Executive Flexibility Disadvantage

Neg

1NC – Shell Executive flexibility high now – plan flips it and puts constraints on executive power Posner, ’13 (Posner 9/3/13 professor at the University of Chicago Law School [Eric Posner, Obama Is Only Making His War Powers Mightier, ww.slate.com/articles/news_and_politics/view_from_chicago/2013/09/obama_going_to_congress_on_syria_he_s_actually_strengthening_the_war_powers.html) CG; AD 4/15President Obama’s surprise announcement that he will ask Congress for approval of a military attack on Syria is being hailed as a vindication of the rule of law and a revival of the central role of Congress in war-making, even by critics. But all of this is wrong. Far from breaking new legal ground, President Obama has reaffirmed the primacy of the executive in matters of war and peace. The war powers of the presidency remain as mighty as ever . It would have been different if the president had announced that only Congress can authorize the use of military force , as dictated by the Constitution, which gives Congress alone the power to declare war. That would have been worthy of notice, a reversal of the ascendance of executive power over Congress. But the president said no such thing . He said: “I believe I have the authority to carry out this military action without specific congressional authorization.” Secretary of State John Kerry confirmed that the president “has the right to do that”—launch a military strike—“no matter what Congress does.” Thus, the president believes that the law gives him the option to seek a congressional yes or to act on his own. He does not believe that he is bound to do the first. He has merely stated the law as countless other presidents and their lawyers have described it before him. The president’s announcement should be understood as a political move, not a legal one . His motive is both self-serving and easy to understand, and it has been all but acknowledged by the administration. If Congress now approves the war, it must share blame with the president if what happens next in Syria goes badly. If Congress rejects the war, it must share blame with the president if Bashar al-Assad gases more Syrian children. The big problem for Obama arises if Congress says no and he decides he must go ahead anyway, and then the war goes badly. He won’t have broken the law as he understands it, but he will look bad. He would be the first president ever to ask Congress for the power to make war and then to go to war after Congress said no. (In the past, presidents who expected dissent did not ask Congress for permission.) People who celebrate the president for humbly begging Congress for approval also apparently don’t realize that his understanding of the law—that it gives him the option to go to Congress—maximizes executive power vis-à-vis Congress. If the president were required to act alone, without Congress, then he would have to take the blame for failing to use force when he should and using force when he shouldn’t. If he were required to obtain congressional authorization , then Congress would be able to block him. But if he can have it either way, he can force Congress to share responsibility when he wants to and avoid it when he knows that it will stand in his way.

Executive flex necessary to respond to and prevent crises Posner & Vermeule, ‘7(Posner & Vermeule, the Kirkland and Ellis Professor of Law @ U-Chicago & the Kirkland and Ellis Professor of Law @ U-Chicago. [Eric Posner & Adrian Vermeule, “Terror in the Balance: Security, Liberty, and the Courts,” Book, p. 4) CG; AD: 4/15A different view, however, is that the history is largely one of political and constitutional success. The essential feature of the emergency is that national security is threatened ; because the executive is the only organ of government with the resources, power, and flexibility to respond to threats to national security, it is natural, inevitable, and desirable for power to flow to this branch of government. Congress rationally acquiesces; courts rationally defer . Civil liberties are compromised because civil liberties interfere

with effective response to the threat; but civil liberties are never eliminated because they remain important for the well-being of citizens and the effective operation of the government. People might panic, and the government must choose policies that enhance morale as well as respond to the threat, but there is nothing wrong with this. The executive implements bad policies as well as good ones, but error is inevitable, just as error is inevitable in humdrum policymaking during normal times. Policy during emergencies can never be mistake-free; it is enough if policymaking is not systematically biased in any direction, so that errors are essentially random and wash out over many decisions or over time. Both Congress and the judiciary realize that they do not have the expertise or resources to correct the executive during an emergency. Only when the emergency wanes do the institutions reassert themselves, but this just shows that the basic constitutional structure remains unaffected by the emergency. In the United States, unlike in many other countries, the constitutional system has never collapsed during an emergency.

Multiple crisis are inevitableGhitis, ’13 (Ghitis, World affairs columnist for The Miami Herald and World Politics Review. [Frida Ghitis, World to Obama: You can't ignore us, http://www.cnn.com/2013/01/22/opinion/ghitis-obama-world) CG; AD: 4/14The president should keep in mind that millions around the world yearn to know they have the backing of the most powerful country on Earth. As he surely knows, even his words make a big difference. And while Obama plans to dedicate his efforts to the domestic agenda, a number of brewing international crises are sure to steal his attention and demand his time . Here are a few of the foreign policy issues that, like it or not, may force Obama to divert his focus from domestic concerns in this new term. Syria unraveling: The United Nations says more than 60,000 people have already died in a civil war that the West has, to its shame, done little to keep from spinning out of control. Washington has warned that the use of chemical or biological weapons might force its hand. But the regime may have already used them. The West has failed to nurture a moderate force in the conflict. Now Islamist extremists are growing more powerful within the opposition . The chances are growing that worst-case scenarios will materialize . Washington will not be able to endlessly ignore this dangerous war. Egypt and the challenge of democracy: What happens in Egypt strongly influences the rest of the Middle East -- and hence

world peace -- which makes it all the more troubling to see liberal democratic forces lose battle after battle for political influence against Islamist parties, and to hear blatantly anti-Semitic speech coming from the mouth of Mohammed Morsy barely two years before he became president. Iran's nuclear program: Obama took office promising a new, more conciliatory effort to persuade Iran to drop its nuclear enrichment program. Four years later, he has succeeded in implementing international sanctions, but Iran has continued enriching uranium, leading United Nations inspectors to find "credible evidence" that Tehran is working on nuclear weapons. Sooner or later the moment of truth will arrive. If a deal is not reached, Obama will have to decide if he wants to be the president on whose watch a nuclear weapons race was unleashed in the most dangerous and unstable part of the world. North Africa terrorism: A much-neglected region of the world is becoming increasingly difficult to disregard. In recent days, Islamist extremists took American and other hostages in Algeria and France sent its military to fight advancing Islamist extremists in Mali, a country that once represented optimism for democratic rule in Africa, now overtaken by militants who are potentially turning it into a staging ground for international terrorism. Russia repression: As Russian President Vladimir Putin succeeds in crushing opposition to his increasingly authoritarian rule, he and his allies are making anti-American words and policies their favorite theme. A recent ban on adoption of Russian orphans by American parents is only the most vile example. But Washington needs Russian cooperation to achieve its goals at the U.N. regarding Iran, Syria and other matters. It is a complicated problem with which Obama will have to wrestle. Then there are the long-standing challenges that could take a turn for the worse, such as the Israeli-Palestinian conflict. Obama may not want to wade into that morass again, but events may force his hand. And there are the so-called " black swans ," events of low probability and high impact. There is talk that China and Japan could go to war over a cluster of disputed islands. A war between two of the world's largest economies could prove devastating to the global economy , just as a sudden and dramatic reversal in the fragile Eurozone economy could spell disaster. Japan's is only the hottest of many territorial disputes between China and its Asian neighbors. Then there's North Korea with its nuclear weapons. We could see regions that have garnered little attention come back to the forefront, such as Latin America, where conflict could arise in a post-Hugo Chavez Venezuela. The president -- and the country -- could also benefit from unexpectedly positive outcomes. Imagine a happy turn of events in Iran, a breakthrough between Israelis and Palestinians, the return of prosperity in Europe, a successful push by liberal democratic forces in the Arab uprising countries, which could create new opportunities, lowering risks around the world, easing trade, restoring confidence and improving the chances for the very agenda Obama described in his inaugural speech. The aspirations he expressed for America are the ones he should express for our tumultuous planet. Perhaps in his next big speech, the State of the Union, he can remember America's leadership position and devote more attention to those around the world who see it as a source of inspiration and encouragement. After all, in this second term Obama will not be able to devote as small a portion of his attention to foreign policy as he did

during his inaugural speech. International disengagement is not an option . As others before

Obama have discovered, history has a habit of toying with the best laid, most well- intentioned plans of American presidents.

UQ High flex now because Obama wants minor reforms, not to shut down surveillance ops – it’s perceived as too restrictiveAP, ’15 (AP, The Associated Press, Republished in CBS News, February 3, “White House Allows NSA's Bulk Data Collection To Continue,” http://www.cbsnews.com/news/white-house-allows-nsa-bulk-data-collection-to-continue/) CG; AD: 4/17The Obama administration has announced a series of modest changes in the use of private data collected for intelligence purposes, a move that underscores how little the Edward Snowden revelations have impeded the National Security Agency's exploitation of global Internet communications. Eighteen months after the first Snowden-fueled news story and one year after President Obama delivered a major speech calling for changes to NSA data collection, the White House on Tuesday said it had tightened rules governing how the FBI, CIA and other intelligence agencies use Internet and phone communications of foreigners collected by the NSA. But the bulk collection would continue as robustly as ever , the announcement made clear. Where once the data could be used for any reason

and held forever, now it must fall into six specific threat categories and irrelevant data is to

be purged after five years. But the categories are broad enough that an intelligence officer could find justification to use a piece of information on a foreigner if he or she feels the need. The information need only have some relevance to counter-espionage, counterterrorism, counter-proliferation, cybersecurity, countering threats to U.S. or allied armed forces or personnel; and combating transnational criminal threats. The new policy also imposed more supervision over how intelligence agencies use the communications of Americans they acquire without individual warrants, making clear, for example, that such data may only be used to prosecute someone for "serious crimes" such as a murder or kidnapping, or national security crimes. But the changes stopped well short of the recommendations of a presidential task force , including one that data collected by the NSA without warrants should never be used against an American in court, and another that such data should only be searched using the name of an American with a specific court order naming that person. Robert Litt, general counsel for the Office of the Director of National Intelligence, said in a conference call with reporters that those ideas were deemed too restrictive. The result is that the private communications of Americans collected without warrants are still circulating around the government.

Link – Congressional Restrictions Congressional restrictions cause adversaries to doubt the resolve of U.S. deterrence – causes crisis escalation.Waxman, ‘13 [Matthew Waxman 8/25/13, Professor of Law – Columbia and Adjunct Senior Fellow for Law and Foreign Policy – CFR, “The Constitutional Power to Threaten War,” Forthcoming in Yale Law Journal, vol. 123, August 25, 2013, SSRN]A claim previously advanced from a presidentialist perspective is that stronger legislative checks on war powers is harmful to coercive and deterrent strategies, because it establishes easily-visible impediments to the President’s authority to follow through on threats. This was a common policy argument during the War Powers Resolution debates in the early 1970s. Eugene Rostow, an advocate inside and outside the government for executive primacy, remarked during consideration of legislative drafts that any serious restrictions on presidential use of force would mean in practice that “no President could make a credible threat to use force as an instrument of deterrent diplomacy, even to head off explosive confrontations . ” 178 He continued:¶ In the tense and cautious diplomacy of our present relations with the Soviet Union, as they have developed over the last twenty-five years, the authority of the President to set clear and silent limits in advance is perhaps the most important of all the powers in our constitutional armory to prevent confrontations that could carry nuclear implications. … [I]t is the diplomatic power the President needs most under the circumstance of modern life—the power to make a credible threat to use force in order to prevent a confrontation which might escalate.179

Link – Detention Reform Reform on detention powers kill executive flex Tomatz, ’13 (Michael Tomatz,Colonel, B.A., University of Houston, J.D., University of Texas, LL.M., The Army Judge Advocate General Legal Center and School (2002); serves as the Chief of Operations and Information Operations Law in the Pentagon. AND Colonel Lindsey O. Graham B.A., University of South Carolina, J.D., University of South Carolina, serves as the Senior Individual Mobilization Augmentee to The Judge Advocate Senior United States Senator from South Carolina, “NDAA 2012: CONGRESS AND CONSENSUS ON ENEMY DETENTION,” 69 A.F. L. Rev. 1) CG; AD: 4/17President Obama signed the NDAA "despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists." n114 While the Administration voiced concerns throughout the legislative process, those concerns were addressed and ultimately resulted in a bill that preserves the flexibility needed to adapt to changing circumstances and upholds America's values. The President reiterated his support for language in Section 1021 making clear that the new legislation does not limit or expand the scope of Presidential authority under the AUMF or affect existing authorities " relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States." n115¶ The President underscored his Administration "will not authorize the indefinite military detention without trial of American citizens" and will ensure any authorized detention "complies with the Constitution, the laws of war, and all other applicable law." n116 Yet understanding fully the Administration's position requires recourse to its prior insistence that the Senate Armed Services Committee remove language in the original bill which provided that U.S. citizens and lawful resident aliens captured in the United States would not be subject to Section 1021. n117 There appears to be a balancing process at work here. On the one hand, the Administration is in lock-step with Congress that the NDAA should neither expand nor diminish the President's detention authority . On the other hand, policy considerations led the President to express an intention to narrowly exercise this detention authority over American citizens.¶ The overriding point is that the legislation preserves the full breadth and depth of detention authority existent in the AUMF, to include the detention of American citizens who join forces with Al Qaida. This is a dynamic and changing conflict . If a home-grown terrorist destroys a U.S. target, the FBI gathers the evidence, and a U.S. Attorney prosecutes, traditional civilian criminal laws govern, and the military detention authority resident in the NDAA need never come into play. This is a reasonable and expected outcome in many cases. The pending strike on rail targets posited in this paper's introduction, where intelligence sources reveal an inchoate attack involving American and foreign nationals operating overseas and at home, however, may be precisely the type of scenario where military detention is not only preferred but vital to thwarting the attack , conducting interrogations about known and hidden dangers, and preventing terrorists from continuing the fight .

