Harvard 2013 1 ddi executive Self Restraint cp + Prez Powers da – Starter Pack Read Me
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Harvard 2013 1 DDI Executive Self Restraint CP + Prez Powers DA – Starter Pack Read Me This is a counterplan (CP) that has the executive impose limits on its own ability to conduct domestic surveillance. It does not mandate congressional oversight and so could be considered both a PIC (plan inclusive counterplan) out of Congress as the agent as well as the plan mandate of congressional oversight approval. The counterplan thus does less than the affirmative to limit surveillance but claims a unique advantage over the affirmative of allowing the president future flexibility in times of crises. The net benefit for this counter plan is (in this starter pack) only the included Presidential Powers DA. The terrorism DA in the other files is not a net benefit of this counterplan because both the plan and the counterplan immediately curtail mass surveillance which is the link to the terrorism DA. The CP objects to the constraints placed on the president by rigorous congressional oversight rather than the short term limitation on surveillance authority that the terrorism DA objects to. So the only way to win that this CP is more desirable than the aff is to also extend the prez powers DA thoughout the debate. CP+DA 1NC Text: The United States executive branch should substantially curtail the United States federal government’s surveillance of data stored in the United States including requiring surveillance agencies to provide proof of reasonable suspicion against an individual target. Executive self-restreaint solves surveillance – post hoc review can solve credibility Bellia ’11 (Patricia L, Notre Dame Law School, Arizona State Law Journal, Vol. 43, No. 293, 2011, Notre Dame Legal Studies Paper No. 12-58, 2011, “Designing Surveillance Law,” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2033217) Executive Rule-Selection I begin with disputes focusing on executive rule selection—that is, where the executive branch adopts a surveillance practice in the absence of any legislative action or outside the contours of existing statutes. In other words, Congress has not specifically spoken with respect to the particular practice at issue (or so the executive claims). Rather, it is left to the executive in the first instance to decide whether the practice is sufficiently privacy-invasive to require judicial authorization (and, if so, what kind of authorization to seek) or whether it can risk proceeding without judicial involvement. When the executive seeks judicial authorization under a too-weak standard, it runs the risk that the authorizing court will reject the request or that a target will successfully challenge the standard after the fact. When the executive does not seek such authorization, it runs the risk that a target will challenge the practice and claim that prior judicial authorization was necessary. Instances of executive rule-selection that ultimately triggered judicial decisions on the constitutionality of executive conduct include the following: certain wiretapping and eavesdropping activities until the Court’s decisions in Katz (and Berger v. New York48 in the immediately preceding term); 49 warrantless national security surveillance of purely domestic targets in the era prior to the Keith decision; the use of pen registers and similar devices before the Supreme Court’s decision in Smith v. Maryland; 50 the use of covert video surveillance tactics in the absence of specific legislative authorization; 51 and the implementation of the NSA’s terrorist surveillance program outside of FISA’s requirements. 52 Limiting the President’s intelligence capabilities though aggressive oversight kill presidential powers Deats ’10 (Caleb, J.D. Candidate, Columbia Law School, 7/2/10, “Obliging The Executive Branch To Control Itself,” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633922) 2. Restraining the Executive’s Interpretive Power Weakens the Government’s Ability to Respond to Crises. --- Second, one might argue that restraining the executive’s interpretive power might devastatingly weaken the country’s ability to confront emergencies, particularly threats to national security. As Professor Goldsmith notes, “sharp disagreement over the requirements of national security law and the meaning of the imponderable phrases of the U.S. Constitution” exists even within the executive branch: “Whether and how aggressively to check the terrorist threat, and whether and how far to push the law in so doing, are rarely obvious, especially during blizzards of frightening reports, when one is blinded by ignorance and desperately worried about not doing enough.”51 Disagreement in Congress over these issues would presumably prove more intractable than that within the executive branch. Moreover, airing these issues in courts would likely require disclosure of classified information. Thus, requiring