Verbatim Mac

Executive CP

1NC The President of the United States, through executive order, should publicly declare that domestic drone surveillance will no longer be carried out without a warrant. The President of the United Stats should comply with this declaration. Solves the case and avoids politicsCooper-prof public administration Portland State- 2 [Phillip, By Order of the President: The Use and Abuse of Executive Direct Action p.59Executive orders are often used because they are quick, convenient, and relatively easy mechanisms for moving significant policy initiatives. Though itis certainly true that executive orders are employed for symbolic purposes, enough has been said by now to demonstrate that they are also used for serious policymaking or to lay the basis for important actions to be taken by executive branch agencies under the authority of the orders. Unfortunately, as is true of legislation, it is not always possible to know from the title of orders which are significant and which are not, particularly since presidents will often use an existing order as a base for action and then change it in ways that make it far more significant than its predecessors. The relative ease of the use of an order does not merely arise from the fact that presidents may employ one to avoid the cumbersome and time consuming legislative process. They may also use this device to avoid some times equally time-consuming administrative procedures, particularly the rulemaking processes required by the Administrative Procedure Act.84 Because those procedural requirements do not apply to the president, it is tempting for executive branch agencies to seek assistance from the White House to enact by executive order that which might be difficult for the agency itself to move through the process. Moreover, there is the added plus from the agency's perspective that it can be considerably more difficult for potential adversaries to obtain standing to launch a legal challenge to the president's order than it is to move an agency rule to judicial review. There is nothing new about the practice of generating executive orders outside the White House. President Kennedy's executive order on that process specifically provides for orders generated elsewhere.2NC SolvencyExecutive orders solves for policymakingthats Cooperits an easy solution to initiate reformsObama executive order can solve drone surveillance issuessolves and avoids the presidential powers linkCraig Whitlock, 9-26-2014, White House plans to require federal agencies to provide details about the drones they fly," Washington Post, http://www.washingtonpost.com/world/national-security/white-house-plans-to-require-federal-agencies-to-provide-details-about-drones/2014/09/26/5f55ac24-4581-11e4-b47c-f5889e061e5f_story.html, Accessed: 5-28-2015, /Bingham-MBThe White House is preparing a directive that would require federal agencies to publicly disclose for the first time where they fly drones in the United States and what they do with the torrents of data collected from aerial surveillance. The presidential executive order would force the Pentagon, the Justice Department, the Department of Homeland Security and other agencies to reveal more details about the size and surveillance capabilities of their growing drone fleets information that until now has been largely kept under wraps. The mandate would apply only to federal drone flights in U.S. airspace. Overseas military and intelligence operations would not be covered. President Obama has yet to sign the executive order, but officials said that drafts have been distributed to federal agencies and that the process is in its final stages. An interagency review of the issue is underway, said Ned Price, a White House spokesman. He declined to comment further. Privacy advocates said the measure was long overdue. Little is known about the scope of the federal governments domestic drone operations and surveillance policies. Much of what has emerged was obtained under court order as a result of public-records lawsuits. Were undergoing a quiet revolution in aerial surveillance, said Chris Calabrese, legislative counsel for the American Civil Liberties Union. But we havent had all in one place a clear picture of how this technology is being used. Nor is it clear that the agencies themselves know how it is being used. Most affected by the executive order would be the Pentagon, which conducts drone training missions in most states, and Homeland Security, which flies surveillance drones along the nations borders round-the-clock. It would also cover other agencies with little-known drone programs, including NASA, the Interior Department and the Commerce Department. Military and law enforcement agencies would not have to reveal sensitive operations. But they would have to post basic information about their privacy safeguards for the vast amount of full-motion video and other imagery collected by drones. Until now, the armed forces and federal law enforcement agencies have been reflexively secretive about drone flights and even less forthcoming about how often they use the aircraft to conduct domestic surveillance. Security officials are generally reluctant to disclose operational methods and techniques. But drones are in a special category of sensitivity, given the top-secret role theyve long played in CIA and military counterterrorism missions. Theres also evidence that federal agencies simply have been unable to develop internal guidelines and policies quickly enough to keep up with rapid advances in drone technology. Federal use of drones has gone way up, but its hard to document how much, said Jennifer Lynch, a lawyer with the Electronic Frontier Foundation, a San Francisco-based group that has sued the Federal Aviation Administration for records on government drone operations. Its been incredibly difficult. Even Congress has struggled to uncover the extent to which the federal government uses drones as a surveillance tool in U.S. airspace. In March 2013, lawmakers directed the Defense Department to produce a report, within 90 days, describing its policies for sharing drone surveillance imagery with law enforcement agencies. Eighteen months later, the Pentagon still has not completed the report. Air Force Lt. Col. Thomas Crosson, a Defense Department