Courts Counterplans

Index
FISA/FISC CP
SOP Supreme Court CP
Contributing:
Jake Galant
Ian Dill
KCathy Min

FISA/FISC CP

Notes
Contributing:
Ian Dill
The FISC is an Article III district court set up by the FISA act of 78 which makes
rulings regarding the FISA act as well as the FISA Amendments act of 2008. The
FISCR is the appeals court set up to review the FISCs decisions. Both are secret,
and are able to withhold decisions and opinions from public review.
Solves any advantage that is based purely in ending surveillance as opposed to
advantages based on modeling or perception of reform.
Best run against the freedom act aff, or any aff that restricts NSA surveillance, as
thats all channeled through the FISC courts as it is. Specifically, it solves the
privacy and bigotry advantages well.
Good net benefits are ptx, a deference da (if its a courts aff), or potentially a terror
DA
(You would need to run a perception/deterrence link to the terror DA to make it net
beneficial, because you still restrict surveillance to the same degree as the aff
would)

1NC
The Foreign Intelligence Surveillance Court of Review should
rule that [Insert Plan Mandate].
CP solves FISCR Rulings set binding precedent for future
FISC rulings AND those decisions remain secret
Boeglin & Taranto 15, Jack Boeglin & Julius Taranto; Both are J.D. candidates in the class of 2016 at
Yale Law School. Stare Decisis and Secret Law: On Precedent and Publication in the Foreign Intelligence
Surveillance Court Yale law Journal Number 124, Volume 6, April, 2015, 1836-2201.
http://www.yalelawjournal.org/comment/stare-decisis-and-secret-law
*en banc a hearing where all judges make a ruling
*Stare Decisis setting law based on legal precedent
*FISCR Foreign Intelligence Surveillance Court of Review
A. The Foreign Intelligence Surveillance Court The Foreign Intelligence Surveillance Act, enacted in 1978,10 sets up
the Foreign Intelligence Surveillance Court (FISC), a specialized Article III court with the power to hear and grant
government requests for foreign surveillance.11 The FISCs work consists almost entirely of ex parte proceedings
granting, modifying, and denying government requests for the authority to conduct surveillance or searches, or to
compel the production of tangible things.12 Pursuant to the statute, the FISC consists of eleven Article III district

All applications are considered

by a single judge and cannot be reheard by another judge of the FISC
except when the court sits en banc.14 FISA provides for both en banc
consideration and appeals to the Foreign Intelligence Surveillance Court of
Review (Court of Review). En banc review involves a panel of all eleven
FISC judges and must be ordered by a majority of the FISC judges based
on a determination that (i) en banc consideration is necessary to secure
or maintain uniformity of the courts decisions; or (ii) the proceeding involves a question
court judges, selected by the Chief Justice of the United States.13

of exceptional importance.15 According to public records, the FISC has sat en banc only once,16 but it is

The Court of Review, which

consists of three district or circuit judges also designated by the Chief
Justice, has issued only two public decisions.17 B. Stare Decisis and the FISA Courts In
terms of its core function, the FISC is effectively a federal district court. 18
The vast majority of its work involves a single judges determinations of
the legality of government requests to authorize surveillance or compel
production. Although it is hard to be certain without more publicly available information, FISC judges
likely treat their opinions as non-precedential, as is standard practice for
federal district courts.19 The relatively few public FISC opinions do cite earlier FISC opinions and
principles of law,20 but we have seen no clear evidence to suggest that the judges
feel formally bound by those earlier opinions in any manner that would set
them apart from other Article III district courts. In contrast, en banc
opinions and Court of Review opinions apparently do have the force of
stare decisis. With en banc rulings , this point is evident from the statute: the court may sit en
banc only to secure or maintain uniformity or to decide a question of exceptional importance.21 These
bases for en banc jurisdiction suggest that individual FISC judges must
give stare decisis effect to any en banc panel decision that is not
overturned by the Court of Review because, absent such a practice, the en
banc panels would not fulfill one of their two statutory purposes : to secure
or maintain uniformity. Court of Review opinions can be precedential, but
they are not necessarily precedential. The Court of Review is an appellate
impossible to know how many sittings and opinions remain secret.

court, and like other Article III appellate courts, it has the power to bind
both lower courts (in this case, the FISC ) and later Court of Review
panels .22 The Court of Review probably has the same discretion as federal
courts of appeals to designate opinions as precedential and nonprecedential; at least, no statutory provision declares otherwise.23 The two public Court of Review opinions
are published in redacted form in the Federal Reporter.24 As with the published case of the
FISC sitting en banc, these published Court of Review cases are certainly
precedential .25 We do not know the volume, if any, of secret nonprecedential Court of Review opinions, or whether there are non-public Court of Review
opinions that are nonetheless treated as precedential.

2NC

2nc Overview
Cp solves the case legal action by FISCR sets legal precedent
for all NSA surveillance requests and ensures compliance from
the FISC that solves unwarranted bulk surveillance - all
surveillance cases go through FISC
Avoids the NB

2NC Solvency - Generic

FISA can do the plan they have the Jurisdiction to set legal
precedent
Kayyali 14 Nadia Kayyali, Bill of Rights Defense Committee Legal Fellow ,BA from
UC Berkeley, JD from UC Hastings. What You Need to Know About the FISA Court
and How it Needs to Change Electronic Frontier Foundation.
https://www.eff.org/deeplinks/2014/08/what-you-need-know-about-fisa-court-andhow-it-needs-change. 8/15/2014
Why the FISA Court Needs to Change: Among the myriad reasons the FISC must change, three stand out. First, FISA has become a
drastically more complicated law than when it was originally passed in 1978, and the role of the FISC has accordingly grown far
beyond the bounds of what Congress envisioned. Second, because of those changes, the

FISC has created a huge

body of secret policy and legal precedent. Finally, the courts reliance on the government to provide
all the necessary information needed to fairly make decisions is not sufficient, something that is painfully obvious as one reads the

The courts mandate

has expanded exponentially since 1978, especially during the 90s . More recently,
FISC decisions themselves. Its also something EFF has recently experienced in our NSA cases.

Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Actboth of which were passed decades after the initial
FISAgranted far broader spying authorities to the government than had existed before, and the government has claimed the right

What Congress originally authorized when

creating the FISC, with the Church Committee hearings freshly in mind, was an expedited system
of approving individualized warrants for foreign surveillance of specified
individualsmuch like what regular magistrate judges do with warrants now, with safeguards built in for the national
security context. That bears repeating: When FISA was passed, it authorized individualized warrants for surveillance. Now,
the court is approving mass surveillance . This is key, because as current
and former officials familiar with the courts classified decisions told the New
York Times in July of last year, the court is no longer simply approving applications . It is
regularly assessing broad constitutional questions and establishing
important judicial precedents, with almost no public scrutiny ," affecting millions of
to conduct mass surveillance under these provisions.

innocent people. As former FISC judge James Robertson stated to the Privacy and Civil Liberties Oversight Board, What [the FISC]

the
2008 (FISA) amendment has turned the FISA court into an administrative
agency making rules for others to follow . The result of this expansion of the FISCs role is a body of

does is not adjudication, but approval. This works just fine when it deals with individual applications for warrants, but

secret law that, now that some has come to light, has shocked most Americans. The most obvious example of this is, of course,

the courts interpretation of the word ['relevant,']

enabled the government . . . to collect the phone records of the majority
of Americans, including phone numbers people dialed and where they
were calling from, as part of a continuing investigation into international
terrorism. The heightened duty of candor is not enough. FISC decisions that have been made public are full of
section 215 of the Patriot Act, where

descriptions of the NSA not fulfilling its duties and being very slow to inform the court about it. Judge John Bates noted: The court is
troubled that the governments revelations regarding the NSAs acquisition of Internet transactions mark the third instance in less
than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection
program, and noted repeated inaccurate statements made in the governments submission, concluding that the requirements
had been so frequently and systematically violated that it can fairly be said that this critical element of the overallregime has
never functioned effectively. Judges have consistently chastised the NSA for inaccurate statements, misleading or incomplete
filings and for having circumvented the spirit of laws protecting Americans privacy. EFF had its own brush with this problem earlier
this year, when we discovered that the government had not even informed the FISC of its duties to preserve evidence. In March,
after an emergency hearing, a federal court in San Francisco ordered the government to preserve records of Section 215 call details
collection. On that same day, the FISC issued its own strongly worded order in which it mandated the government to make a filing
explaining exactly why it had failed to notify the FISC about relevant information regarding preservation orders in two related cases,
Jewel and Shubert. This failure had affected the courts earlier ruling mandating that certain information be destroyed. Its clear that
the FISC simply cant rely on the government to get the full picture.

FISA has empirically ruled against the NSA on domestic

surveillance
Dougdale 13. Addy Dougdale. Contributer to FastCompany a leading
progressive news outlet. FISA COURT FORCED NSA TO STOP ILLEGALLY GATHERING
EMAIL August 22, 2013. http://www.fastcompany.com/3016203/the-code-war/foirequest-shows-nsa-forced-to-stop-illegal-gathering-of-us-correspondence-byU.S. Intelligence officials have released papers showing the NSA illegally
snooped on thousands of U.S. citizens' electronic messages before a court
ordered it to cease. The declassified ruling, made by FISA's chief judge in
2011, ordered the National Security Agency to rethink its methods of
surveillance. The heavily redacted 85-page documentwhich was released on the
Office of the Director of National Intelligence's brand-new Tumblr account, IC On The
Recordis the first FISA court opinion released by the government in response to a
FOIA lawsuit brought by the Electronic Frontier Foundation in 2012. Although FISA
has been heavily criticized as a cypher for the intelligence sector, these
documents show that, on this occasion, that was not the case. "For the
first time, the government has now advised the court that the volume and
nature of the information it has been collecting is fundamentally different
from what the court had been led to believe," wrote Judge John D. Bates in the
ruling of October 3, 2011.

No risk of it getting overturned rulings are legally within

FISAs jurisdiction
Pfander and Birk 15 James E. Pfander & Daniel D. Birk; James has a BA,
University of Missouri and JD, University of Virginia. Currently Owen L. Coon
Professor of Law at Northwestern School of Law. Daniel has a JD from Northwestern
School of law and is Law Clerk to Kenneth F. Ripple of the U.S. Court of Appeals,
Seventh Circuit. Article III Judicial Power, the Adverse-Party Requirement, and NonContentious Jurisdiction Yale Law journal Volume 125, Number 5, March 2015
1346-1835. http://www.yalelawjournal.org/article/non-contentiousjurisdiction#_ftnref552
Since the adoption of FISA in 1978, the Foreign Intelligence Surveillance Court has reviewed government
applications for the approval of certain surveillance practices on an ex parte basis.548 As with other warrant
applications,549 the government submits the request to the court without notice to the target of the proposed
surveillance.550 But unlike the targets of other warrant proceedings, most FISA targets will never learn that the
surveillance has been carried out and will never have occasion to challenge the warrant in the course of criminal
proceedings. Unlike other warrant proceedings, moreover, the proceedings do not take place in the local federal

If the FISC denies

the governments application, FISA provides for oversight by the Foreign
Intelligence Surveillance Court of Review.552 The government does not
invariably release either the decisions of the trial court or the opinions of
the court of review, although a few decisions have come to light as a result of the leaks by Edward
courthouse; rather, they require the FISA judges to travel to a secret courthouse.551

Snowden.553 Critics have argued that the FISCs ex parte process presents both constitutional and practical
problems and have put forward a variety of suggested cures.554 For example, Orin Kerr has argued that Congress
should establish a special advocate within an existing security-cleared government department to offer adversary
presentations during FISC proceedings.555 Steve Vladeck has urged instead that private security-cleared lawyers,
not government employees . . . serve as adversaries in secret litigation commenced by the government.556 Such
proposals have gained traction in Congress; newly introduced bills would attempt to ensure adversarial
presentations by requiring the appointment of public interest advocates in certain situations.557 One commentator
has argued that private attorneys might be appointed to serve as consultants to the court in proceedings deemed

to require some adversarial presentation.558 We do not claim expertise in matters of national security and have
little to add to the policy debate over the wisdom of introducing an adversary process to improve decision making

the FISCs role in hearing warrant applications on

an ex parte basis seems to fit comfortably within the scope of federal
judicial power over matters of non-contentious jurisdiction. The FISA process calls for the
court to determine that the government has complied with various
statutory elements that regulate access to intelligence surveillance .559 The
resulting decisions by the FISC serve as final decisions on the issues at
hand: the governments compliance with the statute and entitlement to
conduct the surveillance in question. While the targets of such surveillance can contest various
aspects of the proceedings that yielded the evidence introduced at their trials, courts hearing those
trials treat the FISCs determination as conclusive on the issue of the
legality of the surveillance .560 Even if the courts were to reopen the FISA
decision and reevaluate the showings, such judicial revision would not
raise doubts about the judicial finality of the initial decision . To be sure, federal
at the FISC. We simply suggest that

officials may not always discharge their duties of candor to the FISC and may exceed the scope of the warrants
authority in carrying out the surveillance in question. Remedies should be available in such cases (just as they were

But the possibility of

executive branch missteps, while legitimate matters of litigation and
policy concern, do not deprive the judicial process of its character as such .
in the nineteenth century when officers exceeded the scope of their warrants).

FISA solves
Cardy 08 Emily A Cardy. B.A in Law from Yale University THE
UNCONSTITUTIONALITY OF THE PROTECT AMERICA ACT OF 2007 Boston University
Public Interest Law Journal 18 B.U. Pub. Int. L.J. 171. Fall, 2008.
In 1978 the Foreign Intelligence Surveillance Act (FISA) established the processes by
which the United States intelligence community could effectively gather foreign
intelligence, while striking "a balance between national security interests and civil
liberties." n10 "FISA provides a means by which the government can obtain
approval to conduct electronic surveillance of a foreign power or its
agents without first meeting the more stringent standard" required in
domestic criminal investigations. n11 That the TSP operated outside of FISA's
purview made it automatically constitutionally suspect. n12 The Article III court
established by FISA, the Foreign Intelligence Surveillance Court (FISC), is
essential to FISA's operation. n13 FISC objectively adjudicates intelligence
collection proposals and procedures, while protecting such details in the
interest of national security. In short, FISA establishes the United States'
legal standard for gathering foreign intelligence, and provides safeguards
[*174] to protect the Fourth Amendment's promises to the American public
that they will be free from unwarranted government intrusion. n14

2NC Solvency Constitutional Rulings

Specifically true of constitutional issues
Benkler 13 Yochai Benkler. law professor and director of the Berkman Center for Internet & Society at
Harvard University. In secret, Fisa court contradicted US supreme court on constitutional rights The Guardian.
http://www.theguardian.com/commentisfree/2013/sep/22/secret-fisa-court-constitutional-rights. 9/22/13

Tuesday, the Foreign Intelligence Surveillance Court (FISC) declassified an opinion in

which it explained why the government's collection of records of all
Americans' phone calls is constitutional , and that if there is a problem with
the program, it is a matter of political judgment, not constitutional law . So,
On

should Americans just keep calm and carry on phoning? Not really. Instead, we should worry about a court that,
lacking a real adversarial process to inform it, failed while taking its best shot at explaining its position to the public

The opinion does not even

mention last year's unanimous US supreme court decision on the fourth
amendment and GPS tracking, a decision in which all three opinions include strong language that
to address the most basic, widely-known counter-argument to its position.

may render the NSA's phone records collection program unconstitutional. No court that had been briefed by both
sides would have ignored the grave constitutional issues raised by the three opinions of Justices Scalia, Sotomayor,

The
newly-released FISC opinion, the first to opine on the legality of the phone
metadata collection program since the Snowden leaks brought the
program to national attention, is based on two straightforward points. First,
in 1979, the supreme court held in Smith v Maryland that using " pen registers" that record what number
called what other number, when, and for how long, did not violate the fourth amendment .
The court in Smith reasoned that individuals have no expectation of privacy in
information they knowingly hand over to the phone company . The FISC
reasoned that even though the NSA metadata program collected more
information than the program the supreme court upheld 35 years ago, the
details did not make a constitutional difference. Individuals have no fourth
amendment rights in their phone call metadata . The second component of
the FISC argument was that "grouping together a large number of
individuals", no single one of whom has "a fourth amendment interest",
"cannot result in a fourth amendment interest springing into existence ex
nihilo". Adding up many zeros doesn't create a positive value; bulk collection of
and Alito in United States v Jones. And no opinion that fails to consider these should calm anyone down.

unprotected materials over a sustained period of years raises no special constitutional considerations. Standing on
its own, this logic may seem persuasive. But only until you think about how last year's Jones decision by the
supreme court destabilizes this logic.