the executive to defer to other branches when parsing these “imponderable phrases” prevents the swift resolution of controversy that results from consolidating authority in the President. As Hamilton writes, “A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution . . . .”52 However, while the this paper’s proposal may prescribe procedures that cannot adequately resolve emergencies, designing procedures with emergencies in mind seems more likely to pervert normal politics than it does to adequately resolve such extraordinary situations. No set of procedures can provide for every eventuality. Moreover, as Justice Jackson wrote, dissenting in Korematsu, “if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient.”53 Once we incorporate emergency exceptions into the Constitution, such exceptions will increase in number until they cease to be exceptional.54 Professor Goldsmith adverts to the danger of confusing the exception with the norm when he describes the terrorist threat as a “permanent emergency.”55 Thus, if we must in emergencies rely on “leaders who will be beholden to constitutional values,” we should do so completely, i.e. without creating procedural justifications for doing so. A different approach might substitute “leaders” for procedures simply by making the two indistinguishable. Prespowers solves multiple scenarios for war South China Morning Post 2K (“Position of Weakness” 12-11-00, p. L/N) A weak president with an unclear mandate is bad news for the rest of the world. For better or worse, the person who rules the United States influences events far beyond the shores of his own country. Both the global economy and international politics will feel the effect of political instability in the US. The first impact will be on American financial markets, which will have a ripple effect on markets and growth across the world. A weakened US presidency will also be felt in global hotspots across the world. The Middle East, the conflict between India and Pakistan, peace on the Korean peninsula, and even the way relations between China and Taiwan play out, will be influenced by the authority the next US president brings to his job. There are those who would welcome a weakening of US global influence. Many Palestinians, for example, feel they would benefit from a less interventionist American policy in the Middle East. Even within the Western alliance, there are those who would probably see opportunities in a weakened US presidency. France, for example, might feel that a less assertive US might force the European Union to be more outward looking. But the dangers of having a weak, insecure US presidency outweigh any benefits that it might bring. US global economic and military power cannot be wished away. A president with a shaky mandate will still command great power and influence, only he will be constrained by his domestic weakness and less certain about how to use his authority. This brings with it the risks of miscalculation and the use of US power in a way that heightens conflict. There are very few conflicts in the world today which can be solved without US influence. The rest of the world needs the United States to use its power deftly and decisively. ***Solvency*** 2NC Solvency – A2: No Precedent/Future Admins Political barriers check future rollback – 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. Yes precedent – constitutional obligation Atkinson ’13 (L Rush, Center on the Administration of Criminal Law, U.S. Department of Justice, National Security Division, law clerk to the Honorable Julia Smith Gibbons, U.S. Court of Appeals for the Sixth Circuit, J.D., New York University; M.Phil., University of Cambridge, A.B., The University of Chicago, fellow at the Center for the Administration of Criminal Law at New York University School of Law, 10/1/13 forthcoming, Vanderbilt Law Review, “The Fourth Amendment's National Security Exception: Its History and Limits,” https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2226404) C. The Constitutional Gloss of Early Executive Practice The history examined here primarily involves executive conduct, which can carry precedential weight, even in matters of constitutional law.42 In Youngstown Sheet & Tube Co. v. Sawyer, Justice Frankfurter explained how executive practice informs our constitutional understanding: [A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on “executive Power” vested in the President by §1 of Art. II.43 Subsequent Supreme Court decisions embrace the probative value of executive practice.44 Historical conduct is particularly important in the national security context. “National security law and foreign affairs law,” Julian Mortenson explains, has a “pronounced concern for post-enactment history as a source of constitutional meaning.”45 Neil Katyal and Richard Caplan note that “[i]n the crucible of legal questions surrounding war and peace, few judicial precedents will provide concrete answers,” making executive practice