spokesman, said officials hoped to provide an interim response next week and a full version in the coming months. Department of Justice officials have also been reluctant to answer queries from lawmakers about their drone operations. The FBI first disclosed its use of small, unarmed surveillance drones to Congress in June 2013 and subsequently revealed that it had been flying them since 2006. The Justice Department inspector general reported last fall that the FBI had not developed new privacy guidelines for its drone surveillance and was relying instead on old rules for collecting imagery from regular aircraft. Since then, Justice officials have said they are reviewing their drone surveillance policies but have not disclosed any results. An FBI spokesman did not respond to a request for comment. The FBI has resisted other attempts to divulge details about the size of its drone fleet and its surveillance practices. Citizens for Responsibility and Ethics in Washington (CREW), a nonprofit group that pushes for transparency in government, sued the FBI last year under the Freedom of Information Act for records on its drone program. Although the FBI has turned over thousands of pages of documents, many have been redacted or provide only limited insights. Theyve been dragging their feet from the outset, and its been enormously frustrating, said Anne Weismann, CREWs chief counsel. I dont know if its because they dont want to expose the fact that theyve been operating without any clear guidance or if they just dont like to talk about it. Another section of Obamas draft executive order would instruct the Commerce Department to help develop voluntary privacy guidelines for private-sector drone flights. The intent is to shape nonbinding industry standards for commercial surveillance instead of imposing new regulations by law. The executive order is an attempt to cope with a projected surge in drone flights in the United States.De Facto and De Jure self-binding create accountability from the courts and risk political alienation for going back on promises

Posner and Vermeule 2010 [Eric A. , Professor of Law at the University of Chicago Law School and Editor of The Journal of Legal Studies; Adrian , Harvard Law Professor, The Executive Unbound: After the Madisonian Republic, Oxford Press, p. 138-139//wyo-sc]Many of our mechanisms are unproblematic from a legal perspective, as they involve presidential actions that are clearly lawful. But a few raise legal questions; in particular, those that involve self-binding.59 Can a president bind himself to respect particular first-order policies? With qualifications, the answer is "yes, at least to the same extent that a legislature can." Formally, a duly promulgated executive rule or order binds even the executive unless and until it is validly abrogated, thereby establishing a new legal status quo.60 The legal authority to establish a new status quo allows a president to create inertia or political constraints that will affect his own future choices. In a practical sense, presidents, like legislatures, have great de facto power to adopt policies that shape the legal landscape for the future. A president might commit himself to a long-term project of defense procurement or infrastructure or foreign policy, narrowing his own future choices and generating new political coalitions that will act to defend the new rules or policies. More schematically, we may speak of formal and informal means of selfbinding: 1. The president might use formal means to bind himself. This is possible in the sense that an executive order, if otherwise valid, legally binds the president while it is in effect and may be enforced by the courts. It is not possible in the sense that the president can always repeal the executive order if he can bear the political and reputational costs of doing so. 2. The president might use informal means to bind himself. This is not only possible but frequent and important. Issuing an executive rule providing for the appointment of special prosecutors, as Nixon did, is not a formal self-binding.61 However, there may be political costs to repealing the order. This effect does not depend on the courts' willingness to enforce the order, even against Nixon himself. Court enforcement makes the order legally binding while it is in place, but only political and reputational enforcement can protect it from repeal. Just as a dessert addict might announce to his friends that he is going on a no-dessert diet in order to raise the reputational costs of backsliding and thus commit himself, so too the repeal of an executive order may be seen as a breach of faith even if no other institution ever enforces it. In what follows, we will invoke both formal and informal mechanisms. For our purposes, the distinction between the authority to engage in de jure self-binding (legally limited and well-defined) and the power to engage in de facto self-binding (broad and amorphous) is secondary. So long as policies are deliberately chosen with a view to generating credibility, and do so by constraining the presidents own future choices in ways that impose greater costs on ill-motivated presidents than on well-motivated ones, it does not matter whether the constraint is formal or informal.Obama key to signal and sustainabilitySinger 2013, director Center for 21st Century Security and Intelligence @ Brookings, and Wright, senior fellow Brookings, 2/7/13(Peter W. and Thomas, "Obama, own your secret wars", www.nydailynews.com/opinion/obama-secret-wars-article-1.1265620)It is time for a new approach. And all that is required of the President is to do the thing that he does perhaps best of all: to speak. Obama has a unique opportunity in fact, an urgent obligation to create a new doctrine, unveiled in a major presidential speech, for the use and deployment of these new tools of war. While the Republicans tried to paint the President as weak on security issues in the 2012 elections, history will record instead that his administration pushed into new frontiers of war, most especially in the new class of technologies that move the human role both geographically and chronologically further from the point of action on the battlefield. The U.S. militarys unmanned systems, popularly known as drones, now number more than 8,000 in