Executive Order Counterplan

A strong unchecked executive is necessary to prevent and win inevitable conflicts

[Andrew C. McCarthy, March 2006. Directs the. “The Powers of War and Peace by John Yoo,” Commentary, https://www.commentarymagazine.com/articles/the-powers-of-war-and-peace-by-john-yoo/]

But is Yoo’s reading, especially concerning the power of war, truly consistent with the framers’ original understanding? As the constitutional scholar Cass Sunstein has observed in reviewing Yoo’s book, George Washington himself construed Congress’s power to declare war as meaning that “no offensive expedition of importance can be undertaken until after they [Congress] have deliberated on the subject, and authorized such a measure.” Other giants of the founding—Adams, Jefferson, Hamilton, Madison, Chief Justice John Marshall—voiced similar sentiments. Even granting that the framers expressly resisted congressional war-making, and promoted a vibrant executive, one need not interpret “declare” as narrowly and legalistically as Yoo suggests.

In short, the tension reflected in the debates at the constitutional convention persists. But one must also be alert to reality. In a world beset by the constant threat of sudden destructive force, a robust and firmly grounded view of presidential power is imperative. Potential perils come today not just from growing national powers like China but from rogue states in Iran and North Korea as well as from increasingly diffuse terror cells that have demonstrated their capacity to continue striking globally even when, as now, they are under siege. If public safety is to be something other than an illusion, securing it will demand the power to attack quickly and, in appropriate circumstances, preemptively; the price of awaiting consensus from 535 members of Congress may be too prohibitive. For showing how that power derives from the very system the framers bequeathed us, John Yoo deserves our deep thanks.

Immigration Solvency

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(__) Executive authority to change immigration laws – opponents are wrong

[Brianne Gorod, 2 – 19 – 15, President Obama’s Unproductive Statements About His Productive Immigration Policy, http://www.newrepublic.com/article/121098/president-obamas-executive-order-immigration-wasnt-overreach]

As immigration rights advocates pushed the president to take executive action in his first term and early in his second, the president repeatedly resisted, claiming that he didn’t have the authority to take the kind of action at issue in the Texas case. “I am president, I am not king. I can’t do these things just by myself,” he told Univision in 2010. In 2011, he discussed meeting with “immigration advocates ... [who] wish I could just bypass Congress and change the law myself.” To these supporters, he responded “that’s not how a democracy works.” In 2013, he repeated the same message: “I’m the president of the United States. I’m not the emperor of the United States. My job is to execute laws that are passed, and Congress right now has not changed what I consider to be a broken immigration system.”

The president’s comments may have been motivated more by his sense of immigration politics than his views on immigration law—reports in 2014 indicated that Obama was “dial[ing] down the partisan rhetoric on immigration ... [to] give House Republicans some breathing room to try to pass legislation”—but they nonetheless fueled detractors. Some on the right argued that the president didn’t have the authority to take executive action on immigration; when Obama ultimately did take action, they maintained he was simply doing so in order to achieve unilaterally what he could not achieve by working with Congress. Indeed, in the decision out of Texas, the district judge wrote, “The Government must concede that there is no specific law or statute that authorizes [Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)]. In fact, the president announced that it was the failure of Congress to pass such a law that prompted him ... to ‘change the law.’” (The judge formally based his decision to halt implementation not on the substance of the executive action, but on the government’s failure to comply with certain procedural requirements he felt were warranted.)

But President Obama’s opponents are as wrong now as he was then: He does have the authority to take executive action on immigration action, and that executive action isn’t a response to congressional inaction at all. Rather, it’s a response to congressional action—actions by past Congresses that have passed immigration laws that it is now the responsibility of the executive branch to enforce. There’s nothing novel about this. Presidents are always asked to exercise discretion in determining how best to implement laws passed by Congress (a responsibility and power often referred to as “prosecutorial discretion”), and that’s exactly what the Framers of our Constitution intended. When the Framers drafted the Constitution, their views on the presidency were shaped not only by their experiences under British rule, but also by their experiences under the Articles of Confederation, the precursor to the Constitution. The Articles lasted just eight years, and one of the central weaknesses that led to its failure was the absence of a strong executive branch capable of enforcing the nation’s laws.

