transfer the

suspected terrorists to American soil -- possibly to a prison in Illinois -- and try them in federal courts. Throughoutthe long, hot summer of 2009, however, as the Tea Party movement blossomed, Republicans charged that closing Guantanamo would put

Americans in danger, potentially even leading to terrorist prison breaks. Senate Democrats, lead by Majority Leader Harry Reid (D-Nev.), also

opposed transfering the detainees and cut off $80 million Obama had requested to do so, claiming the administration had done too little to

outline its plans.
http://www.policymic.com/articles/14856/ndaa-terrorism-law-obama-and-his-unchecked-power-grabhttp://www.policymic.com/articles/14856/ndaa-terrorism-law-obama-and-his-unchecked-power-grabhttp://www.policymic.com/articles/14856/ndaa-terrorism-law-obama-and-his-unchecked-power-grabhttp://www.huffingtonpost.com/2013/02/16/obama-guantanamo_n_2618503.htmlhttp://www.huffingtonpost.com/2013/02/16/obama-guantanamo_n_2618503.htmlhttp://www.huffingtonpost.com/2013/02/16/obama-guantanamo_n_2618503.htmlhttp://www.huffingtonpost.com/2013/02/16/obama-guantanamo_n_2618503.htmlhttp://www.huffingtonpost.com/2013/02/16/obama-guantanamo_n_2618503.htmlhttp://www.policymic.com/articles/14856/ndaa-terrorism-law-obama-and-his-unchecked-power-grabhttp://www.policymic.com/articles/14856/ndaa-terrorism-law-obama-and-his-unchecked-power-grab


8/59

AT Cant Declare War Over

Obama can declare the war with al-Qaida over Korea and Vietnam prove




ts_to.html, KB)

Nor is there any reason why President Obama couldnt declare the war with al-Qaida at an end. The

groups original core is essentially gone. A Department ofDefense official recently hinted that the end of the

conflict with al-Qaida is approaching , while the troop drawdown in Afghanistan will be completed next year. Associates

and fellow travelers continue to exist, but the president is free to end hostilities even so; this, too, has

happened many times before, like in Korea and Vietnam.
http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wants_to.htmlhttp://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wants_to.htmlhttp://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wants_to.htmlhttp://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wants_to.html


9/59

AT No Funds

The executive will receive funding the courts will defer to Obama




ts_to.html, KB)

Its true that section 1027, the provision of the NDAA that flatly prohibits the use of funds to transfer Guantanamo

detainees to U.S. soil, appears to make it impossible to transfer them to prisons inside the U.S. But if thats the case, and

detainees cant be transferred to foreign countries under section 1028 either, then section 1027 essentially

orders the president to detain non-combatants indefinitely, and such an order is of dubious

constitutionalityat best. When the Supreme Court approved indefinite detention of members of al-

Qaida and the Taliban in Hamdi v. Rumsfeld in 2004, the premise was the presidents military authority under

the AUMF and the active combat operations against Taliban fighters in Afghanistan. When active

combat operations cease, this pillar of the Supreme Courts opinion falls. And while courts have been

reluctant to grant rights to detainees that constrain the presidents power, they are likely to take the

opposite view if he advances those rights while declaring that hostilities have ended.The better

interpretation of section 1027, one that avoids constitutional difficulties, bans transfers from Guantanamo to the

U.S. only as long as hostilities continue. Courts have recognized repeatedly that the president can act on

reasonable interpretations of statutes when they are ambiguous or contain internal contradictions; that

statutes should be read to avoid constitutional problems like the one mentioned above; and that the president is entitled to

special deference when laws touch on his foreign affairs and military powers. Yet another rule discouragesinterpretations of statutes that violate international lawwhich requires enemy combatants to be released at the end of hostilities unless they

are convicted of crimes. For all these reasons, ifPresident Obama were to declare an end of hostilities with al-Qaida

and release detainees, he would be on reasonable legal ground. And its not as though Obama has

been shy about asserting executive power when Congress blocks an objective he cares about. His military

intervention in Libya in defiance of the War Powers Act (and legal advice from some of his own lawyers) is one example.
http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wants_to.htmlhttp://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wants_to.htmlhttp://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wants_to.htmlhttp://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wants_to.html


10/59

AT Obama Ignores the CP

Obama would follow the CP past statements prove

Jackson 11(David Jackson, White House and political campaign reporter, Obama objects to plans to bar domestic trials of terrorist suspects Jan 07, 2011,

http://content.usatoday.com/communities/theoval/post/2011/01/obama-objects-to-plans-to-bar-domestic-trials-of-terrorist-suspects-

/1#.Uff6z42fhE8, KB)

President Obama signed the military funding bill today, but vowed to roll back a rule that would bar the use of

federal money to try Khalid Sheikh Mohammed and other Guantanamo Bay terrorist suspects in U.S. civilian courts.That section "represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to

prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests," Obama wrote in

a signing statement.The president also said he would seek repeal of a provision that would make it harder to

transfer Gitmo detainees to other countries -- thereby making it harder to close the controversial

prison facility. The Obama administration's 2009 proposal to try Khalid Sheik Mohammed in federal court in New York City drew fiercecriticism from city officials, congressional Republicans, and some families of 9/11 victims who said he should be subject to a military trial at

Guantanamo Bay, Cuba. The controversy inspired a provision in the defense authorization bill that prevents the use of federal funds to

transfer Gitmo detainees to the U.S. and put them on trial in U.S. courts."The prosecution of terrorists in Federal court is a

powerful tool in our efforts to protect the Nation and must be among the options available to us," Obama wrote in hissigning statement. "Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the

potential to harm our national security."
http://content.usatoday.com/communities/theoval/post/2011/01/obama-objects-to-plans-to-bar-domestic-trials-of-terrorist-suspects-/1#.Uff6z42fhE8http://content.usatoday.com/communities/theoval/post/2011/01/obama-objects-to-plans-to-bar-domestic-trials-of-terrorist-suspects-/1#.Uff6z42fhE8http://content.usatoday.com/communities/theoval/post/2011/01/obama-objects-to-plans-to-bar-domestic-trials-of-terrorist-suspects-/1#.Uff6z42fhE8http://content.usatoday.com/communities/theoval/post/2011/01/obama-objects-to-plans-to-bar-domestic-trials-of-terrorist-suspects-/1#.Uff6z42fhE8