FISCR has jurisdiction over 4th amendment rulings

Donohue 14. Laura K Donohue; Professor of Law, Georgetown University Law Center. BULK METADATA
COLLECTION: STATUTORY AND CONSTITUTIONAL CONSIDERATIONS Harvard Journal of Law & Public Policy, 37 Harv.
J.L. & Pub. Pol'y 757. Summer, 2014. Lexisnexis.
To enforce the specialized probable cause standard encapsulated in FISA, Congress created a court of specialized
but exclusive jurisdiction. n279 Its job was to ascertain whether sufficient probable cause existed for a target to be
considered a foreign power, or an agent thereof; whether the applicant had provided the necessary details for the
surveillance; and whether the appropriate certifications and findings had been made. It is thus surprising that the
government considers these orders now to be evidence of precedent, on the basis of which, it argues, the programs
are legal. In ACLU v. Clapper, n280 for instance, the government responded to the argument that it had exceeded
its statutory authority under FISA by arguing: [S]ince May 2006, fourteen separate judges of the FISC have
concluded on thirty-four occasions that the FBI satisfied this requirement, finding "reasonable grounds to believe"
that the telephony metadata sought by the Government "are relevant to authorized investigations . . . being
conducted by the FBI . . . to protect against international terrorism. n281 The government went on to cite Judge
Eagan's August 2013 memorandum opinion in further support of its interpretation of "relevance." n282 These were
the only points of reference that mattered: "Considering that the Government has consistently demonstrated the

relevance of the requested records to the FISC's satisfaction, as Section 215 requires, it is difficult to understand
how the government can be said to have acted in excess of statutory authority." n283 [*823] Even more surprising
than the role the granting of orders is playing for establishing legal precedent is the revelation that

FISC has

greatly broadened the "special needs" exception to the Fourth

Amendment to embrace wholesale data collection. n284 Although the Supreme Court
has never recognized such an exception, FISC's unique constitutional interpretation has
served to authorize broad collection of information on U.S. citizens .
Notably, because of the secret nature of FISC's proceedings and the ex
parte nature of the court, there are no advocates who could appeal a
decision based on this interpretation to the Supreme Court. Consequently, an
unreviewable, complex body of law, establishing doctrines unrecognized by the Supreme Court, has emerged as

FISCR looked back at its decision in

In re Sealed Case to confirm "the existence of a foreign intelligence
exception to the warrant requirement." n285 It acknowledged that FISCR had "avoided an
precedent for future application to FISC. In In re Directives,

express holding that a foreign intelligence exception exists by assuming arguendo that whether or not the warrant

FISCR went on to
as a federal appellate court, it would "review findings of fact for
clear error and legal conclusions (including determinations about the
ultimate constitutionality of government searches or seizures) de novo ."

requirements were met, the statute could survive on reasonableness grounds." n286
determine that,

n287 It then asserted, for the first time, a foreign intelligence surveillance exception to the Fourth Amendment: The
question . . . is whether the reasoning of the special needs cases applies by analogy to justify a foreign intelligence
exception to the warrant requirement for surveillance undertaken for national security purposes and directed at a
foreign power or an agent of a foreign power reasonably believed to be located outside the United States. Applying
principles derived from the special needs cases, we conclude [*824] that this type of foreign intelligence
surveillance possesses characteristics that qualify it for such an exception. n288 The court analogized the exception
to the 1989 Supreme Court consideration of the warrantless drug testing of railway workers, on the grounds that
the government's need to respond to an overriding public danger could justify a minimal intrusion on privacy. n289
The government subsequently cited In re Directives in its August 9, 2013 white paper, defending the telephony

FISC
continues to go beyond its mandate. In August 2013, for instance, FISC issued a twentynine-page Amended Memorandum Opinion regarding the FBI's July 18, 2013 application for
the telephony metadata program. n291 Appending the seventeen-page order to the opinion, Judge
metadata program, in support of an exception to the Fourth Amendment warrant requirement. n290

Claire V. Eagan considered Fourth Amendment jurisprudence, the statutory language of Section 215, and the canons

FISCR
suggested the case raised "important questions of statutory
interpretation, and constitutionality" and concluded "that FISA, as amended by
the Patriot Act, supports the government's position, and that the restrictions
imposed by the FISA court are not required by FISA or the Constitution."
of statutory construction to justify granting the order. n292 Similarly, in a 2002 per curiam opinion,

n293 Congress did not design the Foreign Intelligence Surveillance Court or the Court of Review to develop its own
jurisprudence. Particularly in light of the secrecy and lack of adversarial process inherent in the court, it is

FISC's decisions have taken on a force of their own in

legitimizing the collection of information on U.S. citizens .
concerning that

2NC Solvency Section 215

Solves surveillance under Section 215 requests go through
the court every 90 days
Slobogan 14. Slobogin, Christopher. Milton Underwood Professor of Law, Vanderbilt University Law School.
Panvasive Surveillance, Political Process Theory, and the Nondelegation Doctrine Georgetown Law Journal 102
Geo. L.J. 1721. August, 2014. Lexis.

The National Security Agency has wide-ranging authority to conduct surveillance of

our phone and email communications, assuming its efforts are aimed at protecting
national security. Under the Foreign Intelligence Surveillance Act of 1978, for
instance, the NSA has the power to intercept the contents of certain
communications if a special, secret court (the Foreign Intelligence Surveillance
Court, or FISC) finds probable cause to believe a foreign agent is the target
and that gathering intelligence is a "significant purpose" of the surveillance. n181
The focus here, however, will be solely on the NSA's authority to obtain "metadata,"
the term the NSA uses to describe both "envelope" information obtained from
[*1756] phone and Internet carriers and information from other third-party sources.
n182 While the NSA's interception of the content of communications still follows the
typical Fourth Amendment model, at least in the sense that a particularized warrant
is required, the NSA's metadata collection program has been highly panvasive in
nature. Under Section 215 of the PATRIOT Act, as amended in 2006, the NSA and
other intelligence agencies may, pursuant to a request through the FBI, obtain "any
tangible thing[] (including books, records, papers, documents, and other items)" if it
is "relevant to an authorized investigation [designed] . . . to protect against
international terrorism or clandestine intelligence activities." n183 The designation
of whether an investigation is authorized is solely within the discretion of the
Attorney General or his or her delegate. n184 Based on this authorization, the
FISC decides whether to issue a Section 215 order, which must describe
with particularity the types of items to be seized but not the people who
will be targeted . n185 Section 215 has long been the subject of criticism. n186
For instance, a Section 215 order permits the seizure of records of persons who are
neither the agent of a foreign power nor the target of the investigation, and thus
could authorize accessing personal information about many innocent Americans
who happen to be somehow related to the investigation. As one commentator
stated, "[T]he literal terms of section 215 would permit an entire database
to be the subject of a FISA order. As long as there is 'an authorized
investigation,' the statute does not set any limits on the type or number of records
subject to the FISA order." n187 Snowden's disclosures, and the admissions made
by the government subsequent to those disclosures, indicate that the NSA is taking
full advantage of this authority. n188 The NSA, through the Attorney General, has
asserted that the metadata of anyone who makes a phone call or sends a
text message in the [*1757] United States are "relevant" to its ongoing
investigation of terrorist activities, because only by obtaining this bulk
information can the links between known and unknown terrorists be discovered.
n189 The FISC has agreed, authorizing such bulk metadata collection for
the first time in May 2006, and reauthorizing this collection (from, at a
minimum, the three largest service providers) every ninety days since then,

including in the wake of the Snowden affair n190 (although President Obama
recently ordered that the metadata be stored with a third party rather than the NSA
itself n191). As described in more detail in Part III, Snowden's revelations and the
NSA's own disclosures indicate that these bulk metadata are "queried" on a
frequent basis, resulting in the examination of the communication records of
thousands of people. n192

2NC Solvency EO 12333

Solves 12333 FISA defers to NSA based on EO 12333 now, but
CP breaks that, which routes cases surveillance cases through
FISC
Farivar 13 (Cyrus Farivar, Senior Business Editor at Ars Technica; Judge: NSA
exceeded the scope of authorized acquisition continuously Nov 19, 2013
http://arstechnica.com/tech-policy/2013/11/judge-nsa-exceeded-the-scope-ofauthorized-acquisition-continuously/)
The second important FISC opinion, authored by Judge Bates, came in
response to a government request that aimed to expand the metadata
collection program by 11-24 times. Bates slammed the government for
not adhering to its guidelines but reluctantly allowed them to continue
out of deference to the Executive Branch (and intelligence agencies, like
the NSA , whose powers are granted through the Reagan-era Executive
Order 12333). In the opinion, Judge Bates appears unwilling or unable to
meaningfully punish any government officials despite clear violations of the courts
prior orders. I see a lot of similarities between the Bates opinion and the Walton
opinion, Mark Rumold, a staff attorney at the Electronic Frontier Foundation, told
Ars. Rumold was referring to a 2009 opinion by FISC Judge Reggie Walton,
who also lambasted the government for breaking the rules.

2NC AT Circumvention/Noncompliance
FISC wont get circumvented has disciplinary authority over
NSA
Sinha 13 G. Alex Sinha. Aryeh Neier Fellow, Human Rights Watch and the American Civil Liberties Union. NSA
SURVEILLANCE SINCE 9/11 AND THE HUMAN RIGHT TO PRIVACY Loyola Law Review 59 Loy. L. Rev. 861. Winter, 2013

On August 21, 2013, in response to a Freedom of Information Act (FOIA) lawsuit,

intelligence officials declassified an October 2011 FISC opinion in which
the court's chief judge castigated the NSA for misleading the FISC as to
the nature and scope of some of the NSA's domestic surveillance
activities. n230 According to the [*898] opinion, in May of 2011, the NSA
revealed to the court that it had been collecting full strings of purely
domestic communications that were not from, to, or about a legitimate
surveillance target. n231 The NSA had been collecting as many as 56,000 of
these communications annually, and the surveillance practices that led to this overcollection had been in place for roughly three years, since the passage of the FAA in
2008. n232 The FISC ordered the NSA to cease such collection, which it
deemed unconstitutional, and subsequently approved a modified
collection technique in November of 2011. n233 (The modified technique
screened purely domestic communications to the FISC's satisfaction, and reduced
the retention period for data from five years to two, though further details remain
unclear.) n234 The court also criticized the NSA for using improper search
terms in digging through the massive amounts of transactional data it
obtained about Americans' calling records. n235

2NC AT Transparency Turn

FOIA solves transparency
EFF 15 (Electronic Frontier Foundation; non-profit organization working to
preserve civil rights; 2015 https://www.eff.org/issues/transparency)
One of the major tools we use is the Freedom of Information Act (FOIA), a federal
law that gives people the right to request information kept by federal
government agencies. Our team of FOIA lawyers also submit requests on a
variety of digital civil liberties issues and often take cases to court when we
believe the government is unduly withholding information. But anyone can
make a request under FOIA, and you can go here to learn how you can submit
your own. While emerging technologies give the government new tools that
threaten citizen civil liberties, technology also has the potential to create
a more democratic relationship between public institutions and the
citizens they serve. Today, a broad range of new tools are allowing the
public to more closely examine government and corporate entities and to
hold them accountable for deception, censorship, and corruption . In
addition to using freedom of information laws to shed light on government actions,
EFF also wants to highlight technologies that help the transparency process
whether its making it easier to file and track FOIA requests, websites dedicated to
whistleblowing, or open government initiatives that can improve access to
information.

AFF FISA/FISC CP

2AC FISA/FISC CP
Perm do both
Perm do the CP
Non-compliance guarantees circumvention no oversight
means precedent is reversed or ignored by lower FISC court or
the NSA
Stanley 13 Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology
Project. The FISA Courts Problems Run Deep, and More Than Tinkering is Required
NOVEMBER 21, 2013. ACLU. https://www.aclu.org/blog/fisa-courts-problems-rundeep-and-more-tinkering-required
With the latest release of documents about the NSA and the FISA Court (this one in response to an ACLU/EFF

we now have yet more evidence that the NSAs

compliance with the courts orders has been poor. We learn, for example, that, according
to the court, the NSA exceeded the scope of authorized [metadata] acquisition
continuously during the more than [redacted] years of acquisition under
these orders. And, NSAs record of compliance with these rules has been poor. Extraordinary
powers require extraordinary oversight. But were gradually beginning to
see the full scope of the FISA Courts inadequacy as an oversight
institution. The latest disclosures follow other evidence that this court has had less than a stellar record in
enforcing its rulings. Previous documents revealed, for example, that the NSA repeatedly violated
court-imposed limits on its surveillance powers, and that the agency
experienced numerous so-called compliance incidents such as staff
using the agencys tremendous powers to spy on love interests . And as my
colleague Jameel Jaffer points out, the record suggests that the government has felt free to
make bolder, less-supportable arguments before the secret FISA Court
than its willing to make before real courts that are open to the public . It
has often been pointed out that the FISA Court is not a normal court , a big
reason being that all of its proceedings are ex parte (that is, there is no adversarial proceeding,
the court only hears from one side) and that it operates within an ocean of
secrecy and compartmentalization. My colleagues Patrick Toomey and Brett Max Kaufman
Freedom of Information Act request)

yesterday detailed the sorry story of how these characteristics allowed the court to stretch the law to permit bulk
metadata collection.

Cant solve and turn no accountability for decisions, no

review process, and no investigative authority - destroys court
transparency
Setty 15 (Sudha Setty; Professor of Law and the Associate Dean for Faculty
Development and Intellectual Life at Western New England University School of Law;
Surveillance, Secrecy, and the Search for Meaningful Accountability Faculty
Publications; Digital commons; Western New England University School of Law; 51
STAN. J. INT'L L 16 (2015) http://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?
article=1305&context=facschol)

Two forms of relatively weak judicial review exist over the NSA Metadata Program. The primary mechanism by
which the NSA has legitimated its surveillance activities is the Foreign Intelligence Surveillance Court (FISC), a
closed, non-adversarial setting. Article III courts have had the opportunity to consider post-9/11 surveillance
programs on numerous occasions, and with few exceptions, Article III courts have refused to review matters of

FISC differs from Article III

courts in numerous ways: Its statutory scope is limited to matters of foreign intelligence gathering; its judges
are appointed in the sole discretion of the Chief Justice of the United
States Supreme Court; its proceedings are secret; its opinions are often
secret or are published in heavily redacted form; and its process is not
adversarial as only government lawyers make arguments defending the
legality of the surveillance being contemplated . 70 Many of these
differences bring into doubt the legitimacy of the court , its ability to afford
adequate due process regarding civil liberties concerns, and its ability to
uphold the rule of law in terms of government accountability .
Compounding this legitimacy deficit is the FISC's own loosening of the relevance
standard under Section 215 of the PATRIOT Act such that the FISC has
found that bulk data collection without any particularized threat or
connection to terrorism is legally permissible . 71 Historically, the FISC has
rejected NSA surveillance applications too infrequently to be considered a
substantial check on government overreach as an ex ante matter. 72 As an ex
national securityrelated surveillance. I. Foreign Intelligence Surveillance Court The

post matter, it is unclear to what extent the FISC's work guarantees any meaningful accountability over NSA

FISC lacks an adversarial process and has no

independent investigative authority, the FISC only addresses ex post compliance problems
when the government itself brings the problem to the comt's attention. 73 As such, FISC judges rely on
the statements of the government as to the govemment's own behavior
and lack the authority to investigate the veracity of the government's
representations. 74 For example, in 2011, the FISC found one aspect of the
surveillance program brought to its attention months after the program
went into effect to be unconstitutional. 76 Additionally, in one declassified
opinion, the FISC critiques the NSA's sloppy over-collection of metadata of U.S.
communications, and questions the efficacy of bulk data collection as a national security measure. 77
At one point, the FISC sanctioned the NSA for overreaching in saving all
metadata and mining daily metadata against an "alert list" of approximately 17,800 phone numbers, only 10%
surveillance activities. On the one hand, because the

of which had met FISC's legal standard for reasonable suspicion. 78 On such occasions, the administration has
modified problematic aspects of the surveillance and continued forward without further impediment by the FISC. 79
On the other hand, the fact that the NSA itself has brought potential compliance incidents to the notice of the FISC
indicates at least some internal policing of these programs. However ,

this is hardly an effective

substitute for external review and accountability mechanisms that would
ensure that consistent controls are in place. Further, the self-reporting of these
compliance incidents does not in any way allow for discourse over the larger
structural questions surrounding the surveillance programs . Finally, the
ability of the FISC to act as an effective check on NSA oveneaching is
severely limited by the secrecy and lack of information available to the
FISC judges. Judge Reggie B. Walton, formerly the Chief Judge of the FISC, lamented that "[t]he FISC is
forced to rely upon the accuracy of the information that is provided to the
Court .... The FISC does not have the capacity to investigate issues of
noncompliance .... " 81 The ability of the NSA to not only gather and retain bulk metadata, but also
to build in backdoor access into data files despite private encryption efforts has been largely
sanctioned by the FISC based on NSA representations as to the

seriousness of the security threats posed to the nation. 82 In an enviromnent in

which there is a tremendous fear of being held responsible for any future
terrorist attack that might occur on U.S. soil, 83 and in which there is a information deficit for those outside
of the intelligence community, the FISC has consistently deferred to the NSA's
assertions and has not been able to act as an effective accountability
mechanism.

Thats key to the democratic process ensures further

infringements on rights and replicates the error perm is key
to transparency and public engagement
HRW 14 (Human Rights Watch; Kenneth Roth; Executive Director of HRW; Letter
to President Obama Urging Surveillance Reforms January 16, 2014
http://www.hrw.org/news/2014/01/16/letter-president-obama-urging-surveillancereforms)
Vast changes to US law on surveillance have happened in secret without
adequate oversight. The lack of public information has prevented debate
about issues of great importance to the democratic process and individual
rights. In addition, the companies and organizations that have participated in US
surveillance programs have been prevented from disclosing basic data about the
information that the government has been demanding of them. You have in the past
stated that you welcome a debate about these matters, and your decision to
establish the review group to recommend possible reforms implicitly recognizes the
importance of this discussion. Yet it is impossible to have a healthy and open
democratic debate about these matters when the public and most of the
US Congress is kept in the dark about the scope of the programs and
their implementation . There are legitimate reasons to classify certain types of
information for example, to protect the identities of vulnerable individuals or to
protect the public from harm. But classification can too easily become a tool to
prevent embarrassment or exposure of wrongdoing, or to conceal
information about the functioning of public institutions. Protecting
national security does not have to come at the expense of public
accountability. For example, there was no legitimate reason why the extent
of the government collection of metadata should have been kept from the
general public. We urge you to disclose much more about the scope of terms of
surveillance occurring under Section 702 and Executive Order 12333, which could
have enormous implications for the rights of foreigners abroad. US persons have the
same interest as those abroad in knowing when their privacy rights are protected,
and that can be revealed without disclosing information that would threaten
national security. We also encourage you to support legislative reforms suggested
by the review group, including transparency measures to require greater reporting
to Congress and the public about use of intelligence gathering powers, and to
permit technology companies to report on the number of orders they receive for
user data. They also recommended a strong presumption of transparency in
decisions about whether to keep programs of the magnitude of the 215 bulk
telephony metadata program secret. These measures will not only assist
democratic debate today, but guard against abuse of power in the future.
The review group also made a number of other specific recommendations with

which we agree, and which we hope you adopt and encourage Congress to act on.
These include: * Ending the widespread use of National Security Letters (NSLs)
without judicial review: National security letters are a form of administrative
subpoena that give the FBI and other government agencies expanded power to
compel the production of records. Under the PATRIOT Act of 2001, authorization for
their use was greatly expanded; the need for individualized suspicion was reduced
and a broader array of officials became authorized to issue them. As a result, the
use of NSLs dramatically increased to the point where the FBI currently issues
nearly 60 NSLs per day without judicial approval and accompanied by strict gag
orders on the recipients. According to a report by the Office of the Inspector General
in the Department of Justice, the lack of oversight has resulted in serious
compliance issues and extensive misuse of NSL authority.[9] The review
group effectively called for an end to this practice, saying that NSLs should be
subject to judicial authorization, like 215 orders. We agree with these
recommendations, and though they require Congressional action we strongly urge
you to support them. * Creating an Institutional Advocate at the Foreign Intelligence
Surveillance Court (FISC): For years, the FISC has been authorizing dramatic
changes to US law in secret without any adversarys view being part of the process.
That is a recipe for decisions that set the wrong balance between security and
rights, because any judge is more likely to be persuaded by the side whose
views he or she hears. The panel supported creating an institutional advocate
with appropriate security clearances at the FISC to represent the publics privacy
interests. We strongly urge you to support legislative action on this matter. *
Strengthening the Privacy and Civil Liberties Oversight Board (PCLOB) and Investing
It with Whistleblower Reporting Authority: The PCLOB was established by Congress
after September 11, 2001, to conduct oversight of the intelligence community and
make recommendations about how to improve privacy and civil liberties protections.
But for years, the board remained dormant, without a chairman or staff. It now has a
chairman and staff but limited resources. If strengthened further and provided with
adequate resources, it can help to check the powers of an intelligence community
that gravitates toward over-classification and secrecy. Additionally, we agree with
the review group that the PCLOB should be empowered to receive whistleblower
complaints. Would-be whistleblowers need an independent and effective body to
which they can report abuses or wrongdoing without having to report them
internally first. A presidential policy directive issued in 2012, intended to improve
whistleblower protections for federal employees, does not cover contractors and
requires whistleblowers to report to a person in their direct chain of command
instead of a more independent body.[10] While this would not adequately address
the need for whistleblower reform that Human Rights Watch has previously
identified, it would be a starting point. More complete whistleblower reform would
require more than just creating an independent body to report wrongdoing. It would
also require providing whistleblowers with legal protection against retaliation and
legal defenses to prosecution. We urge you to propose to Congress a law that will
grant such protections to federal employees and consultants in this sector. The rules
that the United States establishes today on these matters will likely govern
surveillance long after your administration has completed its term. They will also set
a key precedent to which other countries will look to as they debate crucial

questions about privacy and Internet freedom across the world. We strongly urge
you, even as US surveillance capabilities continue to increase, to ensure that
those capabilities are effectively regulated, within a framework of the rule
of law, maximum transparency, and respect for democracy and human
rights. Adopting the recommendations outlined above will be a first step in that
direction.