the air and 12,000 on the ground. And in a parallel development, the U.S. Cyber Command, which became operational in 2010, has added an array of new (and controversial) responsibilities and is set to quintuple in size. This is not just a military matter. American intelligence agencies are increasingly using these technologies as the tips of the spear in a series of so-called shadow wars. These include not only the more than 400 drone strikes that have taken place from Pakistan to Yemen, but also the deployment of the Stuxnet computer virus to sabotage Iranian nuclear development, the worlds first known use of a specially designed cyber weapon. Throughout this period, the administration has tried to have it both ways leaking out success stories of our growing use of these new technologies but not tying its hands with official statements and set policies. This made great sense at first, when much of what was happening was ad hoc and being fleshed out as it went along. But that position has become unsustainable. The less the U.S. government now says about our policies, the more that vacuum is becoming filled by others, in harmful ways. By acting but barely explaining our actions, were creating precedents for other states to exploit. More than 75 countries now have military robotics programs, while another 20 have advanced cyber war capacities. Rest assured that nations like Iran, Russia and China will use these technologies in far more crude and indiscriminate ways yet will do so while claiming to be merely following U.S. footsteps. In turn, international organizations the UN among them are pushing ahead with special investigations into potential war crimes and proposing new treaties. Our leaders, meanwhile, stay mum, which isolates the U.S. and drains its soft power. The current policy also makes it harder to respond to growing concerns over civilian casualties. Indeed, Pew polling found 96% levels of opposition to U.S. drones in the key battleground state of Pakistan, a bellwether of the entire region. It is indisputable than many civilians have been harmed over the course of hundreds of strikes. And yet it is also indisputable that various groups have incentives to magnify such claims. Yet so far, U.S. officials have painted themselves into a corner either denying that any collateral losses have occurred, which no one believes, or reverting to the argument that we cannot confirm or deny our involvement, which no one believes, either. Finally, the domestic support and legitimacy needed for the use of these weapons is in transition. Polling has found general public support for drone strikes, but only to a point, with growing numbers in the not sure category and growing worries around cases of targeting U.S. citizens abroad who are suspected of being terrorists. The administration is so boxed in that, even when it recently won a court case to maintain the veil of semi-silence that surrounds the drone strike program, the judge described the current policy as having an Alice in Wonderland feel. The White House seems to be finally starting to realize the problems caused by this disconnect of action but no explanation. After years of silence, occasional statements by senior aides are acknowledging the use of drones, while lesser-noticed working level documents have been created to formalize strike policies and even to explore what to do about the next, far more autonomous generation of weapons. These efforts have been good starts, but they have been disjointed and partial. Most important, they are missing the much-needed stamp of the Presidents voice and authority, which is essential to turn tentative first steps into established policy. Much remains to be done and said out in the open. This is why its time for Obamas voice to ring loud and clear. Much as Presidents Harry Truman and Dwight Eisenhower were able keep secret aspects of the development of nuclear weapons, even as they articulated how and when we would use them, Obama should publicly lay out criteria by which the United States will develop, deploy and use these new weapons. The President has a strong case to make if only he would finally make it. After all, the new weapons have worked. They have offered new options for military action that are more accurate and proportionate and less risky than previously available methods. But they have also posed many new complications. Explaining our position is about embracing both the good and the bad. It is about acknowledging the harms that come with war regardless of what technology is being used and making clear what structures of accountability are in place to respond. Its also about finally defining where America truly stands on some of the most controversial questions. These include the tactics of signature strikes, where the identity is not firmly identified, and double tap strikes, where rescuers aiding victims of a first attack are also brought under fire. These have been reported as occurring and yet seem to run counter to the principles under which the programs have been defended so far. The role of the President is not to conduct some kind of retrospective of what we have done and why, but to lay out a course of the future. What are the key strategic goals and ethical guidelines that should drive the development and use of these new technologies? Is current U.S. and international law sufficient to cover them? There are also crucial executive management questions, like where to draw the dividing line between military and civilian intelligence agency use of such technologies, and how to keep a growing range of covert actions from morphing into undeclared and undebated wars. And, finally, the President must help resolve growing tensions between the executive branch and an increasingly restive Congress, including how to handle situations where we create the effect of war but no U.S. personnel are ever sent in harms way. Given the sprawling complexity of these matters, only the President can deliver an official statement on where we stand. If only we somehow had a commander in chief who was simultaneously a law professor and Nobel Peace Prize winner! The Presidents voice on these issues wont be a cure-all. But it will lay down a powerful marker, shaping not just the next four years but the actions of future administrations.