11/59

XOs Solve - Military Policy

XOs can solve military actions

Cooper 2Phillip J. Cooper, Gund Professor of Liberal Arts at the University of Vermont and was the first recipient of the Charles Levin Award given by the

American Society for Public Administration and the National Association of Schools of Public Affairs and Administration. By Order of the

President: The Use & Abuse of Executive Direct Action pg.33 University Press of Kansas, 2002

Among the standard executive orders issued by each administration is a variety of actions

concerning military personel including adjustments of rates of pay and allowances for the

uniform services and amendments to the manual for court marshall. Particularly during periods

of heightened national security activity, orders are regularly used to transfer responsibility, people

or resources from one part of the government to the military or the reverse. Many orders have been used to manage

public lands, but it is often not recognized that frequently the lands are part of military

reservations or sites. In fact, many of the orders issued by presidents in time of war or national

emergency are very focused actions of this sort. Even in peace time there are manifold

organizational issues to detail for statuettes but that require action beyond the Department of

Defense. President Clintons order of succession of officers to act as secretary of the army is a typical example. (pg. 33)

President can do anything with military

Powell 99(Prof of Law, George Washington Law Review March, 1999 67 Geo. Wash. L. Rev. 527 ESSAY: The President's Authority over Foreign Affairs: An

Executive Branch Perspective NAME: H. Jefferson Powell *Professor, Duke Law School, l/n)

The President's power of operational control of the armed forces is autonomous, neither dependent

on congressional authorization nor subject to congressional regulation that interferes with the President's

discretion. 218 This principle is settled: the Supreme Court, for example, long ago stated that Congress has no

authority to "interfere[] with the command of the forces and the conduct of campaigns. That power andduty belong to the President as commander-in-chief." 219 Attorney General Jackson's 1941 opinion was equally emphatic: "in virtue of his rank

as head of the forces, [the President] has certain powers and duties with which Congress cannot interfere. For instance, he may regulate the

movements of the army and... of the vessels of the navy, sending them wherever in his judgment it is expedient." 220 Many other judicial andexecutive branch opinions are to the same effect. 221 The exclusive character of the President's operational control over the military rests on

the assumption, embedded in the Constitution as it has been interpreted, that military success can depend on a clear, unified chain of

command. "The object of the [Commander in Chief Clause] is evidently to vest in the President the

supreme command over all the military forces, - such supreme and undivided command as would be

necessary to the prosecution of a successful war." 222 Congress therefore has no power to direct the President in theplanning or execution of lawful missions, and it may not lawfully interfere with the President's decisions about which military units to employ:

"This power or right of command extends as much to one portion of the Army as to any other, and includes the assignment of any portion

thereof to such duty as the Commander in Chief deems best." 223 The power of operational control extends as well to

choices about individual service members. 224 The executive therefore has consistently resisted

congressional attempts to superintend or constrict the President's discretion.


12/59

2NC Blocks


13/59

2NC CP Avoids Politics Restraint Version

Backlash against Obama on executive action wont gain traction

Ramsey 12(MICHAEL D. RAMSEY, is Professor of Law at the University of San Diego School of Law, THE FEDERALIST SOCIETY NATIONAL LAWYER S

CONVENTION--2011: MEET THE NEW BOSS: CONTINUITY IN PRESIDENTIAL WAR POWERS? Summer, 2012, Harvard Journal of Law & Public

Policy, LexisNexis, KB)

Thus there has been an escalation in the use of unconstitutional executive war power under President

Obama, yet there has not been an outcry against him resembling the outcry against the Bush

Administration , which was routinely attacked for exceeding the limits of executive power. n29 Although some voices have

been raised against President Obama's claims of executive power, n30 they have been marginalized . They have not

[*871] been taken up by the mainstream in the manner of similar criticisms of President Bush. My speculation is that there is

an identification by legal and media elites with the establishment Democratic Party that makes it

difficult for these criticisms to gain traction in the way they did in the Bush Administration. I think this makes it easier

for Democratic presidents than for Republican presidents to unconstitutionally extend executive

power. Thus Obama's policies, which are much more deserving of constitutional criticism, do not generate the popular

pushback that we saw, perhaps unjustifiably, against President Bush. In any event, what is most striking about executive war power under

President Obama is not the commonly recognized continuity as compared to the prior administration, but rather the increased disregard of

constitutional limits.

Their evidence doesnt assume foreign policy which is uniquely shielded from backlash

Moe and Howell 99(Terry Moe, William Bennett Munro professor of political science at Stanford University, a senior fellow at Stanford University's Hoover

Institution, and a member of the Hoover Institutions Koret Task Force on K-12, William Howell, the Sydney Stein Professor in American Politics

in the Harris School, a professor in the Department of Political Science and the College, and a co-director of the Program on Political

Institutions, The Presidential Power of Unilateral Action 1999, Oxford University Press,

http://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdf,KB)

Yet statutory constraint cannot be counted upon to work especially well asa check on unilateral action by presidents. In the first place,

legislators may actually prefer broad delegations of authority on many occasions, granting presidents

substantial discretion to act unilaterally. This can happen , for instance, (1) when their policy goals aresimilar to those of presidents, (2) when they are heavily dependent on the expertise and experience of

the administration, (3)when they want to avoid making conflictual decisions within the legislature,

and thus find it attractive to shill the responsibility" to the executive, (4) when Congress, as a collective institution, really doesn't

have specific preferences and can only decide on the broad outlines of a policy, (5) when, in complex policy areas with changing

environments, it is impossible to design a decent policy that promises to meet its objectives unless

substantial authority is delegated to the executive, and (6) when certain policies require speed,

flexibility, and secrecy if they are to be successful (Moe, 1990, 1998; Epstein and O'l-ialloran, I999). Most of these

conditions , we should point out, are more likely to be met in foreign rather than domestic policy , so there isgood reason to expect broad delegations to be more common in that realm.

