Executive CP

1NC

ShellThe President should direct the NSA to <insert plan text>Only NSA level directives can solve; non-compliance will skyrocket after the planGoitien 2015 (Elizabeth, co-directs the Liberty and National Security Program at New York University School of Law’s Brennan Center for Justice, Obama’s NSA reforms, One Year Later, Boston Review, http://bostonreview.net/us/elizabeth-goitein-obama-surveillance-reform-promises-one-year-later)

In February, the Director of National Intelligence issued a report summarizing the changes that President Obama has implemented since pledging major surveillance reforms in January 2014. The report chronicles a dizzying number of developments and contains links to several hundreds of pages of supporting documentation. But does this impressive accumulation of activity translate to meaningful reform? The report

makes clear that the big picture has not changed. One year after President Obama promised to end the bulk collection of Americans’ phone records, the administration continues to apply for a FISA court order every three months directing American phone companies to turn all of their phone records over to the NSA. It also continues to exploit a surveillance program nominally targeted at foreigners to listen to Americans’ phone calls and read their e-mails without a warrant. Overseas, the administration collects communications that involve Americans on a truly massive scale with no judicial oversight or legislative restrictions. These activities constitute an existential threat to civil liberties that cannot be addressed by procedural tweaks. It is tempting to cheer the administration’s changes simply because they happened—and because they improve the status quo, however incrementally. Context matters here: in the short period of time since 9/11, technological changes have exponentially increased the amount of personal information the government can collect, while the longstanding laws that would restrict such collection have been systematically gutted or tossed aside. Given this dizzying trajectory, any tap on the brakes is in some sense a major accomplishment. But the surveillance explosion also means that small changes are not enough. Ultimately, we must measure the administration’s efforts against where we need to be, not where we have been going. By that measure, the administration’s reforms fall distressingly far from the mark. For nearly fifteen years, the NSA has collected Americans’ telephone records in bulk. Originally, the Bush administration collected the records secretly and without seeking any court approval. Starting in 2006, the administration persuaded the FISA Court to endorse the program under a provision of the Patriot Act—Section 215—that allows the Justice Department to obtain a court order requiring companies to turn over business records that are “relevant” to an investigation. The FISA Court prohibited officials from searching the collected records without reasonable suspicion of a terrorist link. However, the Court allowed officials to make this determination, and to extend the search out three hops from the suspect—i.e., officials could search the suspects’ records, the records of those in contact with the suspects, and the records of those in contact with the suspect’s contacts. The legal justification for these activities was flimsy and the program remained secret until Snowden revealed it in 2013.

Since then, two independent review panels have concluded that bulk collection adds little or no counterterrorism value. The administration nevertheless refuses to simply end it, preferring for Congress to create a substitute program that is less intrusive while still permitting broader collection than a sensible reading of Section 215 would allow. In the meantime, the NSA continues to collect phone records in bulk. The most significant reform to the program in the past year is that the administration asked the FISA Court to pre-approve searches of the data and to limit the searches to two hops. The Obama administration's activities constitute an existential threat to civil liberties that cannot be addressed by procedural tweaks. As

the program stands, the potential for abuse remains enormous. Initial government claims that phone metadata is no more revealing than numbers in a phone book were swiftly debunked. Sophisticated computer programs can parse this data to create intimate,

detailed portraits of a person’s private life, including political and religious beliefs, associations, hobbies, and more. Because the NSA collects and holds this data, any limitations on how the data are searched or used necessarily rely on

self-policing . A series of FISA Court opinions shows that the NSA inadvertently but routinely violated

court orders , and this shocking level of non-compliance went undetected and unreported for years . Imagine, then, how long it would take to uncover violations the NSA was actively trying to hide.

Aff kills flexibilityVermeule 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 or

crisis arises, the executive needs flexibility; because statutory limitations determined in advance can

only reduce flexibility , and do so in a way that does not anticipate the particular requirements of a new emergency, no one has any ex post interest in insisting that these limitations be respected. Ackerman acknowledges the grim historical record but provides no valid reason for thinking that his framework statute - which is far more ambitious than the other ones - might fare differently.

That causes extinctionYoo 12(John Yoo, American attorney, law professor, and author. He served as a political appointee, the Deputy Assistant US Attorney General in the Office of Legal Counsel, Department of Justice (OLC), during the George W. Bush administration. “War Powers Belong to the President” Posted Feb 1, 2012, http://www.abajournal.com/magazine/article/war_powers_belong_to_the_president, KB)

A radical change in the system for making war might appease critics of presidential power. But it could also seriously threaten American national security. In order to forestall another 9/11 attack, or to take advantage of a window of opportunity to strike terrorists or rogue nations, the executive branch

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

congressional deliberation, which leads only to passivity and isolation and not smarter decisions, will come at the price of speed and secrecy. The Constitution creates a presidency that can respond forcefully to prevent serious threats to our national security. Presidents can take the initiative and Congress can use its funding power to check them. Instead of demanding a legalistic process to begin war, the framers left war to

politics. As we confront the new challenges of terrorism, rogue nations and WMD proliferation , now is not the time to introduce sweeping, untested changes in the way we make war.

Solvency

Generic Solvency

Executive self restraint solves – Lincoln provides an example of thisTichenor 8 (The Forgotten Virtues of Executive Restraint: Liberal Democracy, Prerogative Power, and Unfettered Presidentialism Daniel J. Tichenor Department of Political Science Rutgers University-New Brunswick, http://www.wcfia.harvard.edu/sites/default/files/The%20Forgotten%20Virtues%20of%20Executive%20Restraint%20Tichenor.pdf)

As we have already noted, scholars and ordinary ci tizens alike have celebrated most those presidents who have led the nation decis ively and victoriously through our darkest national security crises. My purpose in t his paper is not to challenge or understate the importance of strong and effective c risis leadership. Issuing a brief in favor of the James Buchanan model of executive impo tence would be an odd and fruitless enterprise (nor do I favor the more competent stric t

constructionist conception of Taft). To reiterate our guiding question, the key issue is whether prerogative presidents can forcefully address national security imperatives while also striving to keep unnecessary intrusions on individual or group freedoms to a minimum. Clearly it sometimes may be difficult in the heat of emergencies to distinguish which

intrusions are required from those which are not, but our three cases do provide telling evidence that our chief executives often have considerable information to w eigh the trade-offs . The collateral damage of major wars on the homefront may always in clude the

lost liberties of innocent persons. But are effective prerogative presidents capable of being attentive to limiting unjustified government intrusions on freedom? When faced with the opportunity to use broad unilateral power in the midst of crises, do t hey uniformly seize it or do they have the capacity to exercise self- control? Lincoln, Wilson, and Franklin Roosevelt provide us with different answers to these questions. Although Lincoln is disparaged by critics past and present as a ruthless dictator, I shall point to evidence that he was mor e guarded in the exercise of executive powers that enervated individual rights than either Wilson or FDR. Presidential greatness , I contend, is not only to be found in de cisive and successful action during crises of the first order (or lasting expansions in

the clout and prestige of the executive office), but also in the exercise of self -restraint when the warrants for executive power are at their zenith . To illustrate this point, let me return briefly to Lincoln, Wilson and Franklin Roosevelt, starting with our twentieth-cen tury presidents who demonstrated little if any restraint in their exercise of emerge ncy power.

Self restraint solves - sets a precedentAtkinson 13 (THE FOURTH AMENDMENT’S NATIONAL SECURITY EXCEPTION: ITS HISTORY AND LIMITS

L. RUSH ATKINSON*, Graduate Fellow Center on the Administration of Criminal Law United States 66 VANDERBILT L. REV. __ (forthcoming 2013, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2226404&download=yes)

When identifying constitutional parameters for the executive, it is particularly instructive to look at historical moments when the executive is restrained. When congressional prohibition draws executive power to its “ebb,” for example, one can identify the executive’s core inextinguishable powers.47 Constitutional

boundaries are similarly discernible in some cases where the executive branch limits its own conduct. Specifically, the executive’s self-restraint is precedential when it stems from a sense of constitutional obligation.48 Such fealty towards the Constitution might be unprompted by judicial command or legislative action, and there may be no record as obvious as a judicial opinion or legislative bill. Nevertheless, where a discernible opinio juris has shaped executive action,

such legal opinion should be considered both for its persuasive power and a historical understanding about what protections the Constitution establishes.49 Focusing more specifically at the record at hand, the historical practice examined here has become part of recent debates over surveillance programs implemented in the wake of the September 11 attacks. When its warrantless surveillance program became public in 2005, for example, the Bush Administration relied on historical precedents to defend its conduct. “[I]t has long been

recognized that the President has the authority to use secretive means to collect intelligence necessary for the conduct of foreign affairs and military campaigns,” Attorney General Alberto Gonzales urged. “Wiretaps for such purposes thus have been authorized by Presidents at least since the administration of Franklin Roosevelt in 1940.”50 Similarly, the Justice Department has defended legislative amendments to FISA by citing past practice: “From the beginning of the 20th Century, the United States conducted warrantless electronic surveillance for the purpose of protecting national security from foreign threats,” the government submitted in one case challenging the USA PATRIOT Act’s amendments.51 These accounts of the past, however, have gone unvetted, and the absence of context has prompted misinterpretations of the historical record. To illustrate, consider one of the main pieces of evidence cited in debates about recent government surveillance programs: a memorandum authored by Franklin Roosevelt in May 1940 (alluded to by Attorney General Gonzales in his statement quoted above).52 In this memorandum, Roosevelt “authorized and directed” Attorney General Robert Jackson to permit federal officers to wiretap “conversation[s] or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies.”53 Roosevelt’s 1940 memorandum certainly set a precedent for the use of wiretapping innational security investigations.54 The overlooked context, however, is that when Roosevelt issued the memorandum, wiretapping was constitutionally unregulated. In its 1928 decision Olmstead v. United States, the Supreme Court reasoned wiretapping did not violate the Fourth Amendment because it required no trespass.55 Olmstead, of course, was overruled in 1967 by Katz v. United States.56 Moreover, even before Katz, the use of wiretapping information was circumscribed by statute,57 a fact generally omitted by current commentaries. Without context, however, Roosevelt’s order garners greater precedential weight today than it ought to receive. In general, historical accounts to date have been one-sided affairs, emphasizing the executive’s conduct without considering whether any constraint—external or self-imposed—has limited such action.58 The result is an implication

that the Fourth Amendment has failed to regulate nationalsecurity investigations. In reality, as this Article explains, the Fourth Amendment figured prominently in regulating national security efforts in the postwar and Cold War eras, and both Justice Department and White House leaders sought to honor those constitutional protections.

The counterplan maintains the benefits of the unitary executive while deterring excessive presidential adventurism Neal Katyal 6, prof, Georgetown law, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 Yale L.J. 2314

This Essay's proposed reforms reflect a more textured conception of the presidency than either the unitary executivists or their critics espouse. In contrast to the

unitary executivists, I believe that the simple fact that the President should be in control of the executive branch does not answer the question of how institutions should be structured to encourage the most robust flow of advice to the President. Nor does that fact weigh against modest internal checks that, while

subject to presidential override, could constrain presidential adventurism on a day-to-day basis. And in contrast to the doubters of the unitary executive, I believe a unitary executive serves important values, particularly in times of crisis . Speed and dispatch are often virtues to be celebrated.¶ Instead of doing

away with the unitary executive , this Essay proposes designs that force internal checks but permit

temporary departures when the need is great . Of course, the risk of incorporating a presidential override is that its great formal power will eclipse everything else, leading agency officials to fear that the President will overrule or fire them.