Link – Intelligence Gathering Restrictions Plan destroys executive power and flexibility – restrictions on intelligence gathering change executive decision calculusGoldsmith, ’12 (Goldsmith, Harvard Law School Professor, focus on national security law, presidential power, cybersecurity, and conflict of laws, Former Assistant Attorney General, Office of Legal Counsel, and Special Counsel to the Department of Defense, Hoover Institution Task Force on National Security and Law. [Jack Goldsmith, March 2012, Power and Constraint, pages 228-231) CG: AD: 4/18Another cost of lawfare is the fragmentation of authority within the executive branch during war. The Commander in Chief traditionally had unified hierarchical command over the executive branch that empowered him to act quickly and that promoted accountability to the public by identifying him as the person responsible for all executive action. This understanding has broken down in the last decade. We have seen how consequential independent inspectors general are in checking the presidency's national security goals. Lawyers too have gained more independence and power that the President cannot effectively control, especially in the military, but in other pockets of the executive branch as well. These lawyers enforce the law (when they interpret it correctly), but they also attenuate the unity of accountability and command. The increasing involvement of courts and other outside actors in military

and intelligence decisions does not violate the theory of the unitary executive, but it has a similar

effect on the executive branch. As we have seen, judicial review of wartime tactics has all sorts of hard-to-see constraining consequences on presidential decision-making. The decentralized legal enforcers that have risen in power in the last

decade splinter the Commander in Chief's executive unity like nothing in American wartime history . Benjamin Wittes closes his book Detention and Denial by speculating what would happen if a prisoner released from GTMO is later found in an al Qaeda leadership position. "We have no accountability when our system fails," he says, before asking, "Were these releases the fault of courts (whose threats of review spurred them), the Bush administration (which carried them out), . . . or the left and the international community (which ruthlessly pushed for them)?"' The problem is deeper and wider than Wittes describes. It is deeper because he does not mention the independent players inside the executive branch who shape and constrain presidential action through investigation and legal interpretation. And it is broader because it applies far beyond the detention context to surveillance, targeting, and every element of the war on terrorism. Moreover, the opposite of Wittes's speculation is also possible, indeed likely: the President will be blamed when something goes wrong even if because of the splintering of executive authority, he lacked the effective power to do what in retrospect should have been done. Distributed accountability can bring many benefits, but its undoubted costs are the difficulty of identifying the locus of accountability when something goes wrong, and the possibility that the leader of the flattened organization will be blamed even though he lacked effective control. A related cost of lawfare is the weakening of wartime presidential initiative and dispatch. When more eyes have to review an operation in advance, it takes longer. Covert operations have many layers of review and approval beginning with many in the CIA and moving up through other bureaucracies to the President. Decisions on the targets in this war often go through a similarly extensive review process for targets off the traditional battlefield, and less extensive but still elaborate reviews for targets on a tradi-tional battlefield. In general, all military and intelligence actions of any significance have elaborate and law-heavy preclearance processes. These up-front reviews delay action and can be so burdensome to negotiate that they result in otherwise useful and appropriate actions not being taken at all . A nother factor slowing down and sometimes precluding executive action is the anticipated personal and professional costs of accountability. The rise of powerful, networked, and harshly critical NGOs has meant that not only top government officials, but midlevel ones as well, are subject to vivid, reputation-harming charges published

globally on the Internet, as well as the possibility of lawsuits in the United States and abroad. The "mere threat of lawsuits and legal charges effectively bullies American decision makers , alters their actions, intimidates our security forces, and limits our country's ability to gather intelligence," says Donald Rumsfeld, lamenting lawfare's effect.' Stripped of its negative connotations, Rumsfeld's judgment—which in less colorful terms applies to every accountability constraint described in this book—should not be controversial. "Bullying" and "intimidating" are forms of influencing, and influencing government behavior to make it more prudent and lawful is the point of the legalized accountability mechanisms. "I think people should think twice; I think that's a good thing," says the ACLU's Jameel Jaffer upon learning about the effect of legal scrutiny and criticism on government officials. "I don't want people to think twice about doing things that are both in the national interest and consistent with the law but if by think twice you mean think twice before sticking a man in a box with a bug, then absolutely, think twice," he adds, referring to one of the Bush administration's most controversial interrogation techniques.' There is no doubt that lawfare significantly influences and constrains officials , not only by direct prohibitions but also, and more significantly, by getting them to "think twice" about what they are doing. The hard question is whether this influence goes too far. The bug-in-the-box is now prohibited by law, partly as a result of Jaffer's efforts, but in many cases what is in the national interest and what is lawful are not black and white, but rather various shades of gray. Government officials every day have to decide how far to push into this gray area. The accountability mechanisms give them pause and lead them not to push as far into the darker shades. Whether that leads them to a place in the gray area where they should be or short of where they should be depends on facts about the future that no one has, as well as one's view of the relevant law, which is not always clear. As a result of the last decade executive officials up and down the chain of command are much more sensitive to law and accountability, and many worry that this sensitivity leads to excessive caution. It is hard to know if they are right, but Jaffer's opposite and easy-sounding injunction—follow the law and act in the national security interest—is far too simple.

Link – Legal Framework Legislative changes to the legal framework constrain executive powerBRECHER, J.D. Candidate, May 2013, University of Michigan Law School, 12 [Aaron P. Brecher, “Cyberattacks and the Covert Action Statute: Toward a Domestic Legal Framework for Offensive Cyberoperations,” October, http://www.michiganlawreview.org/assets/pdfs/111/3/Brecher.pdf]

Cyberattacks present a challenge for U.S. policymakers: they are difficult to locate within a clear legal category and there is a significant risk of uncontrollable consequences associated with their use. As a result, policymakers must choose a paradigm to govern their use that will ensure that the executive branch is held accountable and shares information with legislators. This Part argues that the federal government should adopt the presumption that cyberattacks will be carried out under the covert action statute, and that the best way forward is for the president to issue an executive order making the covert action regime the presumptive framework for cyberattacks. It includes a brief discussion of why a president might willingly constrain her discretion by issuing the proposed executive order. It also shows that while the internal executive processes associated with both military and intelligence legal frameworks help mitigate the risk of cyberattacks’ misuse by the executive, only the covert action regime provides an adequate role for Congress. Finally, this Part argues that the executive order option is preferable to one alternative proposed by scholars—enacting legislation—because of the practical difficulties of passing new legislation. The covert action regime is the best approach for committing cyberattacks under the current law, as it would facilitate cooperation among executive agencies. The debate over which agency and set of legal authorities govern cyberattacks has caused no small amount of confusion.145 Apparently, an Office of Legal Counsel (“OLC”) memorandum declined to decide which legal regime should govern the use of cyberattacks, and the uncertainty has led to interagency squabbles, as well as confusion over how cyberattacks are to be regulated.146 Establishing a presumptive answer would go far toward resolving this dispute. Most importantly, adopting the covert action framework as the presumptive legal regime would be a principled way to help ensure constitutional legitimacy when the president orders a cyberattack.147 There is also reason to believe that presidential power is intimately bound up in credibility, which in turn is largely dependent on the perception of presidential compliance with applicable domestic law.148 A practice of complying with the covert action regime for cyberattacks, both when they do not constitute a use of force and when it is unclear whether they do, is most likely to be in compliance with the law. Compliance with the covert action regime would also encourage covert action procedures in close cases without

unduly restricting the executive’s choice to use military authorities in appropriate circumstances. The executive might also issue the proposed order, even though it would limit her freedom in some ways, because of the possible benefits of constraining future administrations or preempting legislative intervention.149 For example, in this context, an administration may choose to follow the finding and reporting requirements in order to convince Congress that legislative intervention is unnecessary for proper oversight. This is acceptable if the covert action regime is in fact adequate on its own. Moreover, if greater statutory control over cyberattacks is needed, the information shared with Congress may give Congress the tools and knowledge of the issue necessary to craft related legislation. 150 Additionally, while executive orders are hardly binding, the inertia following adoption of an order may help constrain future administrations, which may be more or less trustworthy than the current one. Creating a presumption through an executive order also establishes a stable legal framework for cyberattacks that allows law to follow policy in this new field, and permits decisionmakers to learn more about the nature of cyberoperations before passing detailed statutes that may result in unintended consequences.

Link – NSA Reform Congressional reform to NSA undercuts executive influence Wall Street Journal 13[Wall Street Journal, 9/5/2013. “Obama's Curbs on Executive Power Draw Fire,” http://online.wsj.com/article/SB10001424127887323893004579057463262293446.html]

The president's moves on national-security issues reflect a mix of political pragmatism as well as personal principles, and exactly how much power Mr. Obama actually has given up is the subject of debate. He has walked a fine line on Syria, for example, saying he wasn't required to seek sign-off from lawmakers for a military strike but asking for their approval anyway. A senior administration official said that while the new drone-strike policy does rein in executive authority, the NSA and Syria proposals weren't a reduction of power but an effort to increase transparency and build public confidence. Still, the president, who was criticized for seizing too much power through recess appointments and other steps that some said circumvented Congress, now is being criticized by veterans of past Republican administrations for weakening the presidency. John Yoo, a Justice Department official in the George W. Bush administration, said Mr. Obama had unnecessarily limited his own authority. He noted that it is rare to see a president restrict his powers. Mr. Obama "has been trying to reduce the discretion of the president when it comes to national security and foreign affairs," said Mr. Yoo, now a law professor at the University of California at Berkeley. "These proposals that President Obama is making really run counter to why we have a president and a constitution." Others, though, said the president had given up a modicum of authority in an effort to protect presidential power and guard against congressional action. The question of the extent of executive power has been long debated in Washington. President Lyndon Johnson was accused of using a narrow congressional resolution to vastly and illegally expand the Vietnam War, for example, and President Richard Nixon was accused of creating an "imperial presidency" before his resignation. More recently, Mr. Obama's predecessor, Mr. Bush, was accused by Democrats of having inappropriately expanded executive powers in combating terrorism. Jack Quinn, who served as White House counsel for President Bill Clinton, said Mr. Obama's recent moves amount to threading a needle to reach agreements and avoid larger setbacks for executive power. "Sometimes, it's important to show tolerance for others in order to preserve the power that you have," he said. "I don't think anyone can say that he is a shrinking violet when it comes to his use of power as president." A.B. Culvahouse, White House counsel under Ronald Reagan, agreed that the president imposing constraints on executive authority is the preferable course if it helps dissuade Congress from stepping in to impose the same or more onerous limitations. Lawmakers retain the power of the purse, he noted, and also could codify restrictions in statute.

