Neg

1NCObama has sweeping executive power nowCruz 15 – United States Senator from Texas, served as the Solicitor General of Texas from 2003-2008 (Ted Cruz, Winter 2015, “THE OBAMA ADMINISTRATION'S UNPRECEDENTED LAWLESSNESS,” Harvard Journal of Law and Public Policy, Lexis)//twontwon

IV. THE OBAMA ADMINISTRATION'S UNPRECEDENTED NONENFORCEMENT OF FEDERAL LAW Unlike the presidential actions explained above,

President Obama has categorically disregarded entire domestic policy statutes without any colorable constitutional

objection .221 There is no basis in history for this sweeping view of executive power . Reasonable constitutional objections formed the basis for Lincoln's suspension of habeas corpus, Johnson's objections to removal restrictions, Roosevelt's objections to removal restrictions and legislative veto provisions, and refusals to abide by the War Powers Resolution. While Truman's seizure of the steel mills, Reagan's arms sales, and Bush's memorandum instructing Texas to obey the International Court of Justice may have been examples of a President disregarding federal law due to policy differences, those three instances were isolated outliers in American history and

all involved foreign affairs. In contrast, President Obama has repeatedly ignored domestic policy statutes because he disagrees

with them as a policy matter .222 This nonenforcement usurps Congress's legislative power and sets a dangerous precedent that allows future Presidents to disregard the duty to take care that the laws be faithfully executed. Imagine if a future Republican President were to disregard financial regulation like Sarbanes-Oxley or DoddFrank, or campaign finance regulation like McCain-Feingold, or environmental laws, because the President disagreed with the underlying policy. Democrats would be furious, and rightfully so. Yet the following examples of President Obama's disregard of federal law establish a pattern of

suspending laws based on the policy prerogatives of this Administration. A. Obamacare President Obama's strategic nonenforcement of Obamacare -his "signature legislative achievement"-is the most egregious example of this Administration's failure to take care that the laws be faithfully executed.223 In

at least six major ways, the Obama Administration has ignored and contravened the express text of the Affordable Care Act, even though there are no colorable constitutional rationales for doing so. First, without statutory authority, the Obama Administration unilaterally delayed the health insurance requirements imposed by Obamacare. Obamacare establishes the types of plans health insurance companies can offer consumers.224 These stringent requirements led to "at least 4.7 million" health plans being cancelled as of December 2013.225 These cancellations occurred, of course, despite the President's repeated assurances that "if you like your health care plan, you keep your health care plan" after the passage of Obamacare.226 Perhaps because the President saw that the devastating effects of Obamacare's requirements were not aligning with his promises, his administration unilaterally declared that individuals could continue purchasing health care plans in 2014 even if those plans violate the express requirements of the Affordable Care Act and its regulations.227 Months later, following Obamacare's disastrous rollout, the Administration extended this delay to 2016, past the mid-term elections.228 The Act, however, was required by statute to take effect on January 1, 2014.229 To make matters worse, the President remarkably threatened to veto any legislation that codified this lawless exemption that the Administration unilaterally imposed.230 That is the opposite of taking care that the laws be faithfully executed; that is usurping Congress's legislative power while then blocking Congress from enacting the precise policy supported by the President. Second, President Obama effectively delayed Obamacare's individual mandate for two years by massively expanding existing exemptions from the individual mandate to allow anyone claiming hardship an exemption. The individual mandate is a statutory command that imposes monetary penalties on most people who fail to maintain health insurance coverage required by Obamacare.231 This was "Congress's solution" to "prevent[] costshifting by those who would otherwise go without [health insurance]" and "force [] into the insurance risk pool more healthy individuals."232 After Obamacare's failed rollout, the Administration said it would allow people to opt out of the individual mandate for two years if they simply filled out a form attesting that the Obamacare health insurance exchange plans were too expensive.233 Strikingly, just months earlier, the President and Senate Democrats chose to force a government shutdown instead of accepting a one-year delay of the individual mandate.234 So just like President Obama's threat to veto legislation implementing his unilateral waiver of Obamacare's health insurance requirements, here again the President and Democrats blocked legislation that would have achieved the same policy objective that the President unlawfully imposed through executive fiat. Third, the Obama Administration has decreed that Obamacare's out-of-pocket caps will not apply in 2014. Obamacare caps the amount of out-of-pocket costs that people have to spend on their own health insurance.235 So according to federal law, starting in 2014, individuals and families would have to spend no more than $6,350 and $12,700, respectively.236 But just like it delayed the health insurance requirements, the Obama Administration unilaterally delayed enforcement of the out-of-pocket caps-burying the announcement of the delay in one of 137 Affordable Care Act FAQs found on the Department of Labor's website.237 Fourth, this Administration ignored the plain text of Obamacare when it delayed the employer mandate-twice. Obamacare penalizes employers who employ over fifty "full-time" employees if they do not offer health care coverage that the government deems to be "affordable," and the employee consequently receives a federal subsidy to purchase an insurance plan in a state health insurance exchange.238 Yet the Obama Administration announced, in a blog post, that it would not enforce the employer mandate in 2014.239 Months later, it delayed the employer mandate for medium-sized employers until 2016.240 Fifth, the Administration drastically expanded the individual and employer mandates and is sending billions of dollars in subsidies to insurance companies beyond what the text of Obamacare allows by granting federal subsidies to buy health insurance in all states instead of only in those states that create health insurance exchanges. According to the statute, the employer mandate is only supposed to be assessed if at least one full-time employee is enrolled in a health insurance exchange for which a federal tax credit subsidy is available.241 These federal subsidies are available only when an individual purchases a health plan "through an Exchange established by the State."242 According to Obamacare's text, the subsidies are not available if the health plan is purchased through an exchange not established by a state, such as a federally established exchange. Consequently, no federal subsidies should be available in the 36 states that have refused to create health insurance exchanges.243 A three-judge panel of the D.C. Circuit has already affirmed this plain text reading of Obamacare.244 Although the Fourth Circuit refused to enforce the statutory text, that decision has been appealed to the Supreme Court, and the case will be decided this Term.245 If subsidies are not available in states that do not form exchanges, the individual mandate will apply to significantly fewer people in those states-because the individual mandate applies only if the annual cost of the least expensive coverage minus subsidies exceeds 8% of projected household income.246 But instead of following the plain text of Obamacare, the Administration is granting federal subsidies in every state, including those that have not created state health insurance exchanges.247 The Administration lawlessly interpreted "Exchange established by the State" to include federally established exchanges.248 Sixth, the Obama Administration ignored the text of Obamacare to grant subsidies to members of Congress and their congressional staff. Obamacare and other federal statutes contain explicit language requiring members and their staff to get their health insurance through exchanges without subsidies.249 Specifically, members and most congressional staff are required, by Obamacare, to purchase individual health plans from exchanges just like millions of Americans.250 But the federal subsidies for health insurance that members and staff have received in the past are only available if their plans were "group insurance policies]," to quote a federal statute.251 The ACA makes no provision for the government to continue to pay premiums on behalf of members and their congressional staff.252 Yet, because that requirement is onerous, the Administration granted the request from Senate Democrat Majority Leader Harry Reid to disregard the plain language of the statute.253 According to the Administration, the individual health plans Members and staff bought through health exchanges qualify as "group" plans, enabling the Administration to give these subsidies to Members and staff unlawfully.254 All of these refusals to enforce the plain text of Obamacare share a crucial element in common: The President is categorically suspending statutory text without believing that the statute is unconstitutional. Rather, as President Obama's politically-appointed Assistant Secretary for Tax Policy explained,255 the Administration's refusal to enforce Obamacare is rooted in policy considerations of "adaptation]" and "flexibility]," as well as "concerns about the complexity of the requirements and the need for more time to implement them effectively."256 These failures to enforce Obamacare may prove beneficial to those Congress intended to regulate, and they may also prove more convenient for the administrative agencies who failed to promulgate appropriate regulations according to statutorily established timelines.257 The Administration has argued that prosecutorial discretion justifies the failure to enforce Obamacare. But prosecutorial discretion does not allow wholesale suspension of statutory provisions, which is precisely what this Administration has done in lawlessly implementing its signature legislative achievement. The Constitution does not recognize convenience and political expediency as reasons for executive suspension of laws. To the contrary,

the Take Care Clause requires faithful enforcement of all laws-even laws the President wishes he did not have to enforce. B. Immigration Obamacare is not the only statute that President Obama has ignored on

policy grounds. He has also ignored immigration law . President Obama recently announced that he would unilaterally grant amnesty to around five million illegal immigrants.258 This prompted Professor Turley, a noted liberal, to

observe, "What the President is suggesting is tearing at the very fabric of the Constitution ."259 In fact, years earlier, the President expressly acknowledged he had no authority to do this. In March 2011, he said, "With respect to the notion that I can just suspend deportations through executive order, that's just not the case, because there are laws on the books that Congress has passed."260 Moreover, President Obama remarked that if he granted any additional amnesty, "I would be ignoring the law in a way that I think

would be very difficult to defend legally."261 The President's November 2014 amnesty did much more than just "prioritize" resources for removing illegal immigrants-it purported to affirmatively grant work authorizations for the millions of illegal immigrants covered by the edict. Prosecutorial discretion, of course, cannot justify the Administration's affirmative act to try to grant work authorizations, as prosecutorial discretion only deals with government inaction based on the individual facts and circumstances of a particular case. In anticipation of this objection, the Administration's Office of Legal Counsel (OLC) released a memo that unsuccessfully tries to justify these work authorizations on

the basis that the Immigration and Nationality Act delegated the President this authority.262 The memo misreads 8 U.S.C. § 1324a(h)(3) in a

manner that would give the President carte blanche to grant work authorization to any alien who is in the United States illegally. Section 1324a(h)(3)-entitled "Definition of unauthorized alien"- a subsection of the federal prohibition on hiring illegal immigrants, and it defines which illegal immigrants count as "unauthorized alien[s]" who cannot be hired. It provides, in full: As used in this section, the term 'unauthorized alien' means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General [now the Secretary of Homeland Security]. The OLC memo interprets this definitional subsection not as a mere definition, but as an independent source of power for the DHS Secretary to grant work authorizations to any class of aliens.263 Under this reading, when § 1324a(h)(3) says "unauthorized alien[s]" are those who are not "authorized to be so employed ... by the Attorney General," that subsection is implicitly giving the Administration power to grant every single alien an authorization to work. Under that reading, there is no limit on the Administration's unilateral power to grant any illegal alien-including illegal immigrants not covered by the November 2014 amnesty-work authorizations. The OLC memo's interpretation of § 1324a(h)(3) is flawed in at least two interrelated ways. First, that subsection is merely a definition of which aliens count as "unauthorized" for work, and it does not purport to grant the Administration any additional power. Second, other provisions of the Immigration and Nationality Act already delineate narrow circumstances when the Administration "may grant work authorization to aliens lacking lawful immigration status"264-to quote the OLC memo itself-yet those provisions would be rendered superfluous

under the OLC memo's reading of § 1324a(h)(3). In short, Congress never delegated to the executive branch complete discretion to grant work authorizations to any and all illegal immigrants. Instead, Congress created specific statutory provisions that cabined the Administration's power to do so, and the OLC memo ignores these

structural limits by erroneously construing a definitional subsection, § 1324a(h)(3), to grant the Administration sweeping powers. The November 2014 amnesty was not the first time the Obama Administration ignored immigration law. Congress rejected-at least ten times since 2001-the Development, Relief, and Education for Alien Minors Act (DREAM Act),265 which would have allowed certain illegal immigrants a path to citizenship if they arrived in the United States illegally when they were fifteen years old or younger and met other requirements.266 Nevertheless, in January 2011, President Obama essentially implemented the DREAM Act through executive fiat. An Obama Administration Department of Homeland Security memorandum declared that "in the absence of Comprehensive Immigration Reform, USCIS can extend benefits and/or protections to many individuals and groups by... exercising discretion with regard to ... deferred action"-that is, "an exercise of prosecutorial discretion not to pursue removal from the U.S. of a particular individual for a specific period of time."267 Over a year later, on June 15, 2012, DHS instituted a "deferred action" program, currently known as the Deferred Action for Childhood Arrivals program (DACA).268 DACA includes a list of eligibility criteria that closely tracks the failed DREAM Act's criteria including that the individual must have arrived before turning sixteen, and DACA is purportedly based on "an exercise of prosecutorial discretion."269 Although the DACA order couches itself in terms of prosecutorial discretion used "on an individual basis," its instructions describe a broadranging program that preemptively applies to a wide scope of individuals who are not yet subject to any kind of removal order.270 Rather than clarifying a legitimate use of a prosecutor's discretion to bring or modify charges in a particular case, the order creates a wide-ranging policy framework with instructions to affirmatively apply it to an indeterminate group of people that have yet to be identified. The Obama Administration has invoked the doctrine of prosecutorial discretion to support its various rounds of immigration amnesty, most recently in the November 2014 OLC memo.271 But the November 2014 amnesty and DACA are far from legitimate uses of prosecutorial discretion. Simply saying the words "resource allocation," "individual basis," and "prosecutorial discretion" does not let the President wave a magic wand and make the Take Care Clause disappear. For example, DACA's criteria are general, "applying to every member of a class of perhaps 1.76 million people on the basis of a limited number of common characteristics. It requires no searching, [and no] individualized evaluation of the merits of particular applicants. All who possess the designated characteristics will qualify."272 And as Justice Scalia has noted, "The husbanding of scarce enforcement resources ... can hardly be the justification for this [policy], since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement."273 Recall former Obama Administration official Professor Cass Sunstein's words: "[T]here is a distinction" between "setting] enforcement priorities" and "allocat[ing] resources" versus "refusing to carry out the obligations that Congress has imposed on the executive."274 By rejecting the DREAM Act over ten times, Congress imposed on the President the command that he had to follow existing immigration statutes instead of the amendments contained in the DREAM Act. The Administration's November 2014 amnesty and its administrative implementation of the DREAM Act through DACA are not programs where the government decides in certain facts and circumstances not to enforce immigration laws because specific offices need to allocate resources differently. The November 2014 amnesty and DACA are blanket executive decrees that the

President will not enforce this law "which it disapproves."275 Those decrees and their implementation violate the Take Care Clause. C. Drugs The federal Controlled Substances Act assigns mandatory minimum sentences for certain drug crimes.276 Obama Administration Attorney General Eric Holder,

nevertheless, has said the Department of Justice "will no longer pursue mandatory minimum sentences for certain low-level, nonviolent drug offenders."277 That does not mean the Obama Administration will seek sentences greater than the mandatory

minimums for these crimes. Rather, it means these crimes will not be prosecuted at all . Reasonable minds can disagree about whether mandatory minimum sentences are too harsh for certain drug crimes. In fact, I have cosponsored the Smarter Sentencing Act, which would reduce mandatory minimum sentences for certain low-level, nonviolent drug offenses.278 But that is the constitutionally permissible way to address this situation-by amending the existing statutes in Congress, rather than the President dispensing with these drug laws. While the executive's prosecutorial discretion lets it allocate enforcement resources, as explained above, this discretion does not allow categorical reprieves from federal statutes. Yet the Attorney General has announced that for an entire set of drug crimes, categorically and prospectively, the Obama Administration will not enforce duly enacted criminal laws.279 A proper exercise of prosecutorial discretion would allow the

President to not prosecute outlier cases. But prosecutorial discretion cannot properly be used on a categorical basis, for this violates the Take Care Clause . Once again, the Obama Administration has distorted the separation of powers , usurped Congress's legislative power , and failed to take care that the laws be faithfully executed. D. Welfare In 1996, President Clinton

signed into law the Personal Responsibility and Work Opportunity Reconciliation Act, which created the Temporary Assistance for Needy Families (TANF) program.280 TANF sought to discourage dependency and encourage employment by placing restrictions on welfare allocations. TANF gave states grants281 and provided that individuals could only receive benefits for up to five years.282 It also mandated that recipients engage in work within two years of receiving benefits,283 and this provision was heralded as the reason TANF succeeded.284 Welfare reform was a tremendous policy success, helping millions stand on their own feet and achieve the American dream. Welfare rolls were decreased by half and the poverty rate for African-American children reached its lowest point in U.S. history.285 The Obama Administration, in an HHS memorandum full of legalese, declared that states no longer had to follow TANF's work requirements and could dispense welfare even if recipients did not meet the TANF statutory standards.286 In the 1996 Act, however, Congress already provided a list of which statutory provisions the federal government could waive.287 The only part of TANF that was included in that list of waivable provisions was Section 402, which dealt with reporting requirements obligating states to tell HHS that they are complying with TANF.288 TANF's work requirements-in Section 407-were not listed as waivable. Nevertheless, the Obama Administration's HHS memorandum claims that because the federal government can waive TANF's reporting requirements in Section 402, it also has the authority to waive the substantive work requirements in Section 407.289 In the sixteen years since the 1996 Act was passed, no Administration had ever asserted this authority,290 because the statute's clear text forbids waiving TANF's work requirements. Although the Administration couches its argument as a dispute about statutory construction, this outlandish interpretation is just another example of

President Obama ignoring duly enacted congressional laws. V. CONCLUSION President Obama's lawlessness is unprecedented in American history. Unlike

any President before, President Obama has brazenly disregarded duly enacted statutes passed by Congress in a

categorical, sweeping manner without raising any constitutional objections. The Take Care Clause was explicitly included in the Constitution to prevent the President from wielding the suspension and dispensation powers that had been abused by English kings. Not all Presidents in our history have acted in accordance with federal law. But of the most notable examples of Presidents fighting with Congress, most of these involved legitimate constitutional arguments about whether the executive or legislature had certain powers. Lincoln's suspension of habeas corpus, Johnson's objections to removal restrictions, Roosevelt's objections to removal restrictions and legislative veto provisions, and refusals to abide by the War Powers Resolution were reasonable constitutional disputes between the branches. Foreign affairs concerns were present in the other examples-Truman's seizure of the steel mills, Reagan's arms sales, and Bush's memorandum to Texas to obey the International Court of Justice. In contrast, President Obama has pretended that various domestic policy statutes do not exist when he disagrees with them based on his own policy preferences. As a United States Senator, Barack Obama had the power to introduce legislation and be part

of Congress wielding its Article I legislative power. But as President, Obama does not have the power to legislate. He does not have the

power to refuse enforcement of laws based simply on policy concerns. His repeated assertions of this power to suspend and dispense with duly-enacted laws violate the Take Care Clause and represent a profound threat to our constitutional checks and balances and, ultimately, to individual liberty.

Curtailing domestic surveillance undermines the sole organ doctrine – which underpins every facet of presidential powerWood and Webb 11 – Department of Political Science at Texas A&M University, presented to the faculty at Vanderbilt University (B Dan Wood, Clayton Webb, 10/17/11, “EXPLAINING PRESIDENTIAL SABER RATTLING,” http://www.vanderbilt.edu/csdi/events/Wood_Presidential_Saber_Rattling_112111.pdf)//twontwon

The courts affirmed early on that as sovereign leaders, presidents are the nation’s chief foreign policy representative . Future Supreme Court Justice John Marshall stated in 1800 when he served in the U.S. House of Representatives ―The

President is the sole organ of the nation in its external relations , and its sole representative with foreign nations.‖ (10 Annals of Congress 613) Relying on Marshall’s ―sole organ‖ doctrine, Supreme Court Justice George Sutherland wrote in 1937 (United States vs. Curtiss-Wright Export Corp , 299 U.S. 319) ―In this vast external realm [foreign policy], with its important, complicated, delicate and

manifold problems, the President alone has the power to speak or listen as a representative of the nation.‖

While the plenary nature of executive authority in foreign relations is not universally accepted (e.g., see the persuasive

arguments by Fisher 2006, 2007a, 2007b, 2007c, 2007d, 2007e, 2008a, 2008b), ***FOOTNOTE BEGINS*** . 2007d. "Statement by

Louis Fisher appearing before the House Committee on the Judiciary, "Constitutional Limitations on Domestic Surveillance "." ed.