But just as a filibuster does not tremendously constrain presidential action, modest internal checks ,

buoyed by reporting requirements, can create sufficient deterrent costs. ¶ [*2319] Let me offer a brief word about what this Essay does not

attempt. It does not propose a far-reaching internal checking system on all presidential power, domestic and foreign. Instead, this Essay takes a case

study, the war on terror, and uses the collapse of external checks and balances to demonstrate the

need for internal ones . In this arena, public accountability is low - not only because decisions are made in secret, but also because they routinely

impact only people who cannot vote (such as detainees). In addition to these process defects, decisions in this area often have subtle long-term consequences that short-term executivists may not fully appreciate. n9

Yes self-restraintSales 12 (Nathan Alexander Sales, Assistant Professor of Law, George Mason University School of Law, 8/29/2012, Self-Restraint and National Security, http://jnslp.com/2012/08/29/self-restraint-and-national-security/)

As we’ve seen, certain officials within military and intelligence agencies – general counsels, legal advisors, and other watchdogs – are responsible for ensuring that national security operations comply with the

relevant domestic and international legal requirements . These players intervene to rule out missions they believe would cross a legal line. But sometimes they go beyond that basic function – ensure compliance with the law, full

stop – and reject operations that, while lawful, are thought to be undesirable on policy grounds. That is,

they impose self-restraints that are stricter than the applicable laws . Why? One way to answer that question is to consider the individual and institutional incentives that color the behavior of military and intelligence officials. Looking at the government’s national security apparatus through the lens of public choice theory (especially the idea that bureaucrats are rationally self interested actors who seek to maximize their utility152) and basic agency relationships (e.g., the relationships between senior policymakers and the subordinates

who act on their behalf153) reveals a complex system in which power is distributed among a number of different nodes. The executive branch “is a ‘they,’ not an ‘it .’” 154 The national security community in particular is subdivided into various semiautonomous entities , each of which promotes its own parochial interests within the system and, in so doing, checks the like ambitions of rival entities;155 the government thus is subject to what Neal Katyal has called the “ internal separation of powers .” 156 These basic insights into how military and

intelligence agencies operate suggest several possible explanations for why self-restraint occurs. As elaborated in this Part, such constraints might result from systematic asymmetries in the expected value calculations of senior policymakers and their lawyers. In addition, as explained in Part IV, self-restraint might occur due to bureaucratic empire building by officials who review operations for compliance with domestic and international law. A. A Simple Framework One possible

explanation for why the government stays its own hand is expected value asymmetry. This reluctance to push the envelope is a rational and predictable response to powerful bureaucratic incentives . Officials tend to be cautious because the costs they expect to incur as a result of forward-leaning and aggressive action usually are greater than the expected benefits. Similarly, government employment rules and other

mechanisms make it easier to internalize onto individual bureaucrats the costs of a failed operation than the benefits of a successful one.157 National security players typically have more to lose from boldness than to gain, and that asymmetry inclines them to avoid risky behavior.158 While all members of the

national security community experience some cost-benefit asymmetry, senior policymakers and their lawyers seem especially cautious . Attorneys who review proposed operations for legality therefore look askance at risky missions.

They tend to veto proposals that, while legal, could inspire propaganda campaigns by adversaries, expose officials to

ruinous investigations, or worse. The result is self-restraint – officials rule out operations that they regard as lawful because of fears they will prove too costly.

CP internalizes norms – that’s key.Bradley, professor of law at Duke, and Morrison, professor of law at Columbia, May 2013

(Curtis A. and Trevor W., PRESIDENTIAL POWER, HISTORICAL PRACTICE, AND LEGAL CONSTRAINT, 113 Colum. L. Rev. 1097, Lexis)

Perhaps the most obvious way that law can have a constraining effect is if the relevant actors have internalized the legal norms , whether those norms are embodied in authoritative text, judicial decisions, or institutional practice. As a general matter, the internalization of legal norms is a phenomenon that can potentially take place wherever the law is thought to operate, in both the private and public sectors. But precisely how that internalization operates, including how it affects actual conduct, depends heavily on institutional context. When speaking of legal norm internalization as it relates to the presidency, it is important first to note

that Presidents act through a wide array of agencies and departments, and that presidential decisions are

informed - and often made, for all practical purposes - by officials other than the President. In most instances involving presidential power, therefore, the relevant question is whether there has been an internalization of legal norms by the executive branch.

Bulk Collection SolvencyPresident can end bulk collection – Obama-era regulations proveAssociated Press 2015 [White House allows NSA’s bulk data collection to continue, CBS News, https://www.cbsnews.com/news/white-house-allows-nsa-bulk-data-collection-to-continue/]

The Obama administration has announced a series of modest changes in the use of private data collected for intelligence purposes, a move that underscores how little the Edward Snowden revelations have impeded the N ational S ecurity A gency 's exploitation of global Internet communications. Eighteen months after

the first Snowden-fueled news story and one year after President Obama delivered a major speech calling for changes to NSA data collection,

the White House on Tuesday said it had tightened rules governing how the FBI, CIA and other intelligence agencies use Internet and phone communications of foreigners collected by the NSA. But the bulk collection would

continue as robustly as ever , the announcement made clear. Where once the data could be used for any reason and held forever,

now it must fall into six specific threat categories and irrelevant data is to be purged after five years. But the categories are broad enough that an intelligence officer could find justification to use a piece of information on a foreigner if he or she feels the need. The information need only have some relevance to counter-espionage, counterterrorism, counter-proliferation, cybersecurity, countering threats to U.S. or allied armed forces or personnel; and combating transnational criminal threats. Senate inaction allows NSA to keep collecting phone records The new policy also imposed more supervision over how intelligence agencies use the communications of Americans they acquire without individual warrants, making clear, for example, that such data may only be used to prosecute someone for "serious crimes" such as a murder or kidnapping, or

national security crimes. But the changes stopped well short of the recommendations of a presidential task force, including one that data collected by the NSA without warrants should never be used against an American in court, and another that such data should only be searched using the name of an American with a specific court order naming that person. Robert Litt, general counsel for the Office of the Director of National Intelligence, said in a conference call with reporters that those ideas were deemed too restrictive. The result is that the private

communications of Americans collected without warrants are still circulating around the government. Moreover, Mr. Obama's most significant proposal in response to the Snowden leaks - to end the NSA's bulk collection of domestic calling records - has not been enacted. The president wants Congress to pass a law, and Congress has balked. The NSA is still collecting the records, even though Mr. Obama could stop the practice on his own .

Signal Solvency

Seen as the decisive voice of America, even if Congress hasn’t signed onZbigniew Brzezinski, national security advisor under U.S. President Jimmy Carter, 12/3/12, Obama's Moment, www.foreignpolicy.com/articles/2012/12/03/obamas_moment

In foreign affairs, the central challenge now facing President Barack Obama is how to regain some of the

ground lost in recent years in shaping U.S. national security policy. Historically and politically, in America's system of separation of powers,

it is the president who has the greatest leeway for decisive action in foreign affairs. He is viewed by the country as responsible for Americans' safety in an increasingly turbulent world. He is seen as the ultimate definer of the goals that the United States should pursue through its diplomacy, economic leverage, and, if need be, military

compulsion. And the world at large sees him -- for better or for worse -- as the authentic voice of America . To be sure,

he is not a dictator. Congress has a voice. So does the public. And so do vested interests and foreign-policy lobbies. The congressional role in declaring war is especially important not when the United States is the victim of an attack, but when the United States is planning to wage war

abroad. Because America is a democracy, public support for presidential foreign-policy decisions is essential. But no one in the

government or outside it can match the president's authoritative voice when he speaks and then

decisively acts for America . This is true even in the face of determined opposition. Even when some lobbies succeed in gaining congressional support for their particular foreign clients in defiance of the president, for instance, many congressional signatories still quietly convey to the White House their readiness to support the president if he stands firm for "the national interest." And a president who is willing to do so publicly, while skillfully cultivating friends and allies on Capitol Hill, can then establish such intimidating credibility that it is politically unwise to confront him. This is exactly what Obama needs to do now.

The president’s word is enough of a signal.Kalb, 13 – Marvin, Edward R. Murrow Professor of Practice (Emeritus), Kennedy School of Government, Harvard University (The Road To War, Brookings Institution Press, pp. 6-7 //Red)

Words have consequence. Spoken by a president, they can often become American policy, with or without congressional approval. When a president "commits" the United States to a controversial course of action, he may be setting the nation on the road to war or on a road to reconciliation. In matters of national security, his powers have become awesome-his word decisive. Who decides when we go to war? The president decides. As former national security adviser Zbigniew Brzezinski told me, it "all depends" on the president. "It's his call.” Likewise, it is his decision when and whether, and under what conditions, to support a friendly nation.

Comparative evidence proves that it sets a precedent.Atkinson 2013 – JD NYU, National Security Division, Department of Justice (L. Rush, Vanderbilt Law Review, forthcoming issue, “The Fourth Amendment’s National Security Exception”, http://ssrn.com/abstract=2226404)

When identifying constitutional parameters for the executive, it is particularly instructive to look at historical moments when the executive is restrained. When congressional prohibition draws executive power to its “ebb,” for example, one can identify the executive’s core

inextinguishable powers.47 Constitutional boundaries are similarly discernible in some cases where the executive branch limits its own conduct. Specifically, the executive’s self-restraint is precedential when it

stems from a sense of constitutional obligation .48 Such fealty towards the Constitution might be

unprompted by judicial command or legislative action , and there may be no record as obvious as a judicial opinion or legislative bill. Nevertheless, where a discernible opinio juris has shaped executive action, such legal opinion should be considered both for its persuasive power and a historical understanding about what protections the Constitution establishes.49

Solvency – Hostilities

A2: PermPresidential practice is the only effective check – plan and perm will be disregardedWeiner, JD from Vanderbilt University, 2007

(Michael, “A Paper Tiger with Bite: A Defense of the War Powers Resolution,” http://www.vanderbilt.edu/jotl/manage/wp-content/uploads/Weiner.pdf)

In practice the WPR limits presidents’ outrageous unilateral uses of force. While critics of the WPR seem likely to oppose any legislation that stops short of emasculating the Executive into becoming the “messenger-boy”64 of Congress, they must remember that

the foundation for the law of war lies in practice .65 Again, recall this Note’s suggestion that the WPR, and the law of

war in general, should be viewed from a functionalist perspective. Any law that purports to control the actions of

those involved in warfare will only be followed if it allows the actor the chance to preserve his own interests. Thus, while a soldier is interested in staying alive, and a commander is interested in preserving the lives of those under his

command, the Executive is interested in both of these things as well as ensuring the national security of the entire

nation. A law that does not afford the Executive sufficient flexibility to satisfy these interests is bound to be a

dead-letter . The WPR allows such flexibility, because while its requirements are clear black-letter law, its

enforcement structure owes its strength to behavioral norms rather than law . The Executive has an incentive to abide by the WPR to avoid showing disrespect for Congress or the will of the U.S. public. However, he retains the legal freedom to function outside the WPR when he judges it to be manifestly clear (1) that the Nation’s interests require it, or (2) when he perceives that the will of the people is behind him.66 The WPR’s effectiveness can only be evaluated by its effect in practice. For this reason, this Note now surveys post-1973 presidential unilateral uses of force.

A2: RollbackCongressional overturn is functionally impossible Megan Covington 12, School of Engineering, Vanderbilt University, Executive Legislation and the Expansion of Presidential Power, ejournals.library.vanderbilt.edu/index.php/vurj/article/download/.../1738

In actuality, however, Congress is generally unwilling or unable to respond to the president’s use of executive legislation. Congress can override a presidential veto but does not do it very often; of 2,564 presidential ve- toes

in our nation’s history, only 110 have ever been over- ridden.44 The 2/3 vote of both houses needed to override a veto basically means that unless the

president’s executive order is grossly unconstitutional – and thus capable of earning bipartisan opposition - one party needs to have a supermajority of both houses. Even passing legislation to nullify an executive order can be difficult to accomplish, especially with Congress as polarized and bitterly di- vided along party lines as it is today. Congress could pass legislation designed to limit the power of the president, but such a bill would be difficult to pass and any veto on it – which would be guaranteed – would be hard to override. In addition, if such legislation was passed over a veto, there is no guarantee that the bill would successfully limit the president’s actions; the War Powers Act does little to restrain the president’s ability to wage war.45 Im- peachment is always an option, but the gravity of such a charge would prevent many from supporting it unless the president was very unpopular and truly abused his power. 46 Congress’s best weapon against executive legislation is its appropriations power, but this only gives it power over orders that require funding. Members of Congress may even support a president’s use of executive

legislation to establish policy when gridlock occurs on the floor. Congressmen can include policy changes made through executive legislation as part of their party’s recent accomplishments for the next election cycle, giving them more incentive to support executive legislation.47 These factors combined mean that Congress has only modified or chal- lenged 3.8% of all executive orders, of which there have been over 13,000 total, leaving them an ineffective check on the president’s legislative power.48 Essentially the only times Congress can and will challenge an executive order are when the president has extremely low support, when in a divided government the party in power of Congress has a supermajority of both houses, or when a president seriously and obviously abuses his power in such a way as to earner opposition from both parties.