CP preserves PC - avoids having to rally and compromiseHowell 05(William, Associate Prof @ Harvard, Unilateral Powers: A Brief Overview, September 2005, Presidential Quarterly,http://www.blackwell-

synergy.com/doi/full/10.1111/j.1741-5705.2005.00258.x)

The actions that Bush and his modern predecessors have taken by fiat do not fit easily within a theoretical framework of executive power that

emphasizes weakness and dependence, and offers as recourse only persuasion. For at least two reasons, the ability to act unilaterally is

conceptually distinct from the array of powers presidents rely upon within a bargaining framework. First, when presidents act

unilaterally, they move policy first and thereby place upon Congress and the courts the burden of

revising a new political landscape. If they choose not to retaliate, either by passing a law or ruling against the president, then the
http://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdfhttp://www.blackwell-synergy.com/doi/full/10.1111/j.1741-5705.2005.00258.xhttp://www.blackwell-synergy.com/doi/full/10.1111/j.1741-5705.2005.00258.xhttp://www.blackwell-synergy.com/doi/full/10.1111/j.1741-5705.2005.00258.xhttp://www.blackwell-synergy.com/doi/full/10.1111/j.1741-5705.2005.00258.xhttp://www.blackwell-synergy.com/doi/full/10.1111/j.1741-5705.2005.00258.xhttp://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdf


14/59

president's order stands. Only by taking (or credibly threatening to take) positive action can either adjoining institution limit the president's

unilateral powers. Second, when the president acts unilaterally, he acts alone. Now of course, he relies upon numerous advisers to formulate

the policy, to devise ways of protecting it against congressional or judicial encroachment, and to oversee its implementation (more on this

below). But in order to issue the actual policy, the president need not rally majorities, compromise with

adversaries, or wait for some interest group to bring a case to court. The president, instead, can strike

out on his own. Doing so, the modern president is in a unique position to lead, to break through the

stasis that pervades the federal government, and to impose his will in new areas of governance.


15/59

2NC CP Avoids Politics XO Version

Backlash against Obama on executive actions wont gain traction

Ramsey 12(MICHAEL D. RAMSEY, is Professor of Law at the University of San Diego School of Law, THE FEDERALIST SOCIETY NATIONAL LAWYERS

CONVENTION--2011: MEET THE NEW BOSS: CONTINUITY IN PRESIDENTIAL WAR POWERS? Summer, 2012, Harvard Journal of Law & Public

Policy, LexisNexis, KB)

Thus there has been an escalation in the use of unconstitutional executive war power under President

Obama, yet there has not been an outcry against him resembling the outcry against the Bush

Administration , which was routinely attacked for exceeding the limits of executive power. n29 Although some voices have

been raised against President Obama's claims of executive power, n30 they have been marginalized . They have not

[*871] been taken up by the mainstream in the manner of similar criticisms of President Bush. My speculation is that there is

an identification by legal and media elites with the establishment Democratic Party that makes it

difficult for these criticisms to gain traction in the way they did in the Bush Administration. I think this makes it easier

for Democratic presidents than for Republican presidents to unconstitutionally extend executive

power. Thus Obama's policies, which are much more deserving of constitutional criticism, do not generate the popular

pushback that we saw, perhaps unjustifiably, against President Bush. In any event, what is most striking about executive war power under

President Obama is not the commonly recognized continuity as compared to the prior administration, but rather the increased disregard of

constitutional limits.

Their evidence doesnt assume foreign policy which is uniquely shielded from backlash






Yet statutory constraint cannot be counted upon to work especially well asa check on unilateral action by presidents. In the first place,

legislators may actually prefer broad delegations of authority on many occasions, granting presidents

substantial discretion to act unilaterally. This can happen , for instance, (1) when their policy goals aresimilar to those of presidents, (2) when they are heavily dependent on the expertise and experience of

the administration, (3)when they want to avoid making conflictual decisions within the legislature,

and thus find it attractive to shill the responsibility" to the executive, (4) when Congress, as a collective institution, really doesn't

have specific preferences and can only decide on the broad outlines of a policy, (5) when, in complex policy areas with changing

environments, it is impossible to design a decent policy that promises to meet its objectives unless

substantial authority is delegated to the executive, and (6) when certain policies require speed,

flexibility, and secrecy if they are to be successful (Moe, 1990, 1998; Epstein and O'l-ialloran, I999). Most of these

conditions , we should point out, are more likely to be met in foreign rather than domestic policy , so there isgood reason to expect broad delegations to be more common in that realm.

Empirics are on our sideWarshaw 06(Shirley Anne, Prof of Pol. Science @ Gettysburg College, Administrative Strategies of President George W. Bush Extensions Journal, Spring

2006, http://www.ou.edu/special/albertctr/extensions/spring2006/Warshaw.pdf)

However, in recent administrations, particularly since the Reagan administration, presidents have often bypassed

Congress using administrative actions. They have opted for a strategy through administrative actions

that is less time-consuming and clearly less demanding of their political capital. Using an array of both formal

and informal executive powers, presidents have effectively directed the executive departments to implement
http://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdfhttp://www.ou.edu/special/albertctr/extensions/spring2006/Warshaw.pdfhttp://www.ou.edu/special/albertctr/extensions/spring2006/Warshaw.pdfhttp://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdf


16/59

policy without any requisite congressional authorization. In effect, presidents have been able to govern without

Congress. The arsenal of administrative actions available to presidents includes the power of appointment, perhaps the

most important of the arsenal, executive orders, executive agreements, proclamations, signing statements, and a host of

national security directives.1

More than any past president, George W. Bush has utilized administrative actions as his primary tool for

governance.

CP preserves PC - avoids having to rally and compromiseHowell 05(William, Associate Prof @ Harvard, Unilateral Powers: A Brief Overview, September 2005, Presidential Quarterly,http://www.blackwell-

synergy.com/doi/full/10.1111/j.1741-5705.2005.00258.x)

The actions that Bush and his modern predecessors have taken by fiat do not fit easily within a theoretical framework of executive power that

emphasizes weakness and dependence, and offers as recourse only persuasion. For at least two reasons, the ability to act unilaterally is

conceptually distinct from the array of powers presidents rely upon within a bargaining framework. First, when presidents act

unilaterally, they move policy first and thereby place upon Congress and the courts the burden of

revising a new political landscape. If they choose not to retaliate, either by passing a law or ruling against the president, then thepresident's order stands. Only by taking (or credibly threatening to take) positive action can either adjoining institution limit the president's

unilateral powers. Second, when the president acts unilaterally, he acts alone. Now of course, he relies upon numerous advisers to formulate

the policy, to devise ways of protecting it against congressional or judicial encroachment, and to oversee its implementation (more on this

below). But in order to issue the actual policy, the president need not rally majorities, compromise with

adversaries, or wait for some interest group to bring a case to court. The president, instead, can strikeout on his own. Doing so, the modern president is in a unique position to lead, to break through the

stasis that pervades the federal government, and to impose his will in new areas of governance.
http://www.blackwell-synergy.com/doi/full/10.1111/j.1741-5705.2005.00258.xhttp://www.blackwell-synergy.com/doi/full/10.1111/j.1741-5705.2005.00258.xhttp://www.blackwell-synergy.com/doi/full/10.1111/j.1741-5705.2005.00258.xhttp://www.blackwell-synergy.com/doi/full/10.1111/j.1741-5705.2005.00258.xhttp://www.blackwell-synergy.com/doi/full/10.1111/j.1741-5705.2005.00258.x


17/59

AT Perm Do Both

Links to politics - has congressional action, requires the president to ensure he doesnt

have his agenda upended, and cause congressional members to waste time debating

the plan.