L. L. o. Congress.***FOOTNOTE ENDS*** the modern chief executive relies extensively on the ―sole organ‖

doctrine to define presidential power broadly , and it is now commonly assumed that presidents are the sole representatives of the nation to the outside world.

Congressional war authority is ineffective – executive war powers key to combating a litany of transnational threats – combating terror, rogue states, and prolif all require a flexible executiveYoo 7 (John is a professor of law at the Boalt Hall School of Law at the University of California, Berkeley, and visiting scholar at the American Enterprise Institute. He has also served as general counsel for the Senate Judiciary Committee; as a law clerk to Justice Clarence Thomas and Judge Laurence H. Silberman; and, from 2001 to 2003, as a Deputy Assistant Attorney General in the Office of Legal Counsel of the U.S. Department of Justice. 4/18, “Exercising Wartime Powers,” http://hir.harvard.edu/archives/1369)//dtang

Proponents of congressional war power often argue that the executive branch is unduly prone to war. In this view, if the president and Congress have to agree on warmaking, the nation will enter fewer wars and wars that do occur will arise only after sufficient deliberation. But it is far from clear that outcomes would be better

if Congress alone had the power to begin wars. First, congressional deliberation does not necessarily ensure consensus. Congressional authorization may represent only a bare majority of Congress or an unwillingness to challenge the President's institutional and political strengths,

regardless of the merits of the war. And even if it does represent consensus, it is no guarantee of consensus after combat begins. The Vietnam War, which was initially approved by Congress , did not meet with a consensus over the long term but instead provoked some of the most divisive politics in US history . It is also difficult to claim that congressional authorizations

to use force in Iraq, either in 1991 or 2002, reflected a deep consensus over the merits of the wars there. The 1991 authorization barely survived the Senate, and

the 2002 authorization received significant negative votes and has become a deeply divisive issue in national politics. It is also not clear that the absence of congressional approval has led the nation into wars it should not have waged. The experience of the Cold War, which provides the best examples of military hostilities conducted without congressional support, does not clearly come down on the side of a link between institutional deliberation and better conflict selection. Wars were fought throughout the world by the two superpowers and their proxies, such as in Korea, Vietnam, and Afghanistan, during this period. Yet the only war arguably authorized by Congress--and this

point is debatable--was the Vietnam War. Aside from bitter controversy over Vietnam, there appeared to be significant bipartisan consensus on the

overall strategy of containment, as well as the overarching goal of defeating the Soviet Union. The United States did not win the four-decade Cold War by

declarations of war; rather, it prevailed through the steady presidential application of the strategy of containment, supported by congressional funding of the necessary military forces. On the other hand, congressional action has led to undesirable outcomes.

Congress led the United States into two "bad" wars, the 1798 quasi-war with France and the War of 1812. Excessive congressional control can also prevent the United States from entering into conflicts that are in the national interest. Most would agree now that congressional isolationism before World War II harmed US interests and that the United States and the world would have been far better off if President Franklin Roosevelt could have brought the United States into the conflict much earlier. Congressional participation does not automatically or even consistently produce desirable results in war decision making. Critics of presidential war powers

exaggerate the benefits of declarations or authorizations of war. What also often goes unexamined are the potential costs of congressional participation: delay, inflexibility, and lack of secrecy . In the post-Cold War era, the United States is confronting the growth in proliferation of WMDs, the emergence of rogue nations , and the rise of international terrorism . Each of these threats may require pre-emptive action best undertaken by the President and approved by Congress only afterward. Take the threat posed by the Al Qaeda terrorist

organization. Terrorist attacks are more difficult to detect and prevent than conventional ones. Terrorists blend

into civilian populations and use the channels of open societies to transport personnel, material, and money. Although terrorists generally have no territory or regular armed forces from which to detect signs of an impending attack, WMDs allow them to inflict devastation that once could have been achievable only by a nation-state. To defend itself from this threat, the United States may have to use force earlier and more ofte n than when nation-states generated the primary threats to US national security. The executive branch needs the flexibility to act quickly, possibly in situations wherein congressional consent cannot be obtained in time to act on the intelligence. By acting earlier, the executive branch might also be able to engage in a more limited, more precisely targeted, use of force . Similarly, the least dangerous way to prevent rogue nations from acquiring WMDs may depend on secret intelligence gathering and covert action rather than open military intervention . Delay for a congressional debate could render useless any time- critical intelligence or windows of opportunity. The Constitution creates a presidency that is uniquely structured to act forcefully and

independently to repel serious threats to the nation. Instead of specifying a legalistic process to begin war, the Framers wisely created a fluid political process in

which legislators would use their appropriations power to control war. As the United States confronts terrorism, rogue nations, and WMD proliferation, we should look skeptically at claims that radical changes in the way we make

war would solve our problems, even those stemming from poor judgment, unforeseen circumstances, and bad luck.

UQ

2nc – uniquenessStatus quo statues are structurally incapable of inhibiting the presidentPildes 12 – Sulder Family Professor of Constitutional Law @ NYU School of Law and Co-Director at the NYU Center on Law and Security (Richard H. Pildes, April 2012, “Law and the President,” 125 Harv. L. Rev. 1381, Lexis)//twontwon

The general outlines of this history are familiar. But in a bracing new book, The Executive Unbound, Professors Eric Posner and Adrian Vermeule

want to take this story to a different quantum level. Posner and Vermeule insist not just that presidential powers have expanded dramatically in recent decades but that these powers are not effectively constrained by law. The stark reality of

presidential power, as they put it, is that "law does little to constrain the modern executive" (p. 15). This is true, they

assert, not just in exceptional circumstances, such as times of crisis or emergency, but in general in the modern state. This unconstrained power allegedly exists not just with respect to limited substantive arenas, such as foreign affairs or military matters,

but across the board , with respect to domestic matters as well. 18 Thus, while some have long argued that inter arma

enim silent leges (in times of war, the laws are silent), 19 Posner and Vermeule argue that the laws [*1386] are always silent , in

effect, when it comes to presidential power. Finally, they contend that this proposition is not just true with respect to some sources of potential legal constraint, such as the Constitution; it is central to their argument that statutes that purport to regulate presidential conduct are also largely ineffective. As they say, "the basic aspiration of liberal legalism to constrain the executive through statutory law has

largely failed" (p. 112). Thus, when Congress does impose legislative constraints, Posner and Vermeule assert, the laws are typically vague , leaving ample room for executive discretion . Statutes "have a Potemkin quality : they

stand about in the landscape, providing an impressive facade of legal constraint on the executive, but actually blocking very little action that presidents care about" (p. 88). Those legal constraints that do exist, whether

constitutional or statutory, are not aggressively enforced by courts - first, because American courts stay out of many

controversies concerning presidential power, and second, because when courts do play a role, they defer substantially to executive action and interpretation (pp. 52-58). Indeed, presidents can act directly in the face of even clear law and can force other institutions, such as Congress and the courts, to try to stop them. Much of the time, these other institutions will be unable or unwilling to do so. The Executive Unbound thus invites a general inquiry into the relationship between law and presidential power, rather than the more traditional, narrowly focused debates about presidential power during "emergencies," or presidential control over military and foreign affairs. 20 As a more general matter, Posner and Vermeule insist we should abandon as naive, self-deluded, and anachronistic the image and rhetoric of a President bound by law - an image they call that of "liberal legalism" or the "Madisonian

framework" (p. 15). The imperial presidency, they suggest, is simply a fact : we need to become mature enough to accept it. And we should be clear about what the imperial presidency entails: presidential action that law does not meaningfully constrain. Posner and

Vermeule, however, urge us not to be anxious or worried about this state of affairs. We should not obsessively fear that we live , effectively, in a constitutional dictatorship . The alternative to a legally constrained President is not a

President unconstrained altogether. [*1387] Instead, Posner and Vermeule suggest that a variety of other constraints on presidential action have emerged as effective substitutes for the legal constraints that were originally envisioned in the Madisonian constitutional design or that "liberal legalist" proponents wish for today. Generally put, Posner and Vermeule call these alternative constraints

"politics and public opinion" (p. 15), which are said to work effectively to cabin executive power to an appropriate extent. Much of their book is devoted to explaining in a systematic fashion how these nonlegal constraints purportedly work. Indeed, the

combination that Posner and Vermeule both describe and celebrate of presidential discretion and nonlegal constraints on executive power yields a better functioning governmental system (presumably in utilitarian terms) than would a presidency seriously

constrained by law. First, they argue, a President unbound can produce better outcomes than a President bound to follow

preexisting legislation: laws (constitutions and statutes) are always written in a specific context in the past, but

technology, the economy, international dynamics, and other circumstances that characterize the modern age

are exceptionally fluid and constantly shifting. Better to have presidents make their best judgment, all things considered, about the right action in the actual, immediate circumstances at hand than to have them be bound by laws that could not have contemplated

these precise circumstances. Second, and central to Posner and Vermeule's analysis, presidents do remain constrained - not by law, but by politics and the political judgment of others. As scholars since Richard Neustadt, if not earlier, have recognized, the actual, effective powers of a

President (as opposed to the formal powers of the office) are directly rooted in, and limited by, his or her ongoing credibility. 21 Presidents want the capacity to exercise their best judgment as contexts arise.

Broad executive powers are low – but war powers are uniquely protectedBenen 15 – (Steve Benen, 2/13/15, “GOP flips the script, endorses executive overreach,” http://www.msnbc.com/rachel-maddow-show/gop-flips-the-script-endorses-executive-overreach)//twemchen

The good news is, six months after President Obama launched a military offensive against ISIS targets in the Middle East, Congress is starting to

debate the U.S. mission. The bad news is, the debate is off to a ridiculous start. President Barack Obama should be asking for more power to wage war against Islamic State extremists, some Republicans on the U.S. House Foreign Affairs committee said.

[…] While Republicans have repeatedly accused Obama of executive overreach in areas such as immigration, several lawmakers at the hearing questioned why he wasn’t seeking broader authority this time. You’ve probably heard that the GOP is outraged by the White House’s proposed Authorization for the Use of Military Force (AUMF), but it’s important to understand why. About a year ago, the Republican condemnation of President Obama shifted – “he doesn’t lead enough” was out, “he leads too much” was in. The more Obama’s policy agenda succeeded in practical terms, the more the GOP argued the president is a lawless, out-of-control tyrannical

dictator, hell bent on limitless power without regard for the Constitution. This week, however, Republicans are disgusted by Obama’s lack of executive overreach. GOP lawmakers are suddenly convinced [Obama] the tyrannical dictator

needs even more sweeping powers to act unilaterally in matters of life and death . House Speaker John Boehner (R-Ohio), who occasionally pretends to believe his party’s talking points, expressed dismay yesterday that the president’s AUMF would “tie his hands even further.” Congress’ top lawmaker apparently hopes for a more diminished role for Congress. This isn’t so much an example of Republicans temporarily putting aside their principles for the sake of convenience. Rather, it’s fresh evidence that the principles themselves

have always been a mirage. Republicans think Obama must stop acting like a dictator and start working with Congress as

the Constitution intended – unless we’re talking about wars , in which case Obama should go ahead and

circumvent Congress as much as possible . Republicans think higher deficits are an economic scourge – unless deficit financing advances conservative policy goals, in which case budget shortfalls are better left ignored. Republicans think government spending is inherently wasteful and counter-productive – unless the investments are directed at their state and/or their policy priorities, in which case government spending is great. Republicans think the big federal government shouldn’t interfere with local decision making – unless the residents of the District of Columbia make a decision the right disagrees with.

2nc – uniqueness – inherent powers

Congress is barred from infringing on the president’s inherent powers in the squo – only durable fiat triggers the impactGormley 6 – Associate Prof. of Constitutional Law at Duquesne University School of Law (Ken Gormley, 2/28/6, “U.S. SENATOR ARLEN SPECTER (R-PA) HOLDS A HEARING ON THE NSA'S SURVEILLANCE AUTHORITY,” Political Transcript Wire, Lexis)//twontwon

GORMLEY: I think the confrontation is between the president's powers under the executive power clause and commander in chief clause and the Fourth Amendment. I don't think Congress can narrow the Fourth Amendment. I don't think Congress can take away the president's independent powers. I think that the Fourth Amendment does allow at least some domestic surveillance when you're talking about people the president believes are

foreign terrorists. I don't doubt that will mean some injustice or some innocent people will be listened to. But the president makes all

sorts of decisions in terms of targeting decisions that kill innocent people around the world, because that's the nature of war. It's unfortunate, but I don't think FISA can really play in this game when you're talking about major constitutional powers.

2nc – uniqueness – powers now

War powers soaring nowSullivan 14 – staff writer @ The Hill (Peter Sullivan, 9/11/14, “Ex-Bush official rips Obama’s ‘breathtaking’ expansion of war powers,” http://thehill.com/blogs/blog-briefing-room/217405-former-bush-official-rips-obamas-breathtaking-expansion-of-war)//twontwon

A former Bush administration lawyer slammed President Obama on Thursday for "an astonishing legacy of expanding presidential war powers." Jack Goldsmith, an assistant attorney general under President George W. Bush, criticized Obama's declaration Wednesday night that he already has the authority to hit the Islamic State of Syria and Iraq (ISIS). "The president’s gambit is, at bottom, presidential unilateralism masquerading as implausible statutory interpretation," Goldsmith wrote in Time. Obama in his speech said he would "welcome congressional support" for taking on ISIS, but administration officials say he already has the authority under a force resolution passed by Congress in the aftermath of the Sept. 11 attacks. A senior U.S. official emailed to The Guardian the reasoning that ISIS "is the true inheritor of Usama bin Laden’s legacy." Goldsmith takes issue

with that argument, saying it amounts to authority for endless war. "If this remarkably loose affiliation with al Qaeda

brings a terrorist organization under the 2001 law, then Congress has authorized the president to use force endlessly against

practically any ambitious jihadist terrorist group that fights against the United States," he wrote. Goldsmith also took issue with Obama's past actions, including airstrikes to protect members of the Yazidi sect trapped on a mountain in Iraq last month. "Although he backed down from his threat to invade Syria last summer, President Obama proclaimed then the power to use unilateral force for

purely humanitarian ends without congressional or United Nations or NATO support," he writes. "This novel theory, which removed all practical limits on presidential humanitarian intervention, became a reality in last month’s military strikes to protect civilians trapped on Mount Sinjar and in the town of Amirli." Goldsmith traces the theme back to 2011 strikes in Libya, as well. "His lawyers argued

beyond precedent that the large-scale air attacks did not amount to 'War' that required congressional approval," he writes. "They also blew a large hole in the War Powers Resolution based on the unconvincing claim that the Libya strikes were not 'hostilities' that would have required compliance with the law ."

Obama has sweeping executive power nowCruz 15 – United States Senator from Texas, served as the Solicitor General of Texas from 2003-2008 (Ted Cruz, Winter 2015, “THE OBAMA ADMINISTRATION'S UNPRECEDENTED LAWLESSNESS,” Harvard Journal of Law and Public Policy, Lexis)//twontwon

IV. THE OBAMA ADMINISTRATION'S UNPRECEDENTED NONENFORCEMENT OF FEDERAL LAW Unlike the presidential actions explained above,

President Obama has categorically disregarded entire domestic policy statutes without any colorable constitutional

objection .221 There is no basis in history for this sweeping view of executive power . Reasonable constitutional objections formed the basis for Lincoln's suspension of habeas corpus, Johnson's objections to removal restrictions, Roosevelt's objections to removal restrictions and legislative veto provisions, and refusals to abide by the War Powers Resolution. While Truman's seizure of the steel mills, Reagan's arms sales, and Bush's memorandum instructing Texas to obey the International Court of Justice may have been examples of a President disregarding federal law due to policy differences, those three instances were isolated outliers in American history and

all involved foreign affairs. In contrast, President Obama has repeatedly ignored domestic policy statutes because he disagrees

with them as a policy matter .222 This nonenforcement usurps Congress's legislative power and sets a dangerous precedent that allows future Presidents to disregard the duty to take care that the laws be faithfully executed. Imagine if a future Republican President were to disregard financial regulation like Sarbanes-Oxley or DoddFrank, or campaign finance regulation like McCain-Feingold, or environmental laws, because the President disagreed with the underlying policy. Democrats would be furious, and rightfully so. Yet the following examples of President Obama's disregard of federal law establish a pattern of

suspending laws based on the policy prerogatives of this Administration. A. Obamacare President Obama's strategic

nonenforcement of Obamacare -his "signature legislative achievement"-is the most egregious example of this Administration's failure to take care that the laws be faithfully executed.223 In

at least six major ways, the Obama Administration has ignored and contravened the express text of the Affordable Care Act, even though there are no colorable constitutional rationales for doing so. First, without statutory authority, the Obama Administration unilaterally delayed the health insurance requirements imposed by Obamacare. Obamacare establishes the types of plans health insurance companies can offer consumers.224 These stringent requirements led to "at least 4.7 million" health plans being cancelled as of December 2013.225 These cancellations occurred, of course, despite the President's repeated assurances that "if you like your health care plan, you keep your health care plan" after the passage of Obamacare.226 Perhaps because the President saw that the devastating effects of Obamacare's requirements were not aligning with his promises, his administration unilaterally declared that individuals could continue purchasing health care plans in 2014 even if those plans violate the express requirements of the Affordable Care Act and its regulations.227 Months later, following Obamacare's disastrous rollout, the Administration extended this delay to 2016, past the mid-term elections.228 The Act, however, was required by statute to take effect on January 1, 2014.229 To make matters worse, the President remarkably threatened to veto any legislation that codified this lawless exemption that the Administration unilaterally imposed.230 That is the opposite of taking care that the laws be faithfully executed; that is usurping Congress's legislative power while then blocking Congress from enacting the precise policy supported by the President. Second, President Obama effectively delayed Obamacare's individual mandate for two years by massively expanding existing exemptions from the individual mandate to allow anyone claiming hardship an exemption. The individual mandate is a statutory command that imposes monetary penalties on most people who fail to maintain health insurance coverage required by Obamacare.231 This was "Congress's solution" to "prevent[] costshifting by those who would otherwise go without [health insurance]" and "force [] into the insurance risk pool more healthy individuals."232 After Obamacare's failed rollout, the Administration said it would allow people to opt out of the individual mandate for two years if they simply filled out a form attesting that the Obamacare health insurance exchange plans were too expensive.233 Strikingly, just months earlier, the President and Senate Democrats chose to force a government shutdown instead of accepting a one-year delay of the individual mandate.234 So just like President Obama's threat to veto legislation implementing his unilateral waiver of Obamacare's health insurance requirements, here again the President and Democrats blocked legislation that would have achieved the same policy objective that the President unlawfully imposed through executive fiat. Third, the Obama Administration has decreed that Obamacare's out-of-pocket caps will not apply in 2014. Obamacare caps the amount of out-of-pocket costs that people have to spend on their own health insurance.235 So according to federal law, starting in 2014, individuals and families would have to spend no more than $6,350 and $12,700, respectively.236 But just like it delayed the health insurance requirements, the Obama Administration unilaterally delayed enforcement of the out-of-pocket caps-burying the announcement of the delay in one of 137 Affordable Care Act FAQs found on the Department of Labor's website.237 Fourth, this Administration ignored the plain text of Obamacare when it delayed the employer mandate-twice. Obamacare penalizes employers who employ over fifty "full-time" employees if they do not offer health care coverage that the government deems to be "affordable," and the employee consequently receives a federal subsidy to purchase an insurance plan in a state health insurance exchange.238 Yet the Obama Administration announced, in a blog post, that it would not enforce the employer mandate in 2014.239 Months later, it delayed the employer mandate for medium-sized employers until 2016.240 Fifth, the Administration drastically expanded the individual and employer mandates and is sending billions of dollars in subsidies to insurance companies beyond what the text of Obamacare allows by granting federal subsidies to buy health insurance in all states instead of only in those states that create health insurance exchanges. According to the statute, the employer mandate is only supposed to be assessed if at least one full-time employee is enrolled in a health insurance exchange for which a federal tax credit subsidy is available.241 These federal subsidies are available only when an individual purchases a health plan "through an Exchange established by the State."242 According to Obamacare's text, the subsidies are not available if the health plan is purchased through an exchange not established by a state, such as a federally established exchange. Consequently, no federal subsidies should be available in the 36 states that have refused to create health insurance exchanges.243 A three-judge panel of the D.C. Circuit has already affirmed this plain text reading of Obamacare.244 Although the Fourth Circuit refused to enforce the statutory text, that decision has been appealed to the Supreme Court, and the case will be decided this Term.245 If subsidies are not available in states that do not form exchanges, the individual mandate will apply to significantly fewer people in those states-because the individual mandate applies only if the annual cost of the least expensive coverage minus subsidies exceeds 8% of projected household income.246 But instead of following the plain text of Obamacare, the Administration is granting federal subsidies in every state, including those that have not created state health insurance exchanges.247 The Administration lawlessly interpreted "Exchange established by the State" to include federally established exchanges.248 Sixth, the Obama Administration ignored the text of Obamacare to grant subsidies to members of Congress and their congressional staff. Obamacare and other federal statutes contain explicit language requiring members and their staff to get their health insurance through exchanges without subsidies.249 Specifically, members and most congressional staff are required, by Obamacare, to purchase individual health plans from exchanges just like millions of Americans.250 But the federal subsidies for health insurance that members and staff have received in the past are only available if their plans were "group insurance policies]," to quote a federal statute.251 The ACA makes no provision for the government to continue to pay premiums on behalf of members and their congressional staff.252 Yet, because that requirement is onerous, the Administration granted the request from Senate Democrat Majority Leader Harry Reid to disregard the plain language of the statute.253 According to the Administration, the individual health plans Members and staff bought through health exchanges qualify as "group" plans, enabling the Administration to give these subsidies to Members and staff unlawfully.254 All of these refusals to enforce the plain text of Obamacare share a crucial element in common: The President is categorically suspending statutory text without believing that the statute is unconstitutional. Rather, as President Obama's politically-appointed Assistant Secretary for Tax Policy explained,255 the Administration's refusal to enforce Obamacare is rooted in policy considerations of "adaptation]" and "flexibility]," as well as "concerns about the complexity of the requirements and the need for more time to implement them effectively."256 These failures to enforce Obamacare may prove beneficial to those Congress intended to regulate, and they may also prove more convenient for the administrative agencies who failed to promulgate appropriate regulations according to statutorily established timelines.257 The Administration has argued that prosecutorial discretion justifies the failure to enforce Obamacare. But prosecutorial discretion does not allow wholesale suspension of statutory provisions, which is precisely what this Administration has done in lawlessly implementing its signature legislative achievement. The Constitution does not recognize convenience and political expediency as reasons for executive suspension of laws. To the contrary,