Immigration Solvency

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(__) Obama’s executive order on immigration has been implemented

[Jilian Jorgensen, Council Gearing Up to Implement Immigration Executive Order, Despite Court Challenges, http://observer.com/2015/04/council-gearing-up-to-implement-immigration-executive-order-despite-court-challenges/]

“We’re just trying to put the wheels in motion and be ready to really roll, fully, once we get the approval—and we believe that court case is going to be overturned, thrown out, whatever—so the executive order can move forward,” Ms. Mark-Viverto said in an interview yesterday at her City Hall office.

Mr. Obama’s executive order would expand the existing Deferred Action for Child Arrivals program—and, if enacted, would allow as many as five million undocumented immigrants, who came to this country under the age of 16 or have family who are legally here and have resided in the United States for five years, to register to avoid deportation and to work legally in the country, if they have no criminal record.

NSA Solvency

(__) Executive controls all things related to the NSA – started with an executive order

Williams, Think Progress Staff, 14

[Lauren C. Williams, The ‘Primary Source’ Of NSA’s Spying Power Is A 33-Year-Old Executive Order By Ronald Reagan, http://thinkprogress.org/world/2014/09/30/3573647/reagan-nsa-order/]

Newly released documents prove the U.S. National Security Agency’s spying power overseas primarily comes from a 33-year-old executive order signed by then President Ronald Reagan.

The American Civil Liberties Union obtained a series of internal papers from intelligence agencies including the NSA and Defense Intelligence Agency detailing how integral Reagan’s 1981 order is to the NSA’s current surveillance program. The order broadly allows the government to collect data from any company that is believed to have ties to foreign organizations. It also complicates the path forward for intelligence reforms in Congress.

Previous reports acknowledge the order’s use as a foundation for some of the NSA’s surveillance programs such as gaining backdoor access to tech companies’ data centers. But the new documents, which were released as part of a Freedom of Information Act lawsuit the ACLU and other civil liberties advocates filed just before Edward Snowden’s leaks to the media, show Executive Order 12333 is the “primary source” authority when it comes to the NSA’s foreign spy programs.

“Because the executive branch issued and now implements the executive order all on its own, the programs operating under the order are subject to essentially no oversight from Congress or the courts,” Alex Abdo, a staff attorney for the ACLU wrote in a blog post.

(__) Executive can reform the NSA - Paul statements prove

Volz, Staff Writer for the National Journal, 15

[Dustin Volz, Rand Paul Pledges to 'Immediately' End NSA Mass Surveillance If Elected President The new Republican presidential candidate makes a forceful stand on surveillance, http://www.nationaljournal.com/2016-elections/rand-paul-pledges-to-immediately-end-nsa-mass-surveillance-if-elected-president-20150407]

Sen. Rand Paul vowed Tuesday while announcing his presidential campaign to immediately end the National Security Agency's bulk collection of Americans' phone records.

"The president created this vast dragnet by executive order. And as president on day one, I will immediately end this unconstitutional surveillance," Paul, speaking before a raucous crowd in Kentucky, said. "I believe we can have liberty and security. And I will not compromise your liberty for a false sense of security, not now, not ever. "

Paul has been among the most ardent critics of the NSA's sweeping surveillance programs in Congress—a policy position that has grown more pronounced in the two years since the Edward Snowden disclosures began.

War on Drugs Solvency

(__) Obama can reform drug policy through executive action

Tracy, Cannabis Consultant & Civil Liberties Activist, 14

[Sam Tracy, Three Executive Actions Obama Can Take to Rein in the Drug War, http://www.huffingtonpost.com/sam-tracy/three-executive-actions_b_4691178.html]

In his fifth State of the Union address, President Obama didn't hide his frustrations with one of the least productive Congresses in history. He focused his speech on changes he can make unilaterally, saying, "Some [of my proposals] require Congressional action, and I'm eager to work with all of you. But... wherever and whenever I can take steps without legislation to expand opportunity for more American families, that's what I'm going to do." Sadly, he didn't say a single word about one of the areas where he has the most authority to make positive change: drug policy. Here are three of the most important reforms Obama could make with a stroke of his pen.

1. Reschedule marijuana. Federal drug policy is determined largely by the Controlled Substances Act (CSA), which divides illegal drugs into five categories, or "schedules," of harmfulness. Marijuana remains in the most restrictive category, Schedule I, meaning it has a high potential for abuse and no accepted medical use in treatment. So, while a large majority of people -- including President Obama himself -- recognize that marijuana is safer than alcohol, the drug remains in the same legal category as heroin and LSD. Eighty percent of the public supports medical marijuana and 20 states have legalized its use, yet the federal government refuses to recognize that the drug has any medical benefits. This classification is why the federal government continues to raid medical marijuana facilities even when they're in full compliance with state law.