2AC Addon Internet Freedom

Public surveillance reform key to revive US credibility on the
internet freedom agenda
Ries 14
(Internally quoting Zeke Johnson, director of Amnesty International's Security & Human Rights
Program. Also internally quoting Cynthia M. Wong is the senior researcher on the Internet and human
rights for Human Rights Watch. Before joining Human Rights Watch, Wong worked as an attorney at
the Center for Democracy & Technology (CDT) and as director of their Project on Global Internet
Freedom. She conducted much of the organizations work promoting global Internet freedom, with a
particular focus on international free expression and privacy. She also served as co-chair of the Policy &
Learning Committee of the Global Network Initiative (GNI), a multi-stakeholder organization that
advances corporate responsibility and human rights in the technology sector. Prior to joining CDT,
Wong was the Robert L. Bernstein International Human Rights Fellow at Human Rights in China (HRIC).
There, she contributed to the organizations work in the areas of business and human rights and
freedom of expression online. Wong earned her law degree from New York University School of Law.
Also internally quoting Center for Democracy and Technology Senior Counsel Harley Geiger Brian Ries
is Mashables Real-Time News Editor. Prior to working at Mashable, Brian was Social Media Editor at
Newsweek & The Daily Beast, responsible for using Twitter, Facebook, and Tumblr to cover revolutions,
disasters, and presidential elections. During his time at The Daily Beast, he contributed to a team that
won two Webby Awards for Best News Site. Critics Slam 'Watered-Down' Surveillance Bill That
Congress Just Passed - Mashable - May 22, 2014 http://mashable.com/2014/05/22/congress-nsasurveillance-bill/)

many of its initial supporters pulled their support. We supported

the original USA Freedom act, even though it didnt do much for non-US
persons, Zeke Johnson, director of Amnesty International's Security &
Human Rights Program told Mashable after Thursday's vote. He described
the original version as a good step to end bulk collection. However, in its
current version, it's not even clear that this bill does that at all, Johnson said. He
added that Congress left a lot of "wiggle room" in the bill something he said is
a real problem. "Where there is vagueness in a law, you can count on the administration
to exploit it," Johnson said. However, Laura W. Murphy, director of the ACLU Washington Legislative Office, took a more
As a result,

positive view of the bill. "While far from perfect, this bill is an unambiguous statement of congressional intent to rein in the out-ofcontrol NSA," she said in a statement. "While we share the concerns of many including members of both parties who rightly
believe the bill does not go far enough without it we would be left with no reform at all, or worse, a House Intelligence Committee
bill that would have cemented bulk collection of Americans communications into law." The Electronic Frontier Foundation simply
called it "a weak attempt at NSA reform." The

ban on bulk collection was deliberately

watered down to be ambiguous and exploitable, said Center for Democracy and Technology
Senior Counsel Harley Geiger. We withdrew support for USA FREEDOM when the bill
morphed into a codification of large-scale, untargeted collection of data
about Americans with no connection to a crime or terrorism. And Cynthia
Wong , senior Internet researcher at Human Rights Watch, said, This so-called reform
bill wont restore the trust of Internet users in the US and around the world.
Until Congress passes real reform, U.S. credibility and leadership on
Internet freedom will continue to fade.

Thats key to the global economy

Kalathil 10

Shanthi Kalathil - Adjunct Faculty and Adjunct Lecturer in the Communication, Culture, and Technology
(CCT) Master of Arts Program at Georgetown University. Kalathil has extensive experience advising the
U.S. government, international organizations and nonprofits on supporting civil society, independent
media, technology, transparency and accountability. Previously a senior Democracy Fellow at the U.S.
Agency for International Development and she has authored or edited numerous policy and scholarly
publications, including the edited volume Diplomacy, Development and Security in the Information
Age. She has taught courses on international relations in the information age at the Monterey Institute
of International Studies and Georgetown University. Kalathil holds degrees from U.C. Berkeley and the
London School of Economics and Political Science Internet Freedom: A Background Paper October
2010 - Available via:
http://www.aspeninstitute.org/sites/default/files/content/images/Internet_Freedom_A_Background_Pape
r_0.pdf

As use of the Internet has grown exponentially around the world, so too have
concerns about its defining attribute as a free and open means of
communication. Around the world, countries, companies and citizens are grappling
with thorny issues of free expression, censorship and trust. With starkly different
visions for the Internet developing, this era presents challengesand also opportunitiesfor
those who wish to ensure the Internet remains a backbone of liberty and
economic growth. U.S. officials have made clear their vision for the
Internet s future. President Obama, in a speech before the UN General Assembly, said that the U.S. is
committed to promoting new communication tools, so that people are
empowered to connect with one another and, in repressive societies, to do so with security. We will
support a free and open Internet, so individuals have the information to make up their own minds. His words were reinforced by
FCC Chairman Julius Genachowski: It

is essential that we preserve the open Internet and stand

firmly behind the right of all people to connect with one another and to exchange ideas freely and without fear.1 Indeed, a
free, widely accessible Internet stands at the heart of both global communication and global
commerce. Internet freedom enables dialogue and direct diplomacy between people and civilizations,
facilitating the exchange of ideas and culture while bolstering trade and economic growth. Conversely,
censorship and other blockages stifle both expression and innovation. When
arbitrary rules privilege some and not others, the investment climate suffers. Nor can access be expanded if end users have no trust

global
initiativesspearheaded by governments, private sector and civil societyare attempting to enshrine the
norms, principles and standards that will ensure the Internet remains a public space for
free expression. At the same time, other norms are fast arising
particularly those defined by authoritarian countries that wish to splinter the Internet into
independently controlled fiefdoms. Even as Internet access has expanded around the
world, many governments are attempting to control, regulate and censor the
Internet in all its forms: blogs, mobile communication, social media, etc. Such governments have
devoted vast resources to shaping the Internets development within their
own borders, and they are now seeking to shape the Internet outside their
borders as well. Indeed, Internet experts are worried that national governments of all stripes will increasingly seek to extend
their regulatory authority over the global Internet, culminating in a balkanized Internet with
limited interoperability. Hence, the next few years present a distinct window
of opportunity to elevate the principles of the free exchange of ideas, knowledge and commerce on the
Internet. While U.S. leadership within this window is vital , a global effort is necessary to
ensure that these norms become a standard part of the Internets supporting architecture.
in the network. However, making reality live up to aspirations for Internet freedom can prove difficult. Numerous

Decline leads to war

Merlini 11
[Cesare Merlini, nonresident senior fellow at the Center on the United States and Europe and chairman of the Board
of Trustees of the Italian Institute for International Affairs (IAI) in Rome. He served as IAI president from 1979 to
2001. Until 2009, he also occupied the position of executive vice chairman of the Council for the United States and
Italy, which he co-founded in 1983. His areas of expertise include transatlantic relations, European integration and
nuclear non-proliferation, with particular focus on nuclear science and technology. A Post-Secular World? DOI:
10.1080/00396338.2011.571015 Article Requests: Order Reprints : Request Permissions Published in: journal
Survival, Volume 53, Issue 2 April 2011 , pages 117 - 130 Publication Frequency: 6 issues per year Download PDF
Download PDF (~357 KB)
View Related Articles To cite this Article: Merlini, Cesare 'A Post-Secular World?',
Survival, 53:2, 117 130]

scenarios for the future of the world order illustrate the range of
possibilities, albeit at the risk of oversimplification. The first scenario entails the premature crumbling of the postWestphalian system. One or more of the acute tensions apparent today evolves into
an open and traditional conflict between states, perhaps even involving the use of
nuclear weapons. The crisis might be triggered by a collapse of the global
economic and financial system, the vulnerability of which we have just
experienced, and the prospect of a second Great Depression, with consequences for peace and
democracy similar to those of the first. Whatever the trigger, the unlimited exercise of national
sovereignty, exclusive self-interest and rejection of outside interference would likely
be amplified, emptying, perhaps entirely, the half-full glass of multilateralism, including the UN and the European Union.
Two neatly opposed

Many of the more likely conflicts, such as between Israel and Iran or India and Pakistan, have potential religious dimensions. Short of
war, tensions such as those related to immigration might become unbearable. Familiar issues of creed and identity could be
exacerbated. One way or another, the secular rational approach would be sidestepped by a return to theocratic absolutes,
competing or converging with secular absolutes such as unbridled nationalism.

1AR Transparency Turn

FISA courts undermine democracy
Timm 13 (Trevor Timm; co-founder and the executive director of the Freedom of
the Press Foundation. He is a journalist, activist, and lawyer; JD in law from New York
Law school; Reform the FISA Court: Privacy Law Should Never Be Radically
Reinterpreted in Secret JULY 10, 2013; https://www.eff.org/deeplinks/2013/07/fisacourt-has-been-radically-reinterpreting-privacy-law-secret)
Its likely the precedent laid down in the last few years will stay law for years to
come if the courts are not reformed. FISA judges are appointed by one
unelected official who holds lifetime office: the Chief Justice of the
Supreme Court. Under current law, for the coming decades, Chief Justice John
Roberts will solely decide who will write the sweeping surveillance
opinions few will be allowed to read, but which everyone will be subject to.
Judge James Robertson was once one of those judges. He was appointed to the
court in the mid-2000s. He confirmed yesterday for the first time that he resigned in
2005 in protest of the Bush administration illegally bypassing the court altogether.
Since Robertson retired, however, the court has transitioned from being
ignored to wielding enormous, undemocratic power. What FISA does is
not adjudication, but approval , Judge Robertson said. This works just fine
when it deals with individual applications for warrants, but the [FISA
Amendments Act of 2008] has turned the FISA court into administrative
agency making rules for others to follow. Under the FISA Amendments Act,
"the court is now approving programmatic surveillance. I don't think that
is a judicial function. He continued, " Anyone who has been a judge will tell
you a judge needs to hear both sides of a caseThis process needs an
adversary." No opposing counsel, rulings handed down in complete
secrecy by judges appointed by an unelected official, and no way for those
affected to appeal . As The Economist stated, Sounds a lot like the sort of
thing authoritarian governments set up when they make a half-hearted
attempt to create the appearance of the rule of law . This scandal should
precipitate many reforms, but one thing is certain: FISA rulings need to be made
public so the American people understand how courts are interpreting
their constitutional rights. The very idea of democratic law depends on it.

Further lack of transparency undermines public confidence in

federal surveillance stymies legal reform and ensures further
violations
Butler 13 (Alan Butler; Appellate Advocate Counsel, Electronic Privacy
Information Center; J.D., UCLA School of Law; B.A., magna cum laude, Economics,
Washington University in St. Louis. Standing Up to Clapper: How to Increase
Transparency and Oversight of FISA Surveillance New England Law Review v. 48,
55, p 59-100; 2013)
The failure to publish FISC opinions over the last ten years is the root of
the current loss of public confidence in the Administrations use of foreign

intelligence authorities.192 The courts legal analysis and conclusions, as

opposed to the operational details of surveillance activities, are part of the law
that cannot properly develop without public oversight. Promulgation of
the law is a central requirement of democracy; the failure to promulgate
results in a fail[ure] to make law . 193 Both the FISC and the Attorney
General bear the responsibility to promote public understanding of the
FISA process and what it encompasses. This is especially true where the
court attempts to strike some balance between national security and civil
liberties concerns.194 Secret law undermines our system of checks and
balances by disabling the democratic oversight by which the public
governs its government.195

1AR Solvency Deficit

Adversarial system is key to consistent rulings even if they
fiat FISCR compliance, trials still ensure NSA noncompliance
specifically true of 702 and 4th amendment rulings
Butler 13 (Alan Butler; Appellate Advocate Counsel, Electronic Privacy
Information Center; J.D., UCLA School of Law; B.A., magna cum laude, Economics,
Washington University in St. Louis. Standing Up to Clapper: How to Increase
Transparency and Oversight of FISA Surveillance New England Law Review v. 48,
55, p 59-100; 2013)
The recent revelations about the extent and nature of FISA surveillance
have highlighted the important and unreviewed body of constitutional and
statutory law being developed by the FISC.205 Unlike other ex parte
proceedings, the FISC reviews of applications submitted under Section 702
require extensive analysis and create precedent for the court.206 But this
lawmaking process only works when the judges hear both sides of the
argument. In addition, the Fourth Amendment issues and technical details
of surveillance tactics are very complex, and FISC judges cannot
adequately evaluate the various interests without in-depth briefing on
both sides . Any FISC reform should address this problem by providing for a
Special Advocate to the court, who would operate with a security clearance and
argue in opposition to the Department of Justice on important legal questions
regarding FISA and the Constitution. The FISC is developing complex legal
interpretations under a provision of the FAA that requires the FISC to find
that the targeting and minimization procedures adopted by the
Government are consistent with . . . the fourth amendment to the
Constitution . . . .207 But these decisions are necessarily complex and
difficult to make in the abstract context of a Section 702 application
because Fourth Amendment analysis is necessarily fact-based .208 In the
American judicial system, facts are developed through an adversarial
process.209 The government has an interest in arguing in favor of the
surveillance applications that it submits to the FISC; a Department of
Justice lawyers role is not to present the judges with reasons why the
application might be denied or modified. There is currently no advocate on
the other side of these complex and novel issues judged by the FISC. And
while recipients of FISA-authorized surveillance orders and directives can file
challenges under certain circumstances,210 they cannot review the classified
opinions or government briefs and do not have the necessary opportunity
or incentive to develop fact-based constitutional arguments. The difficulty in
having an adversarial process at the FISC is that the materials presented by the
government are highly classified. However, classified proceedings have become
more prevalent over the past ten years in the United States211 as well as in the
United Kingdom.212 The use of specially appointed, security-cleared attorneys to
challenge government legal arguments in national security cases has been in place
for more than a decade in the United Kingdom.213 The use of such a Special

Advocate would be appropriate in the FISA context where FISC judges are asked to
make novel and significant legal determinations regarding important constitutional
rights. Two former FISC judges,214 and other prominent legal scholars,215 have
proposed adding such an adversarial position to ensure that legal developments at
the FISC do not suffer from unbalanced advocacy.216

SOP Court CP

Notes
SOP Supreme Court CP
1. The Counterplan is to have to Supreme Court rule on the separation of
powers doctrine.
2. The net benefits are the internal SOP DA, and the 4 th amendment DA
3. You could read this aff against affirmatives that have the Supreme Court rule
on an amendment that is not the separation of powers doctrine ie. 1 st, 4th,
etc.