the Take Care Clause requires faithful enforcement of all laws-even laws the President wishes he did not have to enforce. B. Immigration Obamacare is not the only statute that President Obama has ignored on

policy grounds. He has also ignored immigration law . President Obama recently announced that he would unilaterally grant amnesty to around five million illegal immigrants.258 This prompted Professor Turley, a noted liberal, to

observe, "What the President is suggesting is tearing at the very fabric of the Constitution ."259 In fact, years earlier, the President expressly acknowledged he had no authority to do this. In March 2011, he said, "With respect to the notion that I can just suspend deportations through executive order, that's just not the case, because there are laws on the books that Congress has passed."260 Moreover, President Obama remarked that if he granted any additional amnesty, "I would be ignoring the law in a way that I think would be very difficult to defend legally."261 The President's November 2014 amnesty did much more than just "prioritize" resources for removing illegal immigrants-it purported to affirmatively grant work authorizations for the millions of illegal immigrants covered by the edict. Prosecutorial discretion, of course, cannot justify the Administration's affirmative act to try to grant work authorizations, as prosecutorial discretion only deals with government inaction based on the individual facts and circumstances of a particular case. In anticipation of this objection, the Administration's Office of Legal Counsel (OLC) released a memo that unsuccessfully tries to justify these work authorizations on

the basis that the Immigration and Nationality Act delegated the President this authority.262 The memo misreads 8 U.S.C. § 1324a(h)(3) in a

manner that would give the President carte blanche to grant work authorization to any alien who is in the United States illegally. Section 1324a(h)(3)-entitled "Definition of unauthorized alien"- a subsection of the federal prohibition on hiring illegal immigrants, and it defines which illegal immigrants count as "unauthorized alien[s]" who cannot be hired. It provides, in full: As used in this section, the term 'unauthorized alien' means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General [now the Secretary of Homeland Security]. The OLC memo interprets this definitional subsection not as a mere definition, but as an independent source of power for the DHS Secretary to grant work authorizations to any class of aliens.263 Under this reading, when § 1324a(h)(3) says "unauthorized alien[s]" are those who are not "authorized to be so employed ... by the Attorney General," that subsection is implicitly giving the Administration power to grant every single alien an authorization to work. Under that reading, there is no limit on the Administration's unilateral power to grant any illegal alien-including illegal immigrants not covered by the November 2014 amnesty-work authorizations. The OLC memo's interpretation of § 1324a(h)(3) is flawed in at least two interrelated ways. First, that subsection is merely a definition of which aliens count as "unauthorized" for work, and it does not purport to grant the Administration any additional power. Second, other provisions of the Immigration and Nationality Act already delineate narrow circumstances when the Administration "may grant work authorization to aliens lacking lawful immigration status"264-to quote the OLC memo itself-yet those provisions would be rendered superfluous

under the OLC memo's reading of § 1324a(h)(3). In short, Congress never delegated to the executive branch complete discretion to grant work authorizations to any and all illegal immigrants. Instead, Congress created specific statutory provisions that cabined the Administration's power to do so, and the OLC memo ignores these

structural limits by erroneously construing a definitional subsection, § 1324a(h)(3), to grant the Administration sweeping powers. The November 2014 amnesty was not the first time the Obama Administration ignored immigration law. Congress rejected-at least ten times since 2001-the Development, Relief, and Education for Alien Minors Act (DREAM Act),265 which would have allowed certain illegal immigrants a path to citizenship if they arrived in the United States illegally when they were fifteen years old or younger and met other requirements.266 Nevertheless, in January 2011, President Obama essentially implemented the DREAM Act through executive fiat. An Obama Administration Department of Homeland Security memorandum declared that "in the absence of Comprehensive Immigration Reform, USCIS can extend benefits and/or protections to many individuals and groups by... exercising

discretion with regard to ... deferred action"-that is, "an exercise of prosecutorial discretion not to pursue removal from the U.S. of a particular individual for a specific period of time."267 Over a year later, on June 15, 2012, DHS instituted a "deferred action" program, currently known as the Deferred Action for Childhood Arrivals program (DACA).268 DACA includes a list of eligibility criteria that closely tracks the failed DREAM Act's criteria including that the individual must have arrived before turning sixteen, and DACA is purportedly based on "an exercise of prosecutorial discretion."269 Although the DACA order couches itself in terms of prosecutorial discretion used "on an individual basis," its instructions describe a broadranging program that preemptively applies to a wide scope of individuals who are not yet subject to any kind of removal order.270 Rather than clarifying a legitimate use of a prosecutor's discretion to bring or modify charges in a particular case, the order creates a wide-ranging policy framework with instructions to affirmatively apply it to an indeterminate group of people that have yet to be identified. The Obama Administration has invoked the doctrine of prosecutorial discretion to support its various rounds of immigration amnesty, most recently in the November 2014 OLC memo.271 But the November 2014 amnesty and DACA are far from legitimate uses of prosecutorial discretion. Simply saying the words "resource allocation," "individual basis," and "prosecutorial discretion" does not let the President wave a magic wand and make the Take Care Clause disappear. For example, DACA's criteria are general, "applying to every member of a class of perhaps 1.76 million people on the basis of a limited number of common characteristics. It requires no searching, [and no] individualized evaluation of the merits of particular applicants. All who possess the designated characteristics will qualify."272 And as Justice Scalia has noted, "The husbanding of scarce enforcement resources ... can hardly be the justification for this [policy], since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement."273 Recall former Obama Administration official Professor Cass Sunstein's words: "[T]here is a distinction" between "setting] enforcement priorities" and "allocat[ing] resources" versus "refusing to carry out the obligations that Congress has imposed on the executive."274 By rejecting the DREAM Act over ten times, Congress imposed on the President the command that he had to follow existing immigration statutes instead of the amendments contained in the DREAM Act. The Administration's November 2014 amnesty and its administrative implementation of the DREAM Act through DACA are not programs where the government decides in certain facts and circumstances not to enforce immigration laws because specific offices need to allocate resources differently. The November 2014 amnesty and DACA are blanket executive decrees that the

President will not enforce this law "which it disapproves."275 Those decrees and their implementation violate the Take Care Clause. C. Drugs The federal Controlled Substances Act assigns mandatory minimum sentences for certain drug crimes.276 Obama Administration Attorney General Eric Holder,

nevertheless, has said the Department of Justice "will no longer pursue mandatory minimum sentences for certain low-level, nonviolent drug offenders."277 That does not mean the Obama Administration will seek sentences greater than the mandatory

minimums for these crimes. Rather, it means these crimes will not be prosecuted at all . Reasonable minds can disagree about whether mandatory minimum sentences are too harsh for certain drug crimes. In fact, I have cosponsored the Smarter Sentencing Act, which would reduce mandatory minimum sentences for certain low-level, nonviolent drug offenses.278 But that is the constitutionally permissible way to address this situation-by amending the existing statutes in Congress, rather than the President dispensing with these drug laws. While the executive's prosecutorial discretion lets it allocate enforcement resources, as explained above, this discretion does not allow categorical reprieves from federal statutes. Yet the Attorney General has announced that for an entire set of drug crimes, categorically and prospectively, the Obama Administration will not enforce duly enacted criminal laws.279 A proper exercise of prosecutorial discretion would allow the

President to not prosecute outlier cases. But prosecutorial discretion cannot properly be used on a categorical basis, for this violates the Take Care Clause . Once again, the Obama Administration has distorted the separation of powers , usurped Congress's legislative power , and failed to take care that the laws be faithfully executed. D. Welfare In 1996, President Clinton

signed into law the Personal Responsibility and Work Opportunity Reconciliation Act, which created the Temporary Assistance for Needy Families (TANF) program.280 TANF sought to discourage dependency and encourage employment by placing restrictions on welfare allocations. TANF gave states grants281 and provided that individuals could only receive benefits for up to five years.282 It also mandated that recipients engage in work within two years of receiving benefits,283 and this provision was heralded as the reason TANF succeeded.284 Welfare reform was a tremendous policy success, helping millions stand on their own feet and achieve the American dream. Welfare rolls were decreased by half and the poverty rate for African-American children reached its lowest point in U.S. history.285 The Obama Administration, in an HHS memorandum full of legalese, declared that states no longer had to follow TANF's work requirements and could dispense welfare even if recipients did not meet the TANF statutory standards.286 In the 1996 Act, however, Congress already provided a list of which statutory provisions the federal government could waive.287 The only part of TANF that was included in that list of waivable provisions was Section 402, which dealt with reporting requirements obligating states to tell HHS that they are complying with TANF.288 TANF's work requirements-in Section 407-were not listed as waivable. Nevertheless, the Obama Administration's HHS memorandum claims that because the federal government can waive TANF's reporting requirements in Section 402, it also has the authority to waive the substantive work requirements in Section 407.289 In the sixteen years since the 1996 Act was passed, no Administration had ever asserted this authority,290 because the statute's clear text forbids waiving TANF's work requirements. Although the Administration couches its argument as a dispute about statutory construction, this outlandish interpretation is just another example of

President Obama ignoring duly enacted congressional laws. V. CONCLUSION President Obama's lawlessness is unprecedented in American history. Unlike

any President before, President Obama has brazenly disregarded duly enacted statutes passed by Congress in a categorical, sweeping manner without raising any constitutional objections. The Take Care Clause was explicitly included in the Constitution to prevent the President from wielding the suspension and dispensation powers that had been abused by English kings. Not all Presidents in our history have acted in accordance with federal law. But of the most notable examples of Presidents fighting with Congress, most of these involved legitimate constitutional arguments about whether the executive or legislature had certain powers. Lincoln's suspension of habeas corpus, Johnson's objections to removal restrictions, Roosevelt's objections to removal restrictions and legislative veto provisions, and refusals to abide by the War Powers Resolution were reasonable constitutional disputes between the branches. Foreign affairs concerns were present in the other examples-Truman's seizure of the steel mills, Reagan's arms sales, and Bush's memorandum to Texas to obey the International Court of Justice. In contrast, President Obama has pretended that various domestic policy statutes do not exist when he disagrees with them based on his own policy preferences. As a United States Senator, Barack Obama had the power to introduce legislation and be part

of Congress wielding its Article I legislative power. But as President, Obama does not have the power to legislate. He does not have the

power to refuse enforcement of laws based simply on policy concerns. His repeated assertions of this power to suspend and dispense with duly-enacted laws violate the Take Care Clause and represent a profound threat to our constitutional checks and balances and, ultimately, to individual liberty.

2nc – uniqueness – at: war powers rez was cong controlledCongress used the war powers resolution to grant authority over surveillance – limits are too ambiguous to limit the executiveSNS 6 – States News Service, citing Sen. Reid (States News Service, 1/24/6, “REVISIONIST HISTORY DOES NOT EXCUSE BREAKING LAW,” States News Service, Lexis)//twontwon

Senator Feingold: Congress owns the war power. But by this resolution, Congress loans it to the President in

this emergency. In so doing, we demonstrate our respect and confidence in both our Commander in Chief and our

Constitutiona by this resolution, Congress vouchsafes the legitimacy of a struggle that must have the continuing approval of the

representatives of the people. It is the framework for a continuing consensus and communicates support to our

President in this emergency. We acknowledge that this legitimate emergency permits the President to act unilaterally without turning our back on who wields the war power under the Constitution, and we trust that if he does, he will turn to

Congress to legitimize his actions as appropriate. [9/14/01] Senator Snowe: This resolution, consistent with the War Powers Resolution, is precisely the right course for the Congress to take at this momentous juncture in American history. [Congressional Record, 9/14/01] NOW: Nonpartisan Report Refutes President Bush's Claim that AUMF Gives Him the Legal Authority to Conduct Warrantless Surveillance and the Former Senate Democratic Leader Contradicts the Administration A January 5, 2006 analysis by the nonpartisan Congressional Research Service found that [F]rom the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly

or impliedly authorized the NSA electronic surveillance operations here under discussiona the Supreme Court has stated that Congress

does indeed have the power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information. Given such uncertainty, the Administration's

legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seemto be as well-grounded as the tenor of that letter suggests. [Congressional Research Service, Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, 1/5/06]

2nc – uniqueness – boundaries vague nowVague boundaries allow for executive flexibilityWuerth 7 – Prof Law at Vanderbilt Law School (Ingrid Brunk Wuerth, 10/18/7, “INTERNATIONAL LAW AND CONSTITUTIONAL INTERPRETATION: THE COMMANDER IN CHIEF CLAUSE RECONSIDERED,” Michigan law Review, ABI/INFORM, Lexis)//twontwon

The Commander in Chief Clause is widely understood as a particularly difficult area of constitutional interpretation.' Congress is vested with several powers related to the initiation and prosecution of war, and the relationship between

these powers and those of the president as commander in chief remains contested. For decades, debate has centered on the president's independent power to initiate hostilities in light of Congress's power under the Declare War Clause. This issue

generated both the War Powers Resolution and a massive corpus of academic writing.2 Today, however, in the wake of September 11,

2001, the money question is the scope of the president's power to prosecute war . The Bush administration has

relied heavily on the Commander in Chief Clause as the constitutional basis for a host of controversial actions.3 Indeed, the

initial legal response to September 11 was apparently predicated on the president's unilateral wartime authority , which envisioned little role for Congress .4 Since then, the Supreme Court has reaffirmed a strong role for Congress in setting the scope of the president's powers and analyzed issues related to congressional authorization in great detail.5 But even where the Court has struck down the president's actions as inconsistent with-or beyond - such authorization, it has largely eschewed general discussions of how the president's war powers are to be distinguished from those of Congress. The June 2006 decision in Hamdan v. Rumsfeld is just the most recent example. And in most cases, the Supreme Court does not reach these issues at all, because it upholds the president's actions as consistent with

authorization provided by Congress. As a result, it is unclear even what methodological approach the Court would use to demarcate the president's power from that of Congress. Questions about the president's war prosecution power thus remain unanswered . Current examples include whether the president is bound by the McCain Amendment governing the treatment of detainees, whether Congress could limit the president's use of cluster bombs, and whether the president could convene military commissions in emergency situations without the sanction of Congress.9

2nc – genericThe president has authority to conduct electronic surveillanceHaplerin and Kris 6 – Director of US Advocacy for the Open Society Institute AND Senior Vice President of Time Warner (Morton Halperin, David Kris, 3/28/06, “HEARING OF THE SENATE JUDICIARY COMMITTEE SUBJECT: NSA III: WARTIME EXECUTIVE POWERS AND THE FISA COURT CHAIRED BY: SENATOR ARLEN SPECTER (R-PA),” Federal News Service, Lexis)//twontwon

There is a second issue as to whether the president has inherent authority , as commander in chief war powers , to conduct the electronic surveillance . That, as I see it, would require knowing what the program is. It may well be that the program is within the president's inherent authority, but it seems to me that that determination has to be made in accordance with the tradition in America by a court, by a judicial review.

Congressional legislation can hamper war powersDempsey 6 – Policy Director at the Center for Democracy and Technology (Jim Dempsey, 7/26/6, “U.S. SENATOR ARLEN SPECTER (R-PA) HOLDS A HEARING ON FOREIGN INTELLIGENCE SURVEILLANCE ACT REFORM,” Political Transcript Wire, Lexis)//twontwon

I mean, here we are in the middle of a war against terrorism. We have a bill that has been -- a FISA statute -- that has been approved by every

court that has reviewed it. Evidence from FISA surveillances has been introduced in hundreds of criminal cases and never been

rejected. And here we are, proposing to cast that aside and allow the president to carry out wiretaps outside of that. What if they find a real terrorist? What if the evidence is rejected in court? It's a very risky approach to cast aside what, in my view, the Supreme Court

has held is appropriate. That is, Congress has war powers; the president has war powers. Congress, in its exercise of its

war powers, under the necessary and proper clause, under its authority to regulate the armed forces, can adopt legislation that limits the president's inherent power .

Link

2nc – link uniqueness/internal linkCongressional authority is zero sum with presidential – they’re toeing the line now, but resolving their issues with cooperation – the plan’s fiat breaks the balanceKyl 6 – Senator from Arizona (John Kyl, 2/28/06, “HEARING OF THE SENATE JUDICIARY COMMITTEE SUBJECT: WARTIME EXECUTIVE POWER AND THE NSA'S SURVEILLANCE AUTHORITY (PART II),” The Federal News Service, Lexis)//twontwon

It seems to me that this is almost a classic case, like the war powers debate, where it is not arguable that both Congress and the executive have authority . It is to some extent competing , to some extent overlapping, and it is

very difficult to sort out in the abstract . It is the classic case where the court on political questions has avoided sometimes

getting involved in the debate, and where both parties -- both the executive and the president -- march right up to the brink and have backed away and resolved the issues . I mean, the president still says, I don't have to follow the War Powers Act.

Congress says, yes you do. And yet we both go on about our business warily working with each other in a way that doesn't set that conflict up because we understand there are larger , more important things than necessarily having a fight that's going to try to force a court to resolve an issue where in fact the founding fathers in the Constitution does not provide a crystal clear answer for every situation.