2NC AT: Roll BackPresident can show credibility by self-binding, and it puts heavy costs on future presidents for not representing public interests Posner and Vermeule 2010 [Eric A. , Professor of Law at the University of Chicago Law School and Editor of The Journal of Legal Studies; Adrian , Harvard Law Professor, The Executive Unbound: After the Madisonian Republic, Oxford Press, p. 101-103//wyo-sc]Where the executive is indeed ill-motivated in any of these ways, constraining his discretion (more than the voters would otherwise choose) may be sensible. But the executive may not be ill-motivated at all. Where the executive would in fact be a faithful agent, using his increased discretion to promote the public good according to whatever conception of the public good voters hold, then constraints on executive discretion are all cost and no benefit. Voters, legislators, and judges know that different executive officials have different motivations. Not all presidents are power maximizers or empire-builders.20 Of course, the executive need not be pure of heart; his devotion to the public interest may in turn be based on concern for the judgment of history. But so long as that motivation makes him a faithful agent of the principal(s), he counts as well-motivated. The problem, however, is that the public has no simple way to know which type of executive it is dealing with. An ill-motivated executive will just mimic the statements of a well-motivated one, saying the right things and offering plausible rationales for policies that outsiders, lacking crucial information, find difficult to evaluatepolicies that turn out not to be in the public interest. The ability of the ill-motivated executive to mimic the public-spirited executive's statements gives rise to the executive's dilemma of credibility: the well-motivated executive has no simple way to identify himself as such. Distrust causes voters (and the legislators they elect) to withhold discretion that they would like to grant and that the well-motivated executive would like to receive. Of course the ill-motivated executive might also want discretion; the problem is that voters who would want to give discretion (only) to the well-motivated executive may choose not to do so, because they are not sure what type he actually is. The risk that the public and legislators will fail to trust a well-motivated president is just as serious as the risk that they will trust an ill-motivated president, yet legal scholars have felled forests on the second topic while largely neglecting the first.21 Indeed, legal scholars assume (without evidence) that the executive's interests lead it to keep too many secrets, and thus endlessly debate how it should be compelled to disclose information that should be made public. It has not occurred to them that their premise might be wrong22that excessive secrecy undermines the executive by ruining its credibility and thus does not serve its interest. Scholars of presidentialism have addressed credibility problems in general and anecdotal terms,23 but without providing social-scientific microfoundations for their analysis. Our basic claim is that the credibility dilemma is best explored from the perspective of executive signaling. Without any new constitutional amendments, statutes, or legislative action, law and executive practice already contain resources to allow a well-motivated executive to send a credible signal of his motivations, committing to use increased discretion in public spirited ways. By tying policies to institutional mechanisms that impose heavier costs on ill-motivated actors than on well-motivated ones, the well-motivated executive can credibly signal his good intentions and thus persuade voters that his policies are those that voters would want if fully informed. We focus particularly on mechanisms of executive self-binding that send a signal of credibility by committing presidents to actions or policies that only a well-motivated president would adopt.2NC AT: Signal/TrustThe executive action solves a signal of trustMichael Aaronson 13, Professorial Research Fellow and Executive Director of cii the Centre for International Intervention at the University of Surrey, and Adrian Johnson, Director of Publications at RUSI, the book reviews editor for the RUSI Journal, and chair of the RUSI Editorial Board, Conclusion, in Hitting the Target?: How New Capabilities are Shaping International Intervention, ed. Aaronson & Johnson, http://www.rusi.org/downloads/assets/Hitting_the_Target.pdfThe Obama administration faces some tough dilemmas, and analysts should be careful not to downplay the security challenges it faces. It must balance the principles of justice and accountability with a very real terrorist threat; and reconcile the need to demonstrate a credibly tough security policy with the ending of a long occupation of Afghanistan while Al-Qaida still remains active in the region. Nevertheless, more transparency would provide demonstrable oversight and accountability without sacrificing the necessary operational secrecy of counter-terrorism. It might also help assuage the concern of allies and their publics who worry about what use the intelligence they provide might be put to. A wise long-term vision can balance the short-term demands to disrupt and disable terrorist groups with a longer-term focus to resolve the grievances that give rise to radicalism, and also preclude inadvertently developing norms of drone use that sit uneasily with the civilised conduct of war. Drones are but one kinetic element of a solution to terrorism that is, ultimately, political.The counterplan solves global legitimacysimply stating our policy goes a long way to solving the perception that it is lawfulKenneth Anderson 10, Professor of International Law at American University, 3/8/10, Predators Over Pakistan, The Weekly Standard, http://www.weeklystandard.com/print/articles/predators-over-pakistanBut a thorough reading of the Predator coverage calls to mind how the detention, interrogation, and rendition debates proceeded over the years after 9/11. As Brookings scholar Benjamin Wittes observes, those arguments also had elements of both legal sense and sensibility. Ultimately the battle of international legal legitimacy was lost, even