Perm

AT Perm Do Both

Doesn’t solve prez powers - congressional silence is key

Bellia 2[Patricia, Professor of Law @ Notre Dame, “Executive Power in Youngstown’s Shadows” Constitutional Commentary, , 19 Const. Commentary 87, Spring, Lexis]

To see the problems in giving dispositive weight to inferences from congressional action (or inaction), we need only examine the similarities between courts' approach to executive power questions and courts' approach to federal-state preemption questions. If a state law conflicts with a specific federal enactment, n287 or if Congress displaces the state law by occupying the field, n288 a court cannot give the state law effect. Similarly, if executive action conflicts with a specific congressional policy (reflected in a statute or, as Youngstown suggests, legislative history), or if Congress passes related measures not authorizing the presidential conduct, courts cannot give the executive action effect. n289 When Congress is silent, however, the state law will stand; when Congress is silent, the executive action will stand. This analysis makes much sense with respect to state governments with reserved powers, but it makes little sense with respect to an Executive

Branch lacking such powers. The combination of congressional silence and judicial inaction has the practical effect of creating power. Courts' reluctance to face questions about the scope of the President's constitutional powers - express

and implied - creates three other problems. First, the implied presidential power given effect by virtue of congressional silence and judicial inaction can solidify into a broader claim . When the Executive exercises an "initiating" or "concurrent" power, it will tie that power to a textual provision or to a claim about the structure of the Constitution. Congress's silence as a practical matter tends to validate the executive rationale, and the Executive Branch may then claim a power not only to exercise the disputed authority in the face of congressional silence, but also to exercise the disputed authority in the face of congressional opposition . In other words, a power that the Executive Branch claims is "implied" in the Constitution may soon become an "implied" and "plenary" one. Questions about presidential power to terminate treaties provide a [*151] ready example. The Executive's claim that the President has the power to terminate a treaty - the power in controversy in Goldwater v. Carter, where Congress was silent - now takes a stronger form: that congressional efforts to curb the power are themselves unconstitutional. n290

Simultaneous legislative and executive action creates a mixed precedent, undermining presidential authority

Bellia 2

[Patricia, Professor of Law @ Notre Dame, “Executive Power in Youngstown’s Shadows” Constitutional Commentary, , 19 Const. Commentary 87, Spring, Lexis]

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

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

Moore, t he fact that the Court rested the President's authority on grounds of congressional approval rather than implied constitutional authority avoided the difficult question of how the President could by his sole authority displace the application of the federal statutes that had provided the basis for Dames & Moore's original cause of action against the Iranian enterprises. 291 Similar questions arise with respect to the displacement of state law by operation of sole executive

agreements. The result is confusion about whether sole executive agreements are the "supreme Law of the Land ," 292 with the available precedents suggesting that they are 293 and the weight of recent commentary suggesting that they are not.

AT Perm Do CPThe counterplan competes - “statutory restrictions” require congressional actionMortenson 11

(Julian Davis Assistant Professor, University of Michigan Law School, “Review: Executive Power and the Discipline of History Crisis and Command: The History of Executive Power from George Washington to George W. Bush John Yoo. Kaplan, 2009. Pp vii, 524,” Winter 2011, University of Chicago Law Review 78 U. Chi. L. Rev. 377)

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

restrictions during times of great national peril. The earliest is Washington's military suppression of the Whiskey Rebellion (III, pp 66-72), a domestic disturbance that Americans viewed as implicating adventurism by European powers

and threatening to dismember the new nation. n60 The Calling Forth Act of 1792 n61 allowed the President to mobilize state militias under federal control, but included a series of mandatory procedural checks--including judicial [*399] approval--that restricted his ability to do so. n62 Far from defying these comprehensive restrictions at a moment of grave crisis, Washington satisfied their every requirement in scrupulous detail. He issued a proclamation ordering the Whiskey Rebels to disperse. n63 When they refused to do so, he submitted a statement to Justice James Wilson of the Supreme Court describing the situation in Pennsylvania and requesting statutory certification. n64 Only when Wilson issued a letter precisely reciting the requisite statutory language (after first requiring the President to come back with authentication of underlying reports and verification of their

handwriting n65) did Washington muster the troops. n66 Washington's compliance with statutory restrictions on his use of force continued even after his forces were in the field. Because Congress was not in session when

he issued the call-up order, Washington was authorized by statute to mobilize militias from other states besides Pennsylvania--but only "until the expiration of thirty days after the commencement of the ensuing [congressional] session."

n67 When it became clear that the Pennsylvania campaign would take longer than that, Washington went back to Congress to petition for extension of the statutory time limit that would otherwise have required him to [*400] disband his troops. n68 Far from serving as an archetypal example of presidential defiance, the Whiskey Rebellion demonstrates exactly the

opposite. FDR's efforts to supply the United Kingdom's war effort before Pearl Harbor teach a similar lesson. During the run-up to America's entry into the war, Congress passed a series of Neutrality Acts that

supplemented longstanding statutory restrictions on providing assistance to foreign belligerents . Despite these restrictions, FDR sent a range of military assistance to the future Allies. n69 Yoo makes two important claims about the administration's actions during this period. First, he claims the administration asserted that "[a]ny statutory effort by Congress to prevent the President from transferring military equipment to help American national security would be of 'questionable constitutionality'" (III, p 300). Second, he suggests that American military assistance in fact violated the neutrality statutes (III, pp 295-301, 310, 327-28).

Answers To - Generic

AT Future Prez Rollback

Most executive orders aren’t overturned.

Murray 99 [Frank, “Clinton’s Executive Orders are Still Packing a Punch: Other Presidents Issued More, but His are Still Sweeping” Washington Times http://www.englishfirst.org/13166/13166wtgeneral.html]

Clearly, Mr. Clinton knew what some detractors do not: Presidential successors of the opposite party do not lightly wipe the slate clean of every order, or even most of them. Still on the books 54 years after his death are 80 executive

orders issued by Franklin D. Roosevelt. No less than 187 of Mr. Truman's orders remain , including one to end military racial segregation, which former Joint Chiefs of Staff Chairman Colin Powell praised for starting the "Second Reconstruction." "President Truman gave us the order to march with Executive Order 9981," Mr. Powell said at a July 26, 1998 ceremony marking its 50th anniversary. Mr. Truman's final order, issued one day before he left office in 1953, created a national security medal of honor for the nation's top spies, which is still highly coveted and often revealed only in the obituary of its recipient.

Political barriers check – new, stronger constituencies

Branum 2

[Tara L, Associate, Fulbright & Jaworski L.L.P, “President or King? The Use and Abuse of Executive Orders in Modern Day America” Journal of Legislation]

Congressmen and private citizens besiege the President with demands [*58] that action be taken on various issues. n273 To make matters worse, once a president has signed an executive order, he often makes it impossible for a subsequent administration to undo his action without enduring the political fallout of such a reversal. For instance, President Clinton issued a

slew of executive orders on environmental issues in the weeks before he left office. n274 Many were controversial and the need for the policies he instituted was debatable. n275 Nevertheless, President Bush found himself unable to reverse the orders without invoking the ire of environmentalists across the country. n276 A policy became law by the action of one man without the healthy debate and discussion in Congress intended by the Framers . Subsequent presidents undo this policy and send the matter to Congress for such debate only at their own peril. This is not the way it is supposed to be.

AT Congress Rollback The CP doesn’t get rolled back and avoids politics. Fine 12

Jeffrey A. Fine, assistant professor of political science at Clemson University. He has published articles in the Journal of Politics, Political Research Quarterly, and Political Behavior. Adam L. Warber is an associate professor of political science at Clemson University. He is the author of Executive Orders and the Modern Presidency, Presidential Studies Quarterly, June 2012, " Circumventing Adversity: Executive Orders and Divided Government", Vol. 42, No. 2, Ebsco

We also should expect presidents to prioritize and be strategic in the types of executive orders that they create to maneuver around a hostile Congress . There are a variety of reasons that can drive a president’s decision. For

example, presidents can use an executive order to move the status quo of a policy issue to a position that is closer to their ideal point. By doing so, presidents are able to pressure Congress to respond, perhaps by passing a new law that represents a compromise between the preferences of the president and Congress. Forcing Congress’s hand to enact legislation might be a preferred option for the president, if he perceives Congress to

be unable or unwilling to pass meaningful legislation in the first place. While it is possible that such unilateral actions might spur Congress to pass a law to modify or reverse a president’s order, such responses by Congress

are rare (Howell 2003, 113-117; Warber 2006, 119). Enacting a major policy executive order allows the president

to move the equilibrium toward his preferred outcome without having to spend time lining up votes

or forming coalitions with legislators . As a result, and since reversal from Congress is unlikely, presidents have a

greater incentive to issue major policy orders to overcome legislative hurdles.

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 of executive orders, states of emergency and

emergency powers. The Congressional concern led to the creation of a Special Senate Committee on the Termination of the National

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

There is a 0.2% risk of an overturn

Krause and Cohen 2000 [George and David, Professors of Political Science @ South Carolina, “Opportunity, Constraints, and the Development of the Institutional Presidency: The Issuance of Executive Orders” The Journal Of Politics, Vol. 62, No. 1, February 2000, JSTOR]

We use the annual number of executive orders issued by presidents from 1939 to 1996 to test our hypotheses. Executive orders possess a number of properties that make them appropriate for our purposes. First, the series of executive orders is long, and we can cover the entirety of the institutionalizing and institutional-ized eras to date.6 Second, unlike research on presidential vetoes (Shields and Huang

1997) and public activities (Hager and Sullivan 1994), which have found support for presidency-centered variables but not 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 e xecutive o rder s to stand due to its own collective action problems and the cumbersomeness of using the legislative process to reverse or stop such presidential actions . Moe

and Howell (1998) report that between 1973 and 1997, Congress challenged only 36 of more than 1,000 executive orders issued. And only two of these 36 challenges led to overturning the president's executive order . Therefore, presidents are likely to be very successful in implementing their own agendas through such actions . In fact, the nature of executive orders leads one to surmise that idiopathic factors will be relatively more important than presidency-centered variables in explaining this form of presidential action. Finally, executive orders have rarely been studied quantitatively (see Gleiber and Shull 1992; Gomez and Shull 1995; Krause and Cohen 1997)8, so a description of the factors motivating their use is worth-while.9 Such a description will allow us to determine the relative efficacy of these competing perspectives on presidential behavior.10

Unilateral action defuses opposition Moe and Howell 99(Terry Moe, William Bennett Munro professor of political science at Stanford University, a senior fellow at Stanford University's Hoover Institution, and a member of the Hoover Institution’s Koret Task Force on K-12, William Howell, the Sydney Stein Professor in American Politics in the Harris School, a professor in the Department of Political Science and the College, and a co-director of the Program on Political Institutions, “The Presidential Power of Unilateral Action” 1999, Oxford University Press, http://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdf, KB)

On the other hand, the second form of agenda control, rooted as it is in unilateral action, gives the president what he wants immediately – a shift in the status quo, and perhaps a new increment to his new power – and depends

for its success on Congress’s not being able to pass new (and veto-proof) legislation that would overturn or change it. Such a requirement is much more readily met, for it is far easier, by many order of magnitude, to block congressional action than it is to engineer new legislation. And if this were not enough, the new status quo initiated by the president may in itself defuse legislative opposition and do away with the need to block at all. When a president unilaterally launches an invasion of another country, for instance, Congress faces a drastically different set of options than it did before the conflict started, and may find itself politically compelled to support and provide funds for an exercise it never would have agreed to beforehand. Needless to say, these advantages of agenda control give modern presidents strong incentives to favor an “administrative strategy” of leadership as opposed to a “legislative strategy” (Nathan, 1983).

AT Court Rollback Courts won’t rollback the CP – fears of angering the executiveMoe and Howell 99(Terry Moe, William Bennett Munro professor of political science at Stanford University, a senior fellow at Stanford University's Hoover Institution, and a member of the Hoover Institution’s Koret Task Force on K-12, William Howell, the Sydney Stein Professor in American Politics in the Harris School, a professor in the Department of Political Science and the College, and a co-director of the Program on Political Institutions, “The Presidential Power of Unilateral Action” 1999, Oxford University Press, http://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdf, KB)

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

This one is rooted in the basic design of separation of powers: under the Constitution, the court is not empowered to enforce its own decisions, but must rely on the executive branch to enforce them. While the Court is said

to be an independent branch of government, then, its power and prestige are profoundly depend on the executive. The decisions that it renders, however well reasoned or legally significant in the abstract, are little more than meaningless slips of paper unless they are put into effect, and they can only be put into effect if the executive is willing to implement them. If the executive refuses to cooperate—or more likely, if it purposely acts very slowly, ineffectively, or in ways that alter or distort judicial intent—the policy pronouncements of the Court threaten to be empty, and its integrity and social standing as a political institution are put seriously at risk (Corwin, 1984).