Doesnt solve prez powers - congressional silence is key

Bellia 2*Patricia, Professor of Law @ Notre Dame, Executive Power in Youngstowns Shadows Constitutional Commentary, , 19 Const. Commentary

87, Spring, Lexis]

To see the problems in giving dispositive weight to inferences from congressional action (or inaction), we need only examine the

similarities between courts' approach to executive power questions and courts' approach to federal-state preemption questions. If a state

law conflicts with a specific federal enactment, n287 or if Congress displaces the state law by occupying the field, n288 a court cannot give

the state law effect. Similarly, if executive action conflicts with a specific congressional policy (reflected in a statute or, as Youngstown

suggests, legislative history), or if Congress passes related measures not authorizing the presidential conduct, courts cannot give the

executive action effect. n289 When Congress is s ilent, however, the state law will stand; when Congress is silent, the executive action will

stand. This analysis makes much sense with respect to state governments with reserved powers, but it makes little sense with respect to an

Executive Branch lacking such powers. The combination of congressional silence and judicial inaction has the

practical effect of creating power. Courts' reluctance to face questions about the scope of the President's constitutional

powers - express and implied - creates three other problems. First, the implied presidential power given effect by

virtue of congressional silence and judicial inaction can solidify into a broader claim. When the

Executive exercises an "initiating" or "concurrent" power, it will tie that power to a textual provision or

to a claim about the structure of the Constitution. Congress's silence as a practical matter tends to

validate the executive rationale, and the Executive Branch may then claim a power not only to

exercise the disputed authority in the face of congressional silence, but also to exercise the

disputed authority in the face of congressional opposition. In other words, a power that the Executive Branch claimsis "implied" in the Constitution may soon become an "implied" and "plenary" one. Questions about presidential power to terminate

treaties provide a [*151] ready example. The Executive's claim that the President has the power to terminate a treaty - the power in

controversy in Goldwater v. Carter, where Congress was silent - now takes a stronger form: that congressional efforts to curb the power

are themselves unconstitutional. n290

Simultaneous legislative and executive action creates a mixed precedent, undermining

presidential authority

Bellia 2*Patricia, Professor of Law @ Notre Dame, Executive Power in Youngstowns Shadows Constitutional Commentary, , 19 Const. Co mmentary

87, Spring, Lexis]

Second, courts' failure to resolve the contours of the President's constitutional powerscreates uncertainty

about whether some forms of constitutionally based executive action have the same legal force as a federal statute. Returning to Dames &

Moore, the fact that the Court rested the President's authority on grounds of congressional approval

rather than implied constitutional authority avoided the difficult question of how the President

could by his sole authority displace the application of the federal statutes that had provided the basis for Dames & Moore'soriginal cause of action against the Iranian enterprises. 291 Similar questions arise with respect to the displacement of state law by operation of sole executive

agreements. The result is confusion about whether sole executive agreements are the "supreme Law ofthe Land," 292 with the available precedents suggesting that they are 293 and the weight of recent commentary suggesting that they are not.
https://www.lexis.com/research/retrieve?_m=f19618c70694bf3d339be1d061d942b7&csvc=bl&cform=bool&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVtz-zSkAW&_md5=1b7b7f45414d178a7293c7eabf182ff3#n291#n291https://www.lexis.com/research/retrieve?_m=f19618c70694bf3d339be1d061d942b7&csvc=bl&cform=bool&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVtz-zSkAW&_md5=1b7b7f45414d178a7293c7eabf182ff3#n292#n292https://www.lexis.com/research/retrieve?_m=f19618c70694bf3d339be1d061d942b7&csvc=bl&cform=bool&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVtz-zSkAW&_md5=1b7b7f45414d178a7293c7eabf182ff3#n293#n293https://www.lexis.com/research/retrieve?_m=f19618c70694bf3d339be1d061d942b7&csvc=bl&cform=bool&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVtz-zSkAW&_md5=1b7b7f45414d178a7293c7eabf182ff3#n293#n293https://www.lexis.com/research/retrieve?_m=f19618c70694bf3d339be1d061d942b7&csvc=bl&cform=bool&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVtz-zSkAW&_md5=1b7b7f45414d178a7293c7eabf182ff3#n292#n292https://www.lexis.com/research/retrieve?_m=f19618c70694bf3d339be1d061d942b7&csvc=bl&cform=bool&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVtz-zSkAW&_md5=1b7b7f45414d178a7293c7eabf182ff3#n291#n291


18/59

AT Perm Do CP

Perm severs the agent of the plan text - thats a voting issue because it makes the plan

a moving target and allows the aff to circumvent all neg ground by altering the plans

meaning or text

The counterplan competes - statutory restrictions require congressional action

Mortenson 11(Julian Davis Assistant Professor, University of Michigan Law School, Review: Executive Power and the Discipline of History Crisis and

Command: The History of Executive Power from George Washington to George W. Bush John Yoo. Kaplan, 2009. Pp vii, 524, Winter 2011,

University of Chicago Law Review 78 U. Chi. L. Rev. 377)