2nc – congress precedent linkCongressional limits on surveillance spill over to justify broader congressional encroachment on national security issues – congressional deference is high nowDonohue 11 – Associate Prof of Law at Georgetown Law (Laura Donohue, Fall 2011, “SYMPOSIUM: MOVING TARGETS: ISSUES AT THE INTERSECTION OF NATIONAL SECURITY & AMERICAN CRIMINAL LAW: ARTICLE: THE LIMITS OF NATIONAL SECURITY,” 48 Am. Crim. L. Rev. 1573, Lexis)//twontwon

From the inside, such blatant opportunism may appear harmless. In light of limited bandwidth, the way to get attention is to make an issue appear larger than

perhaps it really is. But the effects of these provisions are not harmless. They carry significant structural implications . As a constitutional

matter, the shift to the national security discourse diminishes the role that Congress performs through its

oversight function. The number of committees responsible for "national security" has rapidly proliferated to include [*1754] nearly every Senate and House

committee. 1292 This means that no single committee has a complete picture of national security. Nor is any single committee held responsible, to the electorate, for such oversight. Overlapping responsibilities allow legislators to take credit for keeping the

country safe, and apportion blame for any failures. For those committees given authority to oversee discreet executive actions, strong political pressures demand that the legislators not hamstring the executive branch on issues of security. 1293 Even where the executive acts outside the law, congressional oversight is limited. The National Security Agency's illegal wiretapping serves as a clear example. Despite the Bush Administration's disregard for legislative restrictions on the wiretapping of U.S. citizens,

1294 Congress retroactively legalized the Administration's actions on grounds that it involved sensitive issues. 1295 ***FOOTNOTE BEGINS*** See Charlie Savage & James Risen, Federal Judge Finds N.S.A. Wiretaps Were Illegal, N.Y. TIMES (Mar. 31, 2010), http://www.nytimes.com/2010/04/01/us/01nsa.html ("The 2005

disclosure of the existence of [Bush's authorization of illegal wiretapping] set off a national debate over the limits of executive power and the balance between national security and civil liberties. The arguments continued over the next three years, as Congress sought to forge a new legal framework for domestic surveillance . . . . Congress overhauled the Foreign I ntelligence

Surveillance A ct to bring federal statutes into closer alignment with what the Bush administration had been secretly doing.

The legislation essentially legalized certain aspects of the program ."). ***FOOTNOTE ENDS*** National security, for that matter,

entails a significant amount of secrecy, such that Congress may not even be aware of what is happening. When Congress is aware of executive actions, legislators may be prevented from bringing certain information to light via classification, which is itself an executive decision.

Congress's ability to act with regard to authorization, at the outset, is similarly narrow. The burden rests on those opposing national security measures to demonstrate that failing to enact such measures will not undermine

the country's safety-a nearly impossible burden of proof. For those measures with a significant impact on civil rights, there may be an effort to include a sunset provision, essentially providing an expiration date. But temporary powers rarely turn out to be so limited; instead, they become a baseline on which further authorities are [*1755] built. 1296 Similar concerns accompany the legislature's ability to withstand the drive to expansion via appropriations.

The judiciary, in turn, is unsuited for playing a stronger role in the area of national security. The political question doctrine, which permeates foreign affairs, becomes all the more ubiquitous with the expansion of national security and the increasingly blurred lines between the different risks

faced by the country. Claims to judicial institutional incompetence, often pushed by an executive branch eager to protect its interests, find sympathetic ears in a judiciary loath to make determinations on matters involving the

security of the United States. Judges, who lack bureaucratic support, resources, information, and training in the area, are reluctant to second-guess the executive branch. The state secrets doctrine further restricts private citizens' ability to gain access to the executive's actions, as exceptions to the Freedom of Information Act specifically carve out national security matters. 1297 The executive branch's continued expansion of its national security portfolio is concerning in light of the political nature of such structures. Shortly before he died in 1954, Justice Robert Jackson, having served as Attorney General during the great expansion of the FBI's purview into national security in the third epoch, wrote:

This also sets court precedentBradley 9 – Richard A. Horvitz Professor of Law and Professor of Public Policy Studies, Duke Law School (Curtis A. Bradley, 2009 (last date cited), “Clear Statement Rules and Executive War Powers,” Harvard

Journal of Law and Public Policy, Vol 33, p. 139, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2730&context=faculty_scholarship)//twontwon

The scope of the President’s independent war powers is notoriously unclear , and courts are understandably

reluctant to issue constitutional rulings that might deprive the federal government as a whole of the

flexibility needed to respond to crises. As a result, courts often look for signs that Congress has either supported or opposed the President’s actions and rest their decisions on statutory grounds . This is essentially the approach out‐ lined by Justice Jackson in his concurrence in Youngstown. 1

2nc – congress linkCongressional restrictions spill over and eviscerate broader war powersHeder 10 – J.D., magna cum laude, J. Reuben Clark Law School (Adam Heder, 2010, “THE POWER TO END WAR: THE EXTENT AND LIMITS OF CONGRESSIONAL POWER,” St. Mary’s Law Journal Vol. 41 No. 3, http://www.stmaryslawjournal.org/pdfs/Hederreadytogo.pdf)//twontwon

This constitutional silence invokes Justice Rehnquist’s oftquoted language from the landmark “political question” case, Goldwater v. Carter . 121 In Goldwater , a group of senators challenged President Carter’s termination, without Senate approval, of the United States ’ Mutual Defense Treaty with Taiwan. 122 A plurality of the Court held, 123 in an opinion authored by Justice Rehnquist, that this was a nonjusticiable political question. 124 He wrote: “In light of the absence of any constitutional provision governing the termination of a treaty, . . . the instant case in my view also ‘must surely be controlled by political standards.’” 125 Notably, Justice Rehnquist relied on the fact that there was no constitutional

provision on point. Likewise, there is no constitutional provision on whether Congress has the legislative power to limit, end, or otherwise redefine the scope of a war. Though Justice Powell argues in Goldwater that the Treaty Clause and Article VI of the Constitution “add support to the view that the text of the Constitution does not unquestionably commit the power to terminate treaties to the President alone,” 126 the same cannot be said about Congress’s legislative authority to terminate or limit a war in a way that

goes beyond its explicitly enumerated powers. There are no such similar provisions that would suggest Congress may

decline to exercise its appropriation power but nonetheless legally order the President to cease all military operations.

Thus, the case for deference to the political branches on this issue is even greater than it was in the Goldwater context. Finally, the Constitution does not imply any additional powers for Congress to end, limit, or redefine a war. The textual and historical evidence suggests

the Framers purposefully declined to grant Congress such powers . And as this Article argues, granting Congress this power would be inconsistent with the general war powers structure of the Constitution. Such a reading of the Constitution would unnecessarily empower Congress and tilt the scales heavily in its favor. More over,

it would strip the President of his Commander in Chief authority to direct the movement of troops at a time when the Executive’s expertise is needed. 127 And fears that the President will grow too powerful are unfounded, given the reasons noted above. 128 In short, the Constitution does not impliedly afford Congress any authority to prematurely terminate a war above what it explicitly grants. 129 Declaring these issues nonjusticiable political questions would be the most practical means of balancing the textual and historical demands, the structural demands, and the practical demands that complex modern warfare brings . Adjudicating these matters would only lead the courts to engage in impermissible line drawing — lines that would both confuse the issue and add layers to the text of the Constitution in an area where the Framers themselves declined to give such guidance.

Oversight has zero chance of working but still substantially undermines executive secrecy – decimating war powersPosner and Vermeule 10 [Eric, professor of law at the University of Chicago AND Adrian, professor of law at Harvard, The Executive Unbound, p. 25-29]

Many institutional factors hamper effective legislative monitoring of executive discretion for legal compliance. Consider the following problems. Information Asymmetries Monitoring the executive requires expertise in

the area being monitored. In many cases, Congress lacks the information necessary to monitor discretionary policy choices by the executive. Although the committee system has the effect, among others, of generating legislative information and expertise,18 and although Congress has a large internal staff, there are domains in which no amount of legislative expertise suffices for effective oversight. Prime among these are areas of foreign policy and national security. Here the relative lack of legislative expertise is only part of the

problem; what makes it worse is that the legislature lacks the raw information that experts need to make assessments. The problem would disappear if legislators could cheaply acquire information from the president, but they cannot. One obstacle is a suite of legal doctrines protecting executive secrecy and creating deliberative privileges— doctrines that may or may not be justified from some higher-order systemic point of view as means for producing optimal deliberation within

the executive branch. Although such privileges are waivable, the executive often fears to set a bad institutional precedent. Another obstacle is the standard executive claim that Congress leaks like a sieve , so that sharing secret information with legislators will result in public disclosure. The problem becomes most acute when, as in the recent

controversy over surveillance by the N ational S ecurity A gency , the executive claims that the very scope or

rationale of a program cannot be discussed with Congress, because to do so would violate the very secrecy that makes the program possible and beneficial. In any particular case the claim might be right or wrong; legislators have no real way to judge, and they know that the claim might be made either by a wellmotivated executive or by an ill-motivated executive,

albeit for very different reasons. Collective Action Problems Part of what drives executive reluctance to share information is that, even on select intelligence committees, some legislator or staffer is bound to leak and it will be difficult to pinpoint the source. Aware of the relative safety that the numbers give them, legislative leakers are all the more bold. This is an example of a larger problem, arising from the fact that there are many more legislators than top-level executive officials. Compared to the

executive branch, Congress finds it more costly to coordinate and to undertake collective action (such as the detection and punishment of leakers). To be sure, the executive too is a “they,” not an “it.” Much of what presidents do is arbitrate internal conflicts among executive departments and try to aggregate competing views into coherent policy over time. As a strictly comparative matter, however, the contrast is striking: the executive can act with much greater unity, force, and dispatch than can Congress, which is chronically hampered by the need for debate and consensus among large numbers. This comparative advantage is a principal reason why Congress enacts broad delegating statutes in the first place, especially in domains touching on foreign policy and national security. In these domains, and elsewhere, the very conditions that make delegation attractive also hamper congressional monitoring of executive discretion under the delegation. There may or may not be offsetting advantages to Congress’s large numbers. Perhaps the very size and heterogeneity of Congress make it a superior deliberator, whereas the executive branch is prone to suffer from various forms of groupthink. But there are clear disadvantages to large numbers, insofar as monitoring executive discretion is at issue. From the standpoint of individual legislators,

monitoring is a collective good. If rational and self-interested, each legislator will attempt to free ride on the production of this good, and monitoring will be inefficiently underproduced. More broadly, the institutional

prerogatives of Congress are also a collective good. Individual legislators may or may not be interested in protecting the institution of Congress or the separation of legislative from executive power; much depends on legislators’ time horizons or discount rate, the expected longevity of a legislative career, and so forth. But it is clear that protection of legislative prerogatives will be much less emphasized in an institution composed of hundreds of legislators coming and going than if Congress were a single person. “Separation of Parties, not Powers” Congress is, among other things, a partisan institution.19 Political scientists debate whether it is principally a partisan institution, or even exclusively so. But Madison arguably did not envision partisanship in

anything like its modern sense. Partisanship undermines the separation of powers during periods of unified government. When the same party controls both the executive branch and Congress, real monitoring of executive discretion rarely occurs, at any rate far less than in an ideal Madisonian system. This appears to have a marked effect in the domain of war powers and foreign affairs, where a recent study by political scientists William

Howell and Jon Pevehouse shows that congressional oversight of presidential war powers differs markedly depending upon the partisan composition of Congress.20 When Congress is a co-partisan of the president, oversight is minimal; when parties differ across branches,

oversight is more vigorous . Partisanship can enhance monitoring during periods of divided government,21 but this is cold comfort for liberal legalists. From the standpoint of liberal legalism, monitoring is most necessary during periods of unified government, because Congress is most likely to enact broad delegations when the president holds similar views; and in such periods monitoring is least likely to occur. The Congress of one period may partially compensate by creating institutions to ensure bipartisan oversight in future periods— consider the statute that gives a minority of certain congressional committees power to subpoena documents from the executive22—but these are palliatives.

Under unified government, congressional leaders of the same party as the president have tremendous power to frustrate effective oversight by the minority party. The Limits of Congressional Organization Congress as a collective body has attempted, in part, to overcome these problems through internal institutional arrangements. Committees and subcommittees specialize in a portion of the policy space, such as the armed forces or homeland security, thereby relieving members of the costs of acquiring and processing information (at least if the committee itself maintains a reputation for credibility). Intelligence committees hold closed sessions and police their members to deter leaks (although the sanctions that members of Congress can apply to one another are not as strong as the sanctions a president can apply to a leaker in the executive branch). Large staffs, both for committees and members, add expertise and monitoring capacity. And interest groups can sometimes be counted upon to sound an alarm when the executive harms their interests. Overall, however, these arrangements are not fully adequate, especially in domains of foreign policy and national security, where the scale of executive

operations is orders of magnitude larger than the scale of congressional operations. Congress’s whole staff, which must (with the

help of interest groups) monitor all issues, runs to some 30,000 persons.23 The executive branch has some 2

million civilian employees, in addition to almost 1.4 million in the active armed forces.24 The sheer mismatch between the scale of executive operations and the congressional capacity for oversight, even aided by interest groups or by leakers within the bureaucracy, is daunting. Probably Congress is already at or near the limits of its monitoring capacity at its current size and budget.

Intelligence gathering is a crucial part of the President’s warfighting capabilities – congressional checks and FISA restrictions on executive authority to surveil are unconstitutionalPaulsen 6 (Michael, Department of Justice in the Criminal Division Honors Program, and has also served as staff counsel for the Center for Law & Religious Freedom in Washington, D.C. and as an attorney-advisor in the Office of Legal Counsel. “Presidential Powers in Time of War”, http://www.law.umn.edu/uploads/wE/aa/wEaa1g7XB6j0QyoOhoFpYw/Presidential_Powers_exchange_Paulsen_Kitrosser_Carpenter.pdf)//dtang

THE KEY PROBLEM with my colleagues’ extraordinarily thoughtful points about the NSA communications inter- ception program is this:They read the Sept.18,2001,

AUMF as if it were any old statute passed by Congress. If (as I believe),the AUMF is in legal effect a Declaration of War,then arguments that “repeals by implication are dis- favored,”or that “the AUMF does not specifically mention surveillance,”or that “Congress did not have this in mind” (or,in its weakest form,that former Senator Tom Daschle

was not thinking about this specific question),or that the president might have been able to obtain FISA authoriza- tion,are almost entirely irrelevant. If war has been authorized,then the commander in chief power to wage war against enemy forces has been unleashed in its entirety. That power is a fearful and formi- dable one,but properly

so. Where war is declared or authorized, the president possesses the full military and executive power of the nation with respect to waging that war.The president determines matters of military strategy and tactics;the rules of

engagement with the enemy;the means and methods to be employed;how resources are to be deployed;and whether,when,and under what circum- stances hostilities will be terminated . Where the commander in chief power is

brought into play, it is the president’s power alone. No statute of Congress may limit it. As Alexander Hamilton put it in Federalist #74:“Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength forms a usual and essential part in

the definition of the executive authority.” Here is the crucial point: Whatever the scope of the presi- dent’s constitutional power as commander in chief in time of authorized war,no statute of Congress constitutionally may limit it. This is basic Marbury v.Madison:If the Constitution provides one thing, Congress may not pass a statute altering it. Congress has the choice whether or not to trigger the commander in chief power of the president in time of war;but if it chooses to do so,it may not control the exercise of that power with collateral

statutory restric- tions. Put simply: When war is declared, the commander in chief chooses how to conduct it . Nowhere is

this more clear than in the Sept.18,2001 AUMF,which sweepingly gives the president power to use “all necessary and appropriate force”against those nations, organizations,or persons he finds to be connected to the events of Sept.11,2001. If the interception of communications of persons in contact with the enemy is a legitimate part of the commander in chief’s conduct of war—and I think this almost impossible to deny—then no act of Congress may impair it.If FISA, designed as peacetime authorization for covert surveillance of suspected foreign agents,limits the commander in chief power in time of war,it is to that extent unconstitutional. That’s the endpoint of the game, when

push comes to shove. Professor Kitrosser’s arguments about how to read FISA are excellent ones; but in the end if FISA cannot be construed in a manner consistent with the president’s over- arching power as commander in chief in time of war, then it is the FISA statute that must yield, not the president’s constitutional power as commander in chief. Professor Carpenter’s argument that Congress’s power to make “Rules for the Government and Regulation of the Land and Naval Forces”trumps the president’s power as commander in chief is,I think,unsound—and dangerous. Congress’s power to prescribe general rules for regulating our armed forces surely cannot be read as a power to dic- tate rules for how military and defensive efforts are to be conducted by the president.That would effectively read the commander in chief clause out of the Constitution! The

same cannot be said the other way round: Congress’s power to regulate the military still has content, as a general proposition; it is simply limited by the presi- dent’s power to direct and conduct offensive and defensive operations—to command—in wartime. The alternative is to run war operations by committee—by Congress. That was one of the grave defects of the Articles of Confederation that the framers of the Constitution (including General George Washington) sought to remedy by making “a single hand,”the president,the commander in chief of the armed forces,and of the militia,when called into actual service.

Congressional oversight on the president’s surveillance war powers renders fighting terrorism ineffectiveYoo 9 (John is a law professor at the University of California, Berkeley. He was an official in the Justice Department from 2001-03 and is a visiting scholar at the American Enterprise Institute. 7-16-09, Wall Street Journal, “Why We Endorsed Warrantless Wiretaps,” http://online.wsj.com/article/SB124770304290648701.html#mod=rss_opinion_main)//dtang

It was instantly clear after Sept. 11, 2001, that our security agencies knew little about al Qaeda's inner workings, could not detect its operatives' entry into the country, nor predict where it might strike next.

Suppose an al Qaeda cell in New York, Chicago or Los Angeles was planning a second attack using small

arms, conventional explosives or even biological, chemical or nuclear weapons. Our intelligence and law enforcement agencies faced a near impossible task locating them. Now suppose the National Security Agency (NSA), which collects signals intelligence, threw up a virtual net to intercept all electronic communications leaving and entering Osama bin Laden's Afghanistan headquarters. What better way of detecting followup attacks? And what president -- of either political party -- wouldn't immediately order the NSA to start, so as to find and stop

the attackers? Evidently, none of the inspectors general of the five leading national security agencies would approve. In a report issued last week, they suggested that President George W. Bush might have violated the 1978 Foreign Intelligence Surveillance Act (FISA) by ordering the interception of international communications of terrorists without a judicial warrant. The report also suggests that "other" intelligence measures -- still classified only

because they are yet to be reported on the front page of the New York Times -- similarly lacked approval from other branches of government. It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States. Congress enacted FISA during the waning days of the Cold War. As the 9/11 Commission found, FISA's wall between domestic law

enforcement and foreign intelligence proved dysfunctional and contributed to our government's failure to prevent the 9/11 attacks.Under FISA, to obtain a judicial wiretapping warrant the government is supposed to show probable cause that a specified target is a foreign agent. Unlike, say, Soviet spies working under diplomatic cover, terrorists are hard to identify.

Yet they are vastly more dangerous. Monitoring their likely communications channels is the best way to track and stop them. Building evidence to prove past crimes, as in the civilian criminal system, is entirely beside the point. The best way to find an al Qaeda operative is to look at all email, text and phone traffic between Afghanistan and Pakistan and the U.S. This might involve the filtering of innocent traffic, just as roadblocks and airport screenings do. In FISA, President Bush and his advisers faced an obsolete law not written with live war with an international terrorist

organization in mind. It was to meet such emergency circumstances that the Founders designed the presidency. As John Locke first observed, foreign threats "are much less capable to be directed by antecedent, standing, positive laws." Legislatures are too slow and their members too numerous to respond effectively to unforeseen situations. Only the executive can act to protect the "security and interest of the public."