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

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

pressure or derailed internally before they were signed, but only twice in history have federal courts directly overturned one, legal experts say. They included Mr. Clinton's 1995 directive barring federal contractors from hiring striker replacements, which conflicted with existing law, and President Truman's 1952 order seizing steel mills in order to avoid a nationwide strike. The Supreme Court nullified the latter because the president acted during the Korean conflict under "emergency" war powers even though no

war was declared. "Unfortunately, the Supreme Court has essentially ruled over time that the executive orders have the force and effect of law. Well, they don't, but if nobody's there to challenge them they continue to carry the effect and force of law," argued Rep. Jack Metcalf, Washington Republican, leader of a brewing rebellion in the House for which he predicts only symbolic success.

A2- 1 Instance Not Key Link is linear- every expansion in presidential power expands power for future presidentsMarshall ‘8

[William P. Marshall, Kenan Professor of Law, University of North Carolina. Boston Law Review 88:505. http://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf ETB]

Presidential power also inevitably expands because of the way executive branch precedent is used to support later exercises of power.34 Many of the defenders of broad presidential power cite historical examples, such as President Lincoln’s suspension of habeas corpus, as authority for the position that Presidents have considerable powers in times of war and national emergency.35 Their position is straight-

forward. The use of such powers by previous Presidents stands as authority for a current or future President to engage in similar actions.36 Such arguments have considerable force, but they also create a one-way ratchet in favor of expanding the power of the presidency. The fact is that every President but Lincoln did not suspend habeas corpus. But it is a President’s action in using power, rather than forsaking its use, that has the precedential significance.37 In

this manner, every extraordinary use of power by one President expands the availability of executive branch power for use by future Presidents.

Flexibility NB

2NC CP Avoids Flex DA Internal mechanisms solve best while avoiding flexibility – encourages effective use while not limiting authority which is key. Baker, 7 - Chief Judge to the United States Court of Appeals for the Armed Forces, former Special Assistant to the President and Legal Advisor to the National Security Council (James, IN THE COMMON DEFENSE: NATIONAL SECURITY LAW FOR PERILOUS TIMES, p. 307-309)

This book has considered national security law and process in the context of four security threats. First is the threat of attack by nonstate and statesponsored or supported actors using terrorist means. Overseas, this threat is realized on a daily basis. Within the United States the threat is continuous, but intermittent. The threat of high-explosive attack, like car and truck

bombs, targeted suicide bombings, or the sabotage of aircraft, is most likely to materialize. The threat of catastrophic attack with nuclear weapons has the greatest potential impact on our way of life and in terms of human cost. It is in relation to this threat in particular that we need to evaluate and test national security law and process, both because of the potential consequence and because of the focus the enemy has placed on this means of attack. Second, U.S. constitutional values may ebb and wane in an endless conflict against state and nonstate actors engaged in acts of terrorism or posing the threat of terrorism. In light of the interminable nature of this threat, assertions of presidential authority made in extremis may become embedded in U.S. practice and law without a corresponding application of checks and balances. Left outside the reach of effective and independent mechanisms of appraisal, broad assertions of executive authority may in time diminish both the principles of law that define American life as well as the physical security at which they are directed. Third, sincere policy differences, as well as those that are politically inspired, regarding the nature of the terrorist threat and the corresponding measure of response may

result in a zero-sum compromise; that is, a diminution of security or a diminution of law, rather than contextual formulas that advance both at once. If the executive needs broad and rapid authority to engage in intelligence collection – as it does – the better course is not to

limit the authority , for fear of misuse, but to increase the opportunities for meaningful internal and

external appraisal. Such appraisal will deter misuse, but as importantly, encourage effective use . In this enduring conflict we may exhaust our resources or our principles in a manner that leaves us unwilling or unable to effectively address this century’s other certain crises, including the proliferation of weapons of mass destruction to unreliable state actors, the advent of pandemic disease, and environmental degradation and change. This book has focused on the threat of terrorist attack because this is the threat that today drives the legal debate about the president’s constitutional authority. More generally, it drives the purpose and meaning of national security law. It will continue to do so. It is also the threat with the greatest potential to transform U.S. national

security, in both a physical and a values sense. The importance of addressing other issues, such as conflict in the Middle East, totalitarian regimes, or pandemic disease, must not be overlooked. Each bears the potential to spiral beyond control resulting in catastrophe at home and overseas. Each of these issues warrants full consideration of the national security instruments and processes described in this book. In each context, law and national security lawyers may contribute to national security in multiple ways. First, the law provides an array of positive or substantive instruments the president may wield to provide for security. Second, the law provides procedural mechanisms offering opportunities to consider, validate, appraise, and improve policy, as well as ensure its lawful execution. These mechanisms include the horizontal separation of constitutional powers at the federal level, and the vertical separation of powers

between the federal government and state government. They are found as well in statute and in internal executive directive. The most effective means of

appraisal are often found through informal practice . Informal contact allows participants to speak with a freedom not permitted or not often

found when bearing the institutional mantle of an office or branch of government. Consider the difference in reaction between the counsel that sits down with the policymaker for a discussion and the counsel who requests the policymaker to put down in a memorandum everything that occurred. With informal practice the role of personality and friendship can serve to facilitate information exchange and the frank exchange of views. Third, in the international context, law provides mechanisms to achieve U.S. national security objectives. This is evident in the context of maritime security, where U.S. law is pegged to an international framework, and effective security requires international as well as domestic participation. In the area of intelligence integration, bilateral and multilateral agreements, like the PSI and bilateral aviation agreements, provide essential mechanisms for identifying intelligence, sharing intelligence, and acting on

intelligence. Fourth, the law reflects and projects American values of democracy and liberty. Values are silent force multipliers as well as positive national security tools. As Lawrence Wright, the author of The Looming Tower, and others argue, jihadists like Osama Bin Laden offer no programs or policies for governance, no alternative to Western democracy. They offer only the opportunity for revenge. Rule of law is the West’s alternative to jihadist terrorism. Law, and respect for law, offers the structure of democracy, the opportunity for individual fulfillment regardless of sex, race, or creed, and a process for the impartial

administration of justice. Sustained commitment to the rule of law in practice and perception will serve as a positive national security tool in curtailing recruitment of the next wave and generation of jihadists .

But law, like homeland security, is an incremental endeavor. It is dependent on sustained action, not rhetoric, and perceptions

can be swept aside in a few ill-chosen moments . Law, like this conflict, requires sustained sacrifice and sustained support. Thus, divisive

legal arguments should be eschewed, unless they are essential to security and there are no alternative means to accomplish the same necessary security end.

CP is key to flexibilityYoo 12(John Yoo, American attorney, law professor, and author. He served as a political appointee, the Deputy Assistant US Attorney General in the Office of Legal Counsel, Department of Justice (OLC), during the George W. Bush administration. “War Powers Belong to the President” Posted Feb 1, 2012, http://www.abajournal.com/magazine/article/war_powers_belong_to_the_president, KB)

Those in the pro-Congress camp call upon the anti-monarchical origins of the American Revolution for support. If the framers rebelled against King George III’s dictatorial powers, surely they would not give the president much authority. It is true that the revolutionaries rejected the royal prerogative, and they created weak executives at the state level. Americans have long turned a skeptical eye toward the growth of federal powers. But this may mislead some to resist the fundamental difference in the Constitution’s treatment of domestic and foreign affairs. For when the framers wrote the Constitution in 1787 they rejected these failed experiments and restored an independent, unified chief executive with its own powers in national security and foreign affairs. The most important of the president’s powers are commander in chief and chief

executive. As Alexander Hamilton wrote in Federalist 74, “The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.” Presidents should conduct war, he wrote,

because they could act with “decision, activity, secrecy and dispatch.” In perhaps his most famous words, Hamilton

wrote: “ Energy in the executive is a leading character in the definition of good government. ... It is

essential to the protection of the community against foreign attacks.” The framers realized the obvious.

Foreign affairs are unpredictable and involve the highest of stakes, making them unsuitable to regulation by pre-existing legislation. Instead, they can demand swift, decisive action —sometimes under

pressured or even emergency circumstances—that is best carried out by a branch of government that does not suffer from multiple vetoes or is delayed by disagreements. Congress is too large and unwieldy to take the swift and decisive action required in wartime. Our framers replaced the Articles of Confederation, which had failed in the management of foreign relations because they had no single executive, with the Constitution’s single president for precisely this reason.

Even when it has access to the same intelligence as the executive branch, Congress’ loose,

decentralized structure would paralyze American policy while foreign threats grow. Congress has no political incentive to mount and see through its own wartime policy. Members of Congress, who are interested in keeping their seats at the next election, do not want to take stands on controversial issues where the future is uncertain. They will avoid like the plague any vote that will anger large segments of

the electorate. They prefer that the president take the political risks and be held accountable for failure. Congress’ track record when it has opposed presidential leadership has not been a happy one. Perhaps the most telling example was the Senate’s rejection of the Treaty of Versailles at the end of World War I. Congress’ isolationist urge kept the United States out of Europe at a time when democracies fell and fascism grew in their place. Even as Europe and Asia plunged into war, Congress passed the Neutrality Acts designed to keep the United States out of the conflict. President Franklin Roosevelt violated those laws to help the Allies and draw the nation into war against the Axis. While pro-Congress critics worry about a president’s foreign adventurism, the real threat to our national security may come from inaction and isolationism.

AT Flexibility Bad – Unchecked Power Political consequences prevent a reckless presidentMoe and Howell 99(Terry Moe, William Bennett Munro professor of political science at Stanford University, a senior fellow at Stanford University's Hoover Institution, and a member of the Hoover Institution’s Koret Task Force on K-12, William Howell, the Sydney Stein Professor in American Politics in the Harris School, a professor in the Department of Political Science and the College, and a co-director of the Program on Political Institutions, “The Presidential Power of Unilateral Action” 1999, Oxford University Press, http://jleo.oxfordjournals.org.ezproxy.baylor.edu/content/15/1/132.full.pdf, KB)

This does not mean presidents will be reckless in their pursuit of power . Should they go too far or too fast, or move in to the wrong areas at the wrong time they would find that there are heavy political costs to be paid—perhaps in being reversed on the specific issue by Congress or the courts, but more generally by creating opposition that could threat other aspects of the presidential policy agenda or

even its broader success. It is a matter of strategy. Presidents have to calculate ex ante the costs as well as the benefits of any attempt to expand their power and take action when the situation looks promising. They have to pick their spots.

Congress can still check the presidentYoo 12(John Yoo, American attorney, law professor, and author. He served as a political appointee, the Deputy Assistant US Attorney General in the Office of Legal Counsel, Department of Justice (OLC), during the George W. Bush administration. “War Powers Belong to the President” Posted Feb 1, 2012, http://www.abajournal.com/magazine/article/war_powers_belong_to_the_president, KB)

Presidents, of course, do not have complete freedom to take the nation to war. Congress has ample powers to control presidential policy, if it wants to. Only Congress can raise the military, which gives it the power to block, delay or modify war plans. Before 1945, for example, the United States had such a small peacetime military that presidents who started a war would have to go hat in hand to Congress to build an army to fight it. Since World War II, it has been Congress that has authorized and funded our large standing military, one primarily designed to conduct offensive, not defensive, operations (as we learned all too tragically

on 9/11) and to swiftly project power worldwide. If Congress wanted to discourage presidential initiative in war, it could build a smaller, less offensive-minded military. Congress’ check on the presidency lies not just in the long-term

raising of the military. It can also block any immediate armed conflict through the power of the purse. If Congress feels it has been misled in authorizing war, or it disagrees with the president’s decisions, all it need do is cut off funds, either all at once or

gradually. It can reduce the size of the military, shrink or eliminate units, or freeze supplies. Using the power of the purse does not even require affirmative congressional action. Congress can just sit on its hands and

refuse to pass a law funding the latest presidential adventure, and the war will end quickly. Even the Kosovo war, which lasted little

more than two months and involved no ground troops, required special funding legislation. The framers expected Congress’ power of the purse to serve as the primary check on presidential war. During the 1788 Virginia ratifying convention, Patrick Henry attacked the Constitution for failing to limit executive militarism. James Madison responded: “The sword is in the hands of the British king; the purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist.” Congress ended America’s involvement in Vietnam by cutting off all funds for the war.