At least two of Yoo's main examples of presidential power are actually instances ofpresidential deference to statutory

restrictions during times of great national peril.The earliest is Washington's military suppression of

the Whiskey Rebellion (III, pp 66-72), a domestic disturbance that Americans viewed as implicating adventurism by European powers

and threatening to dismember the new nation. n60 The Calling Forth Act of 1792 n61 allowed the President to

mobilize state militias under federal control, but included a series of mandatory procedural checks--

including judicial [*399] approval--that restricted his ability to do so. n62 Far from defying these comprehensiverestrictions at a moment of grave crisis, Washington satisfied their every requirement in scrupulous detail. He issued a proclamation ordering

the Whiskey Rebels to disperse. n63 When they refused to do so, he submitted a statement to Justice James Wilson of the Supreme Court

describing the situation in Pennsylvania and requesting statutory certification. n64 Only when Wilson issued a letter precisely reciting the

requisite statutory language (after first requiring the President to come back with authentication of underlying reports and verification of their

handwriting n65) did Washington muster the troops. n66 Washington's compliance with statutory restrictions on his

use of force continued even after his forces were in the field. Because Congress was not in session when

he issued the call-up order, Washington was authorized by statute to mobilize militias from other states besides

Pennsylvania--but only "until the expiration of thirty days after the commencement of the ensuing [congressional] session." n67 When it

became clear that the Pennsylvania campaign would take longer than that, Washington went back to Congress to petition

for extension of the statutory time limit that would otherwise have required him to [*400] disband his troops.

n68 Far from serving as an archetypal example of presidential defiance, the Whiskey Rebellion demonstrates exactly the opposite. FDR'sefforts to supply the United Kingdom's war effort before Pearl Harbor teach a similar lesson. During the

run-up to America's entry into the war, Congress passed a series of Neutrality Acts that supplemented

longstanding statutory restrictions on providing assistance to foreign belligerents. Despite these restrictions,FDR sent a range of military assistance to the future Allies. n69 Yoo makes two important claims about the administration's actions during this

period. First, he claims the administration asserted that "[a]ny statutory effort by Congress to prevent the President from transferring military

equipment to help American national security would be of 'questionable constitutionality'" (III, p 300). Second, he suggests that American

military assistance in fact violated the neutrality statutes (III, pp 295-301, 310, 327-28).


19/59

Agent CPs Good XOs Version

1 Education - 90% debate is implementation

Elmore 80Prof. Public Affairs at University of Washington, PolySci Quarterly 79-80, p. 605, 1980

The emergence of implementation as a subject for policy analysis coincides closely with the discovery by policy analysts that decisions are not

self-executing. Analysis of policy choices matter very little if the mechanism for implementing those choices is

poorly understood in answering the question, "What percentage of the work of achieving a desired

governmental action is done when the preferred analytic alternative has been identified?" Allison

estimated that in the normal case, it was about 10 percent, leaving the remaining 90 percent in the realm

of implementation.

2 Fairness - Aff gets to pick their agent and have advantages tied to that agent we

should get to test it.

3 Predictable - XOs are a core part of war powers literatureRudalevige 12[Rudalevige, A. (March 2012). The contemporary presidency: executive orders and presidential unilateralism. Presidential Studies

Quarterly, 42, 1. p.138(23). ETB]

In the last decade or so, students of the American presidency have renewed their interest in the formal authorities

and unilateral possibilities of presidential power, driven both by methodological logic and by events. On the theoretic side,

scholars working within the broad framework of the "new institutionalism," especially its rational choice variant, have made a case

that the formal, legal, and organizational aspects of the presidency--and the incentives and

constraints for presidential behavior these implied--had been too long neglected in favor of

impressionistic accounts of the "personal presidency." A focus on the formal powers that underlay the

presidential office, and the way these could be used to enhance an incumbent's influence, was needed to fill that gap (e.g., Howell

2003; Kelley 2007; Moe 1985, 1993; Moe and Howell 1999). After all, as Kenneth Mayer argued (2001, 11), "in most cases, presidents

retain a broad capacity to take significant action on their own, action that is meaningful both in

substantive policy terms and in the sense of protecting and furthering the president's political and strategic

interests."The assertive--even "imperial"--stance taken by recent presidents provided empirical grist for

this mill. President George W. Bush was particularly notable in acting aggressively to expand his office's

powers vis-a-vis other political actors (Cooper 2002; Goldsmith 2007; Rudalevige 2005, 2010; Savage 2007). Redressing theperceived constriction of the presidential office after the Watergate/Vietnam years provided a new rationale for unilateral command--even

before the terrorist attacks of September 11, 2001. Barack Obama , while disavowing some of his predecessor's rationales, has acted

in a similar manner in a number of areas. The assassination of American citizens acting with al-Qaeda in Yemen; the evasionof the War Powers Resolution in Libya; the use of the state secrets act in fending off judicial inquiry--all these suggest a continuing approach to

presidential authority that overrides shifts in the incumbent's personality. From either direction, the upshot has been important

recent work on a presidential administrative toolkit that includes appointments (Lewis 2008), signing

statements (Evans 2011; Kelley and Marshall 2010; Korzi 2011), executive agreements (Krutz and Peake 2009),

proclamations (Rottinghaus and Bailey 2010; Rottinghaus and Maier 2007), rulemaking and guidance (Graham 2010; Kerwin

and Furlong 2010), and especially executive orders (Gibson 2009; Howell 2003; Mayer 1999, 2001; Rodrigues 2007; Warber 2006;

Wigton 1996). Indeed, at this point it is safe to say that a standard textbook in the field could not--as it did even after Watergate--

exclude "executive orders" and "signing statements" from the index (Koenig 1975). The study of the

contemporary presidency thus requires serious attention to that office's executive authority.


20/59

4. Reject the arg, not the team


21/59

Agent CPs Good Restraint Version

1 Education - 90% debate is implementation

Elmore 80Prof. Public Affairs at University of Washington, PolySci Quarterly 79-80, p. 605, 1980

The emergence of implementation as a subject for policy analysis coincides closely with the discovery by policy analysts that decisions are not

self-executing. Analysis of policy choices matter very little if the mechanism for implementing those choices is

poorly understood in answering the question, "What percentage of the work of achieving a desired

governmental action is done when the preferred analytic alternative has been identified?" Allison

estimated that in the normal case, it was about 10 percent, leaving the remaining 90 percent in the realm

of implementation.

2 Fairness - Aff gets to pick their agent and have advantages tied to that agent we

should get to test it.