1NC Material

1NC Solvency
[Insert Plan] replace the grounds with = based on the
separation of powers doctrine
1st and 4th amendment challenges to surveillance fail the
counterplan is key to legitimately stopping surveillance
Slobogin 15
(Christopher -Milton Underwood Professor of Law, Chris Slobogin has authored more
than 100 articles, books and chapters on topics relating to criminal procedure,
mental health law and evidence. Named director of Vanderbilt Law Schools Criminal
Justice Program in 2009, Professor Slobogin is one of the five most cited criminal law
and procedure law professors in the country, according to the Leiter Report,
Vanderbilt University Law School, Standing and Covert Surveillance, Pepperdine Law
Review, February 18, 2015, http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2567070, JZG)
BASIS FOR CHALLENGING SURVEILLANCE: SEPARATION OF
POWERS AND THE NONDELEGATION DOCTRINE One response to standing arguments
IV. A THIRD

based on the insights of scholars like Milligan and Richards is that they ignore the close relationship
between standing and the scope of the right in question.131 Indeed, when the Fourth Amendment is
the basis for the claim, the Supreme Court has explicitly conflated standing with the Amendments
substance. In Rakas v. Illinois, 132 the Court stated that the decision as to whether a defendant can
make a Fourth Amendment claim forthrightly focuses on the extent of a particular defendants rights
under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined
concept of standing.133 If a government action is not a Fourth Amendment search vis--vis the
litigant, Rakas held, then the litigant lacks standing to challenge it. If that reasoning is the correct
approach to standing, then in cases challenging covert surveillance on Fourth or First Amendment
grounds everything rides on whether the surveillance, as it operates in the way the plaintiff describes
it, infringes the plaintiffs reasonable expectations of privacy or speech and association interests.134
While such a finding would presumably be made in the Clapper case, which involved the alleged
interception of the content of overseas phone calls,135 it is less certain in connection with collection

The Fourth Amendment is only meant to protect

reasonable expectations of privacy.136 Supreme Court case law to date
strongly suggests that any privacy one might expect in ones metadata or
Internet activity is unreasonable, because we assume the risk that third
parties to which we knowingly impart information (here phone companies and
Internet service providers) will in turn divulge it to the government. 137 The same
type of analysis might limit standing in cases brought under the First
Amendment. As the Court intimated in Clapper, 138 one could conclude that
even if speech and association are inhibited by surveillance, that
inhibition proximately results from the individuals choices, not from
anything the government has done to the individual.139 On this view, even
if an individual can show that he or she was targeted, standing to contest
surveillance does not exist unless and until the government uses the
seized information against the individual, because otherwise a colorable claim that a
and querying of metadata.

constitutionally cognizable interest was infringed cannot be made. If, despite its impact on political
participation, covert surveillance like the metadata program remains immune from Fourth and First

there remains another avenue of attack, derived directly

from separation of powers doctrine. In other work, I have argued that, even if the
Fourth (or First) Amendment does not govern a particular type of
Amendment challenges,

surveillance, Elys political process theory provides a basis for challenging

panvasive actions that are the result of a seriously flawed political
process.140 More specifically, panvasive surveillance might be challengeable on
one of three grounds: (1) the surveillance is not authorized by the
appropriate legislative body; (2) the authorizing legislative body does not
meaningfully represent the group affected by the surveillance; or (3) the
resulting legislation or law enforcements implementation of it violates
notions underlying the non-delegation doctrine.141 The first and third of
these grounds are based explicitly on separation of powers concerns. As I
pointed out, some panvasive surveillance has not been legislatively authorized
or has been authorized by legislation that does not announce an
intelligible principle governing the implementing agency .142 Panvasive
surveillance is also defective under non-delegation principles if, as I have
argued is true of the NSAs metadata program, it is implemented by rules or
practices that are not explained, were produced through flawed or nontransparent procedures, or are applied unevenly.143 Based on several Supreme
Court cases, particularly in the administrative law area,144 I concluded that any one of these
deficiencies could be the basis for the claim that the legislature, the
relevant law enforcement agency, or both are failing to carry out their
constitutional obligations as law-making and law implementing bodies.145
Although this type of claim, like the Fourth and First Amendment claims, aims at generalized relief,

the Court itself has often granted standing to individuals making

separation of powers claims.146 The rationale of these cases is not difficult
to grasp, because it again reflects the political process rationale. Many
years ago Justice Brandeis stated, [T]he doctrine of the separation of
powers was adopted by the convention of 1787 not to promote efficiency
but to preclude the exercise of arbitrary power.147 More recently, Chief Justice
Burger asserted that checks and balances were the foundation of a
structure of government that would protect liberty.148 More recently still, in Bond
v. United States149 the Court stated [t]he structural principles secured by the separation of powers

If one accepts the possibility that a separation of

powers argument can be made in covert surveillance cases, then parties
who can demonstrate the type of injury described abovethat is, a
significant stifling of political participation that, to borrow the Second Circuits
language in its Clapper decision,151 is a reasonable, non-fanciful, and non-paranoid
reaction to covert surveillanceshould have standing to challenge
panvasive surveillance even if it is not a search under the Fourth Amendment or does not
abridge First Amendment freedom. The merits claim would not be that the
surveillance is an unreasonable search or infringement of speech or
association rights, but rather that the legislature has failed in its
delegation task or that the relevant law enforcement or intelligence
agency has acted in an ultra vires fashion. These are the types of separation of powers
protect the individual as well.150

claims that courts ought to hear because they assure the proper functioning of the political process
that the Court is so eager to protect (with, inter alia, its standing doctrine). To requote Chief Justice
Roberts, [T]he obligation of the Judiciary [is] not only to confine itself to its proper role, but to ensure
that the other branches do so as well.152

1NC SOP Net Benefit

The counterplan is key to SOP and checking executive powers
solves democracy and function of the government
Slobogin 15
(Christopher -Milton Underwood Professor of Law, Chris Slobogin has authored more
than 100 articles, books and chapters on topics relating to criminal procedure,
mental health law and evidence. Named director of Vanderbilt Law Schools Criminal
Justice Program in 2009, Professor Slobogin is one of the five most cited criminal law
and procedure law professors in the country, according to the Leiter Report,
Vanderbilt University Law School, Standing and Covert Surveillance, Pepperdine Law
Review, February 18, 2015, http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2567070, JZG)
If panvasive surveillance cannot be challenged in court, it could well continue
indefinitely despite its real threat to democratic institutions . Despite all of
the hullabaloo occasioned by Edward Snowdens disclosures, the NSA appears to be
continuing its large-scale surveillance and Congress has yet to propose
serious limitations on it.162 Although President Obama has put a few new
restrictions on the NSAs programs,163 to date there have been few
judicial assessments of their constitutional status , and Clapper stands as an
obstacle to challenges to all but the most obviously panvasive government actions. While the
limitations on standing may make sense in some types of cases , challenges to
panvasive surveillance should be treated differently than most other generalized claims. The
separation of powers, Fourth Amendment, and First Amendment concerns about this
surveillance go to the core of American democracy. The Courts decision in De Jonge
v. Oregon, decided almost eight decades ago, makes the point in language that still resonates in this
post- 9/11 era: The greater the importance of safeguarding the community from incitements to the
overthrow of our institutions by force and violence, the more imperative is the need to preserve
inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the
opportunity for free political discussion, to the end that government may be responsive to the will of
the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security

Unwarranted
surveillance broadly stifles fundamental liberties and undermines the
very foundation of constitutional government. Government is no longer
functioning as the framers of the Constitution imagined it should if
political discourse, individual creativity, outspokenness and nonconformity are not allowed to flourish. This state of affairs threatens
rather than sustains the notion of separate but equal governmental
powers, because it diminishes the vitality of the legislative function,
improperly enhances the executive function, and ignores the judiciarys
role as a regulator of law enforcement through determinations of cause.
Standing doctrine, meant to ensure each branch of government is allowed
to do its job, should not prevent courts from ensuring that the other
branches actually do it.
of the Republic, the very foundation of constitutional government.164

Democracy checks inevitable extinction.

Diamond 95
(Larry, Senior Fellow at the Hoover Institution and Coeditor of The Journal of Democracy , Promoting
Democracy in the 1990s, December, http://www.wilsoncenter.org/subsites/ccpdc/pubs/di/fr.htm)
This hardly exhausts the lists of threats to our security and well-being in the coming years and decades. In the former Yugoslavia
nationalist aggression tears at the stability of Europe and could easily spread. The flow of illegal drugs intensifies through
increasingly powerful international crime syndicates that have made common cause with authoritarian regimes and have utterly

Nuclear, chemical, and biological weapons

continue to proliferate. The very source of life on Earth, the global
ecosystem, appears increasingly endangered. Most of these new and unconventional
threats to security are associated with or aggravated by the weakness or absence of
democracy, with its provisions for legality, accountability, popular sovereignty, and openness. LESSONS OF THE TWENTIETH
CENTURY The experience of this century offers important lessons. Countries that govern themselves in
a truly democratic fashion do not go to war with one another. They do not
aggress against their neighbors to aggrandize themselves or glorify their leaders. Democratic
governments do not ethnically "cleanse" their own populations, and they
are much less likely to face ethnic insurgency. Democracies do not sponsor
terrorism against one another. They do not build weapons of mass
destruction to use on or to threaten one another. Democratic countries form more reliable, open, and
enduring trading partnerships. In the long run they offer better and more stable climates for investment. They are more
environmentally responsible because they must answer to their own citizens, who organize to protest the
destruction of their environments. They are better bets to honor international treaties since they value legal
corrupted the institutions of tenuous, democratic ones.

obligations and because their openness makes it much more difficult to breach agreements in secret. Precisely because, within their

and the rule of law, democracies are the only

reliable foundation on which a new world order of international security and
prosperity can be built.
own borders, they respect competition, civil liberties, property rights,

2NC CP

2NC Solvency
The political process theory supports the cps solvency
Slobogin 15
(Christopher -Milton Underwood Professor of Law, Chris Slobogin has authored more
than 100 articles, books and chapters on topics relating to criminal procedure,
mental health law and evidence. Named director of Vanderbilt Law Schools Criminal
Justice Program in 2009, Professor Slobogin is one of the five most cited criminal law
and procedure law professors in the country, according to the Leiter Report,
Vanderbilt University Law School, Standing and Covert Surveillance, Pepperdine Law
Review, February 18, 2015, http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2567070, JZG)
One objection to the political process rationale for granting
standing to litigants with colorable claims of injury from NSA surveillance
is that, as Clapper stated, the Court has often found a lack of standing in cases
in which the Judiciary has been requested to review actions of the political
branches in the fields of intelligence gathering and foreign affairs.153 A
separate but related objection comes from Professor Jesse Choper, who argued
in 1980 that the executive and legislative branches have tremendous
incentives jealously to guard [their] constitutional boundaries and
assigned prerogatives against invasion by the other, and thus separation
of powers issues ought to be non-justiciable political questions .154 Neither
of these objections are sustainable from the political process perspective.
Precisely because of the perceived importance of national security, the
legislative and executive branches often either act in collusion with one
another or, as illustrated earlier, function in ways that undermine the others
prerogatives, with the result that both end up ignoring their constitutional
obligations.155 Particularly when it comes to national security, courts
should have the authority to ensure that legislatures define the scope of
permissible law enforcement and that law enforcement abide by
appropriate rule-making mechanisms, a notion the Court has accepted in
related national security contexts.156 At the least, these obligations should
include procedures for assuring public accountability (such as notice-andcomment
V. OBJECTIONS

or other transparent rule-making processes), or, if that is not feasible, some method of assuring
accountability to the legislature.157 Unfortunately, the perceived imperatives of the War on Terrorism

A different kind of objection

is that the political process rationale for standing reaches too broadly.159
If the chilling effect of panvasive surveillance on private communications
and speech and association is enough to establish standing, then other
challenges to alleged flaws in the political process ranging from voting matters to
educational obligationscould conceivably create standing as well . Perhaps so. As
have led both branches to short-circuit these requirements.158

noted above,160 in FEC v. Akins the Court has already recognized as much with respect to the most
basic of political rights of voting.161 Whether other interests less closely related to the democratic
process might be treated similarly is beyond the scope of this Article.

2NC AT Perm Do CP
The counterplan severs the part of the plan text that rules on
the ____ amendment. Severance is bad because it also the aff
to be a moving target we can never get stable negative
ground voting issue for fairness

2NC AT Perm Do Both

The permutation still links to the 4th amendment DA
The perm links to the net benefit creates confusion
Thurmon 92
(Mark Alan, 1992, WHEN THE COURT DIVIDES: RECONSIDERING THE PRECEDENTIAL
VALUE OF SUPREME COURT PLURALITY DECISIONS,
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3205&context=dlj, JZG)
When the Supreme Court decides a case, the Federal District Courts and
Circuit Courts of Appeals are responsible for finding the governing rules of
law in that decision. The first lower court to deal with the issue often
"defines" the holding of the case by reviewing the reasoning found in the
Supreme Court's opinion. Other lower courts then rely largely on this
interpretation. Plurality decisions' greatly complicate this process because
lower courts not only have to find the rationale of each opinion , but must
also decide which opinion's rationale governs . With all these choices, it is not
surprising that plurality decisions often do "more to confuse the current
state of the law than to clarify it."2

Multiple gruonds cause confusion

Hochschild 2k - J.D., Washington University School of Law
(Adam S., The Modem Problem of Supreme Court Plurality Decision: Interpretation in
Historical Perspective, http://heinonline.org/HOL/Page?
handle=hein.journals/wajlp4&div=11&g_sent=1&collection=journals#266, JZG)
On the evening of December 12, 2000 America watched as TV legal scholars scrambled to decipher the United
States Supreme Court's split decision in Bush v. Gore.' Despite the six different opinions, that case turned out to be

Real problems arise

when there is less than a clear majority speaking for the Court when the
leading opinion of the Court is a plurality opinion. A Supreme Court
plurality decision holds ambiguous precedential value . At the very least, plurality
easy enough to understand. A clear majority of five Justices ruled the same way.

decisions bind the parties in the particular case.2 Our jurisprudential tradition further assumes that all cases
elaborate a general rule of decision, or ratio decidendi, that applies to future cases involving similar issues.3 The
discernment of a ratio decidendi from a majority opinion is generally uncontroversial because a majority opinion
represents the rationale of a majority of Justices.4 But, the discernment of a ratio decidendi from a plurality opinion,
which represents the rationale of less than half of the Justices, is more problematic .

A majority opinion
may command more authority than a plurality decision,5 but precisely
what authority does a plurality decision command? In other words, how
should courts apply a plurality decision to subsequent controversies
involving similar issues? This Note posits that the growing confusion surrounding
plurality opinions is a foreseeable consequence of the formative years of the Supreme
Court. The hubris of wielding federal judicial power, that has driven Justices since the Court's inception, is the cause

An examination of the history of the Supreme Court's

power and its methods of decision making suggests that the problem is
deeply rooted in American law. Accordingly, an earnest solution involves a shift in our fundamental
of the plurality opinion chaos.

understanding of the Supreme Court's role. We must begin, at least, by recognizing the esteemed and modest
beginnings of the Supreme Court.

2NC SOP Net Benefit

2NC CP Overview
The counterplan solves 100% of the case that is not based on the ____ amendment.
We use the same process of the plan but rule on different grounds. 1NC Slobogin is
the most specific to the counterplans process, multiple standings exist for litigants
to sue based on the doctrine and the Supreme Court has often given standing to
those litigants.
The Counterplan solves the internal SOP net benefit and avoids the 4 th amendment
good DA.

2NC SOP Good

Executive power is too massive control over FISA Court is to
blame
Williams 14 -Assoc. Professor, Western State College of Law
(Ryan T., The Road Most Travel: Is the Executives Growing Preeminence Making
America More Like the Authoritarian Regimes It Fights So Hard Against?, August
2014, http://works.bepress.com/cgi/viewcontent.cgi?
article=1006&context=ryan_williams, JZG)
Through further analysis, one finds that congress FISA court solution does not establish
a valid check on Executive power. First, the FISA court is comprised of eleven
justices, who serve seven-year terms.46 All current judges were appointed to the
special court by Chief Justice John G. Roberts Jr.47 This method raises concerns
about the democratic process. These eleven judges, unlike the Supreme Court justices,
were not vetted and brought before Congress for ratification. They were
simply appointed by one Supreme Court justice to decide important Constitutional issues, such as the
scope of the Fourth Amendment and the limits/expectations of privacy.48 Second, unlike almost any other court,

FISA court hears from only one side in the case the government .49 One
need not be a Constitutional law professor or political science scholar to realize that if only one side of
an argument is heard, the chance for a fair examination of both sides
diminishes. The government routinely seeks trillions of records about American citizens, including, but not
limited to phone call and e-mail records.50 One wonders how the FISA court considers
both sides if only one side is being argued. The fear, of course, is that the two outcomes, to
the

grant or deny the governments request, are not accorded equal weight, if any weight at all. Under such a scenario,
one might suspect a disproportionate number of granted requests by the government. Unfortunately, that appears

nearly every NSA surveillance request

ever submitted to the FISA court, with regard to spying on Americans, was granted.51
In 2012, the FISA court granted every single government request and
issued nearly 1,800 surveillance orders pursuant to those requests. 52 That equates
to more than five orders each day for the entire year. According to the FISA court, no
request from any intelligence agency was denied.53 This makes it difficult to argue that
Congressional authorization of the FISA court to oversee the Executives
spying program is little more than a talisman, creating a mirage of
democratic process cloaked in secrecy and power to a few people in
charge. If the FISA court is the supposed watchdog of the privacy interests for Americans, but only the
to be the case, here. As of the writing of this Article,

government gets to present its case and every single government request for spying is granted, where is the
check? Nothing about the aforementioned process comports with Constitutional notions of checks and balances,

In addition, the FISA courts findings are almost

never made public.54 The people are not afforded a chance to review the breadth of a surveillance
request, which 100% of the time results in a surveillance order. The NSA obtains everything it
seeks and reports to no one outside of the Executive branch.
regardless of Congressional approval.

This leads to autocratic rule through the destruction of the

separation of powers
Williams 14 -Assoc. Professor, Western State College of Law
(Ryan T., The Road Most Travel: Is the Executives Growing Preeminence Making
America More Like the Authoritarian Regimes It Fights So Hard Against?, August

2014, http://works.bepress.com/cgi/viewcontent.cgi?
article=1006&context=ryan_williams, JZG)
Is the Executives newfound expansive ability to spy on
Americans, and seeming inability to challenge it, harmful? Such spying may be
D. Resulting Harm

necessary to protect the nation from credible terrorist threats. Moreover, on an individual level, why is
there is any problem with the Executive tracking all of peoples activities and information ?

If
people have nothing to hide, then what is the harm? First, one potential
harm is if (and when) the Executive wants to further expand its powers, and,
in secret, unilaterally take away other rights or privileges. By granting the
Executive unchecked power for its NSA surveillance program, a dangerous
precedent is set where the Executive may have incentive to take
additional power in other areas, while falsely claiming it is for national
security . It may really be for political or personal gain, or to push another
agenda to improperly shape American policy, but if its under the guise of
national security, a precedent is being set where the Executive is beyond
reproach. Thus, not having a watchdog over the NSA and the Executive
can lead to a host of abuses we have yet to even realize, the worst of
which may be yet to come. Second, aspects of the NSA surveillance program may be
unconstitutional. Facially, the concept of tracking phone calls, email communications and Internet traffic to see
if someone is behaving suspiciously seems a little unnerving. It is not we have a target, lets start
monitoring them. Instead, its lets monitor virtually everyone, to see if there are any targets. To
some, like the plaintiffs in Clapper, this difference is troubling enough to challenge in court, but their
case was dismissed for lack of standing. Conjointly, the NSA surveillance program may have
unconstitutional components, but they will continue to remain unnoticed if no one is ever able to

lacking a check on Executive power dilutes

Americas version of democracy . The Executive is often supposed to, if not
expected to, operate as the unilateral figure in international relations .71 That
is not in dispute, but even as the appropriate central-figure in
international relations, the Executive was never intended to operate in an
unconstitutional manner without reproach. The separation of powers, so
vital to a democratic republic, is severely undermined when one branch is
possesses seemingly limitless powers . If America continues to allow the Executive, the
challenge the Executive. Finally,

person in charge of the military and controlling the spying agencies, to be effectively unchecked by

this much more closely resembles an authoritarian regime

than any form of democracy . Is the current American President a dictator?
Surely, this is not the case, but the NSA surveillance program represents a
step towards the type of elective despotism that Thomas Jefferson and the Founding
the other branches,

Fathers fought hard to guard against when they formed the United States of America.72 The
aforementioned dangers highlight the problems with the Executives newfound and unchecked secret
and growing power to spy on Americans. The NSA surveillance program, however, is not the only way
the Executive has usurped power without being stopped by Congress or the Judiciary in the War on
Terror.