though detention at Guantnamo continues for lack of a better option. It is largely on account of having given up the argument over legitimacy, after all, that it never occurred to the Obama administration not to Mirandize the Christmas Bomber. Baseline perceptions of legitimacy have consequences. Nor is the campaign to delegitimize targeted killing only about the United States. Legal moves in European courts have already been made against Israeli officials involved in targeted killing against Hamas in the Gaza war. Unsavory members of the U.N. act alongside the worlds most fatuously self-regarding human rights groups to press for war crimes prosecutions. All of this is merely an opening move in a larger campaign to stigmatize and delegitimize targeted killing and drone attacks. What can be done to Israelis can eventually be done to CIA officers. Perhaps a London bookmaker can offer odds on how soon after the Obama administration leaves office CIA officers will be investigated by a court, somewhere, on grounds related to targeted killing and Predator drone strikes. And whether the Obama administrations senior lawyers will rise to their defenseor, alternatively, submit an amicus brief calling for their prosecution. Thus it matters when the U.N. special rapporteur on extrajudicial execution, Philip Alston, demands, as he did recently, that the U.S. government justify the legality of its targeted killing program. Alston, a professor at New York University, is a measured professional and no ideologue, and he treads delicately with respect to the Obama administrationbut he treads. Likewise it matters when, in mid-January, the ACLU handed the U.S. government a lengthy FOIA request seeking extensive information on every aspect of targeted killing through the use of UAVs. The FOIA request emphasizes the legal justification for the program as conducted by the U.S. military and the CIA. Legal justification matters, partly for reasons of legitimacy and partly because the United States is, and wants to be, a polity governed by law. This includes international law, at least insofar as it means something other than the opinions of professors and motley member-states at the U.N. seeking to extract concessions. International law, it is classically said, consists of what states consent to by treaty. Add to this customary lawas evidenced by how states actually behave and as provided in their statements, their so-called opinio juris. Customary law is evidenced when states do these things because they see them as binding obligations of law, done from a sense of legal obligationnot merely habit, policy, or convenience, practices that they might change at any moment because they did not engage in them as a matter of law. What the United States says regarding the lawfulness of its targeted killing practices matters. It matters both that it says it, and then of course it matters what it says. The fact of its practices is not enough, because they are subject to many different legal interpretations: The United States has to assert those practices as lawful, and declare its understanding of the content of that law. This is for two important reasons: first to preserve the U.S. governments views and rights under the law; and second, to make clear what it regards as binding law not just for itself, but for others as well. Other states, the United Nations, international tribunals, NGOs, and academics can cavil and disagree with what the United States thinks is law. But no Great Powers consistently reiterated views of international law, particularly in the field of international security, can be dismissed out of hand. It is true of the United States and it is also true of China. It is not a matter of good Great Powers or bad. Nor is it merely might makes right. It is, rather, a mechanism that keeps international law grounded in reality, and not a plaything of utopian experts and enthusiasts, departing this earth for the City of God. It remains tethered to the real world both as law and practice, conditioned by how states see and act on the law. The venerable U.S. view of the law of nations is one of moderate moral realismthe world as it is, as the president correctly put it in his Nobel Prize address. It is not the vision of radical utopians and idealists; neither is it that of radical skeptics about the very existence of law in international affairs. On the contrary, the time-honored American view has always been pragmatic about international law (thereby acting to preserve it from radical internationalism and radical skepticism). But upholding the American view requires more than simply dangling the inference that if the United States does it, it means the United States must intend it as law. Traditional international law requires more than that, for good reason. The U.S. government should provide an affirmative, aggressive, and uncompromising defense of the legal sense and sensibility of targeted killing. The U.S. governments interlocutors and critics are not wrong to demand one, even those whose own conclusions have long since been set in stone. A clear statement of legal position need not be an invitation to negotiate or alter it, even when others loudly disagree. In international law, a states assertion that its policies are lawful, particularly such an assertion from a great power in matters of international security, is an important element all by itself in making it lawful, or at least not unlawful. But in vast areas of security, self-defense, and the use of force, the U.S. government has in recent years left a huge deficit as to how its actions constitute a coherent statement of international law. For once, Washington should move to get ahead of a contested issue of international legal legitimacy and soft law. Why else have an Obama administration, if not to get out in front on a practice that it has ramped up on grounds of both necessity and humanitarian minimization of force? The CIA has taken a few baby steps by selectively leaking some collateral damage data to a few reporters. But the CIA is going to have to say more. The U.S. government needs to defend targeted killings as both lawful, and as an important step forward in the development of more sparing and discriminatingmore humanitarianweaponry.