AT Tyranny /Executive Over Reach Multiple checks prevent Executive overreach --- their impact is a mythJohn Yoo 9, Emanuel S. Heller Professor of Law @ UC-Berkeley Law, visiting scholar @ the American Enterprise Institute, former Fulbright Distinguished Chair in Law @ the University of Trento, served as a deputy assistant attorney general in the Office of Legal Council at the U.S. Department of Justice between 2001 and 2003, received his J.D. from Yale and his undergraduate degree from Harvard, “Crisis and Command,” E-Book

A second lesson of this book is that the notion of an unchecked executive, wielding dictatorial powers to plunge the nation into disaster, is a myth born of Vietnam and Watergate. Congresses have always possessed

ample ability to stalemate and check an executive run amok. Congress regularly ignores executive proposals for legislation, rejects nominees, and overrides vetoes. It can use its power over legislation, funding, and oversight to exercise significant control over the administrative state. There would be no agencies, no delegated powers, and no rule-making without Congress's basic decisions to create the federal bureaucracy. It can use these authorities even at the zenith of presidential power: foreign

affairs. Congress can cut off war funding, shrink the military, stop economic aid, and block treaties. It used its sole control of the purse to limit the Mexican-American War and to end the Vietnam conflict, for example.

Reject their hyperbolic claims --- tyranny never materializesJohn Yoo 9, Emanuel S. Heller Professor of Law @ UC-Berkeley Law, visiting scholar @ the American Enterprise Institute, former Fulbright Distinguished Chair in Law @ the University of Trento, served as a deputy assistant attorney general in the Office of Legal Council at the U.S. Department of Justice between 2001 and 2003, received his J.D. from Yale and his undergraduate degree from Harvard, “Crisis and Command,” Book, p. x-xi

This book is also written out of respect for Congress as well as the President. I have had the honor to serve as general counsel of the Senate Judiciary Committee under the chairmanship of Senator Orrin G. Hatch of Utah, a good and decent man as well as a strward of the Senate. I have the greatest respect for the awesome powers of Congress and the ways in which Congress and the broader political system can check any Chief Executive. It was Congress that forced the resignation of Richard Nixon through hearings, political pressure, spending constraints, and

ultimately, the threat of impeachment. Today’s critics of the Presidency underestimate the power of politics to corral any branch of government that goes too far. They give too much credit to appeals to abstract

notions of constitutional balance to restrain a truly out-of-control President, or misread active

responses to unprecedented challenges as challenges to the Constitution. The hyperbole in such

rhetoric is manifest in overwrought yet commonplace invocations of “treason” or “tramplings” of the Constitution. Has the Constitution indeed been trampled on? History provides us with a guide.¶ Certainly, the fear that a President might abuse power for personal gain or to maintain his or her position has haunted America from her birth. Executive power, as the Founding Fathers

well knew, always carries the possibility of dictatorship. In their own day, the great Presidents were all accused of wielding power tyrannically. Yet, they were not dictators. They used their executive powers to the benefit of the nation. Once the emergency subsided, presidential power receded and often went into remission under long periods of congressional leadership. When chief executives misused their powers, the political system blocked or eventually ejected the President. No dictator has ever ruled in the United States, yet critics of contemporary presidential power wish to work radical change in current practice out of fear of impending dictatorship.

Structural factors prevent Executive overreach without constraining flexibility. Posner and Vermeule, ‘7

[Eric (the Kirkland and Ellis Professor of Law @ U-Chicago) and Adrian (the John H. Watson, Jr. Professor of Law @ Harvard), Jan 4, “Terror in the Balance: Security, Liberty, and the Courts,” Book, p. 53

*gender modified]

Four points are critical, and they suggest that the concern is either greatly overblown or does not support civil libertarian prescriptions, or

both: presidential or executive preferences need not systematically favor increased executive power during emergencies; political constraints will rule out abuses that the politically engaged public does not favor; even if increased executive power in emergencies creates abuses, the security gains may be greater still; and in any event civil libertarian judicial review is a feeble bulwark against a truly imperial executive. ¶ First, the executive-despotism concern supposes that executive officials desire, above all, to maximize their power. As Daryl Levinson has emphasized, both for officials generally and for executive officials in particular, it is hardly

obvious that this is so , at least in any systematic way. Lower—level executive officials and administrative agencies have many other possible goals or maximands, including the desire to enjoy leisure or to advance programmatic or ideological goals—goals which will usually be orthogonal to the tradeoff between security and liberty and which might even include the

protection of civil liberties. The same is true for presidents: some have been power maximizers; some have not. Moreover, even with respect to power-maximizing presidents, critics fail to distinguish the [person] man from the office. Presidents as individuals do not internalize all of the gains from expanding the power of the presidency as an institution, because those gains are shared with future presidents and senior executive officials. Conversely, presidents as individuals do not fully

internalize harms to the institution and may thus acquiesce its limitations on executive power for partisan or personal advantage. The latter point may be more pronounced in emergencies than in normal times, because emergencies shorten the relevant time horizon: policymaking for the short run looms larger than in normal times. (We bracket for now the question of whether this is bad, an issue taken up in chapter 2.) Emergencies thus increase the divergence between the utility of

individual officeholders and the institutional power of their offices, which extends into the remote future, beyond the horizon of the emergency.¶ Second, whatever the intrinsic preferences of presidents and executive officials, politics sharply constrains their opportunities for aggrandizement, especially in times of emergency. The president is elected from a national constituency (ignoring the low probability that the Electoral College will make a difference). A first—term president who seeks reelection to a second term, or even a second—term president who seeks to leave a legacy, will try to appeal to the median voter, or at least to some politically engaged constituency that is unlikely to be extremist in either direction. If the national median or the political center favors increased executive authority during emergencies, them the president will push the bounds of his power, but if it does not, then he will not: there is no general reason to think that national politics will always push executive authority as far as possible, even during emergencies.¶ Of course, during emergencies, the public will often favor increased executive power, and this may be fully sensible, given the executive’s relative decisiveness, secrecy, centralization, and other advantages over Congress and other institutions. Note, in this connection, the important finding that political constraints on the executive are associated with increased terrorism; shackling the executive has real security costs. The critics of executive power typically assume that executive power not only expands during emergencies, but expands too far. However, the critics supply no general reason to think this is so; they systematically conflate increases in executive power with “aggrandizement,” a normatively loaded concept which connotes an unjustified increase. We return to this point shortly. Here, the point is just that the expansion of presidential power during emergencies may reflect nothing more than the demands of the politically effective public, rather than intrinsic opportunism.¶ The political constraints on the

executive branch and the president are partisan as well as institutional. The president is the leader of a political party but is also beholden to it. The party constrains the president in various ways, and it is not necessarily in the interest of a single party to enhance the power of the executive during emergencies. For one thing, the president’s party may not win the next presidential election; for another, his party may

have many other bases of power, including Congress, the judiciary, and local institutions. Expanding the president’s personal or institutional power need not be in the interest of partisan politicians who govern behind the scenes. Opposition parties, of course, have powerful incentives to criticize the expansion of presidential power during emergencies, portraying small adjustments to the legal rules as omens of a putsch. In emergencies, partisan criticism can make the political constraints on presidents even tighter than during normal times , a point we emphasize in chapter 5.

Governmental decisionmaking is often more visible during emergencies than during normal times ;

emergency policymaking is more centralized, even within the executive branch, and more closely associated with the president; the resulting polices often present a larger target for political attack. ¶ Third, the critics of executive power in emergencies are usually unclear about their normative premises. Suppose that executive power increases during emergencies and that this results in abuses. In terms of the tradeoff thesis, however, such abuses are just a cost to be measured against the

benefits of increased security, given the finding, reported above, that a constrained executive is associated with higher levels terrorism. If the gains on the security margin exceed the costs, then the expansion of executive power improves social welfare overall, and no special opprobrium should attach to the executive’s behavior, although it would be nice to also prevent the abuses if possible.

The critics treat executive abuses of civil liberties as something to be minimized, down to zero. But this is quixotic, and even if it were feasible, it would not be desirable. Some rate of abuse is inevitable once an executive branch is created, and an increase in abuses is inevitable when executive discretion expands during emergencies but both shifts may be worth it; the critics fail to account for the gains side of the ledger.

Granting the executive extensive powers during emergencies has many benefits, about which the critics are often silent.¶ Concerns about increasing executive power often rest on an implicit status quo bias, or naturalistic fallacy. The assumption is that the scope or level of executive power before the emergency was optimal. But this need not be so, and there is no general reason to think it will be so ; consider the finding that the 7/7 attacks in London went unprevented because the United Kingdom’s intelligence services, who knew something about the plotters, had too few resources to

investigate them adequately. Emergencies may release the polity from a sclerotic equilibrium in which executive power was too feeble to meet new challenges, as we illustrate in Chapter 4. One interpretation of history is that emergencies allow presidents to obtain powers that are necessary to cope with new problems. Our original constitutional structure, with a relatively weak presidency, reflects the concerns of the eighteenth century and is not well adapted to current conditions.¶ Finally, to the extent that the critics of executive power envision judicial review as the solution, they are whistling in the wind, especially during times of emergency. The critics envision an imperial executive, who is either backed by a sustained national majority or else has slipped the political leash, and who enjoys so much agency slack as to be heedless of the public’s preferences. Its either case, it is not obvious what the critics suppose the judges will or can do about it. As we will recount in more detail in later chapters, the judges proved largely powerless to stem the tide of the New Deal, in conditions of economic emergency, or to stop Japanese internment during World War II, or to block aggressive punishment and harassment of communists during the Cold War. What is more, many of the judges had no desire to block these programs. Judges are people too and share in national political sentiments: they are also part of the political elite and will rally ‘round the flag in times of emergency just as much

as others do.¶ Critics of executive power implicitly appeal to a slippery—slope argument: once executive power is increased to meet an emergency in a manner that is necessary and reasonable, it will unavoidably expand beyond what is necessary and reasonable. As we emphasize in chapters 4 and 5, the problem with this argument is that there is no evidence for it and no mechanism that generates such a slope. The critics focus obsessively on pathological polities like Weimar, ignoring that current well-functioning liberal democracies do not present the same conditions that led to dictatorship in 1933. More recent work in comparative politics suggests that grants of emergency powers or of decree authority to executives do no systematically end in dictatorship.

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, e xecutive o rder s allow the President to issue bold prerogatives on [* 425] politically sensitive issues . n166 Second, Congress is able to appropriately check any potential for Presidential abuse , though it does not often do so. n167 Finally, the Court's test for the validity of executive orders is proper, though it is improperly applied to intelligence and classification. n168 In short, the Constitutional dialogue on executive orders has been a productive one, producing a test that, if applied correctly, can guard against executive tyranny and abuse. However, Congressional oversight has not been sufficiently effective and the Court's application of the Jackson test is flawed in the area of intelligence and classification. n169 Now, it is up to Congress to take a bolder stance on such issues in order for the Court to apply the test correctly. n170 V. CONCLUSION For two centuries, executive orders have allowed Presidents to exercise enormous power. At times, that power has been used to implement important measures to advance the country. At other times,

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

branches of government concerning how much unilateral power a President ought to have, however, it becomes clear that although executive orders may appear tyrannical based on the broad power they afford Presidents, in practice e xecutive o rder s are useful tools of the Presidency, able to be checked by Congressional oversight and controlled by the Court. If correctly wielded, such Congressional and judicial oversight can guarantee that executive orders will not allow Presidents to become the despots so feared by the founding generation. Instead, by moving out of the zone of twilight and exercising proper oversight Congress and the Court can ensure that the President is able to [*430] administer the executive branch effectively, pass measures quickly, and occasionally rise above political divisions and do the right thing.

Aff

2ac- Solvency Deficit/Offense Executive restraint is worse than the plan – it can’t be verified, will be rolled back, and takes pressure off Congress to maintain future safeguards, and prevents robust public and policy debate about surveillance policyBhuttar 17 (Shahid Bhuttar leads the Electronic Frontier Foundation’s grassroots and student outreach efforts, “National Security Agencies Are Evading Congressional Oversight”, Electronic Frontier Foundation, October 4, https://www.eff.org/deeplinks/2017/10/national-security-agencies-are-evading-congressional-oversight ,accessed 8/2/18)

In the past, concerns about mass surveillance have extended across the political spectrum and around the

world. Under the Trump administration, those concerns have grown increasingly pressing, given the president's seeming disregard for constitutional limits on executive power, and potential willingness to politicize surveillance to serve his own political ends. Given those concerns, and the crucial congressional role of checking and balancing the federal executive branch, Congress should aggressively exercise its oversight responsibilities. But there are structural barriers to doing so. Many members of Congress on key congressional committees, for instance, lack qualified staff wielding adequate security clearance to rebut talking points peddled by self-serving executive officials. Beyond structural

impediments, many members of Congress have been willing to settle for mere assurances from executive officials, rather than insist upon reviewing evidence proving that mass surveillance effectively protects security, and that the government’s systems adequately protect the rights of innocent Americans. Representatives poised to do more include Democrats and Republicans whose constituents may enjoy opportunities to politically force their hands.