2nc – generic link/igr stuff

The plan causes war powers disputes – decks IGRSmith 7 – graduated from the Valparaiso Univ School of Law in 2006, licensed to practice in Illinois, worked for the City of Chicago Law Department in the Municipal Prosecution Division (R. Andrew Smith, Summer 2007, “SYMPOSIUM ON ELECTRONIC PRIVACY IN THE INFORMATION AGE: BREAKING THE STALEMATE: THE JUDICIARY'S CONSTITUTIONAL ROLE IN DISPUTES OVER THE WAR POWERS,” 41 Val. U.L. Rev. 1517, Lexis)//twontwon

Historically, the goal of the three-part American government structure is to separate and balance the power to govern. 1 Separation prevents any branch of the government from straying from its intended purpose and in turn, fosters democratic values as a result. 2 Ideally, this prevents one branch of government from over-exercising its power over the others. However, language in the

Constitution gives little guidance on when one branch of the government may be acting outside the sphere of its authority. Constitutional ambiguities and overlapping powers result in struggles between different arms of the government. The purpose of this Article is to explore the role of the judiciary in mediating the power struggles between the legislative and executive branches of government. Justiciability restrictions, such as the political question doctrine, can make the Court's role in such disputes unclear. Recently, the disclosure of

President Bush's warrantless electronic surveillance program 3 and subsequent lawsuit challenging the constitutionality of the

program 4 have thrown these intra-governmental tensions into sharp relief by questioning the breadth of the

executive war power 5 juxtaposed to the legislative war power. 6 In this Article, President Bush's warrantless domestic surveillance program provides a focal point for analysis of separation of powers in general and the problem of overlapping constitutional grants of authority.

Coordination and balance are essentialShouldis 10 – instructor at the Graduate School at St. Joseph’s University in Philadelphia, the National Fire Academy, and the Emergency Management Institute, former deputy chief, Philadelphia Fire Department, former field commander, department safety officer, director of training, and hazardous materials task force leader, M.A. public safety (William Shouldis, “The Emergency Operations Center: A Vital Preparedness Tool,” Fire Engineering, 163(5), 5-1-2010, http://www.fireengineering.com/articles/print/volume-163/issue-5/Features/the-emergency-operations-center-a-vital-preparedness-tool.html)//twontwon

The emergency operations center (EOC) is a generic tool for coordinating on-scene operations during low-frequency and high-risk incidents.

Every community, large and small, faces the likelihood of an overwhelming emergency event. Often, these incidents will lack a common operating picture and can transcend political jurisdictional boundaries. The ability of a

community to acquire and allocate necessary resources hinges on being prepared. The roots of a community’s “all-hazard” preparedness program involve intergovernmental relations and a detailed planning process that includes mutual-aid assistance agreements. Emphasis must be on technical information based on an accurate assessment of risk, vulnerability, and capabilities. Resources will be scarce during a large-scale incident, and the EOC can identify and obtain additional assets that are not always available to the on-scene incident commander (IC).¶ The EOC mobilizes people and equipment to handle incidents that are outside the ability of any single agency to resolve. The purpose of the EOC is to ensure that departmental response capabilities are maintained and authoritative information is disseminated to the general public. Capturing important incident-related information at an EOC will provide senior officials with data to set strategic directions; establish priorities; allocate resources; and, under extreme circumstances, declare a disaster. These actions allow field commanders to focus on the incident objectives while the EOC handles supportive endeavors.

ExtinctionKolasky 11 – assistant director, Risk Governance and Support Division, Office of Risk Management and Analysis, U.S. Department of Homeland Security, responsibilities include analyzing risks to the nation and the methods by which those risks are analyzed (Bob Kolasky, “Integrated Risk Management at the Department of Homeland Security,” Global Association of Risk Professionals, October 2011, http://www.garp.org/risk-news-and-resources/2011/october/integrated-risk-management-at-the-department-of-homeland-security.aspx?altTemplate=PrintStory)//twontwon

Since the terrorist attacks of September 11, 2001, the United States has recognized how remote threats and distant trouble can pose near and present dangers to our shores. We have learned as a nation that we must maintain a constant, capable and vigilant posture to protect ourselves against new threats and evolving hazards . Examples

of these threats and hazards include high-consequence w eapons of mass destruction being employed in the United States; al Qaeda and global violent extremism ; high-consequence and/or wide-scale cyber attacks , intrusions, disruptions and exploitations; pandemics , major accidents and natural hazards ; illicit trafficking and related

transnational crime ; and smaller-scale terrorism. Each of these present a risk to the nation and our people, economy and way of life.

Over the past 10 years, we have made great strides in managing these risks through efforts to secure our nation against a large attack or disaster, to protect critical infrastructure and cyber networks, and to engage a broader range of Americans in the shared responsibility for security . We are also a more prepared and resilient nation, able to bounce back and rebuild stronger after a major crisis or disaster. The U.S. Department of Homeland Security (DHS) is charged with helping to build a safe, secure, resilient place where the

American way of life can thrive. That means more than preventing terrorist attacks from being carried out. It also means ensuring that the liberties of all Americans are assured, privacy is protected and the means by which we interchange with the world - through

travel, lawful immigration, trade, commerce and exchange -- are secured. Ultimately, homeland security is about effectively managing risks to the nation's security. Because of this reality, the Department must rely on innovative approaches to managing risks in an enterprise manner. DHS' Risk Management Imperative DHS is the third-largest Cabinet department in the United States. It employs well over

200,000 people and has an annual budget in excess of $40 billion. The Department has five key missions: preventing terrorism and enhancing security; securing and managing our borders ; enforcing and administering our immigration

laws; safeguarding and securing cyberspace; and ensuring resilience to disasters. The Department also provides essential support to national and economic security . To accomplish those missions, DHS leaders have

recognized that homeland security is fundamentally a risk management challenge . As a Department, we need to work collectively , in our mission areas of focus, to reduce the likelihood of bad things happening, and to minimize the consequence of those things that do occur . Viewed from this lens, reducing risk - defined by the DHS Risk Lexicon as decreasing "the potential for an unwanted outcome, resulting from an incident, event or occurrence, as determined by its likelihood and the associated consequences - is one of the Department's principal objectives.

2nc – link – prism

Rolling back XO 12333 functionally invalidates the president’s inherent constitutional authority to disrupt attacksMaharrey 14 – Communications director for the Tenth Amendment Center (Mike Maharrey, 10/2/14, “PRESIDENT CLAIMS SPYING AUTHORITY PART OF WAR POWERS AND CONGRESS CAN'T INTERFERE,” http://www.offnow.org/president_claims_spying_authority_part_of_war_powers_and_congress_can_t_interfere)//twontwon

While NSA reform efforts tend to focus on congressional action, documents obtained by the ACLU confirm suspicions that the agency

justifies much of its warrantless spying on executive orders. This raises concerns in and of itself, but becomes even more disturbing

knowing that by combining executive orders with the Authorization for Use of Military Force passed after 9/11, the president claims

virtually unlimited authority to spy on you, and actually contends any attempt by Congress to regulate its

surveillance program is unconstitutional . ACLU obtained documents relating to Pres. Reagan’s Executive Order 12333 from the NSA, the Defense Intelligence Agency and others agencies through a Freedom of Information Act request. The ACLU says the

documents prove that the presidential EO “ governs most of the NSA's spying .” According to an ACLU report by Alex Abdo, the

documents make it clear that the NSA collects data from Americans “about much more than just terrorist threats,” and operates with

little to no oversight . “Because the executive branch issued and now implements the executive order all on its own, the programs operating under the order are subject to essentially no oversight from Congress or the courts,” Abdo wrote. “We've already seen that the NSA has taken a ‘collect it all’ mentality even with the authorities that are overseen by Congress and the courts. If that history is any lesson, we should expect — and, indeed, we have seen glimpses of — even more out-of-control spying under EO 12333.” The documents also reveal the NSA word games know as "vocabulary of misdirection — a language that allows [it] to say one thing while meaning quite another." Using redefined terms, the agency stretches its surveillance activities far beyond what directives appear to allow. For instance, the NSA does not consider data “collected” until somebody actually reads it. In other words, the NSA gathers massive amounts of private information and stores it, but then tells Americans with a straight face that it does not “collect” data without a warrant. Under both Presidents Bush and Obama, the executive branch has combined executive orders with the 2001 AUMF to claim the authority to conduct virtually unlimited information gathering without a warrant. Simply put, according to the executive branch, the commander-in-chief possess the

authority to spy at will as part of his constitutional war powers , and Congress can’t interfere, short of revoking the AUMF. The 1970 Foreign Intelligence Surveillance Act sets up the statutory authority for foreign intelligence gathering. Even the Department of Justice acknowledges that its restrictions limit executive power in peacetime. A 2004 memo on the STELLAR WIND program summarizes foreign intelligence gathering authority. Generally speaking, FISA provides what purports to be, according to the terms of the statute, the exclusive means for intercepting the content of communications in the United States for foreign intelligence purposes… FISA expressly makes it a felony offense for any person intentionally to conduct electronic surveillance under color of law except as provided by statute. This provision is complimented by an interlocking provision in Title III – the portion of the criminal code that provides the mechanism for obtaining wire taps for law enforcement purposes. That would seem to preclude the president, or other players in the executive branch, from unilaterally engaging in surveillance. It also indicates that Congress could place additional restrictions on the NSA through reform of FISA and other congressional acts

relating to spying. But the DoJ claims war powers unleashed by the AUMF voids the exclusivity of statutory authority. In

fact, the executive branch claims any restriction on the president’s spy authority is unconstitutional . We conclude

that in the circumstances of the current armed conflict with al Qaeda, the restrictions set out in FISA, as applied to

targeted efforts to intercept the communications of the enemy in order to prevent further armed attacks on the United States, would be an unconstitutional infringement on the constitutionally assigned powers of the President . The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President’s exercise of this authority. This means that even in the unlikely event Congress passes significant legislation to reform FISA and the Patriot Act to protect privacy and limit warrantless spying, it will have little practical effect as long as the president claims virtually unlimited authority to spy on us under the AUMF. With no end in sight to the “War on Terror,” this falls into the category of wishful thinking. Depending on the courts to limit

presidential authority will also likely prove disappointing. Federal courts historically rubber-stamp federal powers, no matter how broadly interpreted, when exercised in the name of “national security.”

2nc – surveillance spills over

Curtailing domestic surveillance undermines the sole organ doctrine – which underpins every facet of presidential powerWood and Webb 11 – Department of Political Science at Texas A&M University, presented to the faculty at Vanderbilt University (B Dan Wood, Clayton Webb, 10/17/11, “EXPLAINING PRESIDENTIAL SABER RATTLING,” http://www.vanderbilt.edu/csdi/events/Wood_Presidential_Saber_Rattling_112111.pdf)//twontwon

The courts affirmed early on that as sovereign leaders, presidents are the nation’s chief foreign policy representative . Future Supreme Court Justice John Marshall stated in 1800 when he served in the U.S. House of Representatives ―The

President is the sole organ of the nation in its external relations , and its sole representative with foreign nations.‖ (10 Annals of Congress 613) Relying on Marshall’s ―sole organ‖ doctrine, Supreme Court Justice George Sutherland wrote in 1937 (United States vs. Curtiss-Wright Export Corp , 299 U.S. 319) ―In this vast external realm [foreign policy], with its important, complicated, delicate and

manifold problems, the President alone has the power to speak or listen as a representative of the nation.‖

While the plenary nature of executive authority in foreign relations is not universally accepted (e.g., see the persuasive

arguments by Fisher 2006, 2007a, 2007b, 2007c, 2007d, 2007e, 2008a, 2008b), ***FOOTNOTE BEGINS*** . 2007d. "Statement by

Louis Fisher appearing before the House Committee on the Judiciary, "Constitutional Limitations on Domestic Surveillance "." ed.

L. L. o. Congress.***FOOTNOTE ENDS*** the modern chief executive relies extensively on the ―sole organ‖

doctrine to define presidential power broadly , and it is now commonly assumed that presidents are the sole representatives of the nation to the outside world.

2nc – at: prez ignores courts

The prez complies with court decisionsGreen 11 – Professor of Law, Temple University Beasley School of Law, John Edwin Pomfret Fellowship, Princeton University, J.D. Yale Law School (Craig Green, Summer 2011, “ENDING THE KOREMATSU ERA: AN EARLY VIEW FROM THE WAR ON TERROR CASES,” 105 Nw. U.L. Rev. 983, Lexis)//twontwon

Jackson's hard-nosed analysis may seem intellectually bracing, but it understates the real-world power of judicial precedent to shape what is politically possible . 306 Although presidential speeches occasionally declare a willingness to disobey Supreme Court rulings, actual disobedience of this sort is rare and would carry grave political consequences . 307 Even President [*1037] Bush's losses in the GWOT cases did not spur serious consideration of noncompliance despite broad support from a Republican Congress . 308 Likewise, from the perspective of strengthening presidential power, Korematsu-era decisions emboldened President Bush in his twenty-first-century choices about Guantanamo

and military commissions. 309 Thus, the modern historical record shows that judicial precedent can both expand and

restrict the political sphere of presidential action .

2nc – warrants linkRequiring warrants restricts war powersShane 14 – Chair in Law, Moritz College of Law, OSU (Peter Shane, 2014, “FOREWORD: THE NSA AND THE LEGAL REGIME FOR FOREIGN INTELLIGENCE SURVEILLANCE,” http://thedailyjournalist.com/wp-content/uploads/2014/01/nsa-symposium.pdf)//twontwon

After the warrantless surveillance of electronic communications content was divulged in The New York Times, President Bush acknowledged in a December 17, 2005 radio address what the Administration called the Terrorist Surveillance Program.72 In addition, the Administration prepared two public full presentations of its legal position. The more extensive of these was a January 19, 2006 Justice Department

memorandum of unattributed authorship, entitled, “Legal Authorities Supporting the Activities of the National Security Agency Described by the President.”73 In this memorandum, as in an earlier letter from Assistant Attorney General William Moscella to the leadership of the House and Senate Select Committees on Intelligence,74 the Administration’s legal stance rested to two

essential propositions. The first is that warrantless electronic surveillance directed at al Qaeda and its supporters fell within the President’s inherent war powers , as confirmed by the Authorization to Use Military Force in Afghanistan, or the AUMF,75 enacted by Congress on September 12, 2001.76 The second was that the President has inherent constitutional power to conduct the TSP no matter what the AUMF says and, if FISA is read to preclude this particular program of foreign intelligence surveillance, then FISA is unconstitutional.77

2nc – ambiguity link

Any resolution of ambiguity eviscerates executive flexibility – squo reforms fail – but the plan’s durable fiat ensure the plan severely restricts the executiveMitchell 9 – Assistant Prof. Law at George Mason University School of Law (Jonathan Mitchell, Summer 2009, “ARTICLE: LEGISLATING CLEAR-STATEMENT REGIMES IN NATIONAL-SECURITY LAW,” 43 Ga. L. Rev. 1059, Lexis)//twontwon

In like manner, a future executive might claim that a generic Authorization to Use Military Force implicitly repeals Senator Specter's proposed funding restrictions under the last-in-time rule, so long as it can concoct some argument that legislators are aware (or should be aware) that warrantless surveillance of the enemy is a "fundamental incident of the use of military force." 180 Or the President might claim that annual appropriations bills for the intelligence agencies implicitly repeal the earlier-enacted funding restrictions if legislators are aware of the President's warrantless surveillance activities but fail to expressly reaffirm FISA's restrictions. Proposals that would add funding restrictions to the War Powers Resolution are similarly incapable of withstanding the executive-branch lawyers' broad theories of implied repeal. Those funding restrictions, like § 8(a)(1) of the War Powers Resolution, would be brushed aside whenever implicit congressional "authorization" might

be found in later-enacted statutory language. The challenge for these efforts to strengthen the W ar Powers Resolution and

FISA is that any future ambiguous statute will provide rope for executive-branch lawyers to concoct congressional "authorization" for the President's actions, no matter what restrictions or interpretive instructions

Congress provides in framework legislation. None of these proposed reforms will disable [*1104] the executive

from using its expansive theories of constitutional avoidance and implied repeal to provide a veneer of legality for the President's actions, and minimize the prospect of future criminal sanctions and political reprisals against executive-branch employees.

2nc – nsa/fisa link

The aff drastically limits war powersMitchell 9 – Assistant Prof. Law at George Mason University School of Law (Jonathan Mitchell, Summer 2009, “ARTICLE: LEGISLATING CLEAR-STATEMENT REGIMES IN NATIONAL-SECURITY LAW,” 43 Ga. L. Rev. 1059, Lexis)//twontwon

Numerous proposals to strengthen the clear-statement regimes in Congress's national-security legislation have focused on imposing more narrow clear-statement requirements or adding funding restrictions to the framework legislation. Consider, for example, Senator Specter's

proposal in the 109th Congress to reform FISA. The Specter bill reiterates that FISA (along with chapters 119, 121, and 206 of

title 18, United States Code) shall be "the exclusive means by which electronic surveillance may be conducted" in

the United States, but adds the phrase "[n]otwithstanding any other provision of law." 168 The Specter proposal further

states that no provision of law may repeal or modify FISA unless it "expressly amends or otherwise specifically cites this title." 169 Congress failed [*1101] to enact Senator Specter's proposal, but it did enact a provision in the 2008 FISA Amendments that specifies that "[o]nly an express statutory authorization for electronic surveillance" may authorize electronic surveillance outside of FISA's procedures. 170

This new statute attempts to foreclose the Bush Administration's argument that FISA's "exclusive means" provision was insufficiently

"clear" to affect the meaning of the later-enacted AUMF. 171 Congress also imposed a very narrow clear-statement requirement in the McCain Amendment to the 2005 Detainee Treatment Act, providing that its prohibition on certain forms of cruel, inhuman, or degrading treatment "shall not be superseded, except by a provision of law enacted after December 30, 2005, which specifically repeals,

modifies, or supersedes the provisions of this section." 172 This clear- statement requirement is more narrow than those in

the War Powers Resolution and FISA, as it entrenches the McCain Amendment against any type of implied repeal. There have also been numerous proposals to add funding restrictions to Congress's national-security legislation. Senator Specter's proposed FISA amendments, for example, provide that "no funds appropriated or otherwise made available by any Act" may be expended for electronic surveillance conducted outside of FISA and Chapters 119, 121, and 206 of Title 18 of the U.S. Code. 173 Professor John Hart Ely proposed a similar amendment to the War Powers Resolution that withholds funding from military ventures that Congress has not specifically authorized. 174 Other commentators have endorsed similar proposals. 175 But none of these proposed [*1102] reforms is likely to prevent the executive branch from continuing to infer congressional authorization from ambiguous later-enacted statutes, nor are they likely to prevent future Congresses from acquiescing to this practice. The first problem is that these new statutes and proposals fail to counter the aggressive interpretive doctrines that executive-branch lawyers use to infer congressional authorization from legislation that lacks the required clear statement. The Clinton Administration's Kosovo memo already provides a roadmap for the executive branch to evade the clear-statement rule in the 2008 FISA Amendments, which insists that "[o]nly an express statutory authorization for electronic surveillance" may authorize electronic surveillance outside of FISA's procedures. 176 The OLC Kosovo memo characterizes the express-reference requirement in § 8(a)(1) of the War Powers Resolution as an invalid attempt to "bind" future Congresses, and converts it into a standard-like "background principle" that applies only when future legislation is "entirely ambiguous" as to whether it authorizes military hostilities. 177 There is little reason to think that future executives will treat FISA's new express-language requirement any differently if they anticipate that Congress is likely to acquiesce. Executive-branch lawyers can also invoke the Clinton and Bush Administration's broad theories of implied repeal if they find language in a later-enacted statute that might be read to authorize warrantless surveillance. The more narrow clear-statement requirements in Senator Specter's proposed FISA reforms and the recently enacted McCain Amendment would fareno better. Even though they purport to entrench themselves against implied repeal, the executive branch can assert, as it did during the Kosovo and NSA surveillance controversies, that this partial entrenchment unlawfully "binds" future Congresses and proceed with its broad theories of implied repeal. The proposals to add funding restrictions to FISA and the War Powers Resolution are equally vulnerable to expansive executive [*1103] branch theories of implied repeal. Recall that the OLC Kosovo memo asserts that the 1999 Emergency Supplemental Appropriations Act implicitly repealed restrictions in the War Powers Resolution, even though the Appropriations Act never earmarked funds for military operations in Kosovo, nor specifically authorized military operations in Kosovo beyond the WPR's sixty-day window. 178 According to OLC, it was enough that some members of Congress thought that the President might continue the Kosovo hostilities beyond sixty days and that the appropriations legislation did not expressly withhold funds for that purpose. 179 In like manner, a future executive might claim that a generic Authorization to Use Military Force implicitly repeals Senator Specter's proposed funding restrictions under the last-in-time rule, so long as it can concoct some argument that legislators are aware (or

should be aware) that warrantless surveillance of the enemy is a " fundamental incident of the use of military force." 180 Or the President might claim that annual appropriations bills for the intelligence agencies implicitly repeal the earlier-enacted funding restrictions if legislators are aware of the President's warrantless surveillance activities but fail to expressly reaffirm FISA's restrictions. Proposals that would add funding restrictions to the War Powers Resolution are similarly incapable of withstanding the executive-branch lawyers' broad theories of implied repeal. Those funding restrictions, like § 8(a)(1) of the War Powers Resolution, would be brushed aside

whenever implicit congressional "authorization" might be found in later-enacted statutory language. The challenge for these efforts to

strengthen the War Powers Resolution and FISA is that any future ambiguous statute will provide rope for executive -branch lawyers to concoct congressional "authorization" for the President's actions, no matter what restrictionsor interpretive instructions Congress provides in framework legislation. None of these proposed reforms will disable [*1104] the executive from using its expansive theories of constitutional avoidance and implied repeal to provide a veneer of legality for the President's actions, and minimize the prospect of future criminal sanctions and political reprisals against executive-branch employees.