Executive is power bad congress has ceded too much

Katyal 14 -Professor of Law, Georgetown University Law Center
(Neal Kumar, is an American lawyer and chaired professor of law. He served as
Acting Solicitor General of the United States from May 2010[2] until June 2011,

Internal Separation of Powers: Checking Todays Most Dangerous Branch From

Within, The Yale Law Journal, http://poseidon01.ssrn.com/delivery.php?
ID=406105097031083079027095086064097030017003038044067033122101097
102092029124086026007007019055119006003021102115000083114104108034
091000041007071122111113098030043035082069119077112125119018126070
088122118088112005125069094003024125099091119&EXT=pdf&TYPE=2, JZG)
the need for internal separation of powers The treacherous attacks of September 11
gave Congress and the President a unique opportunity to work together .
Within a week, both houses of Congress passed an Authorization for the Use of Military
Force Resolution (AUMF); two months later they enacted the USA PATRIOT Act
to further expand intelligence and law enforcement powers .11 But
Congress did not do more. It passed no laws authorizing or regulating
detentions for United States citizens. It did not affirm President Bushs
decision to use military commissions to try unlawful belligerents .12 It
stood silent when President Bush took thinly-reasoned legal views of the
Geneva Conventions, such as that they did not require Article 5 hearings
to determine prisoner-of-war status. 13 The Administration was content to rest on vague
legislation like the AUMF, and Congress was content not to do much else.14 There is much to
be said for the violation of separation of powers engendered by these
executive decisions, but for purposes of this Essay, I want to concede the executives claim
that the AUMF gave the President the raw authority to make these decisions. A democratic
deficit still exists; the values of divided government and popular
accountability are not being preserved. Even if the President had the
power to carry out the above acts, it is surely wiser if Congress authorizes
them. Congresss imprimatur would have ensured that the peoples representatives concurred,
aided the governments defense of these actions in courts, and signaled to the world a broader

Of course, Congress has

not been passing legislation to denounce these Presidential actions either .
American commitment to these decisions than one mans pen-stroke.

And here we come to a subtle change in the legal landscape with broad ramifications: the demise of

The story begins with the collapse of the nondelegation doctrine in the 1930s, which enabled broad areas of
policymaking authority to be given to the President and agencies under
his control. That collapse, however, was tempered by the legislative veto,
meaning, in practical terms, that when Congress did not approve of a
particular agency action, the legislature could correct the problem . But
after INS v. Chadha, 15 which declared the legislative veto unconstitutional,
that checking function, too, has disappeared. While Congress has at times engaged in
the congressional checking function.

oversight, such as the scandal-driven 1995- 2000 period, such oversight is often stymied by structural

In most instances today, the only way for Congress to disapprove

of a presidential decree, even one chock full of rampant lawmaking, is to
pass a bill with a solid enough majority to override a Presidential veto.
This transforms the veto into a tool that entrenches presidential decrees,
rather than one that blocks congressional misadventur es. And because
Congress ex ante appreciates the supermajority-override rule, its members do not even
bother to try to check the President, knowing that a small cadre of loyalists in either
dynamics.

House can block such a bill.16 For example, when some of the Senates most powerful Republicans
(John McCain, Lindsay Graham, and John Warner) tried to regulate detentions and trials at
Guantnamo Bay, they were told that the President would veto their bill or any other attempt to
modify the AUMF.17

The result is that once a court interprets a congressional

act, such as the AUMF, to give the President broad powers, Congress often
cannot reverse the interpretation, even if they never intended to give the
President those powers in the first place. Members of Congress must not only
surmount a supermajority requirement, they must do so in each House. Senator McCain might
persuade every one of the other ninety-nine Senators to vote for his bill, but that is of no moment

At the same time, the

executive branch has gained power from deference doctrines that induce
courts to leave much conduct untouchedparticularly in foreign affairs. 19
without a supermajority in the House of Representatives as well.18

The combination of deference and the presidential veto is particularly insidiousit means that a
President can interpret a vague statute to give him additional powers, receive deference in that
interpretation from courts, and then lock that decision into place via his veto power. This ratchetand-

This expansion of
presidential power is exacerbated by the party system. When the political
lock scheme makes it almost impossible to rein in executive power.

branches are controlled by the same party, considerations of loyalty, discipline, and self-interest
generally preclude inter-branch checking. That general reluctance is exacerbated by the paucity of
weapons with which to check the President, with the only ones in existence called nuclear ones. In
earlier times, it was not difficult to use legislative vetoes as surgical checks. But post-Chadha,
Congress only has weapons that cause extensive collateral damage. The fear of that damage, of
course, becomes yet another reason why Congress is plagued with inertia. And the filibuster, the last
big check in periods of single-party government, is useless against the host of problems where
Presidents take expansive views of their powers under existing laws (such as the AUMF). Instead of
preserving bicameralism, the rule in Chadha has therefore led to its subversion and no-cameralism.
All legislative action is therefore dangerous. Any bill, like Senator McCains torture bill, can be
derailed through compromise. Even if its text ultimately has teeth, a President will interpret it
niggardly, and that interpretation will likely receive deference from a court, and it will then be locked
into place due to the veto. A rational legislator, fearing this cascading cycle, is likely to do nothing at
all. A Congress that conducts little oversight provides a veneer of legitimacy to an adventurist
President. The President can appeal to the historic sense of checks and balances, even if those checks
are entirely compromised by modern political dynamics. With this system in place, it is no surprise
that calls for legislative revitalization in the wake of the September 11th attacks have failed. No
successful action-forcing mechanisms have been developed; instead we are still in John Hart Elys
world of giving a halftime pep-talk imploring that body to pull up its socks and reclaim its rightful
authority.20 Instead of another pep-talk, it is time to consider second-best solutions to bring
separation of powers into the executive. Bureaucracy can be reformed and celebrated (instead of

Design
choices such as these can help bring our government back in line with the
principles envisioned by our Foundersones that have served our nation
and the world so well for so long.21
purged and maligned), and neutral conflict-decision mechanisms can be introduced.

Lack of Court determination in determining the powers of the

branches leads to excessive presidential power
Cantu 15
(Edward -Associate Professor, University of Missouri-Kansas City School of Law, 2015
The Separation-of-Powers and the Least Dangerous Branch, Hein Online, JZG)
III. THE UPSHOT: UNPRECEDENTED EXECUTIVE POWER Some appear to hold out in their hope of helping
to corral the Court's pragmatism into some construct resembling doctrine. 192 But separation-of
powers decisions are interminably pragmatic, and the systemic effect of that pragmatism becomes

The most
conspicuous and controversial manifestation of the pragmatism in power
allocation that the Court has acquiesced to is the dramatic growth of
executive power, and corresponding decrease in congressional power, over
the past century. A good example of this dramatic growth, and the reality that the political process is
apparent upon a cursory examination of the state of modern government.

the only check on it, is the recent use by Presidents of executive orders and other mechanisms of
presidential control over administration to manage national affairs. In 2001, then-Professor Elena

Kagan reflected on the increasing control asserted by Presidents since Ronald Reagan over
administrative agencies and declared quite correctly that "[w]e live today in an era of presidential
administration." 19 3 She emphasized that "presidential control of administration, in critical respects,
expanded dramatically during the Clinton years, making the regulatory activity of the executive
branch agencies more and more an extension of the President's own policy and political agenda." 194
Lest one conclude that this is the result of rank grabs at power by ambitious Presidents, Kagan
convincingly explained how this increasing assertiveness of Presidents is likely the result of
"structural aspects of the modern presidency," 195 created by several dynamics beyond Presidents'
control. For example, the American public's expectations of what Presidents can do have increased in
recent decades, but the President's ability to convince Congress to go along has only decreased due to

Given Congress' decreasing ability to effectively

legislate because of partisan gridlock, the President is left to meet
national expectations using tools the use of which requires no
congressional pre-approval. Naturally, then, Presidents get to work, tackling
national problems as they see fit, even if that means taking an
increasingly assertive stance regarding administrative agencies that
Congress originally envisioned would be beyond the President's direct
control. As others have explained, 197 in the criminal law context especially, this is a vicious
cycle. Congress understands it can escape political accountability and
appear "tough on crime" by enacting broad criminal laws. Presidents, in
turn, exercise increasing prosecutorial discretion in choosing what
conduct the statute criminalizes, and which offenders to prosecute . This
further increases the public's expectations of the President, which
increases the President's willingness to push the boundaries of his
prosecutorial discretion. Which encourages Congress to enact more laws
empowering the executive.., and so on. The "structural aspects" of the modern
increasing partisanship. 196

presidency that Justice Kagan discusses manifest in controversies over, for example, President

Bush's Executive Order 13,435,198 which banned federal funding for

certain types of embryonic stem cell research, based on Bush's belief that the
restriction was necessary for "maintaining the highest ethical standards and respecting human life

Obama reversed this Executive Order with one of

his own. 200 These erratic shifts in federal law were due to simply a
fundamental policy disagreement, one of a moral nature quintessentially the province of
and human dignity."1 99 President

legislatures to resolve, yet one the legislature has left Presidents to resolve through massive
delegation, a disinclination to be responsible for controversial federal policy, and a resignation to a
reality that modern life requires a powerful executive branch. As of this writing, President Obama is
well into his eight-year presidency, and the former constitutional law professor now well-appreciates

Rightly or
wrongly-but no doubt controversially-President Obama has recently
declared that, in light of Congress' inability or unwillingness to legislate
with respect to important issues, "I have got a pen and I have got a
phone," and that he would use his pen and phone to advance his policies
without the help of Congress.20 1 Obama has thus, for example, announced, without
the practical limitations of attempting to govern with the assistance of Congress.

consultation with Congress, that the executive branch would stop deporting children present in the
country illegally,20 2 which some argue is tantamount to refusing to enforce federal immigration laws,
at least in a significant categorical respect.20 3 Also controversial is his (as of this time) forthcoming
executive order that would raise the minimum wage for federal contractors' employees without any
legislation, 20 4 a move justified, as defenders argue,205 only by vaguely delegated authority in the
Federal Property and Administrative Services Act of 1949, that charges the executive to promote

Perhaps more relevant-though less

controversial for being so familiar-is the increasing use of military power
by Presidents since the end of the Second World War without
congressional approval. The argument, for example, that wars are illegal without Congress
"economy and efficiency" in procurement.20 6

first declaring them is generally deemed so illegitimate-to the point of being almost adorably quaintsuch that even those generally against U.S. involvement abroad generally bypass the argument
altogether, notwithstanding historical evidence that the Declare War Clause was, absent the need to
repel a sudden attack, intended to ensure Congress and not the executive commit the nation to war.20
7 Even half-way measures meant to preserve meaningful congressional constraints on executive war-

the
Obama administration has asserted that it may conduct airstrikes against
Syria without congressional approval.20 9
making powers, such as the War Powers Resolution, have been largely ignored.208 Thus,

Obama is violating the SOP SOP key to stop despotism

Will 14
(George, Obama Violates Separation of Powers, 23 Jun 2014,
https://www.newsmax.com/GeorgeWill/Obama-Separation-PowersCongress/2014/06/23/id/578644/, JZG)
What philosopher Harvey Mansfield calls "taming the prince" making executive power compatible with
democracy's abhorrence of arbitrary power has been a perennial problem of modern politics. It is now more
urgent in America than at any time since the Founders, having rebelled against George III's unfettered exercise of
"royal prerogative," stipulated that presidents "shall take care that the laws be faithfully executed." Serious as are
the policy disagreements roiling Washington, none is as important as the structural distortion threatening
constitutional equilibrium. Institutional derangement driven by unchecked presidential aggrandizement did not
begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity, and

Regarding immigration, healthcare, welfare, education,

drug policy, and more, Obama has suspended, waived, and rewritten laws ,
qualitatively different.

including the Affordable Care Act. It required the employer mandate to begin this year. But Obama wrote a new law,
giving to certain-sized companies a delay until 2016, and stipulating that other employers must certify they will not
drop employees to avoid the mandate. Doing so would trigger criminal perjury charges; so, he created a new crime,
that of adopting a business practice he opposes. Presidents must exercise some discretion in
interpreting laws, must have some latitude in allocating finite resources to the enforcement of laws, and must have

Obama, however, has perpetrated more than

40 suspensions of laws. Were presidents the sole judges of the limits of
their latitude, they would effectively have plenary power to vitiate the
separation of powers, the Founders' bulwark against despotism.
some freedom to act in the absence of law.

2NC SOP Low Now

SCOTUS ruling on marriage crushes SOP
Dixon 6-26
(Kristal, Loudermilk: Court Violated Separation of Powers In Marriage Equality Ruling,
June 26, 2015, Patch.com, http://patch.com/georgia/cartersville/loudermilk-courtviolated-separation-powers-marriage-equality-ruling-0, JZG)
Loudermilk (R-Cassville) is blasting the U.S. Supreme Courts
decision to make marriage equality legal across the country. Loudermilk, who represents
U.S. Representative Barry

Georgias 11th District in the U.S. House of Representatives, said in a statement that the court has ignored the
foundational intentions of the Constitution. Marriage, he added, has always been recognized as part of a religious
institution, something American founding fathers have deemed to be outside the realm of the federal government.
Therefore, any recognition or licensing of marriage by government was left within the power of the states ,

he

said. In this decision, the Supreme Court fully stepped upon the principle of federalism and
the rights and will of the states regarding social and religious issues. Once again the courts have
overstepped their boundaries and have engaged in social engineering by violating the
basic premise of separation of powers and the will of the people.

2NC AT Non-Delegation DA

2NC Paris Doesnt Solve

Paris cant solve warming
Friedman 14
(Lisa - E&E reporter, The pending Paris climate deal may not keep the world
under 2 C -- does that mean failure?, August 21, 2014,
http://www.eenews.net/climatewire/stories/1060004756, JZG)
A growing number of leaders are openly acknowledging that a 2015
international agreement to avert catastrophic global warming will surely
fall short of what's needed to achieve that goal. But another consensus is also forming among top
U.S. experts: that shortfall is OK, as long as the deal puts all major climate polluters on a serious,
upward and transparent path to cutting greenhouse gases. "The big question the public is going to ask
is: Are all the major emitters participating? And are they doing enough to help solve this challenge?'"
said Peter Ogden, director of international climate and energy policy at the Center for American

The new
agreement to be signed in Paris, to take effect in 2020, will essentially replace the
Progress and a former chief of staff to U.S. Special Envoy for Climate Change Todd Stern.

1997 Kyoto Protocol. Unlike Kyoto, the Paris deal will demand action from everyone, and not just from
wealthy industrialized countries. But in order to make that palatable for governments, negotiators are
moving away from a traditional top-down approach in which scientists dictate what is needed to save
the planet and countries are allotted targets accordingly. Instead, consensus has built around a more
voluntary approach in which governments figure out how much they can cut and offer it up as a

In
interviews with former negotiators and longtime observers of the U.N.
climate negotiations, not one person expressed confidence that the sum of
countries' targets will be enough to keep rising global temperatures below
the internationally agreed 2-degree-Celsius "guardrail " between dangerous and
pledge. Those "intended nationally determined contributions" are due early next year.

extremely dangerous warming. "If that were the case, it would be a stunning surprise. I don't think
anyone expects that," said Joy Hyvarien, executive director of the U.K.-based Foundation for
International Law and Development (FIELD). Recently, the Massachusetts Institute of Technology used

Studies show a continuing

emissions rise In a report, "Expectations for a New Climate Agreement," researchers
reviewed the likely pledges and found that instead of greenhouse gas
emissions scaling back dramatically, they would actually result in levels of
carbon dioxide equivalent in the atmosphere exceeding 580 parts per
million by the end of the century.
a sophisticated climate model to come to the same result.

Paris wont get us below 2C

Neslen and Mathiesen 15
(Arthur Neslen and Karl Mathiesen, Paris climate pledges 'will only delay dangerous
warming by two years', 3 June 2015,
http://www.theguardian.com/environment/2015/jun/03/paris-climate-pledges-willonly-delay-dangerous-warming-by-two-years, JZG)
Pledges made by countries to cut their carbon emissions ahead of a crunch
climate summit in Paris later this year will delay the world passing the threshold for
dangerous global warming by just two years, according to a new analysis. The
research, led by a former lead author on the UNs climate science panel, found that the
submissions so far by 36 countries to the UN would likely delay the world passing
the threshold until 2038, rather than 2036 without the carbon cuts. However, more
than 150 countries have yet to submit their carbon pledges despite a deadline of the end of March.
While most are relatively small emitters, commitments by big polluters such as India could

significantly change the picture. The analysis for the Guardian by the non-profit Climate Analytics
comes as climate negotiators from nearly 200 countries meet in Bonn and academics warned the
agreement hoped for in Paris would not keep temperatures to UNs target of holding temperature
rises below 2C above pre-industrial levels. None of the pledges, known in UN jargon as Intended
Nationally Determined Contributions (INDCs), were found to be in line with the 2C limit, when a fair
global distribution of emissions cuts was factored into countries offers. Pledges made by Russia and
Canada would be consistent with potentially catastrophic warming of between 3-4C if the pledges

action and
ambition we have seen to date is far from sufficient and unless it is rapidly
accelerated, the difficulties of limiting warming below 2C will be extreme, said
Dr Bill Hare, the founder of Climate Analytics and a former Intergovernmental Panel
on Climate Change (IPCC) lead author. But he added: What we see in the economic and
were matched with a similar level of ambition globally, according to the research. The

technological potential for emissions reductions gives us hope that if governments are willing to move
fast enough in the next 5-10 years, we might still make it. All that is lacking is political will. Achim
Steiner, the director of the UN Environment Programme, said this week that he would measure
countries commitments by looking at whether the pledges add up to anything that comes close to
ensuring that we at least have the possibility to stay within a 2C scenario. The new analysis suggests
an uphill struggle. Some civil society groups complain that the focus on national pledges distracts
attention from the planets fast-dwindling carbon budget and the UN Framework Convention on
Climate Changes (UNFCCC) goal of stabilising atmospheric greenhouse gas emissions at safe levels.
When the UNFCCC started 21 years ago, atmospheric CO2 concentration were at 300 parts per million
(ppm). Today they are at 400 ppm, and increasing faster each year than the one before, said Michael
Wadleigh, the founder of the Unesco-supported Homo Sapiens Foundation, and director of the Oscarwinning film, Woodstock. Despite all the UNFCCCs negotiated agreements, the body is failing in its
key objective. Reto Knutti, a lead author for the IPCCs last major climate report, said that scientists
would prefer the world to set global carbon quotas rather than percentages of national emissions set
against baseline years but admitted that this was a hard sell. We presented carbon budget schemes
in Warsaw two years ago [the UN climate summit in 2013], and the policy-makers all said we agree
and its urgent. But at the same time, they tried to tweak things so they had to do as little as
possible, he said. Nicholas Stern, the author of aninfluential review of the economics of climate
change for the UK government, said that the Paris summit would be crucial in at least setting a floor
of ambition The question is how fast can you ramp up, he said. Theres no doubt that [INDCs] are
coming in too high for 2030 for 2C [of warming]. Thats crystal clear. Much too high. But if we get
some movement in policies, if we get much stronger innovation of the kind they are trying to
encourage, then they could be ramped up quite quickly. Christiana

Figueres, the head of the UN

climate secretariat, acknowledges Paris is unlikely to meet 2C but said future rounds
of pledges could meet the target. You dont run a marathon with one step, Reuters reported her as
as saying.

