Executive Order Counterplan

(__) Any deviation from the unitary executive undermines prez powers.

[Steven Calabresi, 1995.. “Some Normative Arguments for the Unitary Executive,” 48 ARK. L. REV. 23, Lexis]

I began this section by saying that I would show why it is at least as important that there be a unitary presidency as that there be a strong presidency. I think the groundwork has now been laid for defending that claim. Any deviation from the principle of unitariness in the executive structure immediately opens up a crack into which the state and local pressures described above will tend to insinuate themselves. The minute some portion of the executive is cut free from the President and the national electoral constituency which he and he alone represents, it tends to become swallowed by the state and local political pressures that drive the congressional committees and subcommittees. Deviations from executive unitariness thus necessarily hold the risk [*66] that different regional concerns will attach themselves to the disassociated interest, especially if it somehow seems important to their region. Thus, an "independent" Defense Department would likely be a target of opportunity for members of Congress from a state with a lot of defense spending or with voters who care strongly about the military. An "independent" Federal Reserve Board will be a target for members of Congress who represent large financial interests, and so on. Any deviation, however slight, from the Framers' organizing principle of executive unitariness will be filled by regional, anti-national concerns.

Secrecy Proves the Need

(__)

(__) Executive Deference & the need for secrecy justify executive actions

[Anjali S. Dalal, Shadow Administrative Constitutionalism and the creation of surveillance culture, Michigan State Law Review, 2014 Mich. St. L. Rev. 59]

A. "Super-Deference"

[*115] Alexis de Tocqueville recognized early on in this country's history that "[i]t is chiefly in its foreign relations that the executive power of a nation finds occasion to exert its skill and . . . strength." n245 De Tocqueville presciently noted, "If the existence of the [American] Union were perpetually threatened, . . . the executive . . . would assume . . . increased importance." n246 For the early part of American history, threats to American existence were occasional and shortlived, limiting the growth of executive power. n247 However, the "chronic international crisis known as the Cold War," as Arthur Schlesinger later found, "at last gave presidents the opportunity for sustained exercise of . . . almost royal prerogatives." n248 The executive possessing "almost royal prerogative[]"--what Schlesinger termed the "[i]mperial [p]residency"--reached its apex with President Nixon. n249

To curb the excesses of executive power, Congress, contemporaneously with the issuance of the Attorney General Guidelines, passed the War Powers Resolution, n250 the National Emergencies Act, n251 the International Emergency Economic Powers Act, n252 and the Inspector General Act of 1978. n253 However, as Professors Eric Posner and Adrian Vermeule argue, these efforts, though well-meaning, were largely ineffective, and the regrowth of [*116] executive power began soon after the dust settled from the tumult of the early 1970s. n254 Key causes for the failed reform effort include a combination of judicial deference to the executive branch on political questions, national security, and foreign affairs efforts, and limited resources for both congressional oversight as well as internal executive branch checks and balances. n255

Separately, this history reminds us that, unlike other areas in which the executive branch exercises authority, executive expertise on issues of war, peace, and the various states of security that exist in between is authoritative. Agencies acting pursuant to the national security mandate--including the DOJ, the FBI, the CIA, the Department of Defense (DOD), and the National Security Agency (NSA)--are granted deference in their decisions because they are understood to operate with a level of expertise that is unrivaled among the three branches of government. In Holder v. Humanitarian Law Project, the Court emphasized the appropriateness of this sort of deference by reiterating a point it had previously made in Boumediene v. Bush that "'neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.'" n256 Consequently, the Court held that "when it comes to collecting evidence and drawing factual inferences" on national security issues, "'the lack of competence on the part of the courts is marked,' and respect for the Government's conclusions is appropriate." n257 Thus, agency norm entrepreneurship on issues of national security will often receive a level of deference that undercuts the deliberative process required under administrative constitutionalism. n258

[*117] B. Secrecy

The second reason national security policymaking lends itself to shadow administrative constitutionalism is secrecy. National security demands the government operate with some secrecy. Announcing our plan of attack or our weakest defenses threatens to sacrifice national security at the altar of transparency. As Former Attorney General Benjamin Civiletti noted in a law review article over thirty years ago:

Even if we are able to gain information concerning a hostile foreign nation, our success will be shortlived [sic] if we disclose the facts of our success. Further, if we reveal the information obtained, we will not only lose our advantage and risk changes in the acquired plans, but we will also jeopardize or perhaps destroy our sources and methods of gathering information. n259

Waiting on Congress Risks Conflict

(__) Waiting on Congress risks WMD conflicts

Li, JD @ Georgetown Law; Associate @ Willkie Farr & Gallagher LLP, 09

[Zheyao Li, 2009.. “War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare,” Georgetown Journal of Law & Public Policy,  Geo. J.L. & Pub. Pol'y 373, Lexis.]