2nc – link – surveillanceSurveillance capabilities are integral to presidential war powers – allows effective terrorism deterrenceYoo 14 (John is professor of law at the Boalt Hall School of Law at the University of California, Berkeley, and visiting scholar at the American Enterprise Institute. He has also served as general counsel for the Senate Judiciary Committee; as a law clerk to Justice Clarence Thomas and Judge Laurence H. Silberman; and, from 2001 to 2003, as a Deputy Assistant Attorney General in the Office of Legal Counsel of the U.S. Department of Justice. October 3, “Surveillance and executive power”, http://blog.constitutioncenter.org/2014/10/surveillance-and-executive-power/)//dtang

As Commander-in-Chief, the President has the constitutional power and the responsibility to wage war in response to a direct attack against the United States. In the Civil War, President Lincoln undertook several actions—raised an army, withdrew money from the treasury, launched a blockade—on his own authority in response to the Confederate attack on Fort Sumter, moves that Congress and the Supreme Court later approved. During World War II, the Supreme Court similarly recognized that once war began, the President’s authority as Commander-in-

Chief and Chief Executive gave him the tools necessary to effectively wage war. In the wake of the September 11 attacks, Congress agreed that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States,” which recognizes the President’s authority to use force to respond to al Qaeda, and any powers necessary and proper to that end. Even legal scholars who argue against this historical practice concede that once the United States has

been attacked, the President can respond immediately with force. John Yoo and Stewart Baker will debate Alex Abdo and Elizabeth Wydra at the National Constitution Center on October 7—

reserve your tickets NOW! The ability to collect intelligence is intrinsic to the use of military force . It is inconceivable that the Constitution would vest in the President the powers of Commander-in-Chief and Chief Executive, give him the responsibility to protect the nation from attack, but then disable him from gathering intelligence to use the military most effectively to defeat the enemy. Every evidence of the Framers’ understanding of the Constitution is that the government would have every ability to meet a foreign danger. As James Madison wrote in The Federalist, “security against foreign danger is one of the primitive objects of civil society.”

Therefore, the “powers requisite for attaining it must be effectually confided to the federal councils.” After World War II, the Supreme Court declared, “this grant of war power includes all that is necessary and proper for carrying these powers into execution.” Covert operations and electronic surveillance are clearly part of this authority . During the writing of the Constitution, some Framers believed that the President alone should manage intelligence because only he could keep secrets. Several Supreme Court cases have recognized that the President’s role as Commander-in-Chief and the sole organ of the nation in its foreign relations must include the power to collect intelligence. These authorities agree that

intelligence rests with the President because its structure allows it to act with unity, secrecy, and speed. Presidents have long ordered electronic surveillance without any judicial or congressional participation. More than a year before the Pearl Harbor attacks, but with war clearly looming with the Axis powers, President Franklin Roosevelt authorized the FBI to intercept any communications, whether wholly inside the country or international, of persons “suspected of subversive activities against the Government of the United States, including suspected spies.” FDR was concerned that “fifth columns” could wreak havoc with the war effort. “It is too late to do anything about it after sabotage, assassinations and ‘fifth column’ activities are completed,”

FDR wrote in his order. FDR ordered the surveillance even though a federal law at the time prohibited electronic surveillance without a warrant. Presidents continued to monitor the communications of national security threats on their own authority, even in peacetime . If

Presidents in times of peace could order surveillance of spies and terrorists, executive authority is only the greater now, as hostilities continue against al Qaeda.

AT: Link turnsCongress doesn’t enhance cred – political infighting make us look unsure Yoo 4 - Emanuel S. Heller Professor of Law at UC-Berkeley, visiting scholar at the American Enterprise Institute, former Fulbright Distinguished Chair in Law at 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 (John, “War, Responsibility, and the Age of Terrorism,” UC-Berkeley Public Law and Legal Theory Research Paper Series, November 2004, http://works.bepress.com/cgi/viewcontent.cgi?article=1015&context=johnyoo) //AD

It is also not obvious that congressional 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 congressional 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 United States and the Soviet Union 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.

Congressional checks don’t boost resolveWaxman 13 - Professor of Law at Columbia and Adjunct Senior Fellow for Law and Foreign Policy at CFR (Matthew, “The Constitutional Power to Threaten War,” Yale Law Journal, vol. 123, 8-25-13) //AD

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 international relations.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.

Impact

4 th gen warfare

Executive control of warmaking is key to combating 4th generation threats

Li 9 (Zheyao, J.D. candidate, Georgetown University Law Center, 2009; B.A., political science and history, Yale University, “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)//dtang

A. 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 constitutional 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 organizations, the rise of multilateral alliances, the emergence of rogue states, and the potentially wide proliferation of easily deployable weapons of mass destruction, 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 modern 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 United States 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-generational 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 adequately 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-generational conflicts against fourthgenerational opponents.

Fourth gen warfare is coming and will escalate – strong exec keySingh 10 (S.B., Dy. Commandant, CRPF Academy, “FOURTH GENERATION WARFARE”, Endeavour, Vol 1, Issue 1, p. 12-14, https://redecomposition.files.wordpress.com/2012/11/academy_journal_endeavour_vol_1.pdf)//dtang

The fourth generation warfare will be highly dispersed in nature. The battlefield would expand to include the enemy’s whole

society. The battlefield itself would be difficult to define or delineate. Expansion of battlefield from land to sea to air, will now go into the realms of ideologies, culture and values of the target society.

Psychological manipulation will assume primacy. The lines dividing the combatants and civilians will get further blurred. In fact the combatants would not be the traditional soldiers. They may well be civilians with specific areas of expertise which will extend beyond conventional military

matters. These would be applied for comprehensive disruption, degradation and destruction of enemy society. Nations are defined not only by their geographic boundaries, but because of their culture, traditions and ideological cohesiveness . The quest to target the vulnerabilities of the adversary will prompt the warriors of the next generation of warfare to destroy the very fundamentals of enemy’s nationality. The target would be its society, unity, national spirit and identity. The ultimate goal would be to create such conditions that the adversary’s society will

cease to exist as a coherent entity. All the rules and norms of traditional war fighting will disappear, to the extent that it may be difficult to call it war. Consequently the intelligentsia will be forced to coin new terms to define such acts. Since the basic characteristic of this generation of warfare is its lack of form or boundaries, such definitions and terms will appear

confusing, imprecise and inaccurate. Terrorism, militancy, insurgency, asymmetric warfare and a large number of other terms, with overlapping scopes, will come into being. Delegation of executive powers will lead to operations being undertaken by small teams or individuals operating alone, making identification and targeting difficult. Fourth generation warfare will be fought in multiple strata, in different forms and methods, seemingly without a robust

command and control architecture. It will also use tactics and techniques from earlier generations of warfare. The indefinable nature of battlefield, highly dispersed, specialized teams/ individuals and defiance of all norms will lead to ostensible chaos. As the stress of earlier warfare has shifted from manpower to fire power to maneuver, it will now further shift to this “apparent chaos”.

This will be the strength of the fourth generation warrior, since it will make it difficult to identify its centre of gravity and target it. The “quest for profit” will drive the proponents of fourth generation warfare also. The goals would be money, territory, power or could go beyond to amalgamation of entire societies into own cultural / religious folds or its destruction to eliminate a perceived threat to own existence. International aversion to war, economic concerns and huge

losses of lives will make the prospects of waging war more and more impractical to states. Intelligent methods of war fighting like war by proxy and by stateless actors will replace wars waged by nation states. The fourth generation warfare will use technology as a tool to wage an efficient and effective war with a wide reach, while exploiting the technological dependence of the target society to create mayhem. Having analysed the drivers and likely contours of the fourth generation warfare, certain basic questions need to be answered to further clarify fourth generation warfare.

Conflict escalationExecutive authority is a conflict dampener---prevents escalation of their impactsRoyal 11 (John-Paul, Institute of World Politics, Class of 2011 Valedictorian, “War Powers and the Age of Terrorism,” http://www.thepresidency.org/storage/Fellows2011/Royal-_Final_Paper.pdf)//dtang

The international system itself and national security challenges to the United States in particular, underwent rapid and significant change in the first decade of the twenty-first century. War can no longer be thought about strictly in the

terms of the system and tradition created by the Treaty of Westphalia over three and a half centuries ago. Non-state actors now possess a level of destructiveness formerly enjoyed only by nation states. Global terrorism, coupled with the threat of weapons of mass destruction developed organically or obtained from rogue regimes, presents new challenges to U.S. national security and place innovative demands on the Constitution’s system of making war. In the past, as summarized in the 9/11 Commission Report, threats emerged due to hostile actions taken by enemy states and their ability to muster large enough forces to wage war: “Threats emerged slowly, often visibly, as weapons were forged, armies conscripted, and units trained and moved into place. Because large states were more powerful, they also had more to lose. They could be deterred" (National Commission 2004, 362).

This mindset assumed that peace was the default state for American national security. Today however, we know that threats can emerge quickly. Terrorist organizations half-way around the world are able to wield weapons of unparalleled destructive power. These attacks are more difficult to detect and deter due to their unconventional and asymmetrical nature. In light of these new asymmetric threats and the resultant changes to the

international system, peace can no longer be considered the default state of American national security. Many have argued that the Constitution permits the president to use unilateral action only in response to an imminent direct attack on the United

States. In the emerging security environment described above, pre-emptive action taken by the executive

branch may be needed more often than when nation-states were the principal threat to American national interests. Here again, the 9/11 Commission Report is instructive as it considers the possibility of pre-emptive force utilized over large geographic areas due to the diffuse nature of terrorist networks: In this sense, 9/11 has taught us that terrorism against American interests “over there” should be regarded just as we regard terrorism against America “over here.” In this sense, the American homeland is the planet (National Commission 2004, 362). Furthermore, the report explicitly describes the global nature of the threat and the global mission that must take place to address it. Its first strategic policy recommendation against terrorism states that the: U.S. government must identify and prioritize actual or potential terrorist sanctuaries. For each, it should have a realistic strategy to keep possible terrorists insecure and on the run, using all

elements of national power (National Commission 2004, 367). Thus, fighting continues against terrorists in Afghanistan, Yemen, Iraq, Pakistan, the Philippines, and beyond, as we approach the tenth anniversary of the September 11, 2001

attacks. Proliferation of weapons of mass destruction (WMD), especially nuclear weapons, into the hands of these terrorists is the most dangerous threat to the United States. We know from the 9/11 Commission Report that Al Qaeda

has attempted to make and obtain nuclear weapons for at least the past fifteen years. Al Qaeda considers the acquisition of

weapons of mass destruction to be a religious obligation while “more than two dozen other terrorist groups are pursing CBRN [chemical, biological, radiological, and nuclear] materials” (National Commission 2004, 397). Considering

these statements, rogue regimes that are openly hostile to the United States and have or seek to develop nuclear weapons capability such as North Korea and Iran, or extremely unstable nuclear countries such as Pakistan, pose a special threat to American national security interests. These nations were not necessarily a direct

threat to the United States in the past. Now, however, due to proliferation of nuclear weapons and missile technology , they can inflict damage at considerably higher levels and magnitudes than in the past . In addition, these regimes may pursue proliferation of nuclear weapons and missile technology to other nations and to allied terrorist organizations. The United States must pursue condign punishment and appropriate, rapid action against hostile terrorist organizations, rogue nation states, and nuclear weapons proliferation threats in

order to protect American interests both at home and abroad. Combating these threats are the “top national security priority for the United States…with the full support of Congress, both major political parties, the media, and the American

people” (National Commission 2004, 361). Operations may take the form of pre-emptive and sustained action

against those who have expressed hostility or declared war on the United States. Only the executive branch can effectively execute this mission, authorized by the 2001 AUMF. If the national consensus or the nature of the threat changes, Congress possesses the intrinsic power to rescind and limit these powers.

Key to winning all future conflicts Johson 6 (Karlton, Army War College, “Temporal and Scalar Mechanics of Conflict Strategic Implications of Speed and Time on the American Way of War,” http://www.dtic.mil/dtic/tr/fulltext/u2/a449394.pdf)//dtang

The U.S. Army War College uses the acronym “VUCA” to describe the volatile, uncertain, chaotic and ambiguous environment in which strategy is made.4 If the present is any indication of the future, then it is reasonable to assume that the world will become increasingly dangerous as long as that strategic environment exists. Many long-range assessments predict that global tensions will continue to rise as resources become even more constrained and as transnational threats endanger international security. 5 Future leaders and planners can expect to see weak and failed states persisting to dominate U.S. foreign policy agendas . Terrorism will remain a vital interest, and the use of American military strength will remain focused on the dissuasion, deterrence, and, where necessary, the preemption of strategic conflict . Enemies will work aggressively to offset U.S. military superiority by seeking out technologies that will offer some level of asymmetric advantage, and the challenging asymmetric nature of future conflicts will add deeper complexity to both war planning and the development of national security strategy. 6 The “National Defense Strategy of the United States,” published in March 2005, addressed the unconventional nature of the future. It argued that enemies are increasingly likely to pose asymmetric threats resulting in

irregular, catastrophic and disruptive challenges.7 This means that, in some cases, non-state actors will choose to attack the United S tates using forms of irregular warfare that may include the use of weapons of mass destruction. These actors

may also seek new and innovative ways to negate traditional U.S. strengths to their advantage.8 In fact, one author theorizes that “speed of light engagements” will be the norm by the year 2025, and America may lose its monopoly on technological advances as hostile nations close the gap between technological “haves” and “have nots .”9

This type of warfare lends itself to engagements of varying speed and temporal geometry. 10 Therefore, in conflicts of the future, time and speed will matter . Consequently, it is necessary to analyze these elements with rigor and discipline in order to understand their far-reaching implications.

CredibilityExecutive weakness destroys credibility—that emboldens adversaries and risks flashpoint escalation Howell 7 (William, professor of political science at U-Chicago, and Jon C. Pevehouse, professor of Political Science UW-Madison, “While Dangers Gather : Congressional Checks on Presidential War Powers,” 2007 ed.)

SIGNALING RESOLVE To the extent that congressional discontent signals domestic irresolution to other nations,

the job of resolving a foreign crisis is made all the more difficult. As Kenneth Schultz shows, an ''opposition party can undermine the credibility of some challenges by publicly opposing them. Since this strategy threatens to increase the probability of resistance from the rival state, it forces the government to be more selective about making threats "—and, concomitantly, more cautious about actually using military force.'4

When members of Congress openly object to a planned military operation, would-be adversaries of the

United States may feel emboldened, believing that the president lacks the domestic support required to see a military venture through. Such nations, it stands to reason, will be more willing to enter conflict, and if

convinced that the United States will back down once the costs of conflict are revealed, they may fight longer and make fewer concessions. Domestic political strife, as it were, weakens the ability of presidents to bargain effectively with foreign states, while increasing the chances that military entanglements abroad will become protracted and unwieldy. A large body of work within the field of international relations supports the contention that a nation's ability to achieve strategic military objectives in short order depends, in part, on the head of state's credibility in conveying political resolve . Indeed, a substantial game theoretic literature underscores

the importance of domestic political institutions and public opinion as state leaders attempt to credibly commit to war,75 Confronting widespread and vocal domestic opposition, the president may have a difficult time signaling his willingness to see a military campaign to its end, While congressional opposition may embolden foreign enemies, the perception on the part of allies that the president lacks support may make them wary of committing any troops at all.

Lack of Obama credibility prevents effective multilateralism and causes global hotspot escalationCoes 11 –Visiting Fellow at Harvard University’s John F. Kennedy School of Government, degree from Columbia University, received the prestigious Bennett Cerf Memorial Prize (Ben, “The disease of a weak president”, The Daily Caller, 9-30-11, http://dailycaller.com/2011/09/30/the-disease-of-a-weak-president/) //AD

The disease of a weak president usually begins with the Achilles’ heel all politicians are born with — the desire to be popular. It leads to pandering to different audiences,

people and countries and creates a sloppy, incoherent set of policies. Ironically, it ultimately results in that very politician losing the trust and respect of friends and foes alike. In the case of Israel, those of us who are strong supporters can at least take comfort in the knowledge that Tel Aviv will do

whatever is necessary to protect itself from potential threats from its unfriendly neighbors. While it would be preferable for the Israelis to be able to count on the United States, in both word and deed, the fact is right now they stand alone. Obama and his foreign policy team have undercut the Israelis in a multitude of ways. Despite this, I wouldn’t bet against the

soldiers of Shin Bet, Shayetet 13 and the Israeli Defense Forces. But Obama’s weakness could — in other places — have implications far, far worse than anything that might ultimately occur in Israel. The triangular plot of

land that connects Pakistan, India and China is held together with much more fragility and is built upon a truly foreboding foundation of religious hatreds, radicalism, resource envy and nuclear weapons . If you can only worry about preventing one foreign policy disaster, worry about this one.

Here are a few unsettling facts to think about: First, Pakistan and India have fought three wars since the British de-colonized and left the region in 1947. All three wars

occurred before the two countries had nuclear weapons. Both countries now possess hundreds of nuclear weapons , enough to wipe each other off the map many times over. Second, Pakistan is 97% Muslim. It is a question of when — not if — Pakistan elects a radical Islamist in the mold of Ayatollah Khomeini as its president . Make no mistake, it will

happen, and when it does the world will have a far greater concern than Ali Khamenei or Mahmoud Ahmadinejad and a single nuclear device. Third, China sits at the northern border of both India and Pakistan . China is strategically aligned with Pakistan. Most concerning, China covets India’s natural resources . Over the years, it has slowly inched its way into the northern tier of India-controlled Kashmir Territory, appropriating land and resources and drawing little notice from the outside world. In my book, Coup D’Etat, I consider this tinderbox of colliding forces in

Pakistan, India and China as a thriller writer. But thriller writers have the luxury of solving problems by imagining solutions on the page. In my book, when Pakistan elects a radical Islamist who then starts a war with India and introduces nuclear weapons to the theater, America steps in and removes the Pakistani leader through a coup d’état. I wish it was that simple. The more complicated and difficult truth is that we, as Americans, must take sides. We must be willing to be unpopular in certain places. Most important, we must be ready and willing to threaten our military might on behalf of our allies . And our allies are Israel and India. There are many threats out there — Islamic radicalism, Chinese technology espionage, global debt and half a dozen other things that smarter people than me are no doubt worrying about. But the single greatest threat to America is none of these. The single greatest threat facing America and our allies is a weak U.S. president . It doesn’t have to be this way. President Obama could — if he chose — develop a backbone and lead. Alternatively, America could elect a new president. It has to be one or the other. The status quo is simply not an option.