Only by investigating mass surveillance operations can Congress uncover the underlying facts. Such an investigation would be crucial in helping establish the need for long overdue constitutional limits. In particular, because agencies including the NSA and FBI have relied on legal loopholes and secret interpretations for which they have grown notorious, one crucial requirement is for backdoor searches of Americans to be first justified by a judicial warrant. While that process does not impose a significant operational burden on agencies, it does prevent the kinds of documented abuses that agency employees and contractors have already committed, which include stalking former lovers using the government's powerful spying tools. Congress should also ensure that intelligence information is used exclusively to protect national security, instead of polluting the criminal legal system with raw intelligence that inherently fails to meet the standards required for evidence to be admitted in court. Congress should not allow powerful military-grade surveillance programs to be used for purposes like routine criminal law enforcement or tracking down undocumented immigrants. Congressional oversight of the intelligence

agencies should also address issues beyond data collection. In the past, intelligence agencies have undermined attempts by Americans to ensure their own privacy, including by intercepting router shipments and planting covert firmware. Accordingly, Congress must adopt measures to protect encryption and encryption standards from erosion by national security agencies. A restriction along these lines would also serve business interests, which have vocally decried losses amounting to billions of dollars driven by clients making the rational decision to buy encryption devices from other sources. Finally, Congress must restore the opportunity for a robust public debate about these issues. That requires reforming the state secrets privilege and fixing the broken classification system described as “dysfunctional” by the former official who administered it. All too

often, overclassification keeps policymakers and the public in the dark, and enables a bipartisan war on whistleblowers from whom congressional committees have learned the truth. Regardless of what Congress does this fall, advocates will continue to challenge the constitutionality of mass surveillance in the courts, where we have sought for

over a decade to invoke the rule of law to restore limits on executive authority. Congress is currently considering surveillance policy, and we urge Congress to legislate limits to safeguard constitutional rights. If enough policymakers are pressed by informed and alarmed constituents, Congress will hopefully finish the job it already started.

Congress key- future presidents won’t restrain themselvesFroomkin ‘12[Dan, contributing editor, Nieman Reports. http://www.huffingtonpost.com/dan-froomkin/obama-white-house-leaks_b_1973649.html ETB]

Troubling legal and moral issues left behind by the previous administration remain unresolved. Far from reversing the Bush-Cheney executive power grab, President Barack Obama is taking it to new extremes by unilaterally approving indefinite detention of foreign prisoners and covert targeted killings of terror suspects, even when they

are American citizens. There is little to none of the judicial and legislative oversight Obama had promised, so the executive branch's most controversial methods of violence and control remain solely in the hands of the president -- possibly about to be passed along to a leader with less restraint.

Unfettered presidential powers cause nuclear war; ev is gender modifiedForrester 89 - Professor, Hastings College of the Law (Ray, August 1989, ESSAY: Presidential Wars in the Nuclear Age: An Unresolved Problem, 57 Geo. Wash. L. Rev. 1636)

On the basis of this report, the startling fact is that one man [person] alone has the ability to start a nuclear war. A basic theory--if

not the basic theory of our Constitution--is that concentration of power in any one person , or one group, is dangerous to mankind [humanity]. The Constitution, therefore, contains a strong system of checks and balances, starting with the separation of powers between the President, Congress, and the Supreme Court. The message is that no one of them is safe with unchecked power. Yet, in what is probably the most dangerous governmental power ever possessed, we find the potential for world destruction lodged in the discretion of one person. As a result of public indignation aroused by the Vietnam disaster, in which tens of thousands lost their lives in military actions initiated by a succession of Presidents, Congress in 1973 adopted, despite presidential veto, the War Powers Resolution. Congress finally asserted its checking and balancing duties in relation to the making of presidential wars. Congress declared in section 2(a) that its purpose was to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations. The law also stated in section 3 that [t]he President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated. . . . Other limitations not essential to this discussion are also provided. The intent of the law is clear. Congress undertook to check the President, at least by prior consultation, in any executive action that might lead to hostilities and war. [*1638] President Nixon, who initially vetoed the resolution, claimed that it was an unconstitutional restriction on his powers as Executive and Commander in Chief of the military. His successors have taken a similar view. Even so, some of them have at times complied with the law by prior consultation with representatives of Congress, but obedience to the law has been uncertain and a subject of continuing controversy between Congress and the President. Ordinarily, the issue of the constitutionality of a law would be decided by the Supreme Court. But, despite a series of cases in which such a decision has been sought, the Supreme Court has refused to settle the controversy. The usual ground for such a refusal is that a "political question" is involved. The rule is well established that the federal judiciary will decide only "justiciable" controversies. "Political questions" are not "justiciable." However, the standards established by the Supreme Court in 1962 in Baker v. Carr, 369 U.S. 186, to determine the distinction between "justiciable controversies" and "political questions" are far from clear. One writer observed that the term "political question" [a]pplies to all those matters of which the court, at a given time, will be of the opinion that it is impolitic or inexpedient to take jurisdiction. Sometimes this idea of inexpediency will result from the fear of the vastness of the consequences that a decision on the merits might entail. Finkelstein, Judicial Self-Limitation, 37 HARV. L. REV. 338, 344 (1924)(footnote omitted). It is difficult to defend the Court's refusal to assume the responsibility of decisionmaking on this most critical issue. The Court has been fearless in deciding other issues of "vast consequences" in many historic disputes, some involving executive war power. It is to be

hoped that the Justices will finally do their duty here. But in the meantime the spectre of single-minded power persists, fraught with all of the frailties of human nature that each human possesses, including the President . World history is filled with tragic examples. Even if the Court assumed its responsibility to tell us whether the Constitution gives Congress the necessary power to check the President, the War Powers Resolution itself is unclear. Does the Resolution require the President to consult with Congress before launching a nuclear attack? It has been asserted that "introducing United States Armed Forces into hostilities" refers only to military personnel and does not include the launching of nuclear missiles alone. In support of this interpretation, it has been argued that Congress was concerned about the human losses in Vietnam and in other presidential wars, rather than about the weaponry. Congress, of course, can amend the Resolution to state explicitly that "the introduction of Armed Forces" includes missiles as well as personnel. However, the President could continue to act without prior consultation by renewing the claim first made by President [*1639] Nixon that the Resolution is an unconstitutional invasion of the executive power. Therefore, the real solution, in the absence of a Supreme Court decision, would appear to be a constitutional amendment. All must obey a clear rule in the Constitution. The adoption of an amendment is very difficult. Wisely, Article V requires that an amendment may be proposed only by the vote of two-thirds of both houses of Congress or by the application of the legislatures of two-thirds of the states, and the proposal must be ratified by the legislatures or conventions of three-fourths of the states. Despite the difficulty, the Constitution has been amended twenty-six times. Amendment can be done when a problem is so important that it arouses the attention and concern of a preponderant majority of the American people. But the people must be made aware of the problem. It is hardly necessary to belabor the relative importance of the control of nuclear warfare. A constitutional amendment may be, indeed, the appropriate method. But the most difficult issue remains. What should the amendment provide? How can the problem be solved specifically? The Constitution in section 8 of Article I stipulates that "[t]he Congress shall have power . . . To declare War. . . ." The idea seems to be that only these many representatives of the people, reflecting the public will, should possess the power to commit the lives and the fortunes of the nation to warfare. This approach makes much more sense in a democratic republic than entrusting the decision to one person, even though he may be designated the "Commander in Chief" of the military forces. His

power is to command the war after the people, through their representatives, have made the basic choice to submit themselves and their children to war. There is a recurring relevation of a paranoia of power throughout human history that has impelled one leader after another to draw their

people into wars which, in hindsight, were foolish, unnecessary, and, in some instances, downright insane. Whatever may be the psychological influences that drive the single

decisionmaker to these irrational commitments of the lives and fortunes of others, the fact remains that the behavior is a predictable one in any government that does not provide an effective check and balance against uncontrolled power in the

hands of one human. We, naturally, like to think that our leaders are above such irrational behavior. Eventually, however, human nature, with all its weakness, asserts itself whatever the setting. At least that is the evidence that experience and history give us, even in our own relatively benign society, where the Executive is subject to the rule of law. [*1640] Vietnam and other more recent engagements show that it can happen and has happened here. But the "nuclear football"--the ominous "black bag" --remains in the sole

possession of the President. And, most important, his [the] decision to launch a nuclear missile would be , in fact if not in law, a declaration of nuclear war, one which the nation and, indeed, humanity in general, probably would be unable to survive .

Congress K2 SOP /Heg Executive power is expanding in the squo- continuing the trend will destroy separation of powers- congressional checks are key to solveMarshall ‘8

[William P. Marshall, Kenan Professor of Law, University of North Carolina. Boston Law Review 88:505. http://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MARSHALL.pdf ETB]

Specifically, I contend that the power of the Presidency has been expanding since the Founding, and that we need to consider the implications of this expansion within the constitutional structure of separation of powers, no matter which party controls the White House. Part I of this Essay makes the descriptive case by briefly canvassing a series of

factors that have had, and continue to have, the effect of expanding presidential power. Part II suggests this expansion in presidential power has created a constitutional imbalance between the executive and legislative branches, calling into doubt the continued efficacy of the structure of separation of powers set forth by the Framers. Part III then offers some suggestions as to how this power imbalance can be alleviated, but it does not present a silver bullet solution. Because many, if not all, the factors that have led to increased presidential power are the products of inevitable social and technological change, they are not easily remedied.3 Thus, the Essay ends with only the modest conclusion that regardless of who wins the

Presidency, it is critical that those on both sides of the aisle work to assure that the growth in presidential power is at least checked, if not reversed.

Strong SOP key to hegG. John Ikenberry, Professor @ Georgetown University, Spring 2001 (The National Interest)

First, America's mature political institutions organized around the rule of law have made it a relatively predictable and cooperative hegemon. The pluralistic and regularized way in which U.S. foreign and security policy is made reduces surprises and allows other states to build long-term, mutually beneficial relations. The governmental separation of powers creates a shared decision-making system that opens up the process and reduces the ability of any one leader to make abrupt or aggressive moves toward other states . An active press and competitive party system also provide a service to outside states by generating information about U.S. policy and determining its seriousness of purpose.

The messiness of a democracy can, indeed, frustrate American diplomats and confuse foreign observers. But over the long term, democratic institutions produce more consistent and credible policies--policies that do not reflect the capricious and idiosyncratic whims of an autocrat. Think of the United States as a giant corporation that seeks foreign investors. It is more likely to attract investors if it can demonstrate that it operates according to accepted accounting and fiduciary principles. The rule of law and the institutions of policymaking in a democracy are the political equivalent of corporate transparency and accountability. Sharp shifts in policy must

ultimately be vetted within the policy process and pass muster by an array of investigatory and decision-making bodies. Because it is a constitutional, rule-based democracy, outside states are more willing to work with the United States-or, to return to the corporate metaphor, to invest in ongoing partnerships.

Rollback – Future PresidentsCP will get rolled back by future presidentsFriedersdorf 13(CONOR FRIEDERSDORF, staff writer, “Does Obama Really Believe He Can Limit the Next President's Power?” MAY 28 2013, http://www.theatlantic.com/politics/archive/2013/05/does-obama-really-believe-he-can-limit-the-next-presidents-power/276279/, KB)

Obama doesn't seem to realize that his legacy won't be shaped by any perspicacious limits he places on the executive branch, if he ever gets

around to placing any on it. The next president can just undo those "self-imposed" limits with the same wave of a hand that Obama uses to create them. His influence in the realm of executive power will be to expand it. By 2016 we'll be four terms deep in major policy decisions being driven by secret memos from the Office of Legal Counsel. The White House will have a kill list, and if the next president wants to add names to it using standards twice as lax as Obama's, he or she can do it, in secret, per his precedent.