Another shortcoming of Professor Koh's proposal to introduce new institu- tional checks and balances on the war powers through statutory enactment is revealed when he quotes, but quickly dismisses, the concerns of Professor Paul Kennedy, who wrote even before the end of the Cold War that the United States, "may not always be assisted by its division of constitutional and decision- making powers, deliberately created when it was geographically and strategically isolated from the rest of the world two centuries ago.., but which may be harder to operate when it has become a global superpower, often called upon to make swift decisions vis-A-vis countries which enjoy far fewer 30 constraints."

While Koh is absolutely correct when he argues that, simply because other nation-states might not abide by the same constitutional or democratic con- straints, that does not entitle America to freely disregard her own Constitution,31 this tautology does not provide a satisfactory conclusion to the inquiry, especially when American lives are at stake.
Specifically, Professor Koh fails to foresee the unique problems presented by the rise of non-state actors, particularly terrorist groups. He writes that "[e]xpect- ing, perhaps, a response to a nuclear strike, the occasions are exceedingly rare when the president would jeopardize the nation by considering legality before committing the nation to a course of international action.",32 This statement is true when considered solely in the context of non-nuclear, state-based threats. In the modem age of international terrorism and rogue states, however, consider- ing the proliferation of weapons of mass destruction and the ease and low cost with which WMDs may be deployed, the President may not have the luxury to wait on congressional debate and approval before acting to prevent the loss of American lives.

(__) Restricting the president shifts power to the bureaucracy - this undermines foreign policy effectiveness.

Cronin, President of Whitman College, Political Scientist, 98

[Thomas Cronin, 1998. The Paradoxes of the American Presidency, pg. 203]

A central question during the 1970s was whether, in the wake of a somewhat diminished presidency, Congress could furnish the necessary leadership to govern the country. Most people, including many members of Congress, did not think that Congress could play that role. The routine answer as we enter the twenty-first century is that the United States needs a presidency of substantial power if we are to solve the trade, deficit, productivity, and other economic and national security problems we currently face. We live in a continuous state of emergency. Terrorism or nuclear warfare could destroy our country. Global competition of almost every sort highlights the need for swift leadership and a certain amount of efficiency in government. Many people realize, too, that weakening the presidency may, as often as not, strengthen the vast federal bureaucracy and its influence over how programs are implemented more than it would strengthen Congress. Congress simply is not structured for sustained leadership and direction. Power in Congress is too fragmented and dispersed. Congress can, on occasion, provide leadership on various issues, yet it is far less able to adapt to changing demands and national or international crises that arise than is the presidency. The presidency is a more fluid institution and thereby can usually more quickly adjust and adapt.

Risks WMD conflicts

(__) Fast, rapid, unchecked executive prevents WMD conflicts

Royal, Institute of World Politics, 11

[John Paul Royal, 2011. “War Powers and the Age of Terrorism,” Center for the Study of the Presidency & Congress The Fellows Review, www.thepresidency.org/storage/Fellows2011/Royal-_Final_Paper.pdf‎]

Proliferation of weapons of mass destruction (WMD), especially nuclear weapons, into the hands of these terrorists is the most dangerous threat to the United States. We know from the 9/11 ommission Report that Al Qaeda has attempted to make and obtain nuclear weapons for at least the past fifteen years. Al Qaeda considers the acquisition of weapons of mass destruction to be a religious obligation while “more than two dozen other terrorist groups are pursing CBRN [chemical, biological, radiological, and nuclear] materials” (National Commission 2004, 397). Considering these statements, rogue regimes that are openly hostile to the United States and have or seek to develop nuclear weapons capability such as North Korea and Iran, or extremely unstable nuclear countries such as Pakistan, pose a special threat to American national security interests. These nations were not necessarily a direct threat to the Unite d States in the past. Now, however, due to proliferation of nuclear weapons and missile technology, they can inflict damage at considerably higher levels and magnitudes than in the past. In addition, these regimes may pursue proliferation of nuclear weapons and missile technology to other nations and to allied terrorist organizations. The United States must pursue condign punishment and appropriate, rapid action against hostile terrorist organizations, rogue nation states, and nuclear weapons proliferation threats in order to protect American interests both at home and abroad. Combating these threats are the “top national security priority for the United States... with the full support of Congress, both major political parties, the media, and the American people” (National Commission 2004, 361). Operations may take the form of pre-emptive and sustained action against those who have expressed hostility or declared war on the United States. Only the executive branch can effectively execute this mission, authorized by the 2001 AUMF. If the national consensus or the nature of the threat changes, Congress possesses the intrinsic power to rescind and limit these powers.