2NC AT: Cheating Threat of publicity and backlash ensures internal compliance solves signaling advantagesRadsan and Murphy 11 (Afsheen Professor of Law, William Mitchell College of Law, former assistant general counsel at the Central Intelligence Agency, MEASURE TWICE, SHOOT ONCE: HIGHER CARE FOR CIA-TARGETED KILLING, 2011, 11 U. Ill. L. Rev. 1201, lexis)Notwithstanding the agency's reputation for playing fast and loose with the law, CIA officials have strong reasons to ensure compliance with IHL. One reason is that someday the CIA's targeted killings by drone, like other embarrassing "family jewels," will become public. n156 A stronger reason is that CIA officials must be acutely aware that, for many members of the United States and international public, targeted killings come close to prohibited acts of assassination. To stay on the safe side on controversial programs, CIA officials seek both political and legal cover. n157 From past lessons on other covert actions, CIA officials have learned to obtain presidential authorization in writing, to brief the oversight committees, and to obtain legal opinions. It is safe to bet that President Obama has blessed the CIA drone strikes; that the oversight committees have not been kept completely in the dark; that the CIA has developed internal procedures on targeted killing it hopes will withstand scrutiny; and that the agency has presented these procedures to the Justice Department's Office of Legal Counsel for approval. n1582NC AT: Perm Do BothLinks to the net benefit(___) Links to politicsforces congressional debates over the plan(___) Links to pres powerscounterplan is non binding executive initiated actionthe choice to do the counterplan means the executive is not legally constrained to act in the future, and avoids the precedent of other branches controlling the executiveDoesnt solve prez powers - congressional silence is keyBellia 2[Patricia, Professor of Law @ Notre Dame, Executive Power in Youngstowns Shadows Constitutional Commentary, , 19 Const. Commentary 87, Spring, Lexis]To see the problems in giving dispositive weight to inferences from congressional action (or inaction), we need only examine the similarities between courts' approach to executive power questions and courts' approach to federal-state preemption questions. If a state law conflicts with a specific federal enactment, n287 or if Congress displaces the state law by occupying the field, n288 a court cannot give the state law effect. Similarly, if executive action conflicts with a specific congressional policy (reflected in a statute or, as Youngstown suggests, legislative history), or if Congress passes related measures not authorizing the presidential conduct, courts cannot give the executive action effect. n289 When Congress is 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

2NC AT: Perm Do the CounterplanFirst, the counterplan is severanceits a voting issue, severs out of the USFG portion of the plan. THE U.S.F.G. is the three branches of governmentDictionary.com 2k6 [http://dictionary.reference.com/browse/united+states+government]nounthe executive and legislative and judicial branches of the federal government of the United States Voting issue for fairness and ground, we cant get links if they shift their agent because the agent is a critical locus for clash in the debateAnd, interpretation, Curtail means to create laws to lessen powerWebsters dictionary, no date, curtail, http://www.merriam-webster.com/dictionary/curtail, Accessed: 5-28-2015, /Bingham-MBFull Definition of CURTAIL transitive verb : to make less by or as if by cutting off or away some part curtailer \-t-lr\ noun See curtail defined for English-language learners See curtail defined for kids Examples of CURTAIL The new laws are an effort to curtail illegal drug use. School activities are being curtailed due to a lack of funds.Curtail means rulemaking by congress to regulate an actionMEDICAID State Financing Schemes Again Drive Up Federal Payments Statement of Kathryn G. Allen, Associate Director Health Financing and Public Health Issues Health, Education, and Human Services Division, GAO Testimony Before the Committee on Finance, U.S. Senate, For Release on Delivery Expected at 10:00 a.m. Wednesday, September 6, 2000, http://www.gao.gov/archive/2000/he00193t.pdf, /Bingham-MBIn our view, this financing practice violates the integrity of Medicaids federal/state partnership. By receiving part of the money back from the provider and keeping the federal share associated with it, the state isin effectable to lower its own Medicaid contribution substantially below the share specified in federal law. We have not yet been able to specifically determine how much of an effect this current practice will have in any one state. However, our analysis of previous financing schemes showed that the effect can be substantial. For example, in 1994 we analyzed Michigans use of similar funding mechanisms (including excessive payments to county nursing homes) and found they had the effect of raising the federal share for Medicaid