Link – Judicial System Court interference in national security decks effective executive responses to prolif, terror, and the rise of hostile powers---link threshold is low Blomquist, ’10 (Robert Blomquist, Professor of Law, Valparaiso University School of Law, THE JURISPRUDENCE OF AMERICAN NATIONAL SECURITY PRESIPRUDENCE, 44 Val. U.L. Rev. 881) CG; AD: 4/16Supreme Court Justices--along with legal advocates--need to conceptualize and prioritize big theoretical matters of institutional design and form and function in the American national security tripartite constitutional system. By way of an excellent introduction to these vital issues of legal theory, the Justices should pull down from the library shelf of the sumptuous Supreme Court Library in Washington, D.C. (or more likely have a clerk do this chore) the old chestnut, The Legal Process: Basic Problems in the Making and Application of Law by the late Harvard University law professors Henry M. Hart and Albert M. Sacks. n7 Among the rich insights on institutional design coupled with form and function in the American legal system that are germane to the Court's interpretation of national security law-making and decision-making by the President are several pertinent points. First, "Hart and Sacks' intellectual starting point was the

interconnectedness of human beings, and the usefulness of law in helping us coexist peacefully together." n8 By implication, therefore, the Court should be mindful of the unique [*883] constitutional role played by the POTUS in preserving peace and should prevent imprudent judicial actions that would undermine American national security . Second, Hart and Sacks, continuing their broad insights of social theory, noted that legal

communities establish "institutionalized[] procedures for the settlement of questions of group concern" n9 and regularize "different procedures and personnel of different qualifications . . . appropriate for deciding different kinds of questions" n10 because "every modern society differentiates among social questions, accepting one mode of decision for one kind and other modes for others-e.g., courts for 'judicial' decisions and legislatures for 'legislative' decisions" n11 and, extending their conceptualization, an executive for "executive" decisions. n12 Third, Professors Hart and Sacks made seminal theoretical distinctions between rules, standards, principles, and policies. n13 While all four are part of "legal arrangements [*884] in an organized

society," n14 and all four of these arrangements are potentially relevant in judicial review of presidential national

security decisions, principles and policies n15 are of special concern because of the sprawling, inchoate, and rapidly changing nature of national security threats and the imperative of hyper-energy in the Executive branch in responding to these threats. n16

The Justices should also consult Professor Robert S. Summers's masterful elaboration and amplification of the Hart and Sacks project on enhancing a flourishing legal system: the 2006 opus, Form and Function in a Legal System: A General Study. n17 The most important points that [*885] Summers makes that are relevant to judicial review of American national security presiprudence are three key considerations. First, a "conception of the overall form of the whole of a functional [legal] unit is needed to serve the founding purpose of defining, specifying, and organizing the makeup of such a unit so that it can be brought into being and can fulfill its own distinctive role" n18 in synergy with other legal units to serve overarching sovereign purposes for a polity. The American constitutional system of national security law and policy should be appreciated for its genius in making the POTUS the national security sentinel with vast, but not unlimited, powers to protect the Nation from hostile, potentially catastrophic, threats. Second, "a conception of the overall form of the whole is needed for the purpose of organizing the internal unity of relations between various formal features of a functional [legal] unit and between each formal feature and the complementary components of the whole unit." n19 Thus, Supreme Court Justices should have a thick understanding of the form of national security decision-making conceived by the Founders to center in the POTUS; the ways the POTUS and Congress historically organized the processing of national security through institutions like the National Security Council and the House and Senate intelligence committees; and the ways the POTUS has structured national security process through such specific legal forms as Presidential Directives, National Security Decision Directives, National Security Presidential Decision Directives, Presidential Decision Directives, and National Security Policy Directives in classified, secret documents along with typically public Executive Orders. n20 Third, according to Summers, "a conception of the overall form of the whole

functional [legal] unit is needed to organize further the mode of operation and the instrumental capacity of the [legal] unit." n21 So, the Supreme Court should be aware that tinkering with national security decisions of the POTUS--unless clearly necessary to counterbalance an indubitable violation of the text of the Constitution--may lead to unforeseen negative second-order consequences in the ability of the POTUS (with or without the help of Congress) to preserve, protect, and defend the Nation. n22

[*886] B. Geopolitical Strategic Considerations Bearing on Judicial Interpretation

Before the United States Supreme Court Justices form an opinion on the legality of national security decisions by the POTUS, they should immerse themselves in judicially-noticeable facts concerning what national security expert, Bruce Berkowitz, in the subtitle of his recent book, calls the "challengers, competitors, and threats to America's future." n23 Not that the Justices need to become experts in national security affairs, n24 but every

Supreme Court Justice should be aware of the following five basic national security facts and conceptions before sitting in judgment on presiprudential national security determinations.

(1) "National security policy . . . is harder today because the issues that are involved are more

numerous and varied . The problem of the day can change at a moment's notice." n25 While "[y]esterday, it might have been prolif eration ; today, terrorism ; tomorrow, hostile regional powers" n26, the twenty-first century reality is that "[t]hreats are also more likely to be intertwined--proliferators use the same networks as narco-traffickers, narco-traffickers support terrorists, and terrorists align themselves with regional powers." n27

(2) "Yet, as worrisome as these immediate concerns may be, the long-term challenges are even harder to deal with, and the stakes are higher. Whereas the main Cold War threat--the Soviet Union--was brittle, most of the potential adversaries and challengers America now faces are resilient." n28

(3) "The most important task for U.S. national security today is simply to retain the strategic advantage . This term, from the world of military doctrine, refers to the overall ability of a nation to control, or at

least influence, the course of events." n29 Importantly, "[w]hen you hold [*887] the strategic advantage, situations unfold in your favor, and each round ends so that you are in an advantageous position for the next. When you do not hold the strategic advantage, they do not." n30

(4) While "keeping the strategic advantage may not have the idealistic ring of making the world safe for democracy and does not sound as decisively macho as maintaining American hegemony," n31 maintaining the American "strategic advantage is critical, because it is essential for just about everything else America hopes to achieve--promoting freedom, protecting the homeland, defending its values, preserving peace, and so on." n32

(5) The U nited States requires national security " agility ." n33 It not only needs " to refocus its resources repeatedly; it needs to do this faster than an adversary can focus its own resources." n34

[*888] As further serious preparation for engaging in the jurisprudence of American national security presiprudence in hotly contested cases and controversies that may end up on their docket, our Supreme Court Justices should understand that, as Walter Russell Mead pointed out in an important essay a few years ago, n35 the average American can be understood as a Jacksonian pragmatist on national security issues. n36 "Americans are determined to keep the world at a distance, while not isolating ourselves from it completely. If we need to take action abroad, we want to do it on our terms." n37 Thus, recent social science survey data paints "a picture of a country whose practical people take a practical approach to knowledge about national security. Americans do not bother with the details most of the time because, for most Americans, the details do not matter most the time." n38 Indeed, since the American people "do know the outlines of the big picture and what we need to worry about [in national security affairs] so we know when we need to pay greater attention and what is at stake. This is the kind of knowledge suited to a Jacksonian." n39

Turning to how the Supreme Court should view and interpret American presidential measures to oversee national security law and policy, our Justices

should consider a number of important points. First, given the robust text, tradition, intellectual history, and evolution of the institution of the POTUS

as the American national security sentinel, n40 and the unprecedented dangers to the United States national

security after 9/11, n41 national security presiprudence should be accorded wide latitude by the Court in the adjustment (and tradeoffs) of trading liberty and security. n42 Second, Justices should be aware that

different presidents [*889] institute changes in national security presiprudence given their unique perspective and knowledge of threats to the Nation.

n43 Third, Justices should be restrained in second-guessing the POTUS and his subordinate

national security experts concerning both the existence and duration of national security emergencies and necessary measures to rectify them . "During emergencies, the institutional advantages of the exec utive are enhanced ", n44 moreover,

"[ b]ecause of the importance of secrecy, speed, and flex ibility, courts, which are slow, open, and rigid, have less to contribute to the formulation of national policy than they do during normal times." n45 Fourth, Supreme Court Justices, of course, should not give the POTUS a blank check--even during times of claimed national emergency; but, how much deference to be accorded by the Court is "always a

hard question" and should be a function of "the scale and type of the emergency." n46 Fifth, the Court should be extraordinarily deferential to the POTUS and his executive subordinates regarding questions of executive determinations of the international laws of war and military tactics . As cogently explained by Professors Eric Posner and Adrian Vermeule, n47 "the United States should comply with the laws of war in its battle against Al Qaeda"--and I would argue, other lawless terrorist groups like the

Taliban--"only to the extent these laws are beneficial to the United States, taking into account the

likely response of [*890] other states and of al Qaeda and other terrorist organizations," n48 as determined by the POTUS and his national security executive subordinates.

The plan sends a signal of judicial over-reach that causes political blowbackDevins, ’10 (Neavl Devins, Goodrich Professor of Law and Professor of Government, College of William & Mary., Talk Loudly and Carry a Small Stick: The Supreme Court and Enemy Combatants, 12 U. Pa. J. Const. L. 491) CG; AD: 4/18In Part III of this Essay, I will argue that the Court's actions in the first year of the Obama administration are cut from the same cloth as its decision to intervene in Bush-era disputes. As

this section has suggested, the Court has never risked national security or executive branch non- acquiescence in its enemy combatant decision making . Moreover, as I argued in Part I, Court decision making in this area has largely tracked social and political forces. For reasons I will now detail, the Court's decisions both to steer clear of this issue in the spring and summer of 2009 and its fall 2009 decision to hear the Uighur petition match past Court

practices. Throughout the enemy combatant dispute, the Court has found ways to expand its authority without risking an institutionally costly backlash .¶ III. Conclusion: The Past Is Prologue¶ Supreme Court interventions in the enemy combatant disputes never pushed the limits of what was acceptable to the political [*523] branches of government. The Court, instead,

maximized its authority by moving incrementally and expanding judicial power in ways generally acceptable to the political branches. This was true of Bush-era decision making and

there is no reason to think that the Court will depart from past practices during the Obama administration. ¶ Consider, for example, the Court's March 2009 decision to back away from a case involving Bush administration efforts to detain a legal resident without charges. After agreeing - in December 2008 - to hear a challenge to the Bush

administration's detention of Ali Saleh Kahlah al-Marri at a South Carolina Navy brig, the Court sided with the Obama administration and removed the case from its docket. n170 The administration had claimed the case was moot because - in February 2009 - it formally filed federal criminal charges against al-Marri (so that he would be tried in federal court and not held indefinitely at a military base). n171 Mr. Marri's lawyers objected, arguing (unsuccessfully) that the administration could subsequently relocate him to a military base and, consequently, the Court should still resolve his legal challenge. n172¶ The Court's decisions to hear and then moot al-Marri are readily understandable. The Fourth Circuit had upheld the Bush administration in al-Marri and - when agreeing to hear the case - the Justices had good reason to slap down the Bush administration for their continuing efforts to sidestep federal court review over enemy combatant policy-making. Not only had the Court taken a strong stand in favor of judicial review in Boumediene and other decisions, but the November 2008 election of Barack Obama and the Democratic Congress further solidified the Court's position with elected officials and the American people. And, with none of the eighteen amicus briefs in the case supporting the Bush administration, n173 a Court ruling against [*524] Bush administration actions would have further buoyed the Court's status with academics and other interest groups. By March 2009, however, there was no good reason to ask the new administration to sort out its views on the al-Marri detention. Candidate Obama had campaigned against the Bush administration efforts to fence out federal courts from war-on-terror litigation. Indeed, when asking the Court to moot the case, the Obama administration told the Justices that it was willing to have the Fourth Circuit ruling vacated (showing "that the

government is not attempting to preserve its victory while evading review"). n174 Against this backdrop, there was simply no reason for the Justices to force the Obama administration to formally disavow or embrace Bush

administration legal arguments. An Obama administration decision disavowing Bush administration arguments would not strengthen the

Court's position vis-a-vis the executive (as the Obama Justice Department had already conceded the Court's authority to vacate the lower court ruling); an administration decision supporting Bush administration arguments would set the stage for a costly battle between the Court and the new administration . A decision on the merits, moreover, would have opened the Court up to charges of judicial over-reaching . In its brief seeking to moot al-Marri, the government argued that keeping the case alive