3. Its predictable Executive action v Congress is a core debate in the literatureBejesky 12(ROBERT BEJESKY, M.A. Political Science (Michigan), M.A. Applied Economics (Michigan), LL.M. International Law (Georgetown), St. Mary's

Law Journal ARTICLE: WAR POWERS PURSUANT TO FALSE PERCEPTIONS AND ASYMMETRIC INFORMATION IN THE "ZONE OF TWILIGHT" 2012,

LexisNexis, KB)

There are many reasons the expansion of the Executive Branch make it more difficult for Congress to preserve its institutional power. n372

First, Congress loses control over aspects of an agency's jurisdiction after delegating authority because Congress can only fund and

oversee the bureaucracy, but cannot interfere with rule-making or otherwise retain a legislative

veto.n373 Second, Congress lacks the institutional memory that [*62] exists in administrative agencies. n374

Agency employees are civil servants working within the history of the organization, while members of Congress have more

frequent turnover rates and concentrate their attention on current affairs. Third, the resources and

privilege to information available to the Executive Branch vastly outweighs those resources available

to the Legislative Branch. n375 For example, Congress has a workforce of 30,000 and a total budget of $ 4.7billion, while defense- and security-related agencies have three million employees and a budget of $

639 billion. n376 Hence, even if Congress did attempt to announce a preferred foreign policy, it has few

institutions to execute it. n377 Fourth, the President appoints agency leadership with similar political

predispositions, which in turn increases conformity to preferred policies within the agency. n378 Congress hassome authority to set parameters for executive appointments, but may not infringe upon the President's main power of appointment. n379 For

example, with regard to war powers, [*63] Congress cannot divest Commander in Chief functions to

another official, even though Congress has considerable power to assign specific functions to

executive officials or employees who are "independent" of the President. n380 Fifth, the President possesses

the authority to enter into treaties and executive agreements, conduct diplomacy, and interact with

international organizations, which give the Executive substantial dominion over foreign policy. n381

Thus, Congress is more effective in constraining the President's powers with regard to domestic affairs. n382


22/59

AT Future Prez Rollback

Most executive orders arent overturned.

Murray 99*Frank, Clintons Executive Orders are Still Packing a Punch: Other Presidents Issued More, but His are Still Sweeping Wash ington Times

http://www.englishfirst.org/13166/13166wtgeneral.html]

Clearly, Mr. Clinton knew what some detractors do not: Presidential successors of the opposite party do not lightly wipe

the slate clean of every order, or even most of them. Still on the books 54 years after his death are 80 executive

orders issued by Franklin D. Roosevelt. No less than 187 ofMr. Truman's orders remain, including one to end militaryracial segregation, which former Joint Chiefs of Staff Chairman Colin Powell praised for starting the "Second Reconstruction." "President Truman gave us the

order to march with Executive Order 9981," Mr. Powell said at a July 26, 1998 ceremony marking its 50th anniversary. Mr. Truman's final order, issued one day

before he left office in 1953, created a national security medal of honor for the nation's top spies, which is still highly coveted and often revealed only in the

obituary of its recipient.

Political barriers check new, stronger constituencies

Branum 2*Tara L, Associate, Fulbright & Jaworski L.L.P, President or King? The Use and Abuse of Executive Orders in Modern Day America Journal of

Legislation]

Congressmen and private citizens besiege the President with demands [*58] that action be taken on various issues.n273

To make matters worse, once apresident has signed an executive order, he often makes it impossible for a subsequent administration

to undo his action without enduring the political fallout of such a reversal. For instance, President Clinton issued a

slew ofexecutive orderson environmental issues in the weeks before he left office. n274Many were controversialand the

need for the policies he instituted was debatable.n275Nevertheless, President Bush found himself unable to reverse

the orders without invoking the ire of environmentalists across the country.n276A policy became law by the

action of one man without the healthy debate and discussion in Congress intended by the Framers .Subsequent presidents undo this policy and send the matter to Congress for such debate only at their own peril. This is not t he way it is supposed to be.
http://www.lexisnexis.com/us/lnacademic/frame.do?tokenKey=rsh-20.689002.875983458&target=results_DocumentContent&reloadEntirePage=true&rand=1220903297496&returnToKey=20_T4511783216&parent=docview#n273http://www.lexisnexis.com/us/lnacademic/frame.do?tokenKey=rsh-20.689002.875983458&target=results_DocumentContent&reloadEntirePage=true&rand=1220903297496&returnToKey=20_T4511783216&parent=docview#n273http://www.lexisnexis.com/us/lnacademic/frame.do?tokenKey=rsh-20.689002.875983458&target=results_DocumentContent&reloadEntirePage=true&rand=1220903297496&returnToKey=20_T4511783216&parent=docview#n273http://www.lexisnexis.com/us/lnacademic/frame.do?tokenKey=rsh-20.689002.875983458&target=results_DocumentContent&reloadEntirePage=true&rand=1220903297496&returnToKey=20_T4511783216&parent=docview#n274http://www.lexisnexis.com/us/lnacademic/frame.do?tokenKey=rsh-20.689002.875983458&target=results_DocumentContent&reloadEntirePage=true&rand=1220903297496&returnToKey=20_T4511783216&parent=docview#n274http://www.lexisnexis.com/us/lnacademic/frame.do?tokenKey=rsh-20.689002.875983458&target=results_DocumentContent&reloadEntirePage=true&rand=1220903297496&returnToKey=20_T4511783216&parent=docview#n274http://www.lexisnexis.com/us/lnacademic/frame.do?tokenKey=rsh-20.689002.875983458&target=results_DocumentContent&reloadEntirePage=true&rand=1220903297496&returnToKey=20_T4511783216&parent=docview#n275http://www.lexisnexis.com/us/lnacademic/frame.do?tokenKey=rsh-20.689002.875983458&target=results_DocumentContent&reloadEntirePage=true&rand=1220903297496&returnToKey=20_T4511783216&parent=docview#n275http://www.lexisnexis.com/us/lnacademic/frame.do?tokenKey=rsh-20.689002.875983458&target=results_DocumentContent&reloadEntirePage=true&rand=1220903297496&returnToKey=20_T4511783216&parent=docview#n275http://www.lexisnexis.com/us/lnacademic/frame.do?tokenKey=rsh-20.689002.875983458&target=results_DocumentContent&reloadEntirePage=true&rand=1220903297496&returnToKey=20_T4511783216&parent=docview#n276http://www.lexisnexis.com/us/lnacademic/frame.do?tokenKey=rsh-20.689002.875983458&target=results_DocumentContent&reloadEntirePage=true&rand=1220903297496&returnToKey=20_T4511783216&parent=docview#n276http://www.lexisnexis.com/us/lnacademic/frame.do?tokenKey=rsh-20.689002.875983458&target=results_DocumentContent&reloadEntirePage=true&rand=1220903297496&returnToKey=20_T4511783216&parent=docview#n276http://www.lexisnexis.com/us/lnacademic/frame.do?tokenKey=rsh-20.689002.875983458&target=results_DocumentContent&reloadEntirePage=true&rand=1220903297496&returnToKey=20_T4511783216&parent=docview#n276http://www.lexisnexis.com/us/lnacademic/frame.do?tokenKey=rsh-20.689002.875983458&target=results_DocumentContent&reloadEntirePage=true&rand=1220903297496&returnToKey=20_T4511783216&parent=docview#n275http://www.lexisnexis.com/us/lnacademic/frame.do?tokenKey=rsh-20.689002.875983458&target=results_DocumentContent&reloadEntirePage=true&rand=1220903297496&returnToKey=20_T4511783216&parent=docview#n274http://www.lexisnexis.com/us/lnacademic/frame.do?tokenKey=rsh-20.689002.875983458&target=results_DocumentContent&reloadEntirePage=true&rand=1220903297496&returnToKey=20_T4511783216&parent=docview#n273