expenditures from 56 percent to 68 percent. When related schemes came to light in years past, steps were taken to curtail them and restore the federal/state partnership as intended. HCFA has drafted a regulation that would curtail this scheme, but the draft has not moved far in the rulemaking process. We urge the Administration to finalize this regulation and reiterate a recommendation to the Congress, first made in 1994, that would close the door on financing practices that inflate the federal share by making excessive payments to government owned facilities.Violation: The affirmative doesnt curtail power, they just lessen itPrefer our interpretation:Limitsif they are allowed to just stop doing a kind of surveillance it unlimits the topics, teams would read a dont do X aff every weekGroundthey dont link to any core disads, terror and pres powers require a restriction to hamper executive discretionthey skirt core debates in the literatureVoting issue for fairnessAnd heres more evidence to establish competitionCurtail means legislative restrictionsDavid W. Opderbeck, Professor of Law, Seton Hall University Law School, and Director, Gibbons Institute of Law, Science & Technology. The author wishes to thank Jonathan Haefetz, Edward Hartnett, and Barry Cushman for valuable comments on an earlier draft of this Article. Copyright (c) 2014 Rutgers School of Law-Camden Rutgers Law Journal Spring, 2014 Rutgers Law Journal 44 Rutgers L. J. 413 LENGTH: 27584 words ARTICLE: DRONE COURTS, Lexis, /Bingham-MBAlong parallel lines, in 1972, the Supreme Court held that surveillance could not be conducted against American citizens without a warrant. n269 The Court noted, however, that "this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents." n270 The Court invited Congress to consider legislation dealing with foreign surveillance. [*455] These developments led to the enactment of the Foreign Intelligence Surveillance Act ("FISA"), which sought to curtail such programs by imposing warrant-like restrictions upon foreign surveillance activities. n271 FISA established the Foreign Intelligence Surveillance Court ("FISC"), comprised of sitting federal judges, to evaluate requests to conduct surveillance of foreign powers or agents. n272 Under the original FISA statute, the government was required to show that "the purpose" of the requested surveillance was to acquire foreign intelligence. n273Curtail is legislative power to reduce jurisdiction(BY Sam J. Ervin, Jr., of Morganton, N. C., a Former Justice of the North Carolina Supreme Court and a former United States Senator from North Carolina. ) THE POWER OF CONGRESS UNDER THA CONSTITUTION TO DEFINE, LIMIT, OR CURTAIL THE APELLATE JURISDICTION OF TRE SUPREME COURT AND THE JURISDICTION OF FEDERAL COURTS INFERIOR TO IT, No Date, http://www.samervinlibrary.org/writings/Power%20of%20Congress%20to%20Limit%20Courts.pdfProvisions 01' Articles I and I11 of the Constitution clearly reveal that Congress has the legislative power to define, limit, or curtail the appellate jurisdiction of the Supreme Court and the Jurisdiction of the federal courts inferior to it. They are as follows : 1. Article I, Section I, declares "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."2NC Net Benefit Pres PowersPresidential power is zero-sum- the branches compete Barilleaux and Kelley 2010 [Ryan J. , Professor of Political Science at Miami, OH; and Christopher S. , Lecturer (Political Science) at Miami, OH, The Unitary Executive and the Modern Presidency, Texas A&M Press, p. P 196-197, 2010// wyo-sc] In their book The Broken Branch, Mann and Ornstein paint a different view. They discuss a wider range of public policy areas than just uses of force. Their argument is that although party is important as a conditioning factor for times when Congress might try to restrain an aggressive or noncompliant executive, there has also been a broader degrading of institutional power that has allowed, in a zero-sum context, the president to expand executive power at the expense of Congress. Mann and Ornstein thus posit that congressional willingness to subordinate its collective power to that of the president has occurred across domestic politics and foreign affairs. They argue that a variety of factors are at fault for this trend, including the loss of institutional identity, the willingness to abdicate responsibility to the president, the demise of "regular order," and most importantly that Congress has lost its one key advantage as a legislative bodythe decay of the deliberative process. Thus, they do recognize that party politics has played an important role in the degrading of congressional power, but they see a larger dynamic at work, one that reaches beyond partisanship. While we agree with Howell and Pevehouse that Congress retains important mechanisms for constraining the president, we tend to agree with the Mann and Ornstein view that there has been a significant and sustained decline in Congress's willingness to use these mechanisms to challenge presidential power. This tendency has been