one of the few constitutional guides.46 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 Executive has powerful incentives to tie its hands Sales ’12 (Nathan Alexander, Assistant Professor of Law at George Mason University where he teaches national security law, administrative law, and criminal law, J.D. magna cum laude, Duke University, A.B., Miami University, former Deputy Assistant Secretary for Policy Development at the U.S. Department of Homeland Security, served at the Office of Legal Policy at the U.S. Department of Justice, recipient of the Attorney General’s Award for Exceptional Service for his role in drafting the USA PATRIOT Act, formerly clerked for the Honorable David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit, practiced at the Washington, DC law firm Wiley Rein LLP, John M. Olin Fellow at the Georgetown University Law Center, Journal of National Security Law & Policy, Vol. 6, No. 1, 8/24/12, pp. 227-289, “Self-Restraint and National Security,” http://jnslp.com/wp-content/uploads/2012/08/08__Sales_Master_6-28-12-NS.pdf) Why does the government sometimes tie its own hands in national security operations? Much of the case law and scholarship concerning national security rests on the assumption that the executive branch is institutionally prone to overreach – that, left to its own devices, it will inch ever closer to the line that separates illegal from legal, and sometimes enthusiastically leap across it. The obvious conclusion is that external, principally judicial, checks are needed to keep the Executive in line.2 In many cases the Executive does indeed push the envelope. But not always.3 The government often has powerful incentives to stay its own hand – to forbear from military and intelligence operations that it believes are perfectly legal. Officials may conclude that a proposed mission – a decapitation strike on al Qaeda’s leadership, say, or the use of mildly coercive interrogation techniques on a captured terrorist – is entirely permissible under domestic and international law. Yet they nevertheless might rule it out. In other words, the government sometimes adopts self-restraints that limit its ability to conduct operations it regards as legally justified; it “fight[s] with one hand behind its back,” to borrow Aharon Barak’s memorable phrase.4 This article tries to explain these restraints by consulting public choice theory – in particular, the notion that government officials are rationally self interested actors who seek to maximize their respective welfare. Part I develops an analytical framework. Part II identifies four examples of selfrestraint. Parts III and IV offer hypotheses for why the government adopts them. One example of self-restraint is Executive Order 13,491, which limits counterterrorism interrogations, including those conducted by the CIA, to the techniques listed in the Army Field Manual. The AFM prohibits or severely restricts a number of fairly mild interrogation methods such as low-grade threats, the “good cop, bad cop” routine, and other staples of garden-variety law enforcement investigations. A second example, sketched above, is the White House’s onetime reluctance to use targeted killings against Osama bin Laden, despite its belief that doing so would be consistent with domestic and international laws against assassination. 2NC Solvency – A2: Doesn’t Solve Credibility Obama sould take the lead – key to cred Wu ’06 (Edieth,- Associate Dean and Professor, Thurgood Marshall School of Law “DOMESTIC SPYING AND WHY AMERICA SHOULD AVOID THE SLIPPERY SLOPE”) The recent revelations regarding domestic spying have led to much criticism, skepticism and suspicion, forcing President Bush to defend his decision.101 Bush insists that he has not broken any laws in authorizing the surveillance of Americans suspected of having ties to terrorism.102 Further, the president said he would continue to approve the program, despite concern that it eroded civil liberties.103 But as the president attempts to maneuver through the criticism to better position himself, he subjects himself to further attack. For example, the president has recently come under severe bipartisan attack for “using scores of ‘signing statements’ to reserve the right to ignore or reinterpret provisions of measures that he has signed into law.”104 In effect, the president is attempting to “cherry-pick the provisions he likes and exclude the ones he doesn’t like.”105 Due to “the scope and aggression of Bush’s [defense] that he can bypass laws,” many fear that the president’s actions “represent a concerted effort to expand his power at the expense of Congress, upsetting the balance between the branches of government.”106 Consequently, the U.S. government must establish itself, with the president taking the lead, as a supporter of the rule of law in order to retain the country’s support. Failure to do so may have devastating ramifications for the country as a whole. A2: Congress Key Executive solves