23/59

AT Congress Rollback

Congress only rolled back one XO in 25 years

Olson 99William Olson of William Olson, PC, Attorneys at Law, The Impact of Executive Orders on the Legislative Process

http://www.cato.org/testimony/ct-wo102799.html October 27, 1999

Congress has done little more than the courts in restricting presidential lawmaking. Nevertheless, Congress did

make one bold step to check executive powers in the related arenas ofexecutive orders, states of emergency andemergency powers. The Congressional concern led to the creation of a Special Senate Committee on the Termination of the National

Emergency, co-chaired by Sens. Frank Church (D-ID) and Charles Mathias, Jr. (R-MD), more than 25 years ago.

There is a 0.2% risk of an overturn

Krause and Cohen 2000[George and David, Professors of Political Science @ South Carolina, Opportunity, Constraints, and the Development of the Institutional

Presidency: The Issuance of Executive OrdersThe Journal Of Politics, Vol. 62, No. 1, February 2000, JSTOR]

We use the annual number of executive orders issued by presidents from 1939 to 1996 to test our hypotheses. Executive orders possess a

number of properties that make them appropriate for our purposes. First, the series of executive orders is long, and we can cover the

entirety of the institutionalizing and institutional-ized eras to date.6 Second, unlike research on presidential vetoes (Shields and Huang1997) and public activities (Hager and Sullivan 1994), which have found support for presidency-centered variables but not president-

centered factors, ex-ecutive orders offer a stronger possibility that the latter set of factors will be more prominent in explaining their use.

One, they are more highly discretionary than vetoes.7 More critically, presidents take action first and unilaterally. In ad-dition, Congress

has tended to allow executive orders to stand due to its own collective action problems and the

cumbersomeness of using the legislative process to reverse or stop such presidential actions. Moe

and Howell (1998) report that between 1973 and 1997, Congress challenged only 36 of more than 1,000 executive

orders issued. And only two of these 36 challenges led to overturning the president's executive

order. Therefore, presidents are likely to be very successful in implementing their own agendas

through such actions. In fact, the nature of executive orders leads one to surmise that idiopathic factors will be relatively moreimportant than presidency-centered variables in explaining this form of presidential action. Finally, executive orders have rarely been

studied quantitatively (see Gleiber and Shull 1992; Gomez and Shull 1995; Krause and Cohen 1997)8, so a description of the factors

motivating their use is worth-while.9 Such a description will allow us to determine the relative efficacy of these competing perspectives on

presidential behavior.10

Unilateral action defuses opposition






On the other hand, the second form of agenda control, rooted as it is in unilateral action, gives the president what he

wants immediately a shift in the status quo, andperhaps a new increment to his new power and depends

for its success on Congresss not being able to pass new (and veto-proof) legislation that would overturn or

change it. Such a requirement is much more readily met, for it is far easier, by many order of magnitude, to

block congressional action than it is to engineer new legislation. And if this were not enough, the new status

quo initiated by the president may in itself defuse legislative opposition and do away with the need to

block at all. When a president unilaterally launches an invasion of another country, for instance,

Congress faces a drastically different set of options than it did before the conflict started, and may

find itself politically compelled to support and provide funds for an exercise it never would have

agreed to beforehand. Needless to say, these advantages of agenda control give modern presidents strong

incentives to favor an administrative strategy of leadership as opposed to a legislative strategy (Nathan, 1983).
http://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdfhttp://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdf


24/59

AT Court Rollback

Courts wont rollback the CP fears of angering the executive






In addition to appointments, there is a second-and probably more importantfactor that works to the presidents advantage with the Courts.

This one is rooted in the basic design of separation of powers: under the Constitution, the court is not empowered to

enforce its own decisions, but must rely on the executive branch to enforce them. While the Court is said

to be an independent branch of government, then, its power and prestige are profoundly depend on the executive. The

decisions that it renders, however well reasoned or legally significant in the abstract, are little more than meaningless

slips of paper unless they are put into effect, and they can only be put into effect if the executive is

willing to implement them. If the executive refuses to cooperateor more likely, if it purposely acts

very slowly, ineffectively, or in ways that alter or distort judicial intentthe policy pronouncements

of the Court threaten to be empty, and its integrity and social standing as a political institution areput seriously at risk (Corwin, 1984).

History proves

Washington Times 99Frank J. Murray THE WASHINGTON TIMES August 23, 1999 http://www.washtimes.com/news/news1.html#link

Presidents have issued executive orders that exceeded the wishes of Congress since GeorgeWashington's 1793 "neutrality order" demanding that citizens stay out of foreign disputes. Such orders have been withdrawn under political

pressure or derailed internally before they were signed, but only twice in history have federal courts directly

overturned one, legal experts say. They included Mr. Clinton's 1995 directive barring federal contractors from hiring strikerreplacements, which conflicted with existing law, and President Truman's 1952 order seizing steel mills in order to avoid a nationwide strike.