Answers to “CP links to Politics”

(__) Executive orders don’t require lobbying of congress.

SOVACOOL, PhD, Research Fellow in the Energy Governance Program at the Centre on Asia and Globalization, 09

[Benjamin Sovacool and Kelly Sovacool, 2009.. “Preventing National Electricity-Water Crisis Areas in the United States,” Columbia Journal of Environmental Law , 34 Colum. J. Envtl. L. 333.]

Executive Orders also save time in a second sense. The President does not have to expend scarce political capital trying to persuade Congress to adopt his or her proposal. Executive Orders thus save presidential attention for other topics. Executive Orders bypass congressional debate and opposition, along with all of the horsetrading and compromise such legislative activity entails. 292 Speediness of implementation can be especially important when challenges require rapid and decisive action. After the September 11, 2001 attacks on the Pentagon and World Trade Center, for instance, the Bush Administration almost immediately passed Executive Orders forcing airlines to reinforce cockpit doors and freezing the U.S. based assets of individuals and organizations involved with terrorist groups. 293 These actions took Congress nearly four months to debate and subsequently endorse with legislation. Executive Orders therefore enable presidents to rapidly change law without having to wait for congressional action or agency regulatory rulemaking.

Congress likes the CP not the Aff

Congress LOVES surveillance – hates the aff

DAILY DOT 12 – 12 – 14 [NSA-enabling Executive Order 12333 just passed Congress as a full law, http://www.dailydot.com/politics/congress-executive-order-12333-surveillance/]
Republicans and Democrats can't agree on much these days, but members of Congress recently joined hands to codify a very worrisome national-security executive order into law.

The U.S. House of Representatives on Thursday passed a bill authorizing funding for the intelligence community with large bipartisan support. The vote was 325-100. All tallied, 55 Democrats and 45 Republicans voted against it. The same bill passed the Senate by unanimous consent, meaning that the only thing standing in its way is a signature from President Barack Obama.

The bill is essentially guaranteed to receive Obama's signature—something privacy advocates have been pushing to prevent. That's because one of the provisions in the bill enshrines Executive Order 12333, a Reagan-era surveillance directive, into law.

Executive Order 12333, issued by Reagan on Dec. 4, 1981, is one of the most controversial presidential directives ever issued. If Americans know its name at all, it is only because 12333 is at the heart of the sweeping surveillance apparatus established by the National Security Agency (NSA).

To collect contents and metadata from telephone calls and electronic communications, the NSA relies on Executive Order 12333 and Section 215 of the USA Patriot Act, also known as the "business records" provision, respectively. But where Section 215 features relatively serious privacy protections, 12333 is a lawless free-for-all by contrast.

Section 215 is subject to the oversight of the Foreign Intelligence Surveillance Court (FISC) and the congressional intelligence committees. It prohibits the collection of audio from phone calls, allowing only metadata collection. It likewise requires the NSA to eliminate the contents of U.S. persons' phone calls if they are "incidentally" collected during an operation aimed at foreign nationals.

Executive Order 12333, wrote former State Department Internet-freedom official John Napier Tye, "contains no such protections for U.S. persons if the collection occurs outside U.S. borders."

Under 12333, while the NSA still can't individually target U.S. persons and gather content from their phone calls, it is not required to delete such content if it is incidentally acquired. The NSA, relying on 12333 authority, can keep U.S. persons' phone-call recordings even if they are not implicated in any criminal behavior as long as the recordings were obtained accidentally.

As if that weren't bad enough, 12333 sits outside the mainstream intelligence apparatus that is subject to congressional oversight. Senator Dianne Feinstein (D-Calif.), the chairwoman of the Senate Intelligence Committee until January, told McClatchy Newspapers in November 2013 that Congress could not "sufficiently" monitor 12333 operations.

"Twelve-triple-three programs are under the executive branch entirely," Feinstein said. "I don't think privacy protections are built into it. It’s an executive policy. The executive controls intelligence in the country."

By codifying Executive Order 12333 as Section 309 of the intelligence community's 2015 budget, Congress has given 12333 operations new legal footing without actually placing them under new oversight.

The House was so eager to pass the funding bill and move on that it was prepared to do so by unanimous consent, just like the Senate had done. The only reason there is a recorded vote of the action is because Rep. Justin Amash (R-Mich.) asked the clerk to call the roll.

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