Congress opposition to warfighting destroys international perception of U.S. credibilityWaxman 13 - Professor of Law at Columbia and Adjunct Senior Fellow for Law and Foreign Policy at CFR (Matthew, “The Constitutional Power to Threaten War,” Yale Law Journal, vol. 123, 8-25-13) //AD

When members of Congress vocally oppose a use of force, they undermine the president’s ability to convince foreign states that he will see a fight through to the end. Sensing hesitation on the part of the United States, allies may be reluctant to contribute to a military campaign, and adversaries are likely to fight harder and longer when conflict erupts— thereby raising the costs of the military campaign, decreasing the president’s ability to negotiate a satisfactory resolution, and increasing the probability that American lives are lost along the way. Facing a limited band of allies willing to participate in a military venture and an enemy emboldened by domestic critics, presidents may choose to curtail, and even abandon, those military operations that do not involve vital strategic interests.145

DeterrenceLegality of threats alone is sufficient to deter conflictWaxman 14 (Matthew, Professor of Law, Columbia Law School; Adjunct Senior Fellow for Law and Foreign Policy, Council on Foreign Relations. April, “The Power to Threaten War”, Yale Law Journal, Vol. 123, No. 6, 1626 – 2133)//dtang

Existing war powers scholarship focuses overwhelmingly on the President’s power to initiate military operations abroad and the extent to which

that power is constrained by Congress. It ignores the allocation of legal power to threaten military force or war, even though threats—to coerce or deter enemies and to reassure allies—are one of the most important ways in which the United States government wields its military might. This paper fills that scholarly void, and draws on recent political science and historical scholarship to construct a richer and more accurate account of the modern presidency’s powers to shape American security

policy. The swelling scope of the President’s practice in wielding threatened force largely tracks the standard historical narrative of war powers shifting from Congress to the President. Indeed, adding threats of force to that story might suggest that this shift in powers of war and peace has been even more dramatic than usually supposed. This Article shows, however, that congressional influence operates more robustly—and in different ways—than usually supposed in legal debates about war powers to shape strategic decision-making. In turn, these mechanisms of congressional influence can

enhance the potency of threatened force. By refocusing the debate on threatened force and its credibility requirements, this Article also calls into question many orthodoxies of the policy advantages and risks attendant to various allocations of legal war powers. Instead of proposing a policy-optimal solution, the Article concludes that the allocation of constitutional war powers is—and should be—geopolitically and strategically contingent. The actual and effective balance between presidential and congressional powers over war and peace in practice necessarily depends on shifting assumptions and policy choices about how best to secure U.S. interests against potential threats.

Framing issue – uq actually controls the link – only a risk that a decline in executive war powers kills effective deterrence – none of their ev assumes perceptionWaxman 14 (Matthew, Professor of Law, Columbia Law School; Adjunct Senior Fellow for Law and Foreign Policy, Council on Foreign Relations. April, “The Power to Threaten War”, Yale Law Journal, Vol. 123, No. 6, 1626 – 2133)//dtang

The main data set for analyzing these questions is, not surprisingly, actual wars and other hostile engagements of U.S. forces abroad. In ascertaining

and describing the patterns of executive behavior and congressional responses, legal scholars look at armed conflicts and combat operations of the past. Legal debates heat up during or following wars, especially major ones that go badly, or military combat that extends longer than expected. Proposed solutions focus on the commencement of armed hostilities—military engagement with the enemy—and what, if any, inter-branch actions must precede or accompany it. There is a major disconnect here, though, between legal scholarship on constitutional war powers—specifically, its predominant focus on actual military engagements—and the way the United States wields its military might, especially since the onset of the Cold War and extending into the twenty-first

century. Oftentimes the most important policy tool derived from U.S. military power is not waging war, but threatening war or force. The power to threaten war is closely related to, but analytically distinct from, the power to make it. By “threats” in this Article, I mean communications of the will and capability to use military force that are employed as a means to induce other actors to change behavior—whether to do

something or to not do something.12 During major periods of American history, including the present one, U.S. strategy has relied heavily on perceptions of U.S. military might and willingness to use it; that is, it has relied on the manipulation of risk to deter aggression or other actions by adversaries, to coerce or compel certain actions by other states or international actors, to reassure allies, and to pursue other political designs in the shadow of armed threats.13 The primary purpose to which U.S. military might has been directed since World War II has generally been to prevent wars or deter them. When war or large-scale force was actually used, it was

because a prior policy or strategy had failed—for instance, threats were insufficiently credible, crises involving U.S. threats of force escalated in ways difficult to control, and so on—rather than because making war was intended as the best approach to a danger or, sometimes, even recognized as a

likely result. In this regard, most of the time that U.S. military power is “used”—and often when it is most successful—it does not manifest as a war or major military engagement at all. There is a basic paradox at work here: if threats of force work, force does not

have to be used. Other things being equal, the greater the credibility of the threat, the less likely it will be necessary to make good on it. Because this argument is about wars that don’t happen, though, it is difficult to develop empirical evidence to support it. Accordingly, statesmen cannot be so sure of its validity and constitutional lawyers tend to overlook it entirely. There is a close parallel in international law to this disconnect between legal discourse and security strategy. Article 2(4) of the United Nations Charter prohibits “the threat or use of force against the territorial integrity or political independence of any state.”14 However, beyond prohibiting the most blatantly aggressive threats, international legal doctrine in this area is not at all well developed,15 and the regulation of threats of force is not well theorized in international legal scholarship.16 As with the domestic law of American war powers, the threat element has mostly disappeared from discussion, even though international relations scholars recognize that threatened force is doing so much work.17 This Article is not a doctrinal argument. It is an argument about framing and method, intended to fill an analytical gap and therefore to inform understanding of the functional advantages and disadvantages of legal formulas for allocating war powers.18 Specifically, Part I of this Article contends that understanding the evolution in constitutional war powers and the merits or dangers of these developments requires both widening the data set and investigative lens to include threats of force and incorporating the insights of the past several decades of analysis by political scientists, historians, and theorists of American grand strategy. Doing so reveals aspects of the war powers story obscured by legal discourse and method focused predominantly on actual uses of force, and it alters and refines the orthodox functional arguments usually relied on by both sides—presidentialist (favoring vast unilateral executive authority to use force) and congressionalist (favoring tight legislative checks on that authority)—of the war powers debate. In game-theoretic terms, the debate

between presidentialist and congressionalist legal scholars about functional advantages looks only at the final stage of a decision tree; but the President’s ability to threaten force is critically important at earlier stages in determining whether that final stage will occur at all, as well as the payoffs associated with choices.

A legal decline in war powers directly impacts the President’s ability to threaten forceWaxman 14 (Matthew, Professor of Law, Columbia Law School; Adjunct Senior Fellow for Law and Foreign Policy, Council on Foreign Relations. April, “The Power to Threaten War”, Yale Law Journal, Vol. 123, No. 6, 1626 – 2133)//dtang

The President’s power to threaten force is almost certainly at least as broad as his power to use it. One way to

think about it is that the power to threaten force is a lesser-included element of presidential war powers; the power to threaten to use force is simply a secondary question, the answer to which is bounded by the primary issue of the scope of presidential power to actually use it. If one interprets the President’s defensive war powers very broadly, to include dealing with aggression against not only U.S. territories but also its distant interests and allies,49 then it is easy to conclude that the

President can also therefore take steps that stop short of actual armed intervention to deter or prevent such aggression. If, however, one interprets the President’s powers narrowly—for example, to include only limited unilateral authority to repel attacks against U.S. territory50—then one might extend objections to excessive presidential power to include the President’s unilateral threats of armed intervention. Another way of looking at it is that, depending on how a particular threat is communicated, threats of war or force may fall within even quite narrow interpretations of the President’s inherent foreign relations powers to conduct diplomacy or his express Commander-in-Chief power to control U.S. military forces—or some combination of the two. A President’s verbal warning, ultimatum, or declared intention to use military force, for instance, could be justified as merely exercising his role as the “sole organ” of U.S. foreign diplomacy, conveying externally information about U.S. capabilities and intentions.51 A President’s movement of U.S. troops or warships to a crisis region or elevation of their alert level could be justified as merely exercising his day-to-day tactical control over forces under his command.52 Generally, nobody seriously argues that the exercise of these powers alone could so affect the likelihood of hostilities or war as to intrude on Congress’s powers over war and peace.53 But we know from historical examples that such unilateral military moves, even those that are ostensibly defensive ones, can provoke wars—take, for example, President Polk’s movement of U.S. forces to the contested border with Mexico in 1846, and the resulting skirmishes that led Congress to declare war.54

Laundry listNew restrictions collapse executive response – that causes terrorism, rogue state lashout, and rapid prolifYoo 13 - Emanuel S. Heller Professor of Law at UC-Berkeley Law, visiting scholar at the American Enterprise Institute, former Fulbright Distinguished Chair in Law at 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, J.D. from Yale and degree from Harvard (John, “Like it or not, Constitution allows Obama to strike Syria without Congressional approval,” Fox News, 8-30-13, http://www.foxnews.com/opinion/2013/08/30/constitution-allows-obama-to-strike-syria-without-congressional-approval/) //AD

The most important of the president’s powers are commander-in-chief and chief executive.¶ As Alexander Hamilton wrote in Federalist 74,

“The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.” ¶ Presidents should conduct war, he wrote, because they could act with “decision, activity, secrecy, and dispatch.” In perhaps his most famous words, Hamilton wrote: “Energy in the executive is a leading character in

the definition of good government. . . It is essential to the protection of the community against foreign attacks.” ¶ The Framers realized the obvious. Foreign affairs are unpredictable and involve the highest of stakes, making them unsuitable to regulation by pre-existing legislation. Instead, they can demand swift, decisive action, sometimes under pressured or even emergency circumstances, that are best carried out by a branch of government that does not suffer from multiple vetoes or is delayed by disagreements. ¶ Congress is too large and unwieldy to take the swift and decisive action required in wartime. ¶ Our Framers replaced the Articles of Confederation, which had failed in the management of foreign relations because it had no single executive, with the Constitution’s

single president for precisely this reason. Even when it has access to the same intelligence as the executive branch, Congress’s loose, decentralized structure would paralyze American policy while foreign threats grow. ¶ Congress has no political incentive to mount and see through its own wartime policy.

Members of Congress, who are interested in keeping their seats at the next election, do not want to take stands on controversial issues where the future is uncertain. They will avoid like the plague any vote that will anger large segments of

the electorate. They prefer that the president take the political risks and be held accountable for failure.¶ Congress's track record when it has opposed presidential leadership has not been a happy one. ¶ Perhaps the most telling example was the Senate's rejection of the Treaty of Versailles at the end of World War I. Congress's isolationist urge kept the United States out of Europe at a time when democracies fell and fascism grew in their place. Even as Europe and Asia plunged into war, Congress passed Neutrality Acts designed to keep the United States out of the conflict.¶ President Franklin Roosevelt violated those laws to help the Allies and draw the nation into war against the Axis. While pro-Congress critics

worry about a president's foreign adventurism, the real threat to our national security may come from inaction and isolationism.¶ Many point to the Vietnam War as an example of the faults of the “imperial presidency.” Vietnam, however, could not have continued without the consistent support of Congress in raising a large military and paying for hostilities. And Vietnam ushered in a period of congressional dominance that witnessed American setbacks in the Cold War, and the passage of the ineffectual War Powers Resolution. Congress passed the Resolution in 1973 over President Nixon's veto, and no president, Republican or Democrat, George W. Bush or Obama, has ever accepted the constitutionality of its 60-day limit on the use of troops abroad. No federal court has ever upheld the resolution. Even Congress has never enforced it.¶ Despite the record of practice and the Constitution’s institutional design, critics nevertheless argue for a radical remaking of the American way of war. They typically base their claim on Article I, Section 8, of the Constitution, which gives Congress the power to “declare War.” But these observers read the eighteenth-century constitutional text through a modern lens by interpreting “declare War” to mean “start war.” ¶ When the Constitution was written, however, a declaration of war served diplomatic notice about a change in legal relations between nations. It had little to do with launching hostilities. In the century before the Constitution, for example, Great Britain – where the Framers got the idea of the declare-war power – fought numerous major conflicts but declared war only once beforehand.¶ Our Constitution sets out specific procedures for passing laws, appointing officers, and making treaties. There are none for waging war, because the

Framers expected the president and Congress to struggle over war through the national political process.¶ In fact, other parts of the Constitution, properly read, support this reading. Article I, Section 10, for example, declares that the states shall not “engage” in war “without the consent of Congress” unless “actually invaded, or in such imminent Danger as will not admit of delay.” ¶ This provision creates exactly the limits desired by anti-war critics, complete with an exception for self-defense. If the Framers had wanted to require congressional permission

before the president could wage war, they simply could have repeated this provision and applied it to the executive.¶ Presidents, of course,

do not have complete freedom to take the nation to war. Congress has ample powers to control presidential policy, if it wants to. ¶ Only Congress can raise the military, which gives it the power to block, delay, or modify war plans.¶ Before 1945, for example, the United States had such a small peacetime military that presidents who started a war would have to go hat in hand to Congress to build an army to fight it. ¶ Since World War II, it has been Congress that has authorized and funded our large standing military, one primarily designed to conduct offensive, not defensive, operations (as we learned all too tragically on 9/11) and to

swiftly project power worldwide. ¶ If Congress wanted to discourage presidential initiative in war, it could build a smaller, less offensive-minded military. ¶ Congress’s check on the presidency lies not just in the long-term raising of the

military. It can also block any immediate armed conflict through the power of the purse.¶ If Congress feels it has

been misled in authorizing war, or it disagrees with the president's decisions, all it need do is cut off funds, either all at once or gradually.¶ It can reduce the size of the military, shrink or eliminate units, or freeze supplies. Using the power of the purse does not even require affirmative congressional action.¶ Congress can just sit on its hands and refuse to pass a law funding the latest presidential adventure, and the war will end quickly. ¶ Even the Kosovo war, which lasted little more than two months and involved no ground troops, required special funding legislation.¶ The Framers expected Congress's power of the purse to serve as the primary check on presidential war. During the 1788 Virginia ratifying convention, Patrick Henry attacked the Constitution for failing to limit executive militarism. James Madison responded: “The sword is in the hands of the British king; the purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist.”

Congress ended America’s involvement in Vietnam by cutting off all funds for the war.¶ Our Constitution has succeeded because it favors swift presidential action in war, later checked by Congress’s funding power. If a president continues to wage war without congressional authorization, as in Libya, Kosovo, or Korea, it is only because Congress has chosen not

to exercise its easy check.¶ We should not confuse a desire to escape political responsibility for a defect in the Constitution. A radical change in the system for making war might appease critics of presidential power. But it could also seriously threaten American national security. ¶ In order to forestall another 9/11 attack, or to take advantage of a window of opportunity to strike terrorists or rogue nations, the executive branch needs flexibility. ¶ It is not hard to think of situations where congressional consent cannot be obtained in time to act. Time for congressional deliberation, which leads only to passivity and isolation and not smarter decisions, will come at the price of speed and secrecy. ¶ The Constitution creates a presidency that can respond forcefully to prevent serious threats to our national security. ¶ Presidents can take the initiative and Congress can use

its funding power to check them. Instead of demanding a legalistic process to begin war, the Framers left war to politics.¶ As we confront the new challenges of terrorism, rogue nations and WMD proliferation, now is not the time to introduce sweeping, untested changes in the way we make war.

Congressional war authority is ineffective – executive war powers key to combating a litany of transnational threats – combating terror, rogue states, and prolif all require a flexible executiveYoo 7 (John is a professor of law at the Boalt Hall School of Law at the University of California, Berkeley, and visiting scholar at the American Enterprise Institute. He has also served as general counsel for the Senate Judiciary Committee; as a law clerk to Justice Clarence Thomas and Judge Laurence H. Silberman; and, from 2001 to 2003, as a Deputy Assistant Attorney General in the Office of Legal Counsel of the U.S. Department of Justice. 4/18, “Exercising Wartime Powers,” http://hir.harvard.edu/archives/1369)//dtang

Proponents of congressional war power often argue that the executive branch is unduly prone to war. In this view, if the president and Congress have to agree on warmaking, the nation will enter fewer wars and wars that do occur will arise only after sufficient deliberation. But it is far from clear that outcomes would be better

if Congress alone had the power to begin wars. First, congressional deliberation does not necessarily ensure consensus. Congressional authorization may represent only a bare majority of Congress or an unwillingness to challenge the President's institutional and political strengths,

regardless of the merits of the war. And even if it does represent consensus, it is no guarantee of consensus after combat begins. The Vietnam War, which was initially approved by Congress, did not meet with a consensus over the long term but instead provoked some of the most divisive politics in US history. It is also difficult to claim that congressional authorizations to use force in Iraq, either in 1991 or 2002, reflected a deep consensus over the merits of the wars there. The 1991 authorization barely survived the Senate, and

the 2002 authorization received significant negative votes and has become a deeply divisive issue in national politics. It is also not clear that the absence of congressional approval has led the nation into wars it should not have waged. The experience of the Cold War, which provides the best examples of military hostilities conducted without congressional support, does not clearly come down on the side of a link between institutional deliberation and better conflict selection. Wars were fought throughout the world by the two superpowers and their proxies, such as in Korea, Vietnam, and Afghanistan, during this period. Yet the only war arguably authorized by Congress--and this

point is debatable--was the Vietnam War. Aside from bitter controversy over Vietnam, there appeared to be significant bipartisan consensus on the

overall strategy of containment, as well as the overarching goal of defeating the Soviet Union. The United States did not win the four-decade Cold War by

declarations of war; rather, it prevailed through the steady presidential application of the strategy of containment, supported by congressional funding of the necessary military forces. On the other hand, congressional action has led to undesirable outcomes.

Congress led the United States into two "bad" wars, the 1798 quasi-war with France and the War of 1812. Excessive congressional control can also prevent the United States from entering into conflicts that are in the national interest. Most would agree now that congressional isolationism before World War II harmed US interests and that the United States and the world would have been far better off if President Franklin Roosevelt could have brought the United States into the conflict much earlier. Congressional participation does not automatically or even consistently produce desirable results in war decision making. Critics of presidential war powers

exaggerate the benefits of declarations or authorizations of war. What also often goes unexamined are the potential costs of congressional participation: delay, inflexibility, and lack of secrecy. In the post-Cold War era, the United States is confronting the growth in proliferation of WMDs, the emergence of rogue nations, and the rise of international terrorism. Each of these threats may require pre-emptive action best undertaken by the President and approved by Congress only afterward. Take the threat posed by the Al Qaeda terrorist

organization. Terrorist attacks are more difficult to detect and prevent than conventional ones. Terrorists blend

into civilian populations and use the channels of open societies to transport personnel, material, and money. Although terrorists generally have no territory or regular armed forces from which to detect signs of an impending attack, WMDs allow them to inflict devastation that once could have been achievable only by a nation-state. To defend itself from this threat, the United States may have to use force earlier and more often than when nation-states generated the primary threats to US national security. The executive branch needs the flexibility to act quickly, possibly in situations wherein congressional consent cannot be obtained in time to act on the intelligence. By acting earlier, the executive branch might also be able to engage in a more limited, more precisely targeted, use of force. Similarly, the least dangerous way to prevent rogue nations from acquiring WMDs may depend on secret intelligence gathering and covert action rather than open military intervention. Delay for a congressional debate could render useless any time-critical intelligence or windows of opportunity. The Constitution creates a presidency that is uniquely structured to act forcefully and independently to repel serious threats to the nation. Instead of specifying a legalistic process to begin war, the Framers wisely created a fluid political process in

which legislators would use their appropriations power to control war. As the United States confronts terrorism, rogue nations, and WMD proliferation, we should look skeptically at claims that radical changes in the way we make war would solve our problems, even those stemming from poor judgment, unforeseen circumstances, and bad luck.

