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 politics
Cooper-prof public administration Portland State- 2 [Phillip, By Order of the
President: The Use and Abuse of Executive Direct Action p.59
Executive 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

The relative
ease of the use of an order does not merely arise from the fact that p residents 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
base for action and then change it in ways that make it far more significant than its predecessors.

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

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
move through the process. Moreover,

White House. President Kennedy's executive order on that process specifically provides for orders generated
elsewhere.

2NC Solvency
Executive orders solves for policymakingthats Cooperits
an easy solution to initiate reforms
Obama executive order can solve drone surveillance issues
solves and avoids the presidential powers link
Craig 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-torequire-federal-agencies-to-provide-details-about-drones/2014/09/26/5f55ac244581-11e4-b47c-f5889e061e5f_story.html, Accessed: 5-28-2015, /Bingham-MB
The 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

Privacy advocates said the

measure was long overdue. Little is known about the scope of the federal governments domestic drone
Ned Price, a White House spokesman. He declined to comment further.

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

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
clear guidance or if they just dont like to talk about it. Another section of

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//wyosc]

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 sustainability

Singer 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)
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
It is time for a new approach. And

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.

the administration has tried to have it both ways leaking out success stories
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
Throughout this period,
of our growing

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

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
also indisputable that various groups have incentives to magnify such claims. Yet so far,

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

After years of silence, occasional

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
problems caused by this disconnect of action but no explanation.

statements by senior aides are acknowledging the use of drones, while

Eisenhower were able keep secret aspects of the development of nuclear weapons, even as they articulated how

Obama should publicly lay out criteria by which the U nited

States will develop, deploy and use these new weapons. The President has a strong case to make
and when we would use them,

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

Its also about finally defining where

America truly stands on some of the most controversial questions. These include the tactics of
clear what structures of accountability are in place to respond.

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

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
counter to the principles under which the programs have been defended so far.

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

the President must help resolve growing tensions between

the executive branch and an increasingly restive Congress, including how to handle situations where we
and undebated wars. And, finally,

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 Back

President 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//wyosc]

Where the executive is indeed ill-motivated in any of these ways, constraining his discretion (more than the voters

the executive may not be ill-motivated at all.

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
would otherwise choose) may be sensible. But

Where the executive would in fact be a faithful agent,

that different executive officials have different motivations. Not all presidents are power maximizers or empirebuilders.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

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.
microfoundations for their analysis. Our basic claim is that

2NC AT: Signal/Trust

The executive action solves a signal of trust
Michael 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.pdf
The 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 counterterrorism. 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 longterm 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
lawful
Kenneth 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-pakistan
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
But a thorough reading of the Predator coverage calls to mind how

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

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
Obama administration not to Mirandize the Christmas Bomber.

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,

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
submit an amicus brief calling for their prosecution.

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

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
at any moment because they did not engage in them as a matter of law.

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

The venerable U.S. view of the law of nations is one of moderate moral realism the
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
on the law.

radical internationalism and radical skepticism). But upholding the American view requires more than simply dangling the inference that if the United

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
States does it, it means the United States must intend it as law. Traditional international law requires more than that, for good reason.

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
deficit as to how its actions constitute a coherent statement of international law. For once,

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

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 humanitarian
weaponry.
steps by selectively leaking some collateral damage data to a few reporters. But

2NC AT: Cheating

Threat of publicity and backlash ensures internal compliance
solves signaling advantages
Radsan 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. n158

2NC AT: Perm Do Both

Links 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 executive
Doesnt solve prez powers - congressional silence is key
Bellia 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 Counterplan

First, 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 government
Dictionary.com 2k6
[http://dictionary.reference.com/browse/united+states+government]
noun
the 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 debate
And, interpretation, Curtail means to create laws to lessen
power
Websters dictionary, no date, curtail, http://www.merriamwebster.com/dictionary/curtail, Accessed: 5-28-2015, /Bingham-MB
Full Definition of CURTAIL transitive verb : to make less by or as if by cutting off or
away some part <curtail the power of the executive branch> <curtail inflation>
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 action

MEDICAID 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-MB
In 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 it
Prefer 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 week
Groundthey dont link to any core disads, terror and pres
powers require a restriction to hamper executive discretion
they skirt core debates in the literature
Voting issue for fairness
And heres more evidence to establish competition
Curtail means legislative restrictions
David 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-MB
Along 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 warrantlike 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. n273

Curtail 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.pdf
Provisions 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 Powers

Presidential 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// wyosc]
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 Politics

CP is executive actionobviously avoids Congressional fights
Fine 12
Jeffrey A. Fine, assistant professor of political science at Clemson University. He has
published articles in the Journal of Politics, Political Research Quarterly, and Political
Behavior. Adam L. Warber is an associate professor of political science at Clemson
University. He is the author of Executive Orders and the Modern Presidency,
Presidential Studies Quarterly, June 2012, " Circumventing Adversity: Executive
Orders and Divided Government", Vol. 42, No. 2, Ebsco
We also should expect presidents to prioritize and be strategic in the types of executive
orders that they create to maneuver around a hostile Congress. There are a variety of
reasons that can drive a 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 first 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 policy
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. 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.