Future presidents will rollback XOs – Obama provesSEJ 9(Society of Environmental Journalists, “Obama Orders Rollback of Bush Secrecy on 1st Day” January 22, 2009, http://www.sej.org/publications/watchdog-tipsheet/obama-orders-rollback-bush-secrecy-1st-day, KB)

President Barack Obama signalled that open access to information will be a top priority for his administration on January 21, 2009, his first full day in office. Obama issued two memos to all executive agencies

and one executive order at a Wednesday session open to reporters and cabinet members — all reversing Bush-era secrecy directives.

Rollback – Congress and Courts Congress and the courts will roll back the CPHowell 5(William G. Howell, Associate Prof Gov Dep @ Harvard 2005 (Unilateral Powers: A Brief Overview; Presidential Studies Quarterly, Vol. 35, Issue: 3, Pg 417)

Plainly, presidents cannot institute every aspect of their policy agenda by decree. The checks and balances that define our system of governance are alive, though not always well, when presidents contemplate unilateral

action. Should the president proceed without statutory or constitutional authority, the courts stand to overturn his actions, just as Congress can amend them, cut funding for their operations, or eliminate them outright. (4) Even in those moments when presidential power reaches its zenith--namely, during times

of national crisis--judicial and congressional prerogatives may be asserted (Howell and Pevehouse 2005, forthcoming; Kriner, forthcoming; Lindsay 1995, 2003; and see Fisher's contribution to this volume). In 2004, as the nation braced itself for another domestic terrorist attack and images of car bombings and suicide missions filled the evening news, the courts extended new protections to citizens deemed enemy combatants by the president, (5) as well as noncitizens held in protective custody abroad. (6) And while Congress, as of this writing, continues to authorize as much funding for the Iraq occupation as Bush requests, members have imposed increasing numbers of restrictions on how the money is to be spent.

Perm Permutation is the only thing that can give an executive order the power of law and prevent roll backLeanna Anderson (clerk for H.R. Lloyd, U.S. Magistrate) Hastings Constitutional Law Quarterly 2002

To be challengeable, an executive order must have the force and effect of law. Under the United States Code, federal court jurisdiction is limited to "federal questions." "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." For federal courts to have jurisdiction over a civil action challenging an executive order, the order must have the

"force and effect of law." There are two different branches of analysis under this requirement. First, if the order is issued in accordance with Congressional statutory mandate or delegation, the order has the force and effect of law. However, if the order is not based on an express Congressional grant of authority, federal courts may either look for an implied Congressional basis for the order or find that no statutory basis exists so that the order does not have the force and effect of law .

XO=>Unchecked Prez Power XO’s allow the prez to gain unchecked power- merits of the CP are irrelevantBen ‘12[Ben is a 2011 graduate of Taylor University where he received his Bachelor of Arts in History. He is currently enrolled at Denver Seminary and is a candidate for a Master of Arts in New Testament Biblical Studies. http://faithfulpolitics.org/2012/08/31/the-threat-of-executive-orders/ ETB]

In an op-ed piece this week entitled “ ‘Issues’ or America?,” American economist Thomas Sowell denounced presidential executive orders,

pointing out that people often become so focused on debating the merits or demerits of policy they forget that the legislative process is being circumvented and our Constitution and freedoms silently eroded. What are executive orders and is Sowell right to criticize them? Executive orders have been around for centuries, although they have morphed over the years. We would not have recognized early “executive orders,” which are more accurately described as presidential directives and proclamations. The idea of the President of the United States issuing a directive is natural and appropriate, the first one being given by George Washington himself in 1789. The actual term “executive order” was not used until 1862 when Abraham Lincoln used a number of orders to run the early months of the Civil War, and later when he issued the Emancipation Proclamation on January 1, 1863. Lincoln issued only three official executive orders, but later presidents, starting with Theodore Roosevelt and FDR in the early twentieth century, issued hundreds and even thousands. However, from Lyndon B. Johnson onward, the amount of executive orders per president has remained consistent: Clinton signed 364; G.W. Bush signed 291; President Obama is currently up to 134. In the beginning executive orders were used for a number of different purposes, most of them legitimate exercises of authority. Most executive orders are used for one of the following reasons: to exercise constitutionally authorized executive power, to interpret and implement statutory laws passed by Congress, or to organize and delegate responsibility within the executive branch. Constitutionally, the president has broad powers as described in Article II to issue directives in the following areas: 1) Commander in Chief of the armed forces (Art. II, § 2, cl. 1); 2) as the Head of State in carrying out foreign policy, including negotiating treaties (Art. II, § 2, cl. 2, and § 3); 3) as Chief Law Enforcement Officer to make sure that the “laws be faithfully executed” (Art. II, § 3); 4) as Head of the Executive Branch in order to appoint officers, delegate authority, and organize administration (Art. II, § 3); and finally, 5) to grant pardons (Art. II, § 2, cl. 1). With such broad powers, executive orders can be far reaching and encompass many areas of governance. But is there a limit? Is there anything the president cannot do with executive orders? In fact there is. When our founding fathers wrote and debated the Constitution during the Constitutional Convention of 1787, they purposely set out to create government by the people (known as People’s Law), not by a single individual (known as Ruler’s Law). Thus they invested all law-making power in Congress, which represented the people equally through the Senate, and proportionally through the House of Representatives. Having just won an unlikely war against King George III of England for their independence, the framers of our government were explicitly trying to avoid arbitrary rule by one person that can so easily become abusive and dictatorial. This is why Article I, Section 1 of the Constitution reads, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” [italics mine]. The president and executive branch do not have the authority to create new laws, for this would have violated one of the most fundamental purpose of our government, representative rule. The broad powers covered by executive orders exclude the following: 1) creating new legislation apart from Congress; 2) revising current laws without congressional initiative; 3) repealing current laws after they have been signed into law; and 4) creating bureaucracy in connection with the three previous violations. While there is some overlap between legislative and executive powers, the authority to write, alter, and repeal laws lies only with Congress. The only time the president has the authority to tamper with current law is if Congress has delegated authority to him to interpret and implement the law. But this power has already been invested in the executive branch pursuant Art. II, § 3. Unfortunately, since FDR presidents have used executive orders as legislative tools to sidestep Congress and accomplish their own policy objectives. This is a clear abuse of executive power and is illegal. The last three presidents have all abused their power in this manner. Clinton often flaunted his ability to create laws through executive order, and he readily publicized his legislative executive orders when Congress failed to achieve his policy goals. At one point the Supreme Court actually struck down one of Clinton’s executive orders and forced him to rewrite it. George W. Bush did not amend such abuses, but continued to use his executive power in near dictatorial ways during emergencies with the National Security and Homeland Security Presidential Directive in 2007, among others. Currently, President Obama has followed suit, rolling out his “We Can’t Wait” campaign after the 2010 midterm elections saw the Republicans take control of the House of Representatives and Congress become deadlocked. President Obama explicitly states that “we can’t wait for an increasingly dysfunctional Congress to do its job. Where they won’t act, I will.” This could

accurately be translated to mean, “since Congress won’t pass laws, I will myself.” When we take a look at recent executive orders, no one can deny that many of them are good policy and were signed by the president with the best intentions. But this is exactly the problem that Sowell was getting at in his opinion piece. When we become entangled in debating the pros and cons of policy set forth in executive orders, we fail to realize that such legislative executive orders – no matter how good they sound or how much they will benefit us – are explicitly an illegal usurpation of power. This is one of many steps in the deconstruction of our Constitution, the loss of freedoms and liberty, and the eventual rise of a tyrant.

XO=>Tyranny XO’s cause tyrannySterling 2k[John A. Sterling is the Executive Director of Law and Liberty, a non-profit foundation for education in the public interest with its main office in Chesapeake, Virginia. John is an adjunct professor at Tidewater Community College in Chesapeake, VA. 31 U. West. L.A. L. Rev. 99. ETB]

Executive Orders are not inherently evil and, subject to the same checks and balances to which the entire federal apparatus is subject, may be used to effectively administer public policy through the administrative agency. History and prudence agree that, absent such controls,

administrative rule-making promulgated by executive order is tyranny . It is no less tyranny because some people have not yet felt its sting. The Republic was anchored in the fundamental principles of the Constitution whereby the democratic political process maintained effective control of the rudder. Once the anchor is lost, the great ship of state is bound for shipwreck on the reefs of self-destruction . Part Two will look at the [*117] Executive Orders of Presidents Kennedy through Clinton to see how far we have drifted and ponder whether, if it be possible, we may set a truer course.

The impact is value to life – moral side constraintPetro, Wake Forest Professor in Toledo Law Review, 1974

(Sylvester, Spring, page 480)

However, one may still insist, echoing Ernest Hemingway - "I believe in only one thing: liberty." And it is always well to bear in mind David

Hume's observation: " It is seldom that liberty of any kind is lost all at once ." Thus, it is unacceptable to say that the invasion of one aspect of freedom is of no import because there have been invasions of so many other aspects. That road leads to chaos, tyranny, despotism, and the end of all human aspiration. Ask Solzhenitsyn. Ask Milovan Dijas. In sum, if one believed in freedom as a supreme value and the proper ordering

principle for any society aiming to maximize spiritual and material welfare, then every invasion of freedom must be emphatically identified and resisted with undying spirit.

Congress K2 Check Prez Power Executive power is expanding through absence of congressional checks on war powersKogan ‘11[Mark Kogan is a lawyer working in public affairs in Washington, D.C.. He holds a J.D. from the American University Washington College of Law. http://www.policymic.com/articles/425/mark-my-words-the-myth-of-presidential-war-powers ETB]

In 1973, Congress passed the War Powers Resolution, giving the president unilateral power to commit U.S. forces anywhere in the world, for any reason, for a period of up to 90 days. This act has been mired in controversy since passage and for good reason; the act effectively transferred Congress’ exclusive and enumerated power to declare war to the president, no

questions asked. It was, and remains, an appallingly unconstitutional transfer of power that the executive has joyously abused to this day. President Obama’s action in Libya is merely the latest exercise of presidential war powers that were invented in the 1930s and enshrined in the 1970s. Obama is not the first president, nor will he be

the last, to send our young men and women into harm’s way without so much as informing Congress, much less asking their permission. Unfortunately, few members of Congress are willing to be the first to try and reverse course on this unconstitutional status quo. The dangers of being labeled unpatriotic, as well as the convenience of having the ability to go to war at will when your man is in power, have kept our

elected officials criticizing the President’s actions, but never doing anything about their constitutional legitimacy. Nobody wants to give away their ace in the hole and, in our modern political environment, who can blame them? Well me, for starters. What we seem to forget is that in the hyperbolic rhetoric being thrown around by our politicians hang the lives of men and women who have volunteered to serve and protect our country: 4,441 men and women have died in Iraq. Nearly 33,000 have been injured, many

irreversibly so. 1,517 more lay dead in Afghanistan. How many more of our bravest are we willing to throw to the political winds? No president, regardless of party, history, or politics, should have the unilateral and unchallengeable right to send Americans to their death. It is long overdue that our elected representatives stand up for American soldiers and return the power to declare war where the constitution put it, with the people, not one man.

Vacuum created by congressional and judiciary inaction means CP inevitably expands unchecked presidential powerBurnham ‘3

[Margaret Burnham is a law professor at Northeastern University School of Law. She co-authored the Plaintiffs' brief in Doe v. Bush. http://jurist.law.pitt.edu/forum/forumnew99.php ETB]

Implicated in the questions raised by the suit are the larger debates over originalism and separation of powers that have recently occupied

much attention in the Supreme Court. Clearly, clarifying constitutional meaning on the war powers question holds special urgency today. But in Doe v. Bush the district court declined to join the debate at all. Instead, it opted out of the debate

altogether, adopting the Government's position claim that the matter is a non-justiciable political question. Under the political question doctrine, of course, the judiciary declines to wade into certain supposed "political thickets,"

theoretically leaving the underlying constitutional issue undecided. But, especially given the nature of the debate, invocation of the doctrine - ostensibly to avoid decision - still adds "precedent" to the pro-executive side of the scale. Judicial demurral leaves a vacuum that the executive will fill on its own terms - thereby creating new facts to support its exclusivity claim. The executive's evidence that it possesses the trigger power is that it has many times in the past exercised it absent congressional authority and without judicial interference.

This is a win-win syllogism for unchecked executive authority: its use of the power is an unreviewable political prerogative and, ipso facto, proof of its legitimacy, and so the evidence in its favor is infinitely accumulative.