2NC No EPA Regs Now

States thump climate regulations

Foran 15
(Clare, Mike Pence Says Indiana Will Buck Obamas EPA Climate Plan, 6-24-15,
http://www.nationaljournal.com/energy/mike-pence-says-indiana-will-buck-obama-sepa-climate-plan-20150624, JZG)
June 24, 2015 Indiana Gov. Mike Pence says his state won't comply with the
Environmental Protection Agency's effort to curb carbon dioxide from power plantsunless the
administration dramatically overhauls its regulation. Mike Pence sent a letter to the President Obama
on Wednesday with that warning, saying that unless proposed EPA regulations for power plants are
significantly "improved" before the agency finalizes them, Indiana will buck the rule. That

declaration arrives on the heels of a major push from Senate Majority

Leader Mitch McConnell urging governors not to comply with the
regulations, which stand at the heart of Obama's effort to tackle global warming and shore up a
legacy on the environment before he leaves office. In his letter to the White House, Pence did not
explicitly outline what changes he hopes to see from EPA, but claimed that the regulation "fails to
strike the proper balance between the health of the environment and the health of the economy," and
warned that it will drive up the cost of electricity. "As Governor of Indiana, I am deeply concerned
about the impacts of the Clean Power Plan on our state, especially our job creators, the poor, and the
elderly who cannot afford more expensive, less reliable energy. I reject the Clean Power Plan and
inform you that absent demonstrable and significant improvement in the final rule, Indiana will not
comply," Pence wrote, adding that Indiana will "reserve the right to use any legal means available to

Indiana joined a coalition of states that sued

the administration in a failed effort to block the regulations before they
were made final. And this is not the first instance when a Republican governor has pushed back
against the rule. Oklahoma Gov. Mary Fallin signed an executive order blocking
her state from complying with the power-plant regulations. Wisconsin
Republican Gov. Scott Walker, a 2016 presidential prospect, has also vowed to fight the
regulations in court.
block the rule from being implemented."

SCOTUS ruling crushed obamas momentum for the green

agenda
GUILLN 6-29
(Alex, Supreme Court deals blow to Obama's green agenda, 6/29/15,
http://www.politico.com/story/2015/06/supreme-court-epa-mercury-emissionsobama-environment-119541.html, JZG)
The Supreme Court dealt President Barack Obamas environmental agenda a
major setback on Monday, ruling that the Environmental Protection Agency
had erred in writing its 2012 limits on mercury pollution from power plants. The
decision could alter the administrations strategy for rolling out an even
grander environmental initiative EPAs first-ever regulations on power plants
greenhouse gas emissions, which had been expected later this summer . Mondays
ruling capped a session that delivered mixed signals regarding how the
court will judge the inevitable challenge to that landmark climate rule. Even
standing alone, Mondays ruling on EPAs Mercury and Air Toxics Standard, one of the administrations
major green initiatives, comes as a blow to the agency, which was confident it was on solid legal
ground after an unequivocal appellate court win in 2014. EPA said in a statement it was
disappointed the court did not uphold the rule, but it was still committed to implementing the
mercury controls that were now remanded to the U.S. Court of Appeals for the District of Columbia
Circuit. And agency spokeswoman Melissa Harrison noted that because this rule was issued more

than three years ago, investments have been made and most plants are already well on their way to
compliance. But congressional Republicans and other critics of EPAs agenda appeared emboldened
by Mondays ruling as a rebuke for the administrations broader agenda. Todays

decision
firmly rejects the Obama administrations circumvention of the democratic
process and restores a dose of accountability to the increasingly
unaccountable executive branch, House Majority Leader Kevin McCarthy (R-Calif.) said in
a statement. He added that the decision vindicates the Houses legislative actions to rein in

The ruling, which

greens had hoped would bolster the legal case for Obamas upcoming climate change rules, saps
some of the presidents momentum after last weeks crucial rulings supporting
bureaucratic overreach and institute some common sense in rule-making.

Obamacare and gay marriage.

2NC Warming Impact Defense

( ) Warming not real- recent temperatures show no increase
Happer 12
(William is a professor of physics at Princeton. Global Warming Models Are Wrong Again, Wall Street Journal,
3/27/12, http://online.wsj.com/article/SB10001424052702304636404577291352882984274.html)

What is happening to global temperatures in reality? The answer is: almost nothing for
more than 10 years. Monthly values of the global temperature anomaly of the lower atmosphere,
compiled at the University of Alabama from NASA satellite data, can be found at
the website http://www.drroyspencer.com/latest-global-temperatures/. The latest (February 2012) monthly
global temperature anomaly for the lower atmosphere was minus 0.12 degrees
Celsius, slightly less than the average since the satellite record of temperatures
began in 1979

( ) Warming wont cause extinction---mitigation and

adaptation solve
Mendelsohn 9
(Robert O. Mendelsohn 9, the Edwin Weyerhaeuser Davis Professor, Yale School of Forestry and
Environmental Studies, Yale University, June 2009, Climate Change and Economic Growth, online:
http://www.growthcommission.org/storage/cgdev/documents/gcwp060web.pdf)

These statements are

largely

alarmist and misleading . Although climate change is a

societys immediate behavior has an extremely

serious problem that deserves attention,

low probability of leading to catastrophic consequences. The science and

economics

of climate change

is quite clear that emissions over the next few

decades will lead to only mild consequences. The severe impacts predicted by alarmists
require a century (or two

in the case of Stern 2006)

of no mitigation. Many of the

predicted impacts assume there will be no or little adaptation . The net economic
impacts from climate change over the next 50 years will be small regardless. Most of

the more severe

impacts will take more than a century or even a millennium to unfold and
many of these

potential

impacts will never occur because people will

adapt. It is not at all apparent that immediate and dramatic policies

need to be developed to thwart longrange climate risks . What is needed are long
run balanced responses.

2NC EPA Regs Hurt Econ

EPA regs hurt the economy
Harder 15
(Amy, Obama Administration Readies Big Push on Climate Change, June 9, 2015,
http://www.wsj.com/articles/obama-administration-readies-big-push-on-climatechange-1433873269, JZG)
People on either side of the fight hotly contest to what degreeor whether at allthe regulations will
create new costs on the U.S. economy. EPA Administrator Gina McCarthy has
averaged about two speeches a week on climate change since the agency first proposed the
carbon rule for power plants a little more than a year ago, according to EPA. Many of the speeches, which include

focus on what Ms.

McCarthy describes as the positive economic impact of new regulation.
addresses in front of oil and natural gas industry executives around the world,

Strategies to reduce carbon can double as investments that return value for your operations as they evolve over
time, Ms. McCarthy told an audience of energy executives at a conference in Houston in late April about the

Other experts maintain the

economic upshots of regulations aren't as clear-cut. There is no question
that regulations are shifting supply and demand curves, so they are
increasing costs, said Susan Dudley, who was a top regulatory official in the White House during the
agencys proposed rule cutting carbon from the utility sector.

George W. Bush administration. Some of those costs are encouraging cleaner alternatives; sometimes theyre
shifting things to other countries. Fully understanding the costs and benefits is really challenging.

AFF SOP CP

2AC

2AC Nondelegation DA
The CP rules on the nondelegation doctrine their ev
Slobogin 15
(Christopher -Milton Underwood Professor of Law, Chris Slobogin has authored more
than 100 articles, books and chapters on topics relating to criminal procedure,
mental health law and evidence. Named director of Vanderbilt Law Schools Criminal
Justice Program in 2009, Professor Slobogin is one of the five most cited criminal law
and procedure law professors in the country, according to the Leiter Report,
Vanderbilt University Law School, Standing and Covert Surveillance, Pepperdine Law
Review, February 18, 2015, http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2567070, JZG)
panvasive surveillance might be challengeable on one of
three grounds: (1) the surveillance is not authorized by the appropriate
legislative body; (2) the authorizing legislative body does not
meaningfully represent the group affected by the surveillance; or ( 3) the
resulting legislation or law enforcements implementation of it violates
notions underlying the non-delegation doctrine.141 The first and third of
these grounds are based explicitly on separation of powers concerns. As I
pointed out, some panvasive surveillance has not been legislatively authorized
or has been authorized by legislation that does not announce an
intelligible principle governing the implementing agency .142 Panvasive
surveillance is also defective under non-delegation principles if, as I have
argued is true of the NSAs metadata program, it is implemented by rules or
practices that are not explained, were produced through flawed or nontransparent procedures, or are applied unevenly.143
140 More specifically,

That prevents executive agencies from making regulation like

the EPA
Rappaport 14
(MIKE - Professor Rappaport is Darling Foundation Professor of Law at the University
of San Diego, where he also serves as the Director of the Center for the Study of
Constitutional Originalism. Professor Rappaport is the author of numerous law
review articles in journals such as the Yale Law Journal, the Virginia Law Review, the
Georgetown Law Review, and the University of Pennsylvania Law Review,
Reinvigorating the Nondelegation Doctrine through the Constitutional Amendment
Process, SEPTEMBER 12, 2014,
http://www.libertylawsite.org/2014/09/12/reinvigorating-the-nondelegation-doctrineand-the-constitutional-amendment-process/, JZG)
One of the ways that small government and democratic accountability could be
promoted in the modern world is through the reinvigoration of the
nondelegation doctrine. Under that doctrine, administrative agencies
would be prohibited from making discretionary legislative decisions and
therefore Congress would have to do so. If Congress, rather than
administrative agencies, were to make the discretionary legislative

decisions, this would both reduce the number of regulations that were
enacted and would ensure that members of Congress would have to be
responsible for their decisions. By contrast, under the current system of
delegation, the administrative agencies can use the efficiency of the
administrative process to pass large numbers of regulation s and members of
Congress can avoid accountability for these regulations, always claiming that they did not intend any particular
regulation which might turn out to be unpopular or controversial.

The EPA will create climate regulations now that are key to
signaling support for Paris
Harder 15
(Amy, Obama Administration Readies Big Push on Climate Change, June 9, 2015,
http://www.wsj.com/articles/obama-administration-readies-big-push-on-climatechange-1433873269, JZG)
The Obama administration is planning a series of actions this summer to rein in
greenhouse-gas emissions from wide swaths of the economy, including
trucks, airplanes and power plants, kicking into high gear an ambitious
climate agenda that the president sees as key to his legacy. The Environmental Protection
Agency is expected to announce as soon as Wednesday plans to regulate
carbon emissions from airlines, and soon after that, draft rules to cut carbon emissions
from big trucks, according to people familiar with the proposals. In the coming weeks, the EPA is also
expected to unveil rules aimed at reducing emissions of methane a potent
greenhouse gasfrom oil and natural-gas operations. And in August, the agency will complete a suite of three
regulations lowering carbon from the nations power plantsthe centerpiece of President Barack Obamas climatechange agenda. The proposals represent the biggest climate push by the administration since 2009, when the
House passed a national cap-and-trade system proposed by the White House aimed at reducing carbon emissions.
Anticipating the rules, some of which have been telegraphed in advance, opponents of Mr. Obamas regulatory
efforts are moving to block them. Senate Majority Leader Mitch McConnell (R., Ky.), is urging governors across the
country to defy the EPA by not submitting plans to comply with its rule cutting power-plant emissions. Nearly all
Republicans and some Democrats representing states dependent on fossil fuels say the Obama administration is
going beyond the boundary of the law and usurping the role of Congress by imposing regulations that amount to a
national energy tax driven by ideological considerations. The Administration seems determined to double down on
the type of deeply regressive regulatory policy weve already seen it try to impose on lower-and-middle-class
families in every state, Mr. McConnell said in a statement. These Obama administration regulations share several
things in common with the upcoming directives: they seem motivated more by ideology than science, and theyre
likely to negatively affect the economy and hurt both the cost and reliability of energy for hard-working American
families and small-business owners. Supporters of Mr. Obamas efforts say the regulatory push has the backing of
both science and the force of law. They cite a 2007 Supreme Court decision that compelled the EPA to regulate
greenhouse-gas emissions if the agency found they endanger the publics health and welfare, which the EPA did in
2009 with a scientific finding shortly after Mr. Obama became president. They also argue that the moves became
necessary after the Senate in 2010 rejected the administration proposal to cap the amount of carbon emitted in the
U.S. Mr. Obama in 2013 issued an executive order directing the EPA to issue the regulations, which it did a year
later, in June 2014. Its a demonstration of his commitment. He tried one path, it wasnt successful, so he took
another path that was available, said Carol Browner, Mr. Obamas top climate adviser for the first two years of his
administration and EPA administrator for President Bill Clinton. Hes following the law Congress passed in 1990,
added Ms. Browner, referring to the 1990 Clean Air Act Amendments. The actions expected as soon as this week
include a scientific finding concluding that carbon emissions from aircraft contribute to climate change, a move that
legally prompts the requirement to regulate based on the 2007 ruling by the Supreme Court, and new carbonemission standards for big trucks and trailers, such as a typical 18-wheeler semi-truck. Two factors are driving the

The administration wants to complete it ahead of

Decembers United Nations summit on climate change, where world
leaders will meet in Paris to decide whether to agree on a global accord to
cut carbon emissions. The EPAs regulatory agenda represents nearly
everything Mr. Obama is set to offer world leaders on what the U.S. is
timing of the push this summer.

doing to address climate change. Secondly, once the EPA rules on emissions by
power plants become final, states will have a year to submit plans while
lawsuits challenging the rule are expected to be heard by the courts. The
administration wants to make sure that its officials can oversee as much of
these two developments as possible instead of relying on the next
president, especially if it is one of the GOP White House candidates who
have expressed opposition to the EPAs climate agenda altogether. When
youre regulating as much of the economy as he [Mr. Obama] is attempting
to regulate by executive order, thats clearly an overreach, said Tim Phillips,
president of Americans for Prosperity, a political advocacy group backed by the wealthy Koch brothers.

By preventing the EPA from doing regulations the CP allows

the Senate to block
*GOP will also crush NEPA

Plautz 15
(Jason, How Mitch McConnell Is Attacking Obama's EPA, 6-16-15,
http://www.nationaljournal.com/energy/mitch-mcconnell-epa-climate-changeappropriations-20150616, JZG)
June 16, 2015 Senate Majority Leader Mitch McConnell said he joined the
appropriations subcommittee in charge of the Environmental Protection
Agency this year to "fight back against this administration's anti-coal jobs
regulations." Looks like he's doing just that. The fiscal 2016 spending bill passed by the Interior
and Environment Subcommittee Tuesday includes language that would bar federal
enforcement of the EPA's rules limiting greenhouse-gas emissions for
existing power plants. That would allow states to opt out of the rule
without fear of the EPA stepping in with a federal implementation plan. The
rider on the EPA's power-plant rule would represent a significant blow to
President Obama's climate plan by giving states the opportunity to sit out rather than crafting an
individual plan to clean up its power plants and improve energy efficiency. McConnell has been
pushing his "just say no" plan to governors, warning that the climate rule will kill jobs while
delivering minimal environmental benefits. McConnell earlier this year wrote to all 50 governors telling them to sit
out the EPA rule, saying the plan was "already on shaky legal grounds" and that EPA was out of bounds in requiring
states to write plans to cut their emissions. So far only one governor, Oklahoma's Mary Fallin, has said publicly she
would opt out, although Wisconsin Gov. Scott Walker, an expected presidential candidate, has indicated he would

the $30.01 billion bill would cut $539 million from the EPA
well below
President Obama's request of $8.6 billion. The bill seeks to cut $75 million
as well from EPA clean-air and clean-water programs and cuts $7.5 million from civil
opt out as well. Overall,

compared to the fiscal 2015 enacted levels, for a total funding level of $7.6 billion. That's also

and criminal enforcement at the agency. The bill passed by a voice vote, as is traditional in the Senate committee,
and will face a full committee markup on Thursday. The spending bill also looks to block several other landmark EPA

Republicans have long argued

that the so-called Waters of the United States rule is a regulatory
overreach and would give EPA too much power over agriculture and
construction interests. Another rider would bar the EPA from lowering the standard for ground-level
rules, like the agency's clarification of its Clean Water Act authority.

ozone, or smog, until 85 percent of counties that currently do not meet the standard come into compliance. It would
also block EPA from regulating lead fishing and tackle, and block a rule requiring companies to make financial plans
to clean up hazardous-waste contaminations, which Democrats say would leave taxpayers on the hook. Another

a White House guidance instructing federal agencies to

consider climate-change impacts when they conduct National
rider in the bill would stop

Environmental Policy Act reviews for major infrastructure projects.

Subcommittee Chairman Lisa Murkowski, R-Alaska, said the riders were designed to "rein in the EPA," adding that
she was concerned the NEPA requirements would block construction projects.

Absent Paris, temperature rise and tipping points are

inevitable
Ward 14 - Grantham Research Institute on Climate Change and the Environment
at London School of Economics and Political Science
(Bob, "The UN climate change summit is a vital chance for the world to avoid
catastrophe", 9-20-14, http://www.theguardian.com/commentisfree/2014/sep/20/unclimate-change-suummit-vital-leaders-act-reverse-carbon-emissions, JZG)
This week, I will witness a key test of whether we will betray our children, grandchildren and future generations
through a lack of ambition and will. I will be at the headquarters of the United Nations in New York on Thursday to
listen to David Cameron, Barack Obama and more than 120 other political leaders outline how they intend to tackle

The summit has been called by the United

Nations secretary general, Ban Ki-moon, to try to build high-level support for efforts
to reach an international agreement to avoid dangerous levels of global
warming, which is due to be signed in Paris in December 2015. The ambition is
that countries will outline how they intend to stop and reverse , within the
next 10 years, the growth in annual emissions of carbon dioxide and other
greenhouse gases, and put us on a path towards zero emissions by the second half of this
century. Without a treaty, it will be hard for the world to avoid the potentially
catastrophic impacts of the global average temperature rising by more
than 2C degrees above its pre-industrial level. The consequences of creating a
climate not seen on Earth for millions of years will not be suffered
primarily by us but by those who will be here next century. By then, if the climate
has warmed by three degrees or more, the Earth is likely to have passed a number of
tipping points, such as irreversible melting of the Greenland ice sheet,
leading to gradually accelerating and potentially irreversible disruption of
lives and livelihoods. Even though nearly all of us will be gone by the start of the next century, it is we
the growing risks from climate change.

who have to determine in the next 15 months whether our descendants in the 22nd century will have to cope with
the risks created by a climate that modern Homo sapiens, less than 250,000 years old, has never experienced.