"would lead only to an advisory opinion with no real-world impact on any individual" and that the Court should not reach out to decide "in a hypothetical posture" "complex constitutional

questions" about the line where "national security policy and the Constitution intersect." n175¶ The Court's participation in Kiyemba likewise displays the Court's sensitivity to its status vis-a-vis the other branches and to the risks of unnecessarily interjecting itself in national security policy. This was true of both the June 2009

decision to hold over the appeal of the Uighur petitioners and the October 2009 decision to hear the case (but to schedule oral arguments so as to delay any decision until the summer of 2010). n176¶ June 2009 was too early for the Court to enter this dispute. Even though petitioners cast the case as an opportunity for the Court to defend its turf (suggesting that Boumediene had become an empty shell and it was up to the Court to give meaning to the decision), n177 [*525] the Court well understood the costs of entering this dispute. At that time, the Obama administration and Democratic Congress were sorting out their policy priorities on Guantanamo, Bagram detainees, and much more. Correspondingly, the Court had reason to think that a ruling demanding the relocation of Uighur detainees to the United States would not sit well with either the administration or Congress. Not only did the Obama

administration oppose the relocation of the Uighurs to the United States, n178 Congress enacted legislation in June 2009 that severely limited the President's power to move Guantanamo detainees to the United States or resettle them in another country. n179¶ By holding the issue over, however, the Court gave the Obama administration time both to sort out its policy priorities and to relocate the Uighur detainees (and, in so doing, to try to moot the case). n180 In its brief opposing certiorari, the Obama administration made clear that it was trying both to close Guantanamo and to relocate the Uighur petitioners and asked the Court to respect the "efforts of the political Branches to resolve issues relating to petitioners and other individuals located at Guantanamo Bay." n181 Furthermore, the decision to hold the case over bought the Court time to see how the enemy combatant issue would play out among politicians, interest groups, the media, and the American people. As Part I reveals, Court enemy combatant decisions track social and political forces. As Part II reveals, the Court has moved incrementally - advancing its authority to say "what the law is" without risking backlash or national security.¶ The Court's October 2009 decision to hear Kiyemba does not break from this pattern. By scheduling oral arguments for spring 2009, the Court both provided elected government with additional time to settle this issue and provided itself with an opportunity to calibrate its decision making against the backdrop of elected government action and other subsequent developments. n182 More than that, [*526] since Boumediene only decided the threshold issue that enemy combatants were entitled to habeas corpus relief, Kiyemba is a good vehicle for the Court to provide some details on how habeas proceedings should be conducted. In particular, there is little prospect that the decision will impact the rights on many Guantanamo detainees. By the summer of 2010, Guantanamo may be closed; if not, most detainees who prevail in habeas proceedings are likely to have been relocated to another country. Moreover, Kiyemba raises a quite narrow issue, namely, whether federal courts can mandate that Guantanamo detainees be relocated to the United States if no foreign nation will take them. n183 In other words, there is next to no prospect that Kiyemba will result in the type of scrutinizing judicial review that might raise national security risks (assuming, of course, that the Court will rule against the administration). Instead, Kiyemba seems

likely to further tighten judicial control over the executive - but only in a very modest way.¶ Throughout the course of its enemy combatant

decision making, the Court has moved incrementally . In so doing, the Court has expanded its authority vis-a-vis the President . Obama administration efforts to moot al-Marri and to relocate Uighur detainees (thereby mooting that litigation) speak to the administration's desire to avoid Supreme Court rulings that might limit the scope of presidential power. Unlike the Bush administration (whose politically tone deaf arguments paved the way for anti-administration rulings),

n184 the Obama administration understands that the Court has become a player in the enemy combatant issue.¶ What is striking here, is that the Court never took more than it could get - it carved out space for itself without risking the nation's security or political backlash . Its 2004 and 2006 rulings provided ample opportunity for the President to pursue his enemy combatant initiative. Its 2008 ruling in Boumediene, while clearly constraining the political branches, reflected the views of the new Democratic majority in Congress

and (to a lesser extent) the views of presidential candidates Obama and McCain. n185 Its decision to steer clear of early Obama-era [*527] disputes likewise avoids the risks of a cos tly backlash while creating incentives for the Obama administration to take judicial authority into account (by settling these cases outside of court). n186 Put another way, by taking prevailing social and political forces into account, the Court was able to flex its muscles without meaningfully undermining the policy preferences of the President and Congress.¶ I, of course, recognize that the Court's willingness to engage the executive and, in so doing, to nullify a signature campaign of the Bush administration, is a significant break from the judiciary's recent practice of steering clear of disputes tied to unilateral presidential war making. n187 At the same time, I see the Court's willingness to challenge, and not defer, as not at all surprising. The Bush administration made arguments that backed the Court into a corner. The Court could either bow at the altar of presidential power, or it could find a way to slap the President down. It is to be expected that the Court chose to find a way to preserve its authority to "say what the law is." n188 The Justices, after all, have incentives to preserve the Court's role in our system of checks and balances - especially when their decisions enhance their reputations with media and academic elites. n189 This is true of the Supreme Court in general, and arguably more true of the current Court - given its penchant to claim judicial supremacy and given the importance of these institutional concerns to the Court's so-called swing Justices. n190 It is also noteworthy that the enemy combatant cases were at the very core of the judicial function. At oral arguments in Hamdan, Justice Kennedy emphasized the importance of habeas corpus relief, n191 suggesting that limitations on habeas relief would "threaten[] the status of the judiciary as a co-equal partner of the legislature and the executive." n192¶ [*528] One final comment on the nature of the dialogue that took and is taking place between the three branches on the enemy combatant issue: Throughout the Bush-era, these cases were anything but a constitutional dialogue. The executive persisted in making the same argument, and, as its political fortunes diminished, the Court carved over more and more issue space for itself. For its part, the Bush-era Congress played no meaningful role - it simultaneously backed the executive while signaling to the Court that it would support judicial invalidation of executive initiatives. With a new administration in place, there is reason to think that the inter-branch dynamic will change. The Obama administration has advanced its policies while pursuing a less confrontational course; avoiding absolutist arguments and trying to steer clear of an adverse Supreme Court ruling. In so doing, the administration has yet to launch the type of broadsides that challenge the foundations of judicial authority. Up until now, the Court has responded in kind, leaving the administration breathing room to pursue its policies without a Supreme Court pronouncement on the

scope of presidential power. It is a matter of pure speculation whether this pattern will continue. At the same time, there is good reason to think that the Court will follow the path it has laid down in Bush-era cases, taking social and political forces into account so as to protect its turf without risking national security or elected government backlash .

Link – War on Drugs WOD reform must come from Obama – legislative action hampers prez powerTracy, Cannabis Consultant & Civil Liberties Activist, 14[Sam Tracy, Three Executive Actions Obama Can Take to Rein in the Drug War, http://www.huffingtonpost.com/sam-tracy/three-executive-actions_b_4691178.html]

In his fifth State of the Union address, President Obama didn't hide his frustrations with one of the least productive Congresses in history. He focused his speech on changes he can make unilaterally, saying, "Some [of my proposals] require Congressional action, and I'm eager to work with all of you. But... wherever and whenever I can take steps without legislation to expand opportunity for more American families, that's what I'm going to do." Sadly, he didn't say a single word about one of the areas where he has the most authority to make positive change: drug policy. Here are three of the most important reforms Obama could make with a stroke of his pen. 1. Reschedule marijuana. Federal drug policy is determined largely by the Controlled Substances Act (CSA), which divides illegal drugs into five categories, or "schedules," of harmfulness. Marijuana remains in the most restrictive category, Schedule I, meaning it has a high potential for abuse and no accepted medical use in treatment. So, while a large majority of people -- including President Obama himself -- recognize that marijuana is safer than alcohol, the drug remains in the same legal category as heroin and LSD. Eighty percent of the public supports medical marijuana and 20 states have legalized its use, yet the federal government refuses to recognize that the drug has any medical benefits. This classification is why the federal government continues to raid medical marijuana facilities even when they're in full compliance with state law. It doesn't have to be this way. As admitted by Attorney General Holder, President Obama has the power to reschedule marijuana without Congressional approval. The CSA states that any substance can be moved into another category by petitioning the Drug Enforcement Administration, a federal agency under the president's control. While this been tried many times in the past, including by Americans for Safe Access and governors Gregoire and Chafee, the DEA has denied every attempt. Obama can, and should, direct the agency to move marijuana at least to Schedule III, defined as having a lower potential for abuse and a currently accepted medical use (this category already includes Marinol, a synthetic form of the chemical THC found in marijuana). This simple change would allow states to legalize and regulate medical marijuana without any fear of federal intervention. 2. Replace DEA Administrator Michele Leonhart. One of the main causes of the DEA's obstinance is its leadership. As I've written before, Administrator Leonhart has lied to Congress and the American public on multiple occasions. Originally appointed by President George W. Bush, she has been an embarrassment for the Obama Administration for her refusal to admit that marijuana is less harmful than

heroin. Even more nonsensically, she recently criticized the White House for flying a hemp American flag and allowing its unofficial softball team to play against a team of drug policy reformers (full disclosure: I'm a proud member of that team, the One Hitters, and we've beaten the White House both times we've played them). There is a growing movement to replace Leonhart with someone who understands the drugs they're throwing people in prison for. The Marijuana Policy Project's petition to fire her already has over 20,000 signatures and is quickly growing. At least two members of Congress have called for her resignation, with Rep. Cohen saying Leonhart's leadership is "going to be looked upon in 10 or 20 years as the dark ages." Replacing Leonhart with someone more in line with the president's views on drug policy would go a long way towards scaling back the Drug War. 3. Pardon drug offenders serving unjust sentences. One of the president's most important criminal justice powers is the ability to pardon any federal conviction. President Obama has been one of the least merciful presidents in history when it comes to pardons; the eight clemencies and 13 pardons he granted last month was more than he did in his entire first term. Meanwhile, tens of thousands of Americans remain in prison for drugs: In 2012, the most recent date for which data is available, 99,426 of the nation's 196,574 federal prisoners -- just over 50 percent -- were serving time for drug offenses. If President Obama truly believed his own (correct) statements that drug abuse is a mental health issue, he would pardon all nonviolent drug offenders just as President Carter once pardoned all Vietnam War draft dodgers. After all, what other mental health issue do we imprison people for? However, if Obama doesn't want to take the political risk that such a mass pardoning may bring, he could at least start with the most heinous cases, like the many people serving life sentences for as little as cocaine residue in a clothing pocket. There is still hope that Congress will take some steps towards ending the War on Drugs in the near future. But as President Obama said, we have a criminal justice system "in which a large portion of people have at one time or another broken the law and only a select few get punished." If Congress refuses to do anything about it, Obama should use his executive powers to reform it as much as he can.