AT Flexibility NB Double bind- either CP doesn’t solve case or it can’t preserve flexibility. And flexibility causes terrorism, turns the internal linkEnglehardt ‘5[Tom Engelhardt created and runs the Tomdispatch.com website, a project of The Nation Institute where he is a Fellow. Each spring he is a Teaching Fellow at the Graduate School of Journalism at the University of California, Berkel. http://www.tomdispatch.com/post/32668/ ETB]

Here it is worth reviewing the positions Yoo advocated while in the executive branch and since, and their consequences in the "war on terror." At every turn, Yoo has sought to exploit the "flexibility" he finds in the Constitution to advocate an approach to the "war on terror" in which legal limits are either interpreted away or rejected outright. Just two weeks after the September 11 attacks, Yoo sent an extensive memo to Tim Flanigan, deputy White House counsel, arguing that the President had unilateral authority to use military force not only against the terrorists responsible for the September 11 attacks but against terrorists anywhere on the globe, with or without congressional authorization. Yoo followed that opinion with a series of memos in January 2002 maintaining, against the strong objections of the State Department, that the Geneva Conventions should not be applied to any detainees captured in the conflict in Afghanistan. Yoo argued that the president could unilaterally suspend the conventions; that al-Qaeda was not party to the treaty; that Afghanistan was a "failed state" and therefore the president could ignore the fact that it had signed the conventions; and that the Taliban had failed to adhere to the requirements of the Geneva Conventions regarding the conduct of war and therefore deserved no protection. Nor, he argued, was the president bound by customary international law, which insists on humane treatment for all wartime detainees. Relying on Yoo's reasoning, the Bush administration claimed that it could capture and detain any person who the president said was a member or supporter of al-Qaeda or the Taliban, and could categorically deny all detainees the protections of the Geneva Conventions, including a hearing to permit them to challenge their status and restrictions on inhumane interrogation practices. Echoing Yoo, Alberto Gonzales, then White House counsel, argued at the time that one of the principal reasons for denying detainees protection under the Geneva Conventions was to "preserve flexibility" and make it easier to "quickly obtain information from captured terrorists and their sponsors." When CIA officials reportedly raised concerns that the methods they were using to interrogate high-level al-Qaeda detainees -- such as waterboarding -- might subject them to criminal liability, Yoo was again consulted. In response, he drafted the August 1, 2002, torture memo, signed by his superior, Jay Bybee, and delivered to Gonzales. In that memo, Yoo "interpreted" the criminal and international law bans on torture in as narrow and legalistic a way as

possible; his evident purpose was to allow government officials to use as much coercion as possible in interrogations. Yoo wrote that threats of death are permissible if they do not threaten "imminent death," and that drugs designed to disrupt the personality may be administered so long as they do not "penetrate to the core of an individual's ability to perceive the world around him." He said that the law prohibiting torture did not prevent interrogators from inflicting mental harm so long as it was not "prolonged." Physical pain could be inflicted so long as

it was less severe than the pain associated with "serious physical injury, such as organ failure, impairment of bodily function, or even death." Even this interpretation did not preserve enough executive "flexibility" for Yoo. In a separate section of the memo, he argued that if these loopholes were not sufficient, the president was free to order outright torture. Any law limiting the president's authority to order torture during wartime, the memo claimed, would "violate the Constitution's sole vesting of the Commander-in-Chief authority in the President." Since leaving the Justice Department, Yoo has also defended the practice of "extraordinary renditions," in which the United States has kidnapped numerous "suspects" in the war on terror and "rendered" them to third countries with records of torturing detainees. He has argued that the federal courts have no right to review actions by the president that are said to violate the War Powers Clause. And he has defended the practice of

targeted assassinations, otherwise known as "summary executions." In short, the flexibility Yoo advocates allows the administration to lock up human beings indefinitely without charges or hearings, to subject them to brutally coercive interrogation tactics, to send them to other countries with a record of doing worse, to assassinate persons it describes as the enemy without trial, and to keep the courts from interfering with all such actions. Has such flexibility actually aided the U.S. in dealing with terrorism? In all likelihood,

the policies and attitudes Yoo has advanced have made the country less secure. The abuses at Guantánamo and Abu Ghraib have become international embarrassments for the United States, and by many accounts have helped to recruit young people to join al-Qaeda. The U.S. has squandered the sympathy it had on September 12, 2001, and we now find ourselves in a world perhaps more hostile than ever before. With respect to detainees, thanks to Yoo, the U.S. is now in an untenable bind: on the one hand, it has become increasingly unacceptable for the U.S. to hold hundreds of prisoners indefinitely without trying them; on the other hand our coercive and inhumane interrogation tactics have effectively granted many of the prisoners immunity from trial. Because the evidence we might use against them is tainted by their mistreatment, trials would likely turn into occasions for exposing the United States' brutal interrogation tactics. This predicament was entirely avoidable. Had we given alleged al-Qaeda detainees the fair hearings required by the Geneva Conventions at the outset, and had we conducted humane interrogations at Guantánamo, Abu Ghraib, Camp Mercury, and elsewhere, few would have objected to the U.S. holding some detainees for the duration of the military conflict, and we could have tried those responsible for war crimes. What has been so objectionable to many in the U.S. and abroad is the government's

refusal to accept even the limited constraints of the laws of war. The consequences of Yoo's vaunted "flexibility" have been

self-destructive for the U.S. -- we have turned a world in which international law was on our side into one in which we see it as our enemy. The Pentagon's National Defense Strategy, issued in March 2005, states, "Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak, using international fora, judicial processes, and terrorism." The proposition that judicial processes -- the very essence of the rule of law -- are to be dismissed as a strategy of the weak, akin to terrorism, suggests the continuing strength of Yoo's

influence. When the rule of law is seen simply as a device used by terrorists, something has gone perilously wrong. Michael Ignatieff has written that "it is the very nature of a democracy that it not only does, but should, fight with one hand tied behind its back. It is also in the nature of democracy that it prevails against its enemies precisely because it does." Yoo persuaded the Bush administration to untie its hand and abandon the constraints of the rule of law. Perhaps that is why we are not prevailing.

A multitude of other actors hamper presidential flexibilityRozell 12(Mark Rozell, Professor of Public Policy, George Mason University, “From Idealism to Power: The Presidency in the Age of Obama” 2012, http://www.libertylawsite.org/book-review/from-idealism-to-power-the-presidency-in-the-age-of-obama/, KB)

A substantial portion of Goldsmith’s book presents in detail his case that various forces outside of government, and some within, are responsible for hamstringing the president in unprecedented fashion: Aggressive, often intrusive, journalism, that at times endangers national security; human rights and other advocacy groups, some domestic and other

cross-national, teamed with big resources and talented, aggressive lawyers, using every legal category and technicality possible to complicate executive action; courts thrust into the mix, having to decide critical national security law controversies, even when the judges themselves have little direct knowledge or expertise on the topics

brought before them; attorneys within the executive branch itself advising against actions based on often narrow legal interpretations and with little understanding of the broader implications of tying down the president with legalisms.

Flexibility will inevitability limited- ideological and electoral incentivesNzelibe ‘11[Jibe, Professor of Law, Northwestern University Law School. William and Mary Law Review 53:389. http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1216&context=facultyworkingpapers ETB]

The problem, I suggest below, is that these institutional accounts do not capture the full range of pressures that influence the preferences of elected officials for expanding or contracting presidential authority.

Although Presidents and their copartisans in Congress may be pushed towards an expansive vision of presidential authority by a shared

desire to maintain maximum policy flexibility, they are often pulled by their partisan commitments to try to embrace constraints that limit the President’s policy flexibility on those issues that may be owned by the political opposition.21 Indeed, both electoral and ideological incentives may explain why politicians are sometimes willing to commit to institutional arrangements they hope will constrain their successors even if it comes at the expense of maintaining policy flexibility. To be clear, some constitutional scholars have recognized that societal actors may try to usher in new constitutional orders for partisan objectives, but these scholars have focused largely on tactics like stacking the judiciary, exerting greater influence over administrative agencies, or establishing policy agendas in a way that demobilizes political opponents.22 However, these scholars have neither focused specifically on the separation of powers nor examined the interaction between partisan issue ownership and constitutional structure, which is a crucial aspect of the approach this Essay advances.

AT Hegemony ImpactPresidential powers crush public support for the militaryPaul 98 [Paul R, Professor @ University of Connecticut School of Law “The Geopolitical Constitution: Executive Expediency and Executive Agreements” California Law Review, 86 Calif. L. Rev. 671, Lexis]

Second, the growth of executive power has created a bias in favor of internationalism that has often led to failure. Possessing a virtual monopoly power over foreign relations has tempted presidents to send troops abroad or to make foreign commitments. Time and again the executive has stumbled into foreign conflicts, like Bosnia, Lebanon, Iran and Somalia, with tragic results. n32 At a minimum, congressional [*680] participation might have slowed decision-making, leaving time for public deliberation. n33 Third, the absence of congressional debate has often accounted for the lack of public support for foreign commitments. When

U.S. forces have suffered casualties, such as in Somalia or Beirut, public opinion turned against the executive. Without the popular will to stay the course, presidents have withdrawn U.S. forces in some cases. As a result, U.S. policy has often lacked coherence. Though Congress was blamed for this inconsistency in many cases, one reason members of Congress so readily changed their minds was that they were not politically invested in the policy.

Public support is key to sustained leadershipGray 4Gray 4 [Colin, Professor of International Politics and Strategic Studies at the University of Reading, England, The Sheriff: America’s Defense of the New World Order, pp. 94-5]

Seventh, the American sheriff cannot police world order if domestic opinion is not permissive. The longevity of U.S. guardianship depends vitally upon the skill, determination, and luck with which the country protects and burnishes its reputation for taking strategically effective action. But it also depends upon the willingness of American society to accept the costs that comprise the multi-faceted price of this particular form of glory. The American public is probably nowhere near as casualty-shy as popular mythology insists, though the same cannot be said with equal confidence of the profes¬sional American military. Such, at least, are the conclusions of the major recent study on this much debated subject." It is the opinion of this author that popular American attitudes toward casualties stem fairly directly from the sense of involvement, or lack of the same, in the matters at issue. If valid, this judgment is good news for the fea¬sibility of U.S. performance in the sheriff's role, but a dire

systemic problem may still remain. Specifically, as principal global guardian, the United States risks being thwarted on the domestic front by the central and inalienable weakness that mars attempts to practice the theory of collective security. Bacevich and others advance powerful arguments connecting American strategic behavior to the promotion of what they see, not wholly implausibly, as an informal American empire. But many, if not most, American voters will be hard to convince that U.S. military action is warranted save in those mercifully rare instances when it is directed to thwart some clear and present danger. A doctrine of military preemption, typically meaning preven¬tion, no matter how strategically prudent, will be as difficult to justify domestically as abroad. There is an obvious way to diminish the amount, intensity, and duration of domestic political opposition to military operations conducted for purposes that do not resonate loudly on Main Street. That solution is to adopt a style of warfare that imposes few costs on American society, especially in the most human of dimensions-casualties. But since war is a duel, the United States' ability to perform all but painlessly as sheriff can never lie totally within its own control. Nonetheless, the potential problem of a reluctant domestic public should be eased if care is taken in select¬ing policing duties and if the troops who must execute the strategy are tactically competent. All of this would be more reassuring were we not respectful students of Clausewitz's teaching that "War is the realm of chance," an aphorism that we have had occasion to quote before

AT Terrorism Impact Congressional power is critical to a successful War on TerrorDean 2

[John, White House Counsel to Nixon and FindLaw Writ Columnist, “Tom Ridge's Non- Testimonial Appearance Before Congress: Another Nixon-style Move By The Bush Administration, Find Law, April 12 http://writ.news.findlaw.com/dean/20020412.html]

Congressional oversight and the collective wisdom of Congress are essential in our dealing with terrorism.. Presidents don't issue press releases about their mistakes Nor do they report interagency squabbles that

reduce executive effectiveness. They don't investigate how funds have been spent poorly or unwisely. And they're not inclined to explain even conspicuous problems in gathering national security intelligence. When did anyone hear of a President rooting out

incompetent appointees (after all, they chose them in the first place)? In contrast, Congress wants to do all these things, thereby keeping a President on his toes. Its oversight is crucial - for the Presidential and Executive Branch

limitations I've suggested are only a few of the myriad problems that might hamper the efficacy of the Executive in its efforts to deal with terrorism, and that Congress can help to correct. Justifiably, Americans are worried, but they are getting on with their lives. Shielding and hiding the man in charge of homeland security from answering the questions of Congress is entirely unjustified. This talk of "separation of powers" and "executive privilege" is unmitigated malarkey. It is a makeshift excuse to keep the Congress from policing the White House