It doesn't have to be this way. As admitted by Attorney General Holder, President Obama has the power to reschedule marijuana without Congressional approval. The CSA states that any substance can be moved into another category by petitioning the Drug Enforcement Administration, a federal agency under the president's control. While this been tried many times in the past, including by Americans for Safe Access and governors Gregoire and Chafee, the DEA has denied every attempt. Obama can, and should, direct the agency to move marijuana at least to Schedule III, defined as having a lower potential for abuse and a currently accepted medical use (this category already includes Marinol, a synthetic form of the chemical THC found in marijuana). This simple change would allow states to legalize and regulate medical marijuana without any fear of federal intervention.

2. Replace DEA Administrator Michele Leonhart. One of the main causes of the DEA's obstinance is its leadership. As I've written before, Administrator Leonhart has lied to Congress and the American public on multiple occasions. Originally appointed by President George W. Bush, she has been an embarrassment for the Obama Administration for her refusal to admit that marijuana is less harmful than heroin. Even more nonsensically, she recently criticized the White House for flying a hemp American flag and allowing its unofficial softball team to play against a team of drug policy reformers (full disclosure: I'm a proud member of that team, the One Hitters, and we've beaten the White House both times we've played them).

There is a growing movement to replace Leonhart with someone who understands the drugs they're throwing people in prison for. The Marijuana Policy Project's petition to fire her already has over 20,000 signatures and is quickly growing. At least two members of Congress have called for her resignation, with Rep. Cohen saying Leonhart's leadership is "going to be looked upon in 10 or 20 years as the dark ages." Replacing Leonhart with someone more in line with the president's views on drug policy would go a long way towards scaling back the Drug War.

3. Pardon drug offenders serving unjust sentences. One of the president's most important criminal justice powers is the ability to pardon any federal conviction. President Obama has been one of the least merciful presidents in history when it comes to pardons; the eight clemencies and 13 pardons he granted last month was more than he did in his entire first term. Meanwhile, tens of thousands of Americans remain in prison for drugs: In 2012, the most recent date for which data is available, 99,426 of the nation's 196,574 federal prisoners -- just over 50 percent -- were serving time for drug offenses.

If President Obama truly believed his own (correct) statements that drug abuse is a mental health issue, he would pardon all nonviolent drug offenders just as President Carter once pardoned all Vietnam War draft dodgers. After all, what other mental health issue do we imprison people for? However, if Obama doesn't want to take the political risk that such a mass pardoning may bring, he could at least start with the most heinous cases, like the many people serving life sentences for as little as cocaine residue in a clothing pocket.

There is still hope that Congress will take some steps towards ending the War on Drugs in the near future. But as President Obama said, we have a criminal justice system "in which a large portion of people have at one time or another broken the law and only a select few get punished." If Congress refuses to do anything about it, Obama should use his executive powers to reform it as much as he can.

General Solvency – Legal Strength

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(__) Executive Action creates a legal framework – results in congressional agreement

BRECHER, J.D. Candidate, May 2013, University of Michigan Law School, 12

[Aaron P. Brecher, “Cyberattacks and the Covert Action Statute: Toward a Domestic Legal Framework for Offensive Cyberoperations,” October, http://www.michiganlawreview.org/assets/pdfs/111/3/Brecher.pdf]