Link – War-Making Restrictions The plan’s precedent causes further constraint --- undermines overall war powersPaul, ‘8 (Christopher, Senior Social Scientist; Professor, Pardee RAND Graduate School Pittsburgh Office Education Ph.D., M.A., and B.A. in sociology, University of California, Los Angeles, “US Presidential War Powers: Legacy Chains in Military Intervention Decisionmaking* ,” Journal of Peace Research, Vol. 45, No. 5 (Sep., 2008), pp. 665-679) CG; AD: 4/14Legacy Chains Finegold & Skocpol (1995: 222) describe policy legacies: Past and present policies are connected in at least three different ways. First, past policies give rise to analogies that affect how public officials think about contemporary policy issues . Second, past policies suggest lessons that help us to understand the processes by which contemporary policies are formulated and implemented and by which the conse quences of contemporary policies will be determined. Third, past policies impose limitations that reduce the range of policy choices available as responses to contemporary problems. All three of the ways in which they connect past policy to present policy can be viewed as changes in the institutional context in which policy is made. These legacies are institutionalized in two different ways: first, through changes in formal rules or procedures, and second, in the 'taken for granteds' ,

'schemas', and accepted wisdom of policy makers and ordinary citizens alike (Sewell, 1992: 1-29). While a policy or event can leave multiple legacies, it often leaves a single major legacy. For example, the W ar P owers R esolution for mally changed the relationship between the president and the congress with regard to war-making and the deployment of troops . Subsequent military interventions were influenced by this change and have, in turn, left their own legacy

(legal scholars might call it precedent ) as a link in that chain. Legacy chains can be modified, trans formed, or reinforced as they step through each 'link' in the chain. As another example, US involvement in Vietnam left a legacy in the sphere of press/military relations which affected the intervention in Grenada in 1983 (the press was completely excluded for the first 48 hours of the operation). The press legacy chain begun in Vietnam also affected the Panama invasion of 1989 (a press pool was activated, in country, but excluded from the action), but the legacy had been trans formed slightly by the Grenada invasion (the press pool system itself grew out of complaint regarding press exclusion in Grenada) (Paul & Kim, 2004). Because of the different ways in which policy legacies are institutionalized, some legacies have unintended institutional cons quences . The War Powers Resolution was intended to curtail presidential war-making powers and return some authority to the con gress. In practice, the joint resolution failed to force presidents to include congressional participation in their intervention decision making, but it had the unintended conse quence of forcing them to change the way they planned interventions to comply with the letter of the law (see the extended ex ample presented later in the article).1

Internal LinkExecutive power high now – congress has backed off – any risk of a link turns the aff – constraints undermine Obama’s ability to solve climate change, econ collapse, and disease and no impact to an unrestrained executive and external factors check abusePoser, ‘14 (Eric, Kirkland and Ellis Distinguished Service Professor of Law at the University of Chicago Law School, February 3, “The Presidency Comes With Executive Power. Deal With It,” http://www.newrepublic.com/article/116450/obama-use-executive-power-unexceptional) CG; AD: 4/18Congress gave the president the power to determine contract terms because Congress did not want to—practically speaking could not—negotiate those terms itself every time the U.S. government entered a contract. This principle explains why Congress gives the executive branch enormous discretion to determine health, education, environmental, and financial policy. Congress directed the financial regulators to implement the Volcker Rule, but it would be entirely up to those regulators to make the rule meaningful or toothless. Nor can Congress block Obama’s decision to effectively implement the Dream Act—which was not passed by Congress—by not enforcing immigration laws against those who would have benefited from the act. Meanwhile, the founders’ anxieties about executive tyranny have proven erroneous. The president is kept in check by elections, the party system, the press, popular opinion, courts, a political culture that is deeply suspicious of his motives, term limits, and the sheer vastness of the bureaucracy which he can only barely control. He does not always do the right thing, of course, but presidents generally govern from the middle of the political spectrum. Obama’s assertion of unilateral executive authority is just routine stuff. He follows in the footsteps of his predecessors on a path set out by Congress. And well should he. If you want a functioning government—one that protects citizens from criminals, terrorists , the climatic effects of

greenhouse gas emissions, poor health, financial [ crises ] manias, and the like —

then you want a government led by the president.

Impact – Laundry List Ineffective crisis response guarantees extinction --- a laundry list of threats are on the brinkMiller, ’11 (Paul Miller, Assistant Professor of International Security Studies at the National Defense University, former director for Afghanistan on the National Security Council, October 17, 2011, “This is no time to cut defense,” online: http://shadow.foreignpolicy.com/posts/2011/10/17/this_is_no_time_to_cut_defense) CG; AD: 4/18

The threats to us are more numerous , not less. There are two major families of threats to U.S. national

security today. First, at one end of the state spectrum, are the nuclear-armed authoritarian powers : Russia, China, soon Iran, North Korea as a junior partner, and Pakistan if it falls to jihadists. The latter three are (or will be) new to the nuclear club since the Cold War, and China is vastly more

powerful today than it was in 1989. Second, at the other end, is the aggregate global consequences of state failure and anarchy across much of the world -- such as the rise of terrorist groups , organized crime, drug cartels , human traffickers, nuclear smugglers, pandemic disease, and piracy -- that will collectively erode global stability and raise the cost of U.S. leadership. State failure, with its effects magnified by globalization, is also a vastly greater threat that during the Cold War. These two families are the threats we face in the 21st Century. By contrast, we faced fewer threats and a simpler

world at almost every point in our history before 1989.¶ The threats are equally apocalyptic .

Nuclear war with the Soviet Union was the gravest danger we ever faced, and we

came perilously close to it in 1962. Nuclear war with Iran or North Korea would be almost

equally dangerous , especially after they have acquired longer-range ballistic missiles capable of hitting U.S. allies and even the U.S. homeland. (Yes, the Soviet Union had thousands of warheads, but you only need a few nukes to cause more damage to us than all the wars we have fought in history, combined, and only a few dozen to effectively wipe out the United States. And if I were a new nuclear power, I wouldn't announce my capability until I already had a few dozen to make sure I could withstand an attack on my arsenal. Which mean s that North Korea and Iran (when it announces) will almost certainly be existential threats ). The difference is that war with them or their proxies may be more likely to actually happen . The latter two

countries may be less deterrable , less predictable , and more prone to transfer nuclear technology to proxies and non-state groups, given their history of erratic behavior, sponsoring terrorism, and proliferation. All told, the chances of a nuclear detonation in New York City are higher, not lower, today than twenty years ago. Unfortunately, we do not have a team of patriotic mutant superheroes to avert disaster this time.¶ Our allies are less capable , not more. Militarily, the Allies have underinvested in defense for decades-nothing new there. But the situation is actually getting worse, not better. The European allies spent 1.7 percent of GDP on defense in 2010 compared to 3.7 percent in 1985, according to NATO figures, a huge decline. As a result, the allies' performance in Libya and Afghanistan has not covered them with glory. And the alliance -- including us -- is still using mostly the same weapons systems and platforms that were developed in the late Cold War, just with a layer of IT, often glitchy and unreliable, grafted on in recent years (I agree with Tom's new post in this respect). Politically, the alliance has suffered tremendous strain from the double hammer-blows of disagreement over Iraq followed by unequal burden-sharing and nearly losing the war in Afghanistan. I am less confident in the alliance now than during

the Cold War.¶ Our enemies and competitors are more capable , not less. Again, several states have acquired nuclear weapons since 1989. China has engaged in a massive conventional military buildup. Russia, after initially suffering a crippling loss of manpower, resources, and morale, has undertaken a long process of professionalizing and modernizing its military. Non-state actors have harnessed the tools of globalization and exploited the weakness of failed states to give them a global operating scope and comfortable safe haven.¶ Our values are not ascendant. The global financial crisis

has (unfairly, I think) cast disrepute on the west in the eyes of many developing nations. China's rise has made

state-managed and autocratic development attractive to many an aspiring power. Illiberal political Islam, with its hostility to women's rights and religious freedom, is at least competing aggressively with democracy and human rights across the Islamic world. Hindutva, largely content to compete peacefully through the Indian democratic system so far, may not always be so. Marxism of a sort is still alive, fashionable, and even resurgent in a few quarters like Venezuela and Bolivia. Democracy has indeed spread farther since 1989 than ever before in human history, but that is different from "ascendancy." Democratic gains since 1989, for example in Africa and Latin America, are new and might easily be reversed, especially given the competition.¶ What worries me is that I am

increasingly convinced that we do not have the capabilities to meet the various threats we face today. We don't need to be omnipotent , but we do need to be able to protect ourselves . Can we stave off

state failure in Pakistan? Can we prevent Iran from obtaining nuc lear weapon s , or contain it afterwards? Could we prevent Russia from doing to Ukraine what it did to Georgia in 2008? Can we defeat the drug cartels wreaking havoc in Mexico and Columbia? Is al-Qaida really nearing "strategic defeat," as Panetta claims? Are we prepared to handle a collapse in North Korea -- possibly having to fight a sudden

war with a desperate regime, contribute to a multilateral occupation and reconstruction afterwards, and handle the

delicate diplomacy with the Chinese?

Impact – Nuke war & Bioterror Causes nuclear war and bioterror---exec flex is key to successful fourth-gen warfare Li, ‘9 (Zheyao Li, J.D. candidate, Georgetown University Law Center, 2009; B.A., political science and history, Yale University, 2006. This paper is the culmination of work begun in the "Constitutional Interpretation in the Legislative and Executive Branches" seminar, led by Judge Brett Kavanaugh, “War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare,” 7 Geo. J.L. & Pub. Pol'y 373 2009 WAR POWERS IN THE FOURTH GENERATION OF WARFARE) CG; AD: 4/16A. The Emergence of Non-State Actors

Even as the quantity of nation-states in the world has increased dramatically since the end of World War II, the institution of the nation-state has been in decline over the past few decades. Much of this decline is the direct result of the waning of major interstate

war, which primarily resulted from the introduction of nuclear weapons.122 The proliferation of nuclear weapons , and their immense capacity for absolute destruction, has ensured that conventional wars remain limited in scope and duration . Hence, "both the size of the armed forces and the quantity of weapons at their disposal has declined quite sharply" since 1945.123 At the same time, concurrent with the decline of the nation-state in the second half of the twentieth century, non-state actors have increasingly been willing and able to use force to advance their causes. In contrast to nation-states, who adhere to the Clausewitzian distinction

between the ends of policy and the means of war to achieve those ends, non-state actors do not necessarily fight as a

mere means of advancing any coherent policy. Rather, they see their fight as a life-and-death struggle , wherein the ordinary terminology of war as an instrument of policy breaks down because of this blending of means and ends.124 It is the existential nature of this struggle and the disappearance of the Clausewitzian distinction between war and policy that has given rise to a new generation of warfare. The concept of fourth-generational warfare was first articulated in an influential article in the Marine Corps Gazette in 1989, which has proven highly prescient. In describing what they saw as the modem trend toward a new phase of warfighting, the authors argued that: In broad terms, fourth generation warfare seems likely to be widely dispersed and largely undefined; the distinction between war and peace will be blurred to the vanishing point. It will be nonlinear, possibly to the point of having no definable battlefields or fronts. The distinction between "civilian" and "military" may disappear. Actions will occur concurrently throughout all participants' depth, including their society as a cultural, not just a physical, entity. Major military facilities, such as airfields, fixed communications sites, and large headquarters will become rarities because of their vulnerability; the same may be true of civilian equivalents, such as seats of government, power plants, and industrial sites (including knowledge as well as manufacturing industries). 125 It is precisely this blurring of peace and war and the demise of traditionally definable battlefields that provides the impetus for the formulation of a new. theory of war powers. As evidenced by Part M, supra, the constitution al allocation of war powers , and the Framers' commitment of the war power to two co-equal

branches, was not designed to cope with the current international system , one that is

characterized by the persistent machinations of international terrorist organization s , the rise of multilateral alliances , the emergence of rogue s tates , and the potentially wide proliferation of easily deployable w eapons of m ass d estruction , nuclear and otherwise . B. The Framers' World vs. Today's World The Framers crafted the

Constitution, and the people ratified it, in a time when everyone understood that the state controlled both the raising of armies and their use. Today, however, the threat of terrorism is bringing an end to the era of the

nation-state's legal monopoly on violence, and the kind of war that existed before-based on a clear division between government, armed forces, and the people-is on the decline. 126 As states are caught between their decreasing ability to fight each other due to the existence of nuclear weapons and the increasing threat from non-state actors, it is clear that the Westphalian system of nation-states that informed the Framers' allocation of war powers is no longer the order of the day. 127 As seen in Part III, supra, the rise of the modem nation-state occurred as a result of its military effectiveness and ability to defend its citizens. If nation-states such as the