better – efficiency and precedent McGinnis ’93 (John O, George C. Dix Professor in Constitutional Law at Northwestern Law School, JD magna cum laude from Harvard Law School where he was an editor of the Harvard Law Review, BA magna cum laude from Harvard College, MA degree from Balliol College, Oxford, in philosophy and theology, former clerk on U.S. Court of Appeals for the District of Columbia, past winner of Paul Bator Award given by the Federalist Society to an outstanding academic under 40, Law and Contemporary Problems Vol. 56, No. 4, August 1993, “Constitutional Review By The Executive In Foreign Affairs And War Powers: A Consequence Of Rational Choice In The Separation Of Powers,” http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4213&context=lcp) Additionally, the structure of the presidency as a single office possessed by one person also gives the executive unique capabilities of acting with "secrecy and dispatch giving him a comparative advantage in carrying out these functions. Thus, because of the president's constitutional powers and because of expectations that have developed about his responsibilities in the area of foreign affairs and war powers, the president generally places a very high value on control of the rights of governance in foreign affairs.62 On the other hand, Congress's structure is so much more diffuse than the executive that it impedes the rapid decisionmaking necessary in the fluctuating world of foreign affairs.63 Thus, because of its comparative disadvantage as an institution, operational control of foreign affairs may actually be at odds with its interests because such control threatens Congress with responsibilities it is not well-equipped to handle. In determining how much interest Congress has in exercising this power as compared to the executive, one must compare this interest to other rights of governance. Spending on constituents, for example, is more highly prized by Congress since it can directly help individual members of Congress retain office.' Of course, even if Congress rationally shuns operational control of war and foreign policy matters, it may be interested in increasing its mechanisms to criticize the executive's performance after the fact, so that it can act in effect as the ululating Greek chorus that comments on the executive's tragic choices.' Congressional checks on national security powers fail – inefficient, politically unfeasible, and reactionary Kelly ‘93 (Michael, Major, Judge Advocate General’s Corps, US Army, 1993, “Fixing the War Powers”, Military Law Review, from Lexis Nexis, 141 Mil. L. Rev. 83) The Constitution arms Congress with several powerful checks. Within the war powers arena, these checks have proven to be unwieldy, time consuming to use, and dependent on normally nonexisting bipartisan support. These checks have lacked consistent effectiveness. Congress, when using its checks, has not always exercised sound discretion and self-restraint. Congress typically uses its checks in a reactionary mode. For example, in the latter stages of the Vietnam War, after the United States' main withdrawal, Congress aggressively used its checks and "legislated peace in Indochina." Congress was reacting to what it perceived as presidential abuse of the war powers. Congress's acts unduly interfered with the President's war powers and may have contributed to the unsatisfactory outcome by restricting the use of funds to support the war. A2: Rollback Ext. Most exos 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. 0.2% risk of an overturn Krause and Cohen 2K (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 addition, Congress has tended to allow executive orders to stand due to its own collective action problems and the cumbersomeness of using the legislative process to reverse or stop such presidential actions. Moe and Howell (1998) report that between 1973 and 1997, Congress challenged only 36 of more than 1,000 executive orders issued. And only two of these 36 challenges led to overturning the president's executive order. Therefore, presidents are likely to be very successful in implementing their own agendas through such actions. In fact, the nature of executive orders leads one to surmise that idiopathic factors will be relatively 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 Directory: wp-content -> uploads -> 2014 2014 -> For want of a nail 2014 -> Stop Militarizing Law Enforcement Act of 2014 2014 -> Ihbb asian Championships 2014 middle school bowl Round 4 First Quarter 2014 -> Ihbb european Championships 2014 Bowl Round 4 First Quarter 2014 -> International History Bee and Bowl 2013-14 Asian Division Question Set Bowl Round Six 2014 -> United states patent and trademark office 2014 -> Coffs harbour eisteddfod vocal syllabus 2014 -> Listen News Programs Schedule pledge now 2014 -> Slow club announce third album complete surrender Download 172.75 Kb. Share with your friends:
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