Cyberattacks present a challenge for U.S. policymakers: they are difficult to locate within a clear legal category and there is a significant risk of uncontrollable consequences associated with their use. As a result, policymakers must choose a paradigm to govern their use that will ensure that the executive branch is held accountable and shares information with legislators. This Part argues that the federal government should adopt the presumption that cyberattacks will be carried out under the covert action statute, and that the best way forward is for the president to issue an executive order making the covert action regime the presumptive framework for cyberattacks. It includes a brief discussion of why a president might willingly constrain her discretion by issuing the proposed executive order. It also shows that while the internal executive processes associated with both military and intelligence legal frameworks help mitigate the risk of cyberattacks’ misuse by the executive, only the covert action regime provides an adequate role for Congress. Finally, this Part argues that the executive order option is preferable to one alternative proposed by scholars—enacting legislation—because of the practical difficulties of passing new legislation. The covert action regime is the best approach for committing cyberattacks under the current law, as it would facilitate cooperation among executive agencies. The debate over which agency and set of legal authorities govern cyberattacks has caused no small amount of confusion.145 Apparently, an Office of Legal Counsel (“OLC”) memorandum declined to decide which legal regime should govern the use of cyberattacks, and the uncertainty has led to interagency squabbles, as well as confusion over how cyberattacks are to be regulated.146 Establishing a presumptive answer would go far toward resolving this dispute. Most importantly, adopting the covert action framework as the presumptive legal regime would be a principled way to help ensure constitutional legitimacy when the president orders a cyberattack.147 There is also reason to believe that presidential power is intimately bound up in credibility, which in turn is largely dependent on the perception of presidential compliance with applicable domestic law.148 A practice of complying with the covert action regime for cyberattacks, both when they do not constitute a use of force and when it is unclear whether they do, is most likely to be in compliance with the law. Compliance with the covert action regime would also encourage covert action procedures in close cases without unduly restricting the executive’s choice to use military authorities in appropriate circumstances. The executive might also issue the proposed order, even though it would limit her freedom in some ways, because of the possible benefits of constraining future administrations or preempting legislative intervention.149 For example, in this context, an administration may choose to follow the finding and reporting requirements in order to convince Congress that legislative intervention is unnecessary for proper oversight. This is acceptable if the covert action regime is in fact adequate on its own. Moreover, if greater statutory control over cyberattacks is needed, the information shared with Congress may give Congress the tools and knowledge of the issue necessary to craft related legislation.150 Additionally, while executive orders are hardly binding, the inertia following adoption of an order may help constrain future administrations, which may be more or less trustworthy than the current one. Creating a presumption through an executive order also establishes a stable legal framework for cyberattacks that allows law to follow policy in this new field, and permits decisionmakers to learn more about the nature of cyberoperations before passing detailed statutes that may result in unintended consequences.

General Solvency – Causes Legislation

(__) Executive action spurs legislation

Kagan, Visiting Professor at Harvard Law School and current Court Justice, 01

[Elena, “Presidential Administration,” Harvard Law Review, Vol. 114, No. 8, June, p. 2293-2312]

It is not surprising, given these changes in the political landscape, that a President would turn to administration - a sphere in which he unilaterally can take decisive action. The more the demands on the President for policy leadership increase and the less he can meet them through legislation, the greater his incentive to tap the alternate source of supply deriving from his position as head of the federal bureaucracy. ¶ Administrative action is unlikely to provide a President with all he could obtain through legislation: Congress, after all, has set bounds on administration through prior statutory enactments. But as compared with legislative stasis, administrative action looks decidedly appealing. More, administrative action has the potential to spur legislative action by calling public attention to Congress's failure to act on the relevant issue.

General Solvency – Perception

(__) The international perception is that the counterplan is the plan.

SINNAR, Assistant Professor of Law, Stanford Law School, 13

[Shirin Sinnar, May 2013.. “Protecting Rights from Within? Inspectors General and National Security Oversight,” Stanford Law Review, 65 Stan. L. Rev. 1027, Lexis]

These limitations on traditional external checks on the executive - Congress and the courts - have led to increased academic interest in potential checks within the executive branch. Many legal scholars have argued that executive branch institutions supply, or ought to supply, an alternative constraint on executive national security power. Some argue that these institutions have comparative advantages over courts or Congress in addressing rights concerns; others characterize them as a second-best option necessitated by congressional enfeeblement and judicial abdication.

Thus, Neal Katyal argues that institutions within the executive branch can provide for the "internal separation of powers" in the foreign policy arena and champions bureaucracy as a check on presidential power. n2 Samuel Issacharoff and Richard Pildes argue that internal dissension within the executive branch has historically protected civil liberties in wartime. n3 Dawn Johnsen advocates that legal advisers within the executive branch serve to constrain unlawful executive action. n4 Others contend that internal executive mechanisms have comparative advantages over judicial review: for instance, Gillian Metzger observes that such mechanisms can operate ex ante and continuously, rather than solely in response to justiciable challenges or problems that generate congressional attention, and argues that the policy recommendations of executive institutions may face less resistance than external critiques. n5 Moreover, outside the United States, legal scholars also point to executive oversight institutions as necessary to mitigate inadequate judicial review of state national security activities. n6

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