This choice is shockingly clear from the scientific evidence for climate
change that has now been assembled. But we have constructed an economic and political
system that leads us to disregard this threat to the prosperity and wellbeing of our children and grandchildren. We
make decisions about our economy based on models that discount the future such that the further in the future
someone is born, the less they are worth. This means the impacts of climate change on them are simply dismissed.

The New Climate Economy, showed that many of

the actions we have to take to prevent future generations from facing
huge risks from climate change would also have other more immediate
economic benefits, such as reducing local air pollution. We hold public discussions
Yet a major report published last week,

about climate change that are mediated by newspapers and broadcasters, many of whom are obsessed with
perpetuating controversy about whether there is a problem, instead of focusing attention on what should be done.
Yet few of the editors of our national media bother to cover the mounting evidence that the UK is already
experiencing climate change. Our seven warmest years and four of our five wettest years on record have all
occurred from 2000 onwards. This year has so far been both the warmest and wettest since records began in 1910,
and has included the rainiest winter we have seen. But worst of all, we have constructed a political process that
focuses on narrow, near-sighted concerns rather than on the profound long-term challenges that we face. In doing
so, we have undermined the legitimacy of our democratic elections by alienating many young people who are
turning their backs on traditional party politics, not out of apathy, but out of sheer disgust and disillusionment. It is
a symptom of how little politics has to offer the young that none of the leaders of the three biggest political parties

in parliament has made a major speech on climate change since the last election more than four years ago.
Meanwhile, Ukip has surged in popularity, mainly among older voters, while embracing outright denial of climate
change as part of its laughable energy policy that pledges a revival of coal, the dirtiest of the fossil fuels. It is little
wonder then that there could be a record low turn-out of young voters in the general election next May, even
though whichever party wins will help to decide whether there should be a strong international agreement on
climate change. Our best hope is for young voters to express their despair about our dismal politics, not by
boycotting the general election as some have advocated, but instead by speaking out loudly and fiercely, and
forcing potential MPs to confront long-term issues such as climate change in the run-up to the next general election.
In doing so, they would ensure that their best interests, and the best interests of future generations, are not
betrayed by those political leaders who will decide in Paris next year whether the world will avoid dangerous climate
change.

The impact is billions of deaths

Cummins 10
(Ronnie, International Director Organic Consumers Association and Will Allen, Advisor Organic Consumers
Association, Climate Catastrophe: Surviving the 21st Century, 2-14,
http://www.commondreams.org/view/2010/02/14-6)
The hour is late. Leading climate scientists such as James Hansen are literally shouting at the top of their lungs that
the world needs to reduce emissions by 20-40% as soon as possible, and 80-90% by the year 2050, if we

are to avoid climate chaos , crop failures , endless wars , melting of the polar
icecaps, and a disastrous rise in ocean levels. Either we radically reduce CO2 and carbon dioxide
equivalent (CO2e, which includes all GHGs, not just CO2) pollutants (currently at 390 parts per million and rising 2
ppm per year) to 350 ppm, including agriculture-derived methane and nitrous oxide pollution,

or else survival

for the present and future generations is in jeopardy. As scientists warned at Copenhagen, business as usual and
a corresponding 7-8.6 degree Fahrenheit rise in global temperatures means that the carrying capacity of the Earth
in 2100 will be reduced to one billion people. Under this hellish scenario,

billions will die of thirst, cold,

heat, disease, war, and starvation. If the U.S. significantly reduces greenhouse gas emissions,
other countries will follow. One hopeful sign is the recent EPA announcement that it intends to regulate
greenhouse gases as pollutants under the Clean Air Act. Unfortunately we are going to have to put tremendous
pressure on elected public officials to force the EPA to crack down on GHG polluters (including industrial farms and
food processors). Public pressure is especially critical since "just say no" Congressmen-both Democrats and
Republicans-along with agribusiness, real estate developers, the construction industry, and the fossil fuel lobby
appear determined to maintain "business as usual."

AT Democracy Impact Squo Solves

Squo solves democracy marriage ruling
Battle Creek Enquirer Editorial Board 6-27
(Editorial: Marriage ruling a victory for democracy, June 27, 2015,
http://www.battlecreekenquirer.com/story/opinion/editorials/2015/06/27/marriageruling-victory-democracy/29395721/, JZG)
In a scathing dissent, Justice Antonin Scalia writes that the U.S. Supreme Court's ruling
that states cannot ban gay marriage threatens our democracy. The irony is
that it does precisely the opposite. The majority opinion handed down Friday in
Obergefell v. Hodges is nothing less than a reaffirmation of the very tenets of our
Constitution and our system of judicial review. It will stand among the most consequential
rulings in U.S. history. Justice Anthony Kennedy's soaring rationale not only carried the day, but firmly established
precedent ensuring that any law targeting people based on sexual orientation calls for heightened scrutiny. Further,
its penultimate graph signals that no statute-grounded animus or religious doctrine can supersede the fundamental

making this a decision that will transcend the issue of

gay marriage and will reverberate for generations. Kennedy wrote: "No union is more
rights of a United States citizen,

profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming
a marital union, two people become something greater than once they were. As some of the petitioners in these
cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men
and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply
that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness,
excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The
Constitution grants them that right." The opinion's sweeping embrace of "equal dignity in the eyes of the law" has
predictably unhinged Kennedy's strict-constructionist colleagues. Chief Justice John Roberts Jr., reading his dissent
from the bench, chastened those basking in the glow of the ruling: "Celebrate today's decision but do not
celebrate the constitution." Scalia's ignoble, insulting rhetoric set a new low for the court's most conservative jurist,
who called Kennedy's opinion "egotistic" and "silly," filled with "straining-to-be-memorable passages." Scalia's
diatribe mocked the "hubris" of those in the 5-4 majority whom he accused, by virtue of their privilege and position,
of making a "naked judicial claim to legislative indeed, super-legislative power; a claim fundamentally at odds with
our system of government." It often seems as though Scalia resides in an alternate universe, utterly blind to the
forces of avarice, bigotry and political privilege that are indeed dismantling our system of government. It's a system
in which cynically drawn legislative districts and statutory shrouds of secrecy around campaign finance and
administrative functions continually marginalize the disenfranchised and people of modest means struggling to
build lives for themselves and their families. It's a system in which lawmakers, including many in Michigan, are
granted safe harbor to pursue blatantly discriminatory legislation, such as the bills Gov. Rick Snyder signed just this
month allowing faith-based agencies to turn away gay and lesbian couples seeking state-supported adoptions.
Another bill, just introduced, would allow only clergy to perform marriages. The court's ruling in in Obergefell v.
Hodges is indeed a triumph, but it is far from the end of our collective struggle to ensure justice for all. Justice
Kennedy's opinion sets us more firmly on that course, opening the door for more Americans to join the struggle.
Scalia is simply wrong.

That was a decisive victory for democracy.

1AR

1AR Nondelegation UQ
Climate control protections coming now dramatically reduces
warming
Restuccia 6-22
(Andrew - Andrew Restuccia is an energy reporter for POLITICO Pro. Prior to joining
POLITICO, Restuccia covered energy and environmental politics and policy at The
Hill. He also reported on energy policy for The Washington Independent and Inside
Washington Publishers., White House climate strategy hits its stride, 6/22/15,
http://www.politico.com/story/2015/06/white-house-climate-strategy-hits-its-stride119310.html, JZG)
Critics of the Environmental Protection Agencys climate change agenda
should brace themselves the Obama administration isnt letting up.
President Barack Obama has launched an unprecedented regulatory assault on
greenhouse gas emissions, putting the White Houses executive branch
power on display and enraging conservative opponents as the president works to cement his
environmental legacy. Its the result of 24 months of heavy lifting by EPA that started when Obama
unveiled a sweeping climate plan on a sweltering day at Georgetown University two years ago this
week, telling students there he refused to condemn your generation and future generations to a

the administration is in full swing: The EPA on Friday

proposed new fuel efficiency rules for heavy-duty trucks, the agency recently took the
planet thats beyond fixing. Now,

first step toward cutting airplane emissions, and its planning to curb methane emissions from new oil

Thats on top of the Interior Departments plans to regulate

hydraulic fracturing on federal lands, EPAs proposal to veer the countrys
ethanol trajectory away from Congress goals, and new water rules that have
and gas operations.

enraged agricultural groups. Its all building to August, when the EPA is expected to finalize first-ever
greenhouse gas rules for the nations massive fleet of power plants, a plan thats set to pummel an
already-ailing coal industry. Environmentalists, who for years have complained about the failure of the
U.S. to take on climate change, are now hailing Obamas vigor in trying to cut the emissions blamed
for the warming planet. The presidents climate action plan identified the biggest opportunities to
cut carbon pollution using the authority of existing laws. His agencies are now delivering, as
promised, said David Doniger, director of the Natural Resources Defense Councils climate and clean
air program. But

Republicans are furious, deriding the strategy as executive

overreach for a policy that Obama couldnt get passed in Congress. EPAs overreach comes at a
significant cost to American taxpayers and energy consumers, Senate Environment and Public Works
Committee Chairman Jim Inhofe (R-Okla.), the most vocal climate change skeptic in Congress, said
through a spokeswoman. The administrations extremist agenda on global warming will reduce grid
reliability, raise the cost of energy, undermine the Clean Air Act, move jobs overseas and ignores the
will of Congress. Obamas climate agenda hasnt won him many friends in the fossil fuel industry
either. What started out as an academic speech two years ago will long be remembered for its role in
leading us down a path away from the intent of Congress and the people and towards governance
through executive fiat, Laura Sheehan, a spokeswoman for the American Coalition for Clean Coal
Electricity, a coal industry group. So far-reaching are the administrations environmental missives
that they will undermine our nations energy security and wreak havoc on families budgets; all for
negligible climate impact. Obama jaunted into his second term with a renewed desire to take action
on climate change. But, having been burned by a first-term push to pass cap-and-trade legislation, he
knew Congress had no appetite for the issue. In a much-heralded speech at Georgetown University in
June 2013, the president unveiled a 21-page plan that outlined his agenda. The takeaway from the
speech was clear: The administration would go it alone, abandoning its years-long push for a climate
bill in favor of dozens of new regulations and initiatives that touch on most major sectors of the
economy. Two years later, scarcely a week goes by without the administration unveiling a new climate
change initiative. The EPA last week proposed a new regulation that would require
makers of heavy-duty trucks to hike fuel efficiency by up to 24 percent. The rule, the agency said,

would save 1 billion metric tons of carbon dioxide over the life of the vehicles sold
during the program.

1AR Nondelegation AT SCOTUS Ruling

SCOTUS ruling actually helped Obama, and it shows that only
bad court precedents can stop Obama
Drajem 6-24
(Mark, Obama May Win by Losing in Quirk of Supreme Court EPA Review, June 24,
2015, http://www.bloomberg.com/news/articles/2015-06-24/obama-may-win-bylosing-in-quirk-of-supreme-court-epa-review, JZG)
for the Obama administration as it awaits a U.S. Supreme Court decision on
A loss shores up the legal basis of the
biggest environmental rule of the second term . The high court is set to decide as soon as
Heres a twist

the biggest environmental rule of its first term:

Thursday on the 2012 rule by the Environmental Protection Agency that ordered curbs in mercury and other toxic
pollutants emitted from coal-fired power plants. As a result of the rule, dozens of old coal plants were shuttered,

The legal irony in this

case is that when industry lawyers challenged another major EPA initiative
-- a proposal to also mandate cuts in carbon emissions from power plants
-- they argued that the Clean Air Act would preclude that regulation if the
mercury rule is in effect. If the mercury rule were tossed out, that
argument might go with it. It unquestionably would help EPAs carbon
rule, said Brian Potts, an attorney specializing in Clean Air Act cases . Both
sides have something to lose by winning here. The legal two-step for the EPA underscores
the degree to which President Barack Obamas environmental legacy, especially in
regulating greenhouse gases blamed for climate change, is dependent on favorable decisions
from federal courts. The mercury rule was fought all the way to the Supreme Court, even as analysts say
and utilities have invested billions of dollars to install expensive scrubbers.

utilities such as American Electric Power Co. and Southern Co. wont reverse decisions to close old coal plants if the
EPA loses.

1AR Nondelegation Link

CP revives a doctrine that kills obamas policy
Shapiro 15
(Stuart is Associate Professor and Director, Public Policy Program at Rutgers
University, President Obama using EPA to bypass Congress is not illegal, june 11,
2015,
http://www.sciencecodex.com/president_obama_using_epa_to_bypass_congress_is_n
ot_illegal-159116, JZG)
President Obama using EPA to bypass Congress is not illegal Its a big few weeks at the
Environmental Protection Agency (EPA). The EPA issued a regulation clarifying its authority to regulate bodies of
water throughout the country. This week it issued an endangerment finding, a precursor to a regulation governing
carbon emission from aircrafts. There is also a plan to raise fuel efficiency standards on trucks. And within the next
week or two, the Supreme Court will issue a ruling regarding whether the EPA unreasonably refused to consider

But while it is a big

few weeks, it is not an unusual few weeks for the Obama Administration
EPA. The mercury, aircraft emission and clean water regulations are all examples of major policy initiatives taken
by the executive branch of the government during this administration. President Obama said in 2014 that in
the wake of Congressional gridlock, he would use his pen and phone to make policy
costs when issuing its recent standard on mercury emissions from power plants.

without Congress. In no policy area (save perhaps immigration) has that been more evident than in environmental

Not surprisingly, President Obamas opponents have

reacted strongly to the policy-making through regulation. The clean water
rule was described as an egregious power grab. Republican senators unhappy with
policy. Common playbook

EPA attempts to regulate greenhouse gases have spoken of the need to rein in the executive branch.

However, two of the premises behind these attacks are at best

questionable. The first is that the Obama Administration emphasis on
regulation is unprecedented, and the other is that issuing regulations is
an unchecked exercise of executive power. The use of executive power by
a president to get his wishes, particularly in a second term, is extremely
common. Every two-term president since Franklin Delano Roosevelt has been confronted by a Congress with at
least one house controlled by the opposition party in his second term. This severely constrains the ability of the

sometime around their second

inauguration, presidents typically switch from a legislative presidency
where they advocate for new laws in Congress, to an administrative presidency where
they use their executive powers to enact their policy preferences. Increasingly, that has meant
president to affect domestic policy through legislation. As such,

using regulation as a policy tool. Statutes passed in the 1960s and 1970s gave the president considerable ability to

The Supreme Court has repeatedly upheld the

constitutionality of this delegation of power to the president from
Congress. Hence, all presidents from Carter through Obama have issued hundreds of significant regulations,

set policy through regulation.

and presidents all pick up the pace of regulating as their time in office grows short.

1AR Nondelegation Paris IL

Paris can solve even if initial commitments are insufficient
the new framework allows for success
Freedman 15
(Andrew, Why the Paris Climate Summit might actually work, JUN 02, 2015,
http://mashable.com/2015/06/02/paris-climate-summit-global-warming-agreement/,
JZG)
The Paris Climate Summit is approaching more quickly than it might seem. Though it actually takes place in early
December, there are fewer than 20 negotiating days left on the diplomatic calendar before the international
community gathers in the French capital. Their goal is to construct something that has eluded the world for more

Based on
recent climate science findings, the summit can be viewed as the last
chance for the global community to meet the mandate countries agreed to back in
1992 avoiding "dangerous human interference with the climate system. "
Negotiators have defined that danger threshold as global warming greater
than 2 degrees Celsius, or 3.6 degrees Fahrenheit. Emissions of planet-warming greenhouse gases
than two decades: a meaningful, effective and enforceable global climate change agreement.

would have to plummet in the next decade to avoid overshooting that 2-degree target, according to many studies.
Increasingly, it seems that leaders recognize this, as many are publicly talking about including a long-term goal of
zero or negative emissions (when more emissions are taken out of the atmosphere than added to it) in the Paris

Recently, there have been a number of indications that

Paris is unlikely to be a repeat of the debacle that occurred in Copenhagen
Agreement. Positive signs

in 2009. That's when world leaders, including a then-new President Barack Obama, jetted into Denmark expecting
to sign a completed treaty text ready for signature only to be disappointed and embarrassed by the weak
"accord" they hastily adopted when negotiations all but collapsed. There were many reasons for Copenhagen's
failure. But perhaps the best explanation is this: the world was not yet ready to undertake the serious actions that
solving this issue requires. Oil and coal companies were still fighting the science. China and the U.S. were still at
loggerheads over China's responsibility to cut its rapidly-growing emissions. Leaders were not yet feeling much heat
at home for failing to move forward. All that, and more, has changed.