United States are unable to adapt to the changing circumstances of fourth-generational warfare-that is, if they are unable to adequately defend against low-intensity conflict conducted by non-

state actors-" then clearly [the modem state] does not have a future in front of it .' 128 The challenge in formulating a new theory of war powers for fourthgenerational warfare that remains legally justifiable lies in the difficulty of adapting to changed circumstances while remaining faithful to the constitutional text and the original meaning. 29 To that end, it is crucial to remember that the Framers crafted the Constitution in the context of the Westphalian system of nation-states. The three centuries following the Peace of Westphalia of 1648 witnessed an international system characterized by wars, which, "through the efforts of governments, assumed a more regular, interconnected character."' 130 That period saw the rise of an independent military class and the stabilization of military institutions. Consequently, "warfare became more regular, better organized, and more attuned to the purpose of war-that is,

to its political objective."' 1 3' That era is now over . Today, the stability of the long-existing Westphalian international order has been greatly eroded in recent years with the advent of international terrorist organizations, which care nothing for the traditional norms of the laws of war. This new global environment exposes the limitations inherent in the interpretational methods of originalism and textualism and necessitates the adoption of a new method of constitutional interpretation. While one must always be aware of the text of the Constitution and the original understanding of that text, that very awareness identifies the extent to which fourth-generational warfare epitomizes a phenomenon unforeseen by the Framers, a problem the constitutional resolution of which must rely on the good judgment of the present generation. 13 Now, to adapt the constitutional warmarking scheme to the new international order characterized by fourth-generational warfare, one must understand the threat it is being adapted to confront. C. The Jihadist Threat The erosion of the Westphalian and Clausewitzian model of warfare and the blurring of the distinction between the means of warfare and the ends of policy, which is one characteristic of fourth-generational warfare, apply to al-Qaeda and other adherents of jihadist ideology who view the United States as an enemy. An excellent analysis of jihadist ideology and its implications for the rest of the world are presented by Professor Mary Habeck. 133 Professor Habeck identifies the centrality of the Qur'an, specifically a particular reading of the Qur'an and hadith (traditions about the life of Muhammad), to the jihadist terrorists. 134 The jihadis believe that the scope of the Qur'an is universal, and "that their interpretation of Islam is also intended for the entire world, which must be brought to recognize this fact peacefully if possible and through violence if not."' 135 Along these lines, the jihadis view the United States and her allies as among the greatest enemies of Islam: they believe "that every element of modern Western liberalism is flawed, wrong, and evil" because the basis of liberalism is secularism. 136 The jihadis emphasize the superiority of Islam to all other religions, and they believe that "God does not want differing belief systems to coexist."' 37 For this reason, jihadist groups such as al-Qaeda "recognize that the West will not submit without a fight and believe in fact that the Christians, Jews, and liberals have united against Islam in a war that will end in the complete destruction of the unbelievers.' 138 Thus, the adherents of this jihadist ideology , be it al-Qaeda or other groups, will continue to target the U nited S tates until she is destroyed. Their ideology demands it. 139 To effectively combat terrorist groups such as al-Qaeda, it is necessary to

understand not only how they think, but also how they operate. Al-Qaeda is a transnational organization capable of simultaneously managing multiple operations all over the world."14 It is both centralized and decentralized: al-Qaeda is centralized in the sense that Osama bin Laden is the unquestioned leader, but it is decentralized in that its operations are carried out locally, by distinct cells."4 AI-Qaeda benefits immensely from this arrangement because it can exercise direct control over high-probability operations, while maintaining a distance from low-probability attacks, only taking the credit for those that succeed. The local terrorist cells benefit by gaining access to al-Qaeda's "worldwide network of assets, people, and expertise."' 42 Post-September 11 events have highlighted al-Qaeda's resilience. Even as the United States and her allies fought back, inflicting heavy

casualties on al-Qaeda in Afghanistan and destroying dozens of cells worldwide, "al-Qaeda's networked nature allowed it to absorb the damage and remain a threat." 14 3 This is a far cry from earlier generations of warfare, where the decimation of the enemy's military forces would generally bring an end to the conflict. D. The Need for Rapid Reaction and Expanded Presidential War Power By now it should be clear just how different this conflict against the

extremist terrorists is from the type of warfare that occupied the minds of the Framers at the time of the Founding. Rather than maintaining the geographical and political isolation desired by the Framers for the new country, today's United States is an international power targeted by individuals and groups that will not rest until seeing her demise. The Global War on Terrorism is not truly a war within the Framers' eighteenth-century conception of the term, and the normal

constitutional provisions regulating the division of war powers between Congress and the President do not apply. Instead, this "war" is a struggle for survival and dominance against forces that threaten to destroy the United States and her allies, and the fourth-generational nature of the conflict, highlighted by an indiscernible distinction between wartime and peacetime, necessitates an evolution of America's traditional constitutional warmaking scheme. As first illustrated by the military strategist Colonel John Boyd, constitutional decision-making in the realm of war powers in the fourth generation should consider the implications of the OODA Loop: Observe, Orient, Decide, and Act. 44 In the era of fourth-gen erational warfare, quick reactions , proceeding through the OODA Loop rapidly, and disrupting the enemy's OODA loop are the keys to victory. "In order to win ," Colonel Boyd suggested, " we should operate at a faster tempo or rhythm than our adversaries ." 145 In the words of Professor Creveld, "[b]oth organizationally and in terms of the equipment at their disposal, the armed forces of the world will have to adjust themselves to this situation by changing their doctrine, doing away with much of their heavy equipment and becoming more like police."1 46 Unfortunately, the existing constitutional understanding, which diffuses war power between two branches of government, necessarily (by the Framers' design) slows down decision- making. In circumstances where war is undesirable (which is, admittedly, most of the time, especially against other nation-states), the deliberativeness of the existing decision-making process is a positive attribute. In America's current situation, however, in the midst of the conflict with al-Qaeda and

other international terrorist organizations, the existing process of constitutional decision-making in warfare may prove a fatal hindrance to achieving the initiative necessary for victory . As a slow-acting , deliberative body , Congress does not have the ability to a dequately deal with fast-emerging situations in fourth-

generational warfare. Thus, in order to combat transnational threats such as al-Qaeda, the executive branch must have the ability to operate by taking offensive military action even without congressional authorization, because only the executive branch is capable of the swift decision-making and action necessary to prevail in fourth-gen erational conflicts against fourthgenerational opponents.

AT: Constraints Now SQ rulings haven’t clarified the legal debate---the plan does Entin, ’12 (Jonathan L. Entin, Associate Dean for Academic Affairs (School of Law), David L. Brennan Professor of Law, and Professor of Political Science, Case Western Reserve University. War Powers, Foreign Affairs, and the Courts: Some Institutional Considerations, 45 Case W. Res. J. Int'l L. 443) CG; AD: 4/18To be sure, the Supreme Court has decided some well-known national security cases . Among them are the Steel Seizure case, Youngstown Sheet & Tube Co. v. Sawyer; n2 the Pentagon Papers case, New York Times Co. v. United States; n3 the Iranian hostage case, Dames & Moore v. Regan; n4 and some notable First Amendment cases arising out of World War I, such as Schenck v. United States n5 and Abrams v. United States. n6 Then there are the Japanese internment decisions during World War II, notably Korematsu v. United States, n7 as well as Ex parte Quirin, n8 which upheld the use of military commissions to try German agents who landed in the United States as part of a sabotage mission. Most recently, the Supreme Court has addressed questions arising from the government's response to the attacks of September 11, 2001, in such cases

as Hamdi v. Rumsfeld , n9 Hamdan v. Rumsfeld , n10 and Boumediene v. Bush . n11

These cases do matter, but they have not clearly resolved the constitutional and other legal issues that pervade the debate about presidential power and foreign affairs.

Beyond the limitations of the Supreme Court rulings, the judiciary probably will not contribute very much to the debate . Various procedural and jurisdictional obstacles make it difficult for courts to address the merits of disputes about war powers

and foreign affairs. Even if those obstacles can be surmounted, those who decry what they view as presidential excess should note that the judiciary typically has taken a deferential role in reviewing challenges to executive action .

AT: Flip Flops Executive position taking is binding – EVEN IF the executive wants to change their positionTomz, Professor at Stanford University, 07 [Michael Tomz, October 2007. Stanford University. “Domestic Audience Costs in International Relations: An Experimental Approach,” International Organization 61.4.]

What makes international commitments credible? The answer may lie, in part, at the intersection of foreign affairs and domestic politics. Recent models of international relations assume that leaders would suffer “domestic audience costs” if they issued threats or promises and failed to follow through. Citizens, it is claimed, would think less of leaders who backed down than of leaders who never committed in the first place. In a world with audience costs, the prospect of losing domestic support—or even office—could discourage leaders from making empty threats and promises. The concept of domestic audience costs is now central to theories about military crises, and researchers have incorporated similar ideas into models of alliances, economic sanctions, foreign trade, foreign direct investment, monetary commitments, interstate bargaining, and international cooperation more generally. 1 Despite the prominence of audience costs in international relations theories, it remains unclear whether and when audience costs exist in practice. Most empirical work on the topic is indirect. Fearon conjectured that audience costs are higher in democracies than in autocracies and explained why this gap would cause the two types of regimes to behave differently. 2 Researchers have, therefore, checked for correlations between democracy and foreign policy. 3 Although valuable, these tests do not reveal whether the effects of democracy stem from audience costs or from other differences between political regimes. One could try to study audience costs directly, perhaps by examining the historical fate of leaders who issued threats and then backed down. The problem, which international relations scholars widely recognize, is strategic selection bias. 4 If leaders take the prospect of audience costs into account when making foreign policy decisions, then in situations when citizens would react harshly against backing down, leaders would tend to avoid that path, leaving little opportunity to observe the public backlash. It would seem, therefore, that a direct and unbiased measure of audience costs is beyond reach. This article aims to solve the empirical conundrum. The analysis is based on a series of experiments embedded in public opinion surveys. In each experiment, the interviewer describes a military crisis. Some participants are randomly assigned to a control group and told that the president does not get involved. Others are placed in a treatment condition in which the president escalates the crisis but ultimately backs down. All participants are then asked whether they approve of the way the president handled the situation. By comparing

approval ratings in the “stay out” and “back down” conditions, one can measure audience costs directly without strategic selection bias. In the remainder of this article, I demonstrate that constituents disapprove of leaders who make international threats and then renege. I further explain why many leaders regard disapproval as a political liability. Finally, as a step toward deepening our theoretical as well as empirical understanding of audience costs, I investigate why citizens react negatively to empty threats.

AT: Need Statutory Reform Don’t need statutory reform – need the executive to answer what they SHOULD be doing not what they COULD be doingSchlanger, Henry M. Butzel Professor of Law, University of Michigan, 15 [Margo Schlanger, Intelligence Legalism and the National Security Agency's Civil Liberties Gap, Harvard National Security Journal, 6 Harv. Nat'l Sec. J. 112]Much of the reform action is, and should be, devoted to substantive interventions. Congress should itself ask the "should" question, and can insist on, for example, tighter rules governing bulk collection, requiring more-individuated justifications for data acquisition, analysis, and use. Or to rephrase the point using the familiar vocabulary of rules and standards, n343 [*190] Congress, and the President, can design and promulgate new rules to serve the overarching standard--that liberty should be prioritized where it carries no, or acceptable, cost to security--and these rules can then be enforced by a compliance regime. But what about

implementation of the underlying standard itself : the idea that liberty should be prioritized where it carries no, or acceptable, cost to security? I argued in Part III that surveillance secrecy and the very significant changes over time mean that some opportunities to further that standard are likely to remain untouched by the Constitution, statutes, and executive order. So while I am far from opposed to additional statutory and regulatory-type rules, there remains an additional opportunity to further individual liberty and privacy with less legalistic, more standard-like interventions. This opportunity is the thrust of the last category of reforms, which propose to institutionalize within the Executive branch, the question of "should" rather than "can": . The President announced in August 2013 that the NSA would "put in place a full-time civil liberties and privacy officer." n344 The job announcement went up in September, n345 and as already described, the new NSA Civil Liberties and Privacy Officer, Rebecca Richards, began work in January. n346

AT: Plan Solves WarfightingCongress doesn’t enhance cred --- narrow majorities make us look unsure --- empirics proveYoo, ‘4 (John Yoo, Emanuel S. Heller Professor of Law @ UC-Berkeley Law, visiting scholar @ the American Enterprise Institute, former Fulbright Distinguished Chair in Law @ the University of Trento, served as a deputy assistant attorney general in the Office of Legal Council at the U.S. Department of Justice between 2001 and 2003, received his J.D. from Yale and his undergraduate degree from Harvard, “War, Responsibility, and the Age of Terrorism,” UC-Berkeley Public Law and Legal Theory Research Paper Series, http://works.bepress.com/cgi/viewcontent.cgi?article=1015&context=johnyoo) CG; AD: 4/17 It is also not obvious that congress ional deliberation ensures consensus .