The Supreme Court nullified the latter because the president acted during the Korean conflict under "emergency" war powers even though no

war was declared. "Unfortunately, the Supreme Court has essentially ruled over time that the executiveorders have the force and effect of law . Well, they don't, but if nobody's there to challenge them

they continue to carry the effect and force of law ," argued Rep. Jack Metcalf, Washington Republican, leader of abrewing rebellion in the House for which he predicts only symbolic success.
http://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdfhttp://www.washtimes.com/news/news1.html#linkhttp://www.washtimes.com/news/news1.html#linkhttp://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdf


25/59

AT No Funding

Presidents have discretionary spending to fund their objectives.

Pika 02(Joseph A Pika, John Anthony Maltese, and Norman Thomas, professors of political science, The Politics of the Presidency, 5th edition, p. 233)

In addition to budgeting, presidents have certain discretionary spending powers that increase their leverageover the bureaucracy. They have substantial nonstatutory authority, based on understandings with

congressional appropriations committees, to transfer funds within an appropriation and from one

program to another. The committees expect to be kept informed of such "reprogramming" actions.81 Fund transfer authority

is essential to sound financial management, but it can be abused to circumvent congressional

decisions. In 1970, for example, Nixon transferred funds to support an extensive unauthorized covert military operation in Cambodia.

Nevertheless, Congress has given presidents and certain agencies the authority to spend substantial

amounts of money on a confidential basis, the largest and most controversial of which are for intelligence activities.

Kennedy proves

Howell 5William G. Howell, Associate Professor of Government @ Harvard University, September 2005, Presidential Studies Quarterly, Unilateral

Powers: A Brief Overview

As evidence of this last scenario,recall Kennedy's 1961executive order creating the Peace Corps. For several

years prior, Congress had considered, and rejected, the idea of creating an agency that would send volunteers abroad to performpublic works. Republicans in Congress were not exactly thrilled with the idea of expending millions on a "juvenile experiment" whose principal

purpose was to "help volunteers escape the draft"; and Democrats refused to put the weight of their party behind the proposal to ensure its

passage (Whitnah 1983).By unilaterally creating the Peace Corps in 1961, and then using contingency accounts

to fund it during its first year, Kennedy managed to change all of this. For when Congress finally got around to

considering whether or not to finance an already operational Peace Corps in 1962,the political landscape had changed

dramatically-the program had almost 400 Washington employees and 600 volunteers at work in eight countries.Congress, then,

was placed in the uncomfortable position of having to either continue funding projects it opposed, or

eliminate personnel who had already been hired and facilities that had already been purchased. Not surprisingly, Congress

stepped up and appropriated all the funds Kennedy requested.


26/59

AT Tyranny Turn

Congressional and Judicial oversight prevent tyrannical power

Wetzel 7[Alissa C., Juris Doctor and Master of Science in international commerce and policy degrees May 17 from Valparaiso University, The School of

Law, 2007 Valparaiso University Law Review. 42 Val. U.L. Rev. 385. Beyond the Zone of Twilight: How Congress and the Court Can Minimize the

Dangers and Maximize the Benefits of Executive Orders. Lexis. Accessed 6/13/09]

As this Part has shown, though executive orders may seem to leave open the possibility of Presidential

abuse, in practice, the system, though not perfect, creates appropriate blocks to executive tyranny. n165

First, executive orders allow the President to issue bold prerogatives on [*425] politically sensitive

issues. n166 Second, Congress is able to appropriately check any potential for Presidential abuse,

though it does not often do so. n167 Finally, the Court's test for the validity of executive orders is

proper, though it is improperly applied to intelligence and classification. n168 In short, the Constitutional dialogue on executive orders has been aproductive one, producing a test that, if applied correctly, can guard against executive tyranny and abuse. Howe ver, Congressional oversight has not been

sufficiently effective and the Court's application of the Jackson test is flawed in the area of intelligence and classification. n169 Now, it is up to Congress to take

a bolder stance on such issues in order for the Court to apply the test correctly. n170 V. CONCLUSION For two centuries, executive orders have allowed

Presidents to exercise enormous power. At times, that power has been used to implement important measures to advance the country. At other times,

executive orders have bred scandal and national shame. Upon closer examination of 200 years of Constitutional dialogue among the three

branches of government concerning how much unilateral power a President ought to have, however, it becomes clear that althoughexecutive orders may appear tyrannical based on the broad power they afford Presidents, in

practice executive orders are useful tools of the Presidency, able to be checked by Congressional

oversight and controlled by the Court. If correctly wielded, such Congressional and judicial

oversight can guarantee that executive orders will not allow Presidents to become the despots so

feared by the founding generation. Instead, by moving out of the zone of twilight and exercising proper oversight Congress and the Courtcan ensure that the President is able to [*430] administer the executive branch effectively, pass measures quickly, and occasionally rise above political

divisions and do the right thing.


27/59

Flexibility


28/59

2NC Link Wall


29/59

Restrictions destroy flexibility empirically causes partisan bickering that guarantees

rampant terrorism

Turner 5Robert F. Turner, Professor, University of Virginia School of Law, The War Powers Resolution: An Unnecessary, Unconstitutional Source of

"Friendly Fire" in the War Against International Terrorism?, Feb 15, 2005, http://www.fed-soc.org/publications/detail/the-warpowers-

resolution-an-unnecessary-unconstitutional-source-of-friendly-fire-in-the-war-againstinternational- terrorism

Sadly, the idea that the War Powers Resolution might endanger American lives in the struggleagainstterrorism is more than just a hypothetical. Indeed, more Americans were murdered byterrorists as a

direct result of the War Powers Resolution than were killed in all of our militaryoperations since the

end of the Vietnam War. The War Powers Resolution was a primary factor in the decision by Middle

Eastern terrorists to blow up the Battalion Landing Team Headquarters at the Beirut International

Airport on October 23, 1984, killing 241 sleeping marines, sailors, and soldiers. When President Reagan sent the

Marines to Lebanonas part of an international peacekeeping force alongside British, French, and Italian forces, the decision was not evenarguably an infringement upon the power of Congress "to declare War." We were not going to "War," we were sending a contingent of U.S. forces at the

request of all of the warring factions in Lebanon to stand between them so they could meet in confidence and try to negotiate a peaceful end to their

conflict. Every country in the region originally endorsed the deployment, and no one in Congress spoke against it on the merits. But several noted there

were risks involved-risks the President openly acknowledged-and soon the demands started coming in for a report under

Section 4(a)(1) of the War Powers Resolution, the provision governing the sending of U.S. Armed Forces "into hostilitie

adi starter - executive restraint cp

Documents