A global movement is

underway to encourage entities of all sizes, from cities to colleges to entire countries, to divest from fossil fuel
companies. The movement has met with growing success. The U.S. and China
struck a climate agreement that would bring a massive expansion in China's renewable energy use,
and a peak in its carbon emissions by 2030. The U.S. has committed to cutting its emissions
by up to 28% below 2005 levels by 2025. Currently, U.N. climate negotiators are meeting in Bonn, Germany, to
work on the rough draft of an agreement that will be up for debate in Paris. As it is currently written, the draft is
sprawling, with brackets surrounding the most contentious issues. The task before the negotiators is to whittle away
at the text and get closer to widespread agreement on some of the major sticking points such as financial
assistance from the industrialized world to pay for the impact of climate change in developing countries, and to
assist with their transition from fossil fuels to renewable energy. Fossil fuel companies are feeling more pressure
from governments and their shareholders to consider the possibility that some of their assets may become
"stranded" because of the need to cut emissions. On Monday, the leaders of six global oil and gas companies sent a
letter to top U.N. climate official Christiana Figueres, offering support for the implementation of a carbon price. The
chief executives of Shell, BP, Total, Statoil, Eni and the BG Group wrote: We acknowledge that the current trend of
greenhouse gas emissions is in excess of what the Intergovernmental Panel on Climate Change (IPCC) says is
needed to limit the temperature rise to no more than 2 degrees above pre-industrial levels. The challenge is how to
meet greater energy demand with less CO2. We stand ready to play our part. The letter endorsed the increased use
of natural gas, a fuel that has less carbon compared to oil, but is still not a clean energy source, to help fight
climate change. A carbon price could encourage the use of natural gas, according to National Journal. While no one
believes the oil companies are about to stop drilling anytime soon just look at Shell's summer plans for the Arctic
there are other important signs that the Paris meeting will be very different from past negotiating sessions. An

For one thing, the agreement that is up

for negotiation is entirely different from what was on the table in
Copenhagen, and even earlier, in Kyoto, Japan. These talks are not aimed at creating a
old house with new beams and a better foundation

top-down mandate from the U.N. that will be legally binding on some
countries but not others. Instead, it's the reverse: a bottom-up approach in which
each country determines what it is willing to do to address its share of the
global warming problem. These individual goals will then be stitched together into some kind of
patchwork quilt that has legal force to it. This ad-hoc structure may seem wonky, and only of interest to diplomacy
nerds, but it's actually a fundamental part of why many longtime observers of climate talks are more optimistic

Such a framework allows the agreement to be

built upon in later years. Each country's target can be ratcheted up
gradually, in terms of ambition. "I think the Paris agreement is likely to be structured to bring
about Paris than any of its predecessors.

countries back regularly to the table to strengthen their commitment to complete the job," says Jennifer Morgan,
global director of the climate program at the World Resources Institute in Washington, an environmental think tank.
Under the old system, there were good reasons for countries to resist ambitious emissions reduction targets
because they were legally binding and came from a complicated, largely arbitrary calculation by the U.N.

Now, though, each country has an incentive to act more swiftly in

order to be recognized for early action, and to help put pressure on other
nations to do the same. "The idea is to have both that long-term target and then a process where
bureaucracy.

countries would come back to the table say every five years, and in the actual Paris agreement would be a
commitment that they would increase their ambition, or not roll back their ambition, every five years," Morgan said
on a call with reporters. "There could even be assessments of the country's proposed commitments for the future

All of those things are ways to try and create a positive

momentum or signals that would get the countries closer and closer to
staying below 2 degrees [Celsius]".
when they come out.

1AR Nondelegation AT CO2 Ag

CO2 increases hurt crops decrease sunlight, make food less
nutritious
Radford 15
(Tim, Climate News Network, Rise in CO2 Could Restrict Growing Days for Crops, Jun
20, 2015,
http://www.truthdig.com/report/item/rise_in_co2_could_restrict_growing_days_for_cr
ops_20150620, JZG)
positive consequences of climate change may not be so positive .
Although plants in the colder regions are expected to thrive as average
global temperatures rise, even this benefit could be limited . Some tropical
regions could lose up to 200 growing days a year, and more than two billion
rural people could see their hopes wither on the vine or in the field. Even in temperate
zones, there will be limits to extra growth. Plants quicken, blossom and ripen as a response
to moisture, warmth and the length of daylight. Global warming will clearly change the
temperatures and influence the patterns of precipitation, but it wont
make any difference to the available hours of sunlight at any point on the
globe. Scientists at the University of Hawaii at M?noa report in the Public Library of
Science journal PLOS Biology that they looked at the big picture of complex change.
Higher concentrations of atmospheric carbon dioxidethe greenhouse gas from car exhausts, forest fires and
factory chimneysare expected overall to aid crop and forest growth. Extended season Average global
warming of less than 1C in the last 30 years has extended the northern hemisphere
growing season by up to 11 days, but plants are still limited by radiation. Those
LONDONThe

that think climate change will benefit plants need to see the light, literally and figuratively, says Camilo Mora, lead
author of the report and assistant professor in the Department of Geography at the University of Hawaii. A

narrow focus on the factors that influence plant growth has led to major
underestimations of the potential impacts of climate change on plants, not
only at higher latitudes but more severely in the tropics, exposing the world to dire
consequences. Professor Mora has made a career of thinking about global consequences. He and
colleagues recently tried to calculate the possible dates at which local climates could shift inexorably in different
parts of the world, and tried also to build a picture of how ocean warming and acidification would affect incomes

plants will not be able to take advantage of those warmer

temperatures because there will not be enough sunlight to sustain their growth. His
everywhere. Many

team is not the first to try to calculate the potential impact of catastrophic global warming on global food supply.

Cereals are vulnerable to extremes of heat, and climate change may already be affecting
yields in Europe. But the Hawaiian scientists tried a simple theoretical approach, by first identifying the ranges of
temperature, soil moisture and light that drive 95% of the worlds plant growth today. They then tried to calculate
the number of days in a year in which these growth conditions could be expected at various latitudes in the future,
as carbon dioxide levelsand average temperaturesclimb. They found that, nearer the poles, the number of days
above freezing would increase by 7%. But many plants will not be able to take advantage of those warmer
temperatures because there will not be enough sunlight to sustain their growth, says Iain Caldwell, of the Hawaii
Institute of Marine Biology. The same warming at the lowest latitudes could be devastating: in some tropical

the planet could see an

11% reduction in the number of days suited to growth, and some places in the tropics
regions, conditions could become too hot and dry for any growth. Overall,

could lose 200 growing days a year. Although some regions in China, Russia and Canada will see an improvement,

around 2.1 billion people who rely on forests and agriculture for food and
revenue could lose 30% of the days they now bank on for plant growth. But
rising levels of carbon dioxide could also affect the quality of plant growth ,

Feng, of the Department of Biological and

looked at the results
of eight experiments in four continents on crops, grasslands and forests, and found
that as carbon dioxide levels go up, the nitrogen content of the crop is
lowered. In the case of wheat and rice, this would also mean lower protein
levels. Negative effect Furthermore, we can see that this negative effect exists
regardless of whether or not the plants growth increases, and even if fertiliser is
according to a new study in Global Change Biology. Zhaozhong

Environmental Sciences at the University of Gothenburg, Sweden, and colleagues

added, says Johan Uddling, a plant physiologist at Gothenburg, and a co-author of the report. This is unexpected
and new. In the same week, a team of scientists at the University of Alaska Fairbanks produced evidence that
climate change has already begun to alter the forests of the far north. They report in the journal Forest Ecology and
Management that in the interior of Alaska, already at the optimum temperature range for white spruce, tree growth
slowed as summer temperatures rose.

Newest studies prove the deniers use too short of studies

that dont take into account all the variables
Abrams 15
(Lindsay, Scientists destroy another climate denier myth: Rising CO2 levels arent
good for plants, MAY 22, 2015,
http://www.salon.com/2015/05/22/scientists_destroy_another_climate_denier_myth_
rising_co2_levels_arent_good_for_plants/ , JZG)
Plants need carbon dioxide to grow. Humans are emitting the stuff into the atmosphere in
excess. Therefore, humans are helping plants. So goes one of the more long-lived arguments put forward by people
who deny the reality of man-made climate change an who attempt to turn the CO2 > global warming > bad
narrative on its head. The Heartland Institute, most recently, made it the focal point of a campaign asserting that
CO2 is actually good for human and environmental health. There are already a number of flaws in this line of

new research from Montana State University illustrates how, in

benefits of added CO2 cant necessarily compete with the harmful
downsides of a changed climate. The study, published last week in the journal Nature
Communication, examines one Montana meadow over 44 years a period
during which atmospheric carbon dioxide concentrations increased by about
75 ppm (they were 20 percent lower when the study started, in 1969, than they were when it ended in 2012).
At the same time, the greater Yellowstone climate became more arid
and the grasslands productivity, by the studys end, had decreased by
half. Our long-term results of declining grassland production contrast
with the results of some models and short-term experiments, study coauthor
Jack Brookshire explained in a statement. We find that increasing dryness over the last
several decades is outpacing any potential growth stimulation from increasing
atmospheric carbon dioxide and nitrogen deposition. In other words, as the Daily Climate explains, studies
that look solely at carbons direct impact on plants through fertilization,
and even at the benefits conferred by slightly warmer temperatures, fail
to take the entire picture into account. Factors like altered rainfall, that
occur as a result of climate change, can cancel out the positives , as they do
reasoning, but
reality, the

here. Might some plants, in some regions, still benefits in a warmer climate? Sure. But thats a long way from saying
that continuing to pump CO2 into our atmosphere will be, in the aggregate, anything but a disaster.

1AR AT Adaptation
( ) Cant adapt to warming rates likely to be too fast to
ensure resilience.
EPA 7
[United States Environmental Protection Agency. Climate Change-health and environmental effects: ecosystems
and biodiversity. http://www.epa.gov/climatechange/effects/ecosystemsandbiodiversity.html -- 12/20]
Observations of ecosystem impacts are difficult to use in future projections because of the complexities involved in

the observed changes are

compelling examples of how rising temperatures can affect the natural world and raise
human/nature interactions (e.g., land use change). Nevertheless,

questions of how vulnerable populations will adapt to direct and indirect effects associated with climate change.

the resilience of many ecosystems

(their ability to adapt naturally) is likely to be exceeded by an unprecedented
combination of change in climate and in other global change drivers (especially land use
change and overexploitation), if greenhouse gas emissions and other changes continue at or
above current rates. By 2100 ecosystems will be exposed to atmospheric CO2 levels
substantially higher than in the past 650,000 years, and global temperatures at least among the highest as
those experienced in the past 740,000 years. This will alter the structure, reduce biodiversity
and perturb functioning of most ecosystems, and compromise the services they
currently provide.
The IPCC (IPCC, 2007) has noted, During the course of this century

1AR AT Warming Not Real

( ) Global Warming is happening most recent and best
evidence concludes that it is human induced
Muller 12
[Richard, professor of physics at the University of California, Berkeley, and a former MacArthur Foundation fellow,
The Conversion of a Climate-Change Skeptic, http://www.nytimes.com/2012/07/30/opinion/the-conversion-of-aclimate-change-skeptic.html?pagewanted=all]
CALL me a converted skeptic. Three years ago I identified problems in previous climate studies that, in my mind,

following an intensive research

I concluded that global warming was real and that
the prior estimates of the rate of warming were correct. Im now going a step further: Humans are
almost entirely the cause. My total turnaround, in such a short time, is the result of careful and
objective analysis by the Berkeley Earth Surface Temperature project, which I founded with my
daughter Elizabeth. Our results show that the average temperature of the earths
land has risen by two and a half degrees Fahrenheit over the past 250 years, including an
threw doubt on the very existence of global warming. Last year,
effort involving a dozen scientists,

increase of one and a half degrees over the most recent 50 years. Moreover, it appears likely that

essentially all of this increase results from the human emission of

greenhouse gases. These findings are stronger than those of the Intergovernmental Panel on
Climate Change [IPCC], the United Nations group that defines the scientific and diplomatic consensus on global
warming. In its 2007 report, the I.P.C.C. concluded only that most of the warming of the prior 50 years could
be attributed to humans. It was possible, according to the I.P.C.C. consensus statement, that the warming before
1956 could be because of changes in solar activity, and that even a substantial part of the more recent warming

sophisticated statistical methods

allowed us to determine earth
land temperature much further back in time. We carefully studied issues raised
by skeptics: biases from urban heating (we duplicated our results using rural data alone), from
data selection (prior groups selected fewer than 20 percent of the available temperature stations; we used
virtually 100 percent), from poor station quality (we separately analyzed good stations and poor ones)
and from human intervention and data adjustment (our work is completely automated
could be natural. Our Berkeley Earth approach used

developed largely by our lead scientist, Robert Rohde, which

and hands-off). In our papers we demonstrate that none of these potentially troublesome effects unduly
biased our conclusions. The historic temperature pattern we observed has abrupt dips that match the
emissions of known explosive volcanic eruptions; the particulates from such events reflect sunlight, make for
beautiful sunsets and cool the earths surface for a few years. There are small, rapid variations attributable to El
Nio and other ocean currents such as the Gulf Stream; because of such oscillations, the flattening of the recent
temperature rise that some people claim is not, in our view, statistically significant. What has caused the gradual

We tried fitting the shape to simple math

functions (exponentials, polynomials), to solar activity and even to rising
functions like world population. By far the best match was to the record of
atmospheric carbon dioxide (CO2), measured from atmospheric samples and air trapped in
but systematic rise of two and a half degrees?

polar ice.

( ) Consensus is on our side

EDF 9.
[ENVIRONMENTAL DEFENSE FUND, 1-13 GLOBAL WARMING MYTHS AND FACTS -- http://www.edf.org/page.cfm?
tagID=1011]

FACT: There is no debate among scientists about the basic facts of global
warming. The most respected scientific bodies have stated unequivocally
that global warming is occurring, and people are causing it by burning fossil fuels (like
coal, oil and natural gas) and cutting down forests. The U.S. National Academy of Sciences, which in 2005 the White

House called "the

gold standard of objective scientific assessment ," issued a

joint statement with 10 other National Academies of Science saying "the scientific
understanding of climate change is now sufficiently clear to justify nations taking
prompt action. It is vital that all nations identify cost-effective steps that they can take now, to contribute to substantial
and long-term reduction in net global greenhouse gas emissions." (Joint Statement of Science Academies: Global Response to

The only debate in the science community about global warming is about
how much and how fast warming will continue as a result of heat-trapping
emissions. Scientists have given a clear warning about global warming,
and we have more than enough facts about causes and fixes to
implement solutions right now.
Climate Change [PDF], 2005)

Additional Comparative Courts

Cards

AT Congress Key
Congress is an ineffective actor when it comes to
surveillance, Congress lacks knowledge and oversight.
Setty 15 Sudha Setty, Professor of Law @ Western New England University
School of Law; She specializes in the areas of comparative law and national
security; Her scholarly publications address secrecy, separation of powers and rule
of law issues in the comparative constitutional context, 2015 (Surveillance,
Secrecy, and the Search for Meaningful Accountability, Stanford Journal of
International Law, available at 51 Stan. J Int'l L. 69 @ Lexis, accessed 6/21/15, KM)
B. Congressional Efforts at Oversight and Accountability Enforcement The extent of congressional knowledge
regarding the NSA Metadata Program is not fully known to the public and has been the subject of significant debate.
Nonetheless, even assuming that Congress was sufficiently informed as to the potential reach of the PATRIOT Act
with regard to surveillance n59 and, therefore, that the statutory authority for the bulk data collection and storage

the ability of Congress to effect significant and meaningful ex post

oversight appears to be severely limited. Historically, congressional
hearings and investigations have been a powerful tool to rein in executive
branch overreaching. However, it seems that the extreme secrecy
surrounding the NSA surveillance programs undermined the efficacy of
these oversight powers, to the point that they may have been reduced to
an ersatz form of accountability. One prominent example stems from a Senate oversight hearing
was sound,

on March 12, 2013, in which Senator Ron Wyden specifically asked Director of National Intelligence James Clapper if
the NSA was systematically gathering information on the communications of millions of Americans. n61 Clapper
denied this, yet subsequent revelations confirmed that the broad scope of the data collection included metadata for
telephonic communications, as well as content data for emails, texts, and other such writings. n62 After public
discussion of the discrepancy in his testimony, Clapper commented that he gave the "least most untruthful" answer
possible under the circumstances. n63 Senator Wyden expressed disappointment and frustration that even while

The ability for congressional

oversight is further hampered by a general lack of access to information
about the details of the NSA Metadata Program and lack of ability to
discuss publicly whatever knowledge is shared with Congress. n66 In fact, it
under oath at an oversight hearing, Clapper misled the Senate. n64

remains unclear whether senators, including Dianne Feinstein, Chair of the Senate Intelligence Committee, knew of
the lapses in NSA procedure until after such information was leaked to news sources. n67 Further revelations
indicate that administration statements made to Congress even after the Snowden disclosures were not entirely

These examples are not determinative, but taken together, they

raise significant doubt to the extent of accurate information regarding
surveillance programs being made available to congressional oversight
committees, and whether the oversight committees can function as
effective accountability measures n69 without the benefit of illegally leaked information such as
accurate. n68

the Snowden disclosures.

Courts Good Surveillance Specific

Breaking deference solves the judiciary is the best and only
actor to force institutional and structural change.
Setty 15 Sudha Setty, Professor of Law @ Western New England University
School of Law; She specializes in the areas of comparative law and national
security; Her scholarly publications address secrecy, separation of powers and rule
of law issues in the comparative constitutional context, 2015 (Surveillance,
Secrecy, and the Search for Meaningful Accountability, Stanford Journal of
International Law, available at 51 Stan. J Int'l L. 69 @ Lexis, accessed 6/21/15, KM)
the
judiciary represents hard power that could be used to force the protection
of civil liberties where it might not otherwise occur. The FISC should be
reformed to include a public advocate lobbying on behalf of privacy
concerns, making the process genuinely adversarial and strengthening the
FISC against charges that it merely rubber stamps applications from the
intelligence community. n190 Article III courts need to follow the lead of Judge Leon in
Klayman in conceptualizing privacy as broad and defensible, even in a world
where electronics-based communication is dominant and relatively easy
for the government to collect. If the judicial defense of privacy were
combined with the possibility of liability for violations of that privacy, it is
likely that this would incentivize increased self-policing among the
members of the intelligence community. The creation of an active PCLOB and a more
If the PCLOB is able to exert some degree of soft power in influencing national security decision-making, then

adversarial process before the FISC will not provide a perfect solution to the dilemmas posed by the government's

because these
changes are institutional and structural, they are well-placed to improve
the dynamic between the intelligence community, oversight mechanisms,
and the public. Conclusion Genuine accountability should not depend on the chance that an unauthorized
legitimate need for secrecy and the protection of the public against potential abuse. Yet

and illegal leak will occur. In the comparative example of the United Kingdom, engagement with a European Union
energized with a commitment to increase privacy protections, along with domestic parliamentary oversight, provide
two potential avenues for increased constraint on surveillance. In India, the parliament and the courts historically
enabled, not constrained, the intelligence community. Whether that stance will continue as the government's
technological capabilities increase is yet to be seen. Domestically, it could be argued that the types of reform
recommended here to improve actual accountability and transparency over programs like the NSA Metadata
Program are overkill: They involve multiple branches of government, the PCLOB, and the public. However, much of
the accountability apparatus that has been in place was dormant until the Snowden disclosures, and would have

A multi-faceted, long-term, structural

approach to improving transparency and accountability - one that involves
at a minimum the courts and the PCLOB, but hopefully Congress, the executive branch, and the public
as well - improves the likelihood of sustained and meaningful accountability
as new surveillance capabilities are developed and implemented.
remained passive without those disclosures.