Legislative authorization might reflect ex ante consensus before military hostilities, but it also might merely represent a bare majority of Congress or an unwillingness to challenge the President’s institutional and political

strengths regardless of the merits of the war. It is also no guarantee of an ex post consensus after combat begins. Thus, the Vietnam War, which Ely and others admit satisfied their constitutional

requirements for congressional approval , did not meet with a consensus over the long term but instead provoked some of the most divisive politics in American history . It is also difficult to claim that the congressional authorizations to use force in Iraq, of either the 1991 or 2002 varieties, reflected a deep consensus over the merits of war there. Indeed, the 1991 authorization barely survived the Senate and the 2002 one received significant negative votes and has become an increasingly divisive issue in national political and the 2004 presidential election.

Congress’s authorization for the use of force in Iraq in 2003 has not served as a guarantee of political consensus. ¶ Conversely, a process without congress ional declarations of war does not necessarily result in less deliberation or

consensus. Nor does it seem to inexorably lead to poor or unnecessary war goals. Perhaps the most important example, although many might consider it a “war,” is the conflict between the U nited States and the

S oviet U nion from 1946 through 1991. War was fought throughout the world by the superpowers and their proxies during this period. Yet the only war arguably authorized by Congress – and even this is a debated point – was Vietnam. The United States waged war against Soviet proxies in Korea and Vietnam, the Soviet Union fought in Afghanistan, and the two almost came into direct conflict during the Cuban Missile Crisis. Despite the division

over Vietnam, there appeared to be a significant bipartisan consensus on the overall strategy (containment) and goal (defeat of the Soviet Union, protection of Europe and Japan), and Congress

consistently devoted significant resources to the creation of a standing military to achieve them. Different conflicts during this period that did not benefit from congressional authorization , such as conflicts in Korea,

Grenada, Panama, and Kosovo, did not suffer from a severe lack of consensus , at least at the outset. Korea initially received the support of the nation’s political leadership, and it seems that support declined only once battlefield reverses had occurred. Grenada and Panama did not seem to suffer from any serious political challenge, and while Kosovo met with some political resistance, it does not appear to have been significant.

Adversaries won’t perceive Congressional participation as a sign of resolveWaxman, ’13 (Matthew, Professor of Law @ Columbia and Adjunct Senior Fellow for Law and Foreign Policy @ CFR, “The Constitutional Power to Threaten War,” Forthcoming in Yale Law Journal, vol. 123, August 25, 2013, SSRN) CG; AD: 4/16

The credibility-enhancing effects of legislative constraints on threats are subject to dispute. Some studies question the assumptions underpinning theories of audience costs –

specifically the idea that democratic leaders suffer domestic political costs to failing to make good on their threats , and therefore that their threats are especially credible171 – and others question whether the empirical data supports claims that democracies have

credibility advantages in making threats.172 Other scholars dispute the likelihood that leaders will really be punished politically for backing down, especially if the threat was not explicit and

unambiguous or if they have good policy reasons for doing so.173 Additionally, even if transparency in democratic institutions allows domestic dissent from threats of force to be visible to foreign audiences, it is not clear that adversaries would interpret these mechanisms as political scientists expect in their models of strategic interaction, in light of various common problems of misperception in i nternational r elations. 174 These disputes are not just between competing theoretical models but also over the

links between any of the models and real-world political behavior by states. At this point there remains a dearth of good historical evidence as to how foreign leaders interpret political maneuvers within Congress regarding threatened force.

AT: Self-Restraint Turn Extternal factors check abuse Poser, ‘14 (Eric, Kirkland and Ellis Distinguished Service Professor of Law at the University of Chicago Law School, February 3, “The Presidency Comes With Executive Power. Deal With It,” http://www.newrepublic.com/article/116450/obama-use-executive-power-unexceptional) CG; AD: 4/18Congress gave the president the power to determine contract terms because Congress did not want to—practically speaking could not—negotiate those terms itself every time the U.S. government entered a contract. This principle explains why Congress gives the executive branch enormous discretion to determine health, education, environmental, and financial policy. Congress directed the financial regulators to implement the Volcker Rule, but it would be entirely up to those regulators to make the rule meaningful or toothless. Nor can Congress block Obama’s decision to effectively implement the Dream Act—which was not passed by Congress—by not enforcing immigration laws against those who would have benefited from the act. Meanwhile, the founders’ anxieties about executive tyranny have proven erroneous. The president is kept in check by elections, the party system, the press, popular opinion, courts, a political culture that is deeply suspicious of his motives, term limits, and the sheer vastness of the bureaucracy which he can only barely control. He does not always do the right thing, of course, but presidents generally govern from the middle of the political spectrum. Obama’s assertion of unilateral executive authority is just routine stuff. He follows in the footsteps of his predecessors on a path set out by Congress. And well should he. If you want a functioning government—one that protects citizens from criminals, terrorists , the climatic effects of

greenhouse gas emissions, poor health, financial [ crises ] manias, and the like —

then you want a government led by the president.

Aff

Need External Checks Problem is lack of transparency & oversight – need more external checksBUTLER , Appellate Advocate Counsel, Electronic Privacy Information Center; J.D., UCLA School of Law, 13 [Alan Butler, Standing Up to Clapper: How to Increase Transparency and Oversight of FISA Surveillance, New England Law Review, Fall, 2013, 48 New Eng. L. Rev. 55]

As new details have emerged about the FBI and NSA's domestic intelligence-gathering practices, it has become clear that the current system does not provide enough transparency to ensure public oversight and trust. n42 There are three main problems with the current system: the development of a secret body of constitutional and statutory law by the FISC, structural limitations on judicial review of FISA surveillance, and rules inhibiting Congress' ability to facilitate public oversight. As a result, important questions about the scope and nature of surveillance remain unanswered, and in many cases, there is not even enough information to know which questions to ask. Over the last decade, the FISC began developing a secret body of law governing FISA surveillance and addressing important constitutional and statutory issues that should be made public. n43 This shift occurred after the Government began to expand foreign intelligence surveillance beyond the [*64] scope of individualized FISA warrants. n44 With the enactment of the FAA, Congress introduced a new role for the FISC: approval of government surveillance programs based on general targeting and minimization procedures. n45 Under Section 702 of the FAA, the FISC judge reviewing the government application and procedures must determine whether the targeting and minimization procedures are "consistent with the requirements of [the statute] and with the Fourth Amendment." n46 As a result, the FISC now regularly assesses "broad constitutional questions" and establishes "important judicial precedents, with almost no public scrutiny." n47 The secrecy of these important opinions is a flaw in the system and prevents public oversight of developing national security law. Congress plays an important role in the intelligence oversight process as well, but its oversight of FISA activity authorized under Section 702 and Section 215 is severely limited by procedural rules imposed by the Department of Justice ("DOJ") and inadequate public reporting. The law requires that the Attorney General keep the Senate Select Committee on Intelligence, n48 the House Permanent Select Committee on Intelligence, n49 and the Senate Judiciary Committee "fully informed" concerning the Government's use of FISA. n50 However, reports sent from the DOJ to the [*65] House and Senate Intelligence Committees impose strict rules on the dissemination of the government's legal interpretation of these programs. n51 For example, the detailed reports on the use of Section 215 were only available in Intelligence Committee offices for a "limited time period," no photocopies or notes could be taken out of the room, and only certain congressional staff members were allowed to attend. n52 Similar rules likely apply to the Attorney General's reports on significant FISA legal

interpretations n53 and the use of Section 702 authorities. n54 Public reports regarding the extent of FISA surveillance activity give a bare minimum of information, including only the number of applications for electronic surveillance, the number granted, modified, or denied, n55 and the same information regarding requests for orders compelling production of business records. n56 Unlike the Wiretap Reports issued by the Administrative Office of the U.S. Courts, which provide a comprehensive overview of the cost, duration, and effectiveness of surveillance in criminal investigations, n57 the FISA reports do not provide sufficient detail. n58 As a result, Members of Congress and the public do not have the information [*66] they need to evaluate the efficacy and legality of these programs. n59 The problem of secret law is exacerbated by the limited judicial review of important constitutional and statutory issues related to modern FISA surveillance. As one former FISA judge recently noted, the role of judges is not to make policy, it is to "review policy determinations for compliance with statutory law" - but such review must be done in the context "of [the] adversarial process." n60 The FISA does not currently provide for adversarial hearings in the FISC, even when presented with complex and novel issues. n61 And unlike warrants and other ex parte orders issued in criminal cases, judicial review of FISA activity is not guaranteed in criminal prosecutions or other subsequent proceedings. n62 Even when the government provides notice of the use of FISA-derived evidence in criminal cases, it has not specified whether such surveillance was accomplished pursuant to Section 702 authorized directives. n63 As a result, the traditional means of obtaining judicial review of the ultimate [*67] constitutional question regarding modern FISA surveillance is unavailable. The Supreme Court has also made it more difficult to assert a constitutional challenge in a civil case based on Section 702 activities. n64

No link Judicial posture means the link is non-uniqueWittes, ‘8 (Benjamin Wittes, Senior Fellow in Governance Studies at the Brookings Institution, co-founder and editor-in-chief of the Lawfare blog, member of the Hoover Institution’s Task Force on National Security Law, Law and the Long War: The Future of Justice in the Age of Terror, google books) CG; AD: 4/16What the Supreme Court has done is carve itself a seat at the table. It has intimated, without ever deciding, that a constitutional basis for its actions exists—in addition to the statutory bases on which it decided the cases—meaning that its authority over overseas detentions may be an inherent feature of judicial power, not a policy question on which the legislature and executive can

work their will. Whether the votes exist on the court to go this extra step we will find out soon enough. But the specter of a vastly different judicial posture in this area now haunts the executive branch— one in which the justices assert an inherent authority to review executive detention

and interrogation practices, divine rights to apply with that jurisdiction based on due process and vaguely

worded international humanitarian law principles not clearly implemented in U.S. law, and allow their own power to follow the military’s anywhere in the world. Such a posture would constitute an earthquake in the relationships among all three branches of government, and the doctrinal seeds for it have all been planted. Whether they ultimately take root depends on factors extrinsic to the war on terror—particularly the future composition of a Supreme Court now closely divided on these questions. It will also pivot on the manner in which the political branches posture the legal foundations of the war in the future. Building a strong legislative architecture now may be the only way to avert a major expansion of judicial power over foreign policy and warfare .

No Impact No impact to prez powers and pres flex makes their impacts inevitable—Posner and Vermeule are wrongHealy, ‘11 (Gene Healy is a vice president at the Cato Institute and the author of The Cult of the Presidency, The CATO Institute, June 2011, "Book Review: Hail to the Tyrant", http://www.cato.org/publications/commentary/book-review-hail-tyrant) CG; AD: 4/16Legal checks “have been relaxed largely because of the need for centralized, relatively efficient government under the complex conditions of a modern dynamic economy and a highly interrelated international order.” What’s more, the authors insist, America needs the legally unconstrained presidency both at home (given an increasingly complex economy) and abroad (given

the shrinking of global distances). These are disputed points, to say the least. If Friedrich Hayek was at all correct about the knowledge problem, then if anything increasing economic complexity argues for less central direction . Nor does the fact that we face “a highly interrelated international order” suggest that we’re more vulnerable than we were in 1789, as a tiny frontier republic surrounded by hostile tribes and great powers. Economic interdependence — and the rise of other modern industrial democracies — means that other players have a stake in protecting the global trading system. Posner and Vermuele coin the term “tyrannophobia,” which stands for unjustified fear of executive abuse. That fear is written into the American genetic code: the authors call the Declaration of Independence “the ur-text of tyrannophobia in the United States.” As they see it, that’s a problem because “the risk that the public will fail to trust a well-motivated president is just as serious as the risk that it will trust an ill-motivated one.” They contend that our inherited skepticism toward power exacerbates biases that lead us to overestimate the dangers of unchecked presidential power. Our primate brains exaggerate highly visible risks that fill us with a sense of dread and loss of control, so we may decline to cede more

power to the president even when more power is needed. Fair enough in the abstract — but Posner and Vermuele fail to provide a single compelling example that might lead you to lament our alleged ly

atavistic “tyrannophobia.” And they seem oblivious to the fact that those same irrational biases drive the perceived need for emergency government at least as much as they do hostility towards it . Highly visible public events like the

9/11 attacks also instill dread and a perceived loss of control, even if all the available evidence shows that such incidents are vanishingly rare. The most recent year for which the U.S. State