more prevalent in foreign affairs but has occurred noticeably across the spectrum of public policy issues. Building from both of those perspectives, and others, we argue that it is helpful to understand the pattern of congressional complicity in the rise of presidential power by viewing Congress's aiding and abetting as the logical outcomes of a collective action problem.31 By constitutional design, the legislative branch is in competition with the president for institutional power, yet Congress is less than ideally suited for such a political conflict. Congress's comparative disadvantage begins with its 535 "interests" that are very rarely aligned, and if so, only momentarily. Because individual reelection overshadows all other goals, members of Congress naturally seek to take as much credit and avoid as much blame from their constituencies as possible.32 The dilemma this creates for members is how to use or delegate its collective powers in order to maximize credit and minimize blame in the making of public policy. Congress can choose to delegate power internally to committees and party leaders or externally to the executive branch. One can conceptualize the strategic situation of members of Congress in terms of a prisoner's dilemma.33 If members cooperate (that is, in Mann and Ornstein's parlance, if members identify with the institution), they could maintain and advance Congress's institutional power. But they would have to bypass some potential individual payoffs that could come from defection, such as "running against Congress" as an electoral strategy. A stronger institution should make all members of Congress better off, but it also makes them responsible for policymaking. If members defect from the institution, they thus seek to maximize constituency interests either by simply allowing power to fall by the wayside or by simply delegating it to the president. As more and more members choose to defect over time, the "public good" of a strong Congress is not provided for or maintainedand Congress's institutional authority erodes and presidential power fills in the gap. Why, in other words, is congressional activism so often "less than meets the eye," as Barbara Hinckley maintained in her book by that title? Or why has the ''culture of deference" that Stephen Weissman identified developed as it has?34 We argue that the collective action problem that exists in Congress leads to the development of these trends away from meaningful congressional stewardship of foreign policy and spending. 2NC Net Benefit PoliticsCP is executive actionobviously avoids Congressional fights Fine 12Jeffrey 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, EbscoWe 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 presidents 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 Congresss 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 rst place. While it is possible that such unilateral actions might spur Congress to pass a law to modify or reverse a presidents 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.Unilateral action circumvents congressional gridlock and shields the president by allowing them to frame the debate over the policyBarilleaux and Kelley 2010 [Ryan J. , Professor of Political Science at Miami, OH; and Christopher S. , Lecturer (Political Science) at Miami, OH, The Unitary Executive and the Modern Presidency, Texas A&M Press, p. 192, 2010// wyo-sc]However, the literature on presidential power has begun to expand beyond Neustadt's dominant framework by focusing on unilateralism. Modern presidents have increasingly relied upon unilateral tools not penned in the Constitution, especially when the president's ability to persuade or cajole Congress has been diminished.14 Presidents can use such tools to "go it alone" in order to change the policy status quo in the face of congressional gridlock. For example, this new literature has shown that presidents increasingly use unilateral actions like executive orders, proclamations, national security directives, executive agreements, and signing statements to achieve their policy objectives.15 The tools of unilateral action offer presidents advantages in power that are quite different from the powers derived from Neustadt's framework. For one, unilateral action allows the president to act alone by initiating new policy commitments without congressional cooperation.16 By doing so, the president is able not only to establish a new policy status quo but also to frame the debate surrounding such policy moves. Once a new policy commitment is made through unilateral action, Congress is faced with the choice of acquiescing or taking on the collective burden of a statutory response. The latter is, more often than not, very difficult for Congress to do, given the limited time and resources that must be dedicated to an ever-more demanding agenda. Of course, if Congress takes the path of least resistance by acquiescing, then the president succeeds in not only moving the policy status quo but also (re)creating the precedent of expanded presidential power.