Department has data, 2009, saw just 25 U.S. noncombatants worldwide die from terrorist strikes. I know of no evidence suggesting that unchecked executive power is what stood between us and a much larger death toll . Posner and Vermuele argue that only

the executive unbound can address modernity’s myriad crises. But they spend little time exploring whether unconstrained power generates the very emergencies that the executive branch uses to justify its lack of constraint. Discussing George H.W. Bush’s difficulties convincing Congress and the public that the 1991

Gulf War’s risks were worth it, they comment, “in retrospect it might seem that he was clearly right.” Had that war been avoided ,

though, there would have been no mass presence of U.S. troops on Saudi soi l — “Osama bin

Laden’s principal recruiting device,” according to Paul Wolfowitz — and perhaps no 9/11 . Posner and Vermuele are slightly more perceptive when it comes to the home front, letting drop as an aside the observation that because of the easy-money policy that helped inflate the housing bubble, “the Fed is at least partly responsible for both the financial crisis of 2008-2009 and for its resolution.” Oh, well — I guess we’re even, then. Sometimes, the authors are so enamored with the elegant economic models they construct that they can’t be bothered to check their work against observable reality . At one point, attempting to show that separation of powers is inefficient, they analogize the Madisonian

scheme to “a market in which two firms must act in order to supply a good,” concluding that “the extra transaction costs of cooperation” make “the consumer (taxpayer)

no better off and probably worse off than she would be under the unitary system.” But the government-as-firm metaphor is daffy . In the Madisonian vision, inefficiency isn’t a bug, it’s a feature — a check on

“the facility and excess of law-making … the diseases to which our governments are most liable,” per

Federalist No. 62. If the “firm” in question also generates public “bads” like unnecessary federal programs and destructive foreign wars — and if the “consumer (taxpayer)” has no choice about whether to

“consume” them — he might well favor constraints on production. From Franklin Roosevelt onward, we’ve had

something close to vertical integration under presidential command. Whatever benefits that system has brought ,

it’s imposed considerable costs — not least over 100,000 U.S. combat deaths in the resulting presidential wars . That system has also encouraged hubristic occupants of

the Oval Office to burnish their legacies by engaging in “humanitarian war” — an “oxymoron,” according to Posner. In a sharply argued

2006 Washington Post op-ed, he noted that the Iraq War had killed tens of thousands of innocents and observed archly, “polls do not reveal the opinions of dead Iraqis.”

Non-Unique Non uq—exec flex and war powers constrained nowLevine, ‘13 (David, “A Time for Presidential Power? War Time and the Constrained Executive,” Michigan Law Review, Volume 111, Issue 6, 2013, Accessed April 15, 2015, http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1077&context=mlr) CG; AD: 4/16But President Obama did not claim unrestrained power in this instance. The United States gave up

physical custody of Ali Musa Daqduq-as it had with every other detainee in Iraq-to the Iraqi government.39 Although there has been speculation that he may yet be extradited to face some form of military commission or civilian trial in the United States," during the summer of 2012, Daqduq was cleared in an Iraqi court of terrorism and forgery charges, and extradition requests by the United States were denied.4 ' Paying consideration to Dudziak's thesis, it is worth reflecting on why the Daqduq situation has played out in this manner. While Dudziak is, in some respects, accurate in characterizing the end of the Iraq War as unsatisfyingly ambiguous,42 in this instance "wartime" did have a concrete termination date, which itself had

concrete legal effects. The Obama Administration took seriously the temporal boundary dictated by statute (SOFA) and broader i nternational law concepts (the "active hostilities" boundary noted by the Hamdi Court). President

Obama did not try to extend his authority to detain , one of his most important war powers, even in the face of calls to do So43 and domestic political opposition to his decision. 44 And if we take the statements of President Obama's advisors seriously, attentiveness to the law

and the constraints that the law imposes were primary reasons why this decision was made.45 President Obama's actions imply that time and law are still bound up with one another, that they function as important constraints on presidential exercise of the war powers, and that we might still be able to distinguish "wartime" from "peacetime." President Obama did not try to invoke "wartime" as "an argument for extraordinary governance" (p. 136). This was true even given the myriad ambiguities of the Iraq situation. Law, in multiple forms and for multiple reasons, constrained executive power despite potential political costs. A similar story, with law and time constraining executive power, is playing out in Afghanistan. With the United States planning to pull out of Afghanistan by 2014, most indicators point to the United States permanently handing over detention operations to the Afghan government, as it did in Iraq.4 6 To be sure, the Afghan situation will test this counternarrative to Dudziak far more than Iraq did: the Afghan government is less dependable than its Iraqi counterpart, 47 and those detained in Afghanistan were detained under the post-September 11 AUMF, a potentially much broader authority. 48 Still, it is worth noting that, at least with respect to detention, the erosion of temporal boundaries that concerns Dudziak has not manifested itself in the complete

destruction of constraints on executive war powers. President Obama has felt bound to act in accordance with a more

"traditional" view of wartime, including relinquishing some powers when the switch flips back to ''peacetime."

General trends show that constraint is happening Stratfor, ‘14 (“Principle, Rigor and Execution Matter in U.S. Foreign Policy,” Gepolitical Weekly, Oct 28, 2014, Accessed April 15, 2015, https://www.stratfor.com/weekly/principle-rigor-and-execution-matter-us-foreign-policy) CG; AD: 4/15The problem that Obama has, which has crippled his foreign policy, is that his principles have not been defined

with enough rigor to provide definitive guidance in a crisis . When the crisis comes, that's when the debate starts . What exactly is the national interest, and how does it apply in this or that case? Even if he accomplishes that, he still lacks a figure with the subtlety, deviousness and frankly ruthlessness to put it into place. I would argue that the same problem haunted the George W. Bush and Clinton administrations, although their challenges were less daunting and therefore their weakness less visible.

No post dates and no impact—Obama wants Congress to constrain himBaker, ‘15 (Peter, “Obama’s Dual View of War Power Seeks Limits and Leeway,” New York Times, Feb 11, 2015, Accessed April 15, 2015,

http://www.nytimes.com/2015/02/12/us/obama-war-authorization-congress.html?_r=0) CG; AD: 4/16WASHINGTON — In seeking authorization for his six-month-old military campaign against the Islamic State terrorist group, President Obama on Wednesday did something that few if any of his predecessors have done: He asked Congress to restrict the ability of the commander in chief to wage war against an overseas enemy

Not Zero Sum Legislative-Executive power isn’t zero-sum – it’s a rubber band – it can be exercised without changing the structureRottinghaus, Assistant Prof of Poli Sci at the University of Houston, 11 [Brandon tottinghaus, “The Presidency and Congress”, from New Directions in the American Presidency, ed. Lori Cox Han] page 96-97

Conclusion: "Rubber Band" Relations Alexander Hamilton's edict for "energy" in the executive can creatively contradict the constitutional authority given to the legislative branch. A visible and powerful president necessarily detracts from a legislature whose job it is (at least on paper) to be the engine of legislative ingenuity. The Constitution sought to buttress ‘parchment barriers' by pitting ambition against ambition; and the principle means of doing that was the election of public officials at different times, by different people and for somewhat different reasons." 107 Although the powers of the president have grown immeasurably beyond what the framers envisioned and have surpassed Congress in terms of the ability to lead in the American system, the function of shared powers continues to shape the political process in America. To consider this relationship a pendulum (an analogy some have used108 to suggest the power balance swings from one branch to another) may overstate the zero-sum game of Washington politics-the truth is that legislative powers are shared, even if certain powers are exercised at certain times by specific institutions that perhaps encroach on the power of another branch. A pendulum analogy implies that the power shifts between the branches (potentially at regular, predictable intervals). This arrangement is false since, even during times when one branch appears to have more power than another, the truth is that the branches still rely on one another for shared policy-making power. In reality, the executive-legislative relationship is more like a rubber band, where it retains a fundamental shape but can be stretched to change as legislative and executive tools change and political events occur. So, for instance, in utilizing unilateral powers, presidents can stretch that part of the rubber band, even while members of Congress assert themselves on matters of foreign policy or the appointments process. Indeed, perpetuating the rubber band analogy, jointly understanding presidency- centered and Congress-centered variables is also shown to better account for variations in policy making.109 For instance, recent evidence suggests a resurgent Congress in the creation of foreign policy, a fact that seems at odds with the "two presidencies" thesis 110 or other literature that claims that Congress always defers to the president in foreign policy matters. 111 This supports the literature that Congress may not be involved in the formal aspects of foreign policy making but does play a role in the informal aspects.112 The evidence presented here also reveals that Congress has more

say on when and how the president uses his unilateral powers and whom the president recommends for nomination and confirmation than was previously assumed.

Link Turn Only the plan’s clarity solves overreactions in crisesKaytal, ’13 (Neal Katyal, former acting solicitor general, is a professor of national security law at Georgetown, 2013, BOOK REVIEW STOCHASTIC CONSTRAINT, http://www.harvardlawreview.org/media/pdf/vol126_katyal.pdf) CG; AD 4:15Process matters. Jack Goldsmith has constructed a valiant argument for why we should not be quite so worried about presidential unilateralism by pointing to all sorts of new checks, such

as the media. But in the end, these are a poor man’s substitute for the real thing. Our framers envisioned a far more robust set of active interlocking governmental institutions where Presidents were constrained at the outset instead of down the road, years later,

after much harm had already been done. The type of ex post constraints Goldsmith identifies will not work or, perhaps

even worse, will work too well. At the same time, Goldsmith is absolutely right to observe that a time of crisis is not the

easiest time to assert checks and balances against the President. Armed with that knowledge, it would be wise to start developing mechanisms and crafting policy now to minimize the harms created

by presidential unilateralism and the inevitable legislative, judicial, and media underand overreaction when the next crisis occurs.

Restraint Inevitable Inevitable—partisanship—their authorsHowell and Pevehouse, ‘7 (William and Jon, “When Congress Stops Wars,” Foreign Affairs, October 07, Accessed April 15, 2015, http://www.foreignaffairs.com/articles/62831/william-g-howell-and-jon-c-pevehouse/when-congress-stops-wars) CG; AD: 4/18It is often assumed that everyday politics stops at the water's edge and that legislators abandon their partisan identities during times of war in order to become faithful stewards of their constitutional obligations. But this received

wisdom is almost always wrong. The illusion of congressional wartime unity misconstrues the nature of legislative oversight and fails to

capture the particular conditions under which members of Congress are likely to emerge as meaningful critics of any

particular military venture. The partisan composition of Congress has historically been the decisive factor in determining whether lawmakers will oppose or acquiesce in presidential calls for war. From Harry Truman to Bill Clinton, nearly every U.S. president has learned that members of Congress, and members of the opposition party in particular, are fully capable of interjecting their opinions about proposed and ongoing military ventures. When the opposition party holds a large number

of seats or controls one or both chambers of Congress, members routinely challenge the president and step up oversight of foreign conflicts; when the legislative branch is dominated by the president's party, it generally goes along with the White House. Partisan unity, not institutional laziness, explains why the Bush administration's Iraq policy received such a favorable hearing in Congress from 2000 to 2006.

Self-Restraint Turn Self-restraint results in turf wars, constraining future executive flexibilityKatyal, ‘13 (Neal, Paul and Patricia Saunders Professor of Law, Georgetown University, “BOOK REVIEW: STOCHASTIC CONSTRAINT” February, 2013, 126 Harv. L. Rev. 990) CG; AD: 4/17In the end, there is a deep risk that Goldsmith’s new constraints will not leave the presidency in quite the same place as would Madisonian checks and balances . Sometimes, as

with a popular President, the Executive may be constrained far less than in a Madisonian system. And

sometimes, the President may be constrained too much, for when Presidents overreach , there is always the risk of a corresponding overreaction by the other branches and the public. What is more, the multiple different actors that might engage in Goldsmith’s checking function (and the many possible permutations of actors that might work together) make the ultimate result — and the process used to get there (which will often impact that result)

— unpredictable. Such an overreaction may push policy further back, to a place more constrained than what is optimal . By acting too hastily or too independently

and by relying on Goldsmith’s new mechanisms of constraint, the Executive may end up with less power than it truly needs .