LeadershipA weak executive is the greatest threat to US leadership - only strong presidential power will hedge against inconsistent tendencies of CongressMallaby 2k (Sebastian, Member of the Washington Post's Editorial Board, Foreign Affairs, January/February, lexis)

Finally, some will object that the weakness of the presidency as an institution is not the main explanation for the inadequacies of American diplomacy, even if it is a secondary one. The ad hominem school of thought argues instead that Bill Clinton and his advisers have simply been incompetent. Others make various sociological claims that isolationism or multiculturalism lies at the root of America's

diplomatic troubles. All of these arguments may have merit. But the evidence cited by both camps can be better explained by the structural weakness of the presidency. Take, for example, one celebrated error: President Clinton's declaration at the start of the Kosovo war that the Serbs need not fear NATO ground troops. This announcement almost certainly cost lives by encouraging the Serbs to believe that America was not serious about stopping ethnic cleansing. The ad hominem school sees in this example proof of Clinton's incompetence; the sociological school sees in it proof of isolationist pressure, which made the option of ground troops

untenable. But a third explanation, offered privately by a top architect of the Kosovo policy, is more plausible. According to this official, the president knew that pundits and Congress would criticize whichever policy he chose. Clinton therefore preemptively took ground troops off the table, aware that his critics would then urge him on to a ground war -- and also aware that these urgings would convince Belgrade that Washington's resolve would stiffen with time, rather than weaken. The president's stand against ground troops was

therefore the logical, tactical move of a leader feeling vulnerable to his critics. Other failings of American diplomacy can likewise be accounted for by the advent of the nonexecutive presidency. Several commentators, notably Samuel Huntington and Garry

Wills in these pages, have attacked the arrogance of America's presumption to offer moral leadership to the world. But American leaders resort to moral rhetoric largely out of weakness. They fear that their policy will be blocked unless they generate moral momentum powerful enough to overcome domestic opponents. Likewise, critics point to the hypocrisy of the United States on the world stage. America seeks U.N. endorsement when convenient but is slow to pay its U.N. dues; America practices legal abortion at home but denies funds to organizations that do the same

abroad. Again, this hypocrisy has everything to do with the weak executive. The president has a favored policy but is powerless to make Congress follow it. Still other critics decry American diplomacy as a rag-bag of narrow agendas: Boeing lobbies

for China trade while Cuban-Americans demand sanctions on Cuba. Here, too, presidential power is the issue. A strong presidency might see to it that America pursues its broader national interest, but a weak one cannot. This is why Clinton signed the Helms-

Burton sanctions on Cuba even though he knew that these would do disproportionate harm to U.S. relations with Canada and Europe. What if America's nonexecutive presidency is indeed at the root of its diplomatic inadequacy? First, it follows that it is too optimistic to blame America's foreign policy drift on the weak character of the current president. The institution of the presidency itself is weak, and we would be unwise to assume that a President Gore or Bradley or Bush will perform much

better. But it also follows that it is too pessimistic to blame America's foreign policy drift on cultural forces that nobody can change, such as isolationism or multiculturalism. We are dealing with an institutional problem, so it will take institutional reform to improve matters. America must explore ways of arresting the erosion of executive power, by streamlining the confirmation process, by reversing the Supreme Court's Clinton v. Jones decision in order to limit the executive's vulnerability to legal assault, and by avoiding legislated mandates in foreign policy. Since the republic's founding, Americans have been suspicious of concentrated

power. This suspicion has now gone too far. There are worse things to fear than a powerful president -- such as a country or a world adrift. This big nation and the small world it inhabits desperately need a strong chief executive to guide them.

MultilatPresidential power strengthens U.S. commitment to credible multilateralismPatrick 2 (Stewart, Research Associate @ the Center on International Cooperation, NYU, Multilateralism and US Foreign Policy edited by Patrick and Forman, p. 18-19)//dtang

Still, the deflation of presidential power can complicate U.S. commitment to credible multilateralism. For

one thing, it increases the chance that the executive branch will agree to assume international obligations that the legislature either opposes or has no intention of fulfilling. This predicament is likely to be most acute when

different parties control the two branches, as was the case for most of the past decade. During the 1990s, Congress used the power of the purse to reduce foreign aid, cut IMF and World Bank funding, withhold UN assessments, and impose budgetary retrenchment and bureaucratic consolidation on the State Department complex. Following the 1994 elections, a prolonged interbranch struggle produced disarray in U.S. foreign policy, including the stalling of a dozen multilateral conventions. During the Cold War, the United States’ foreign partners could take comfort in the bipartisan U.S. consensus on international engagement and the relative orderliness and transparency

of policymaking in Washington. Changing strategic and domestic circumstances, however, have cast doubt on the credibility of U.S. commitments to multilateral institutions. To being with, there is no domestic agreement today about the composition, scope, and ranking of U.S. national interests, the resources needed to pursue them, or the global commitments they warrant. Moreover, the first post-Cold War decade saw decade saw a marked erosion of the longstanding bipartisan internationalist consensus in Congress. Many stalwarts of constructive internationalism in both parties were replaced by colleagues preoccupied with domestic concerns or suspicious that global regimes and organizations infringe on U.S. sovereignty, thwart U.S. interests and values, or place unacceptable checks on U.S. options. Foreign policy was increasingly the subject of partisan squabbling, and ideological disagreement. In an inversion of the old adage, as Sarah Sewall observes, “partisanship seemed to grow stronger at the water’s edge.” The politicization of foreign affairs has been reinforced by the growing salience of “inter-mestic” issues, like trade and immigration, which blur the boundary between

foreign and domestic policy and tend to divide rather than unite Americans. Within Congress, moreover, the making of foreign policy has become increasingly decentralized and atomized with the decline in party discipline and the proliferation of committees touching on foreign policy matters. This development allows individual legislators to establish independent foreign policy platforms. This activism is troubling, argues Lee Hamilton, former chair of

the House Foreign (now International) Affairs Committee, because members have little incentive and are poorly organized to engage in multilateral diplomacy. It has resulted in “a bias toward unilateralism in foreign policy,” making it “harder to manage alliances, institutions, and long-term policies across regions and topics in a highly interconnected and complex world.”

ProlifAbility for the executive to respond rapidly to conflict checks prolif and regional instabilityBohnemann 2 (Edward, Major, US Army, “Rapid, Decisive Operations: The Execution of Operational Art by a Standing Joint Task Force,” http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA403628%26Location=U2%26doc=GetTRDoc.pdf)//dtang

Modern campaigns, such as OPERATION DESERT STORM conducted by the United States and its allies; nineteenth century campaigns conducted by Napoleon in Europe; or the ancient campaigns conducted by the Romans or the Mongols have all sought to apply an

asymmetrical advantage to the battlefield. The great captains have continuously struggled to find an advantage possessed by their forces and developed ways in which to leverage that advantage against an opponent. Lightning campaigns such as OPERATION DESERT STORM, were the result of the application of asymmetrical advantages such as: superior mobility, speed, intelligence, synchronization, and training of friendly forces. These advantages and superior technology shocked opponents and often led to the rapid conclusion of the conflict.81 As the United States enters the twenty-first century as the lone superpower, it must develop ways in which to harness the tremendous capabilities the joint forces bring to a confrontation and apply those joint capabilities in a manner consistent with the characteristics of operational art. The asymmetrical advantages currently enjoyed by the United States over potential adversaries must focus on placing him in a reactionary mode, while creating too many dilemmas for him to deal with at a particular time and space.

September 11, 2001 significantly changed the way America views the world. With the attacks on the World Trade Centers and the Pentagon, the post-Cold War era ended violently and was replaced by an era of uncertainty. The forces of terror that had previously operated on distant shores now brought their violence home to Americans with the killing of innocent civilians within the borders of

the United States. This single act of violence, along with the emergence of other regional powers and the proliferation of weapons of mass destruction has set the stage for the future operational environment; with it comes the military requirement to possess the capability to respond rapidly and decisively. With the need to respond rapidly and decisively to worldwide contingencies, the United States can no longer afford a system within the military that is essentially unprepared for action at the onset of each crisis. The ad hoc JTFs previously examined lacked the inherent capabilities demanded in modern crises, with rapidly unfolding situations, taking place in obscure areas around the world. All three of the examined JTFs lacked critical personnel needed to plan courses of action during

the initial phases of the operation, causing problems during the execution phases. The one-dimensional approach to the crisis in Kosovo was reminiscent of the singular focus LANTCOM had before OPERATION URGENT FURY.

Humanitarian aid operations, as well as other stability and support operations also require a command and control system in place to enable a rapid and effective response.

Quick threat proliferation makes nuclear escalation inevitable absent executive flexibilityPaul 98 (Joel, Professor, University of Connecticut School of Law, “The Geopolitical Constitution: Executive Expediency and Executive Agreements” July, 1998, 86 Calif. L. Rev. 671 **Footnote 137-139 added)//dtang

Whatever the complexity of causes that led to the Cold War - ideology, economics, power politics, Stalin's personality, Soviet intrigue, or American ineptitude - the

tension of the bipolar order seemed real, immutable, and threatening to the U.S. public. n135 The broad consensus of U.S. leadership held that the immediacy of the nuclear threat, the need for covert operations and intelligence gathering, and the complexity of U.S. relations with both democracies and dictatorships made it impractical to engage in

congressional debate and oversight of foreign policy-making. n136 The eighteenth-century Constitution did not permit a rapid

response to twentieth-century foreign aggression. The reality of transcontinental ballistic missiles collapsed the real time for decision-making to a matter of minutes. Faced with the apparent choice between the risk of nuclear annihilation or amending the constitutional process for policy-making, the preference for a powerful executive was clear. n137 Early in the Cold War one skeptic of executive power, C.C. Rossiter, acknowledged that the steady increase in executive power is unquestionably a cause for worry, but so, too, is the steady increase in the magnitude and complexity of the problems the president has been called upon by the American people to solve in their behalf. They still have more to fear from the ravages of depression, rebellion, and especially atomic war than they do from

whatever decisive actions may issue from the White House in an attempt to put any such future crises to rout....It is not too much to say that the destiny of this nation in the Atomic Age will rest in the [*700] capacity of the Presidency as an institution of constitutional dictatorship. n138 n137. President Truman warned that we live in an age when hostilities begin without polite exchanges of diplomatic notes. There are no longer sharp distinctions between combatants and noncombatants, between military targets and the sanctuary of civilian areas. Nor can we separate the

economic facts from the problems of defense and security. [The] President, who is Comander in Chief and who represents the interests of all the people, must be able to act at all times to meet any sudden threat to the nation's security. 2 Harry S. Truman, Memoirs: Years of Trial and Hope 478 (1956) (commenting on the Court's decision in the Steel Seizure Case). n138. Rossiter, supra

note 54, at 308-09. n139. President Truman warned that upon the functioning of a strong executive "depends the survival of each of us and also on that depends the survival of the free world." The Powers of the Presidency 114 (Robert S. Hirschfield ed., 1968). See also, e.g., Speech by John F. Kennedy delivered to the National Press Club (Jan. 14, 1960), in Hirschfield, supra, at 129-31; Congress, the President, and the War Powers: Hearings Before the Subcomm. on Nat'l Sec. Policy and Scientific Developments of the House Comm. on Foreign Affairs, 91st Cong. 12-13 (1970) (statement of McGeorge Bundy, President, Ford Foundation); Congressional Oversight of Executive Agreements: Hearings on S. 3475 Before the Subcomm. on Separation of Powers of the Senate Comm. of the Judiciary, 92d Cong. 237-40 (1972) (statement of Nicholas Katzenbach, Former Attorney General and Former Undersecretary of State).

SCSMaintaining warfighting capabilities key to deter Chinese invasion of the South China SeasGlaser 12, CSIS Freeman Chair in China Studies

(Bonnie, Pivot to Asia: Prepare for Unintended Consequences, http://csis.org/files/publication/120413_gf_glaser.pdf)

Under the current administration, the pendulum in U.S. policy toward China has swung from attempting to cooperate with China on global problems to pushing back against Chinese assertiveness and challenges to international

laws and norms. Getting tougher with Beijing was necessary, but it has also created unintended consequences that the next administration, either a second Obama team or a Republican lineup, will have to contend with. The Obama administration’s initial policy in 2009 raised fears in many Asian capitals of a G2 condominium that would make decisions over the heads of others. Those concerns

were unwarranted and short lived. Beijing interpreted the U.S. approach as weakness, which, along with China’s economic success and

America’s struggles, led to a year of Chinese hubris that manifested itself in a series of intimidating actions in China’s neighborhood. Subsequent entreaties by regional states to counterbalance China increased U.S. attention to the Asia-

Pacific region. Now, the U.S. Asia “pivot” has prompted Chinese anxiety about U.S. containment and heightened regional worries about intensified U.S.-China strategic competition. In the run-up to the leadership transition that will take place at China’s 18th Party

Congress this fall, Beijing is inwardly focused and unlikely to act on its fears. However, 2013 could see a shift in Chinese foreign policy based on the new leadership’s judgment that it must respond to a U.S. strategy that seeks to prevent China’s

reemergence as a great power. Signs of a potential harsh reaction are already detectable. The U.S. Asia pivot has

triggered an outpouring of anti-American sentiment in China that will increase pressure on China’s

incoming leadership to stand up to the United States. Nationalistic voices are calling for military countermeasures to the bolstering of America’s military posture in the region and the new U.S. defense strategic guidelines. For example, an article published in China’s Global Times, a jingoistic newspaper owned by the Communist Party mouthpiece People’s Daily, called

for China to strengthen its long-range strike capabilities. Deng Xiaoping’s guideline to keep a low profile in the international arena, designed more than two decades ago to cope with uncertainty produced by the collapse of the Soviet bloc, is increasingly seen by China’s elite and public as irrelevant and even harmful to the task of defending Chinese ever-

expanding “core interests.” Some voices are calling for closer alignment with Moscow and promoting the BRICS

grouping (Brazil, Russia, India, and China) as a new “pole” in the international arena to strengthen the emerging powers against the West. Xi Jinping, who will assume the helm as China’s new leader later this year, will be under pressure from many domestic constituencies to

more forcefully defend Chinese interests in the international arena. Seeking to quickly consolidate his power and

enhance the legitimacy of the Communist Party, Xi and his newly installed Politburo Standing Committee colleagues may be more willing than their predecessors to test drive a policy that is more confrontational. The U.S. response to a more muscular Chinese foreign and military policy, should it appear, will have to be carefully calibrated. Ignoring greater Chinese assertiveness would fuel the belief—already emerging in China and elsewhere— that the United States

is in inexorable decline. History shows that when great powers falter, China does not hesitate to seize the opportunity to advance its interests, especially in the South China Sea. As American forces withdrew from Vietnam in the mid-1970s, the Chinese grabbed the Paracel Islands from Saigon. Similarly, when the Soviet Union withdrew from Vietnam’s Cam Ranh Bay and the United States terminated its base agreement with the Philippines, China quietly occupied Mischief Reef to the dismay of Manila. Yet a hostile and overbearing U.S. response would confirm Chinese suspicions that the United States seeks to contain its rise, which could cement the emergence of a U.S.-China Cold War. In addition, it would further alarm regional states who seek at all costs to avoid having to choose between

the United States and China. U.S. policy will need to combine firmness with subtlety. A strategy will need to be shaped that protects regional stability and reassures China’s neighbors, but also avoids greater U.S.- China strategic competition and the classic security

dilemma, wherein each side believes that growing capabilities reflect hostile intent and responds by producing that reality. Sustained attention and commitment of sufficient resources to the Asia- Pacific region will be key to assuaging the doubts of

regional friends and allies about U.S. staying power. The United States also will need to maintain the

military capabilities necessary to deter Chinese aggression.

TerrorTerrorism is a threat now – presidential flexibility key to solveCastle 15 (Wiliam S., Chief Counsel in the Office of the Senate

President Pro Tempore for Senator Orrin G. Hatch., Harvard Journal of Law and Public Policy, 2015, “THE ARGUMENT FOR A NEW AND FLEXIBLE AUTHORIZATION FOR THE USE OF MILITARY FORCE”, http://www.harvard-jlpp.com/wp-content/uploads/2015/05/Castle_Final.pdf)//dtang

With the murder of American citizens, the unraveling of opportunities provided by our service members to the people of Iraq, and the potential destabilization of the Middle East, few will argue that the terrorist organization known as the Islamic State (IS) does not pose “a clear and present danger to the national security of the United States.”1 Accordingly, President Obama has committed his Administration to the objective of “degrade[ing] and ultimately destroy[ing]” IS.2 However, this

raises the central legal question that occurs whenever our forces are committed to combat: Under what legal authority can the President use military force? I agree with President Obama’s assertion that he has the constitutional authority to conduct military operations against IS. In addition to this Article II power, President Obama was appropriate in invoking the 2001 Authorization for the Use of Military Force (2001 AUMF) and the 2002 Authorization for Use of Military Force Against Iraq Resolution (2002 AUMF) as additional bases for using force against IS.4 Nevertheless, the President continues to insist on limiting the types of strategies and tactics that can be utilized by our forces against this new enemy.5 The Administration’s initial policy was to prohibit “boots on the ground” in Iraq and Syria.6 With the publication of the President’s AUMF proposal, this position appears to have been modified so as to prohibit “the use of the United States Armed Forces in enduring offensive ground combat operations.”7 Additionally, the President’s proposal would cap the new authorization at three

years.8 The importance of maintaining legal flexibility for the possible use of additional military capabilities against IS was underscored by former Defense Secretary Robert Gates’s recent warning that “there will be boots on the ground if there is to be any hope of success in the strategy.” 9 This point

was echoed by General David Petraeus in his admonition that defeating IS will take “months and years, not days or weeks.” Accordingly, this Article argues for the adoption of a third AUMF, but for one unencumbered by the shortcomings of the President’s draft sent to Congress on February 11. Instead, Congress should enact the 113th Congress’s Senate Joint Resolution 43 (S.J. Res. 43), 15 which complements but does not replace the 2001 and 2002 AUMFs. Though the President has ample war powers to confront IS without a new authorization, adoption of S.J. Res. 43 will eliminate any ambiguity as to the nation’s resolve to conduct operations

against IS.16 Equally important, the adoption of either piece of legislation will preclude any politically-motivated legal restrictions regarding “time, geography, and type of forces,” which unnecessarily jeopardize the goal of eliminating IS and needlessly add to the risks faced by the U.S. Armed Forces.17 Part I of this Article describes the constitutional and statutory history of the President’s war powers and the benefits of an AUMF. Part II discusses the ambiguity caused by the Administration’s continuing policy revisions regarding the 2001 and 2002 AUMFs. Part III argues for the enactment of a third AUMF and prescribes both the structure and necessary elements of such legislation. As part of the discussion of what components should be part of the new AUMF, this article argues that S.J. Res. 43, rather than the President’s draft, meets the requirements of what provisions should be included in this third authorization.

Surveillance capabilities are integral to presidential war powers – allows effective terrorism deterrenceYoo 14 (John is professor of law at the Boalt Hall School of Law at the University of California, Berkeley, and visiting scholar at the American Enterprise Institute. He has also served as general counsel for the Senate Judiciary Committee; as a law clerk to Justice Clarence Thomas and Judge Laurence H. Silberman; and, from 2001 to 2003, as a Deputy Assistant Attorney General in the Office of Legal Counsel of the U.S. Department of Justice. October 3, “Surveillance and executive power”, http://blog.constitutioncenter.org/2014/10/surveillance-and-executive-power/)//dtang

As Commander-in-Chief, the President has the constitutional power and the responsibility to wage war in response to a direct attack against the United States. In the Civil War, President Lincoln undertook several actions—raised an army, withdrew money from the treasury, launched a blockade—on his own authority in response to the Confederate attack on Fort Sumter, moves that Congress and the Supreme Court later approved. During World War II, the Supreme Court similarly recognized that once war began, the President’s authority as Commander-in-

Chief and Chief Executive gave him the tools necessary to effectively wage war. In the wake of the September 11 attacks, Congress agreed that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism

against the United States,” which recognizes the President’s authority to use force to respond to al Qaeda, and any powers necessary and proper to that end. Even legal scholars who argue against this historical practice concede that once the United States has

been attacked, the President can respond immediately with force. John Yoo and Stewart Baker will debate Alex Abdo and Elizabeth Wydra at the National Constitution Center on October 7—

reserve your tickets NOW! The ability to collect intelligence is intrinsic to the use of military force . It is inconceivable that the Constitution would vest in the President the powers of Commander-in-Chief and Chief Executive, give him the responsibility to protect the nation from attack, but then disable him from gathering intelligence to use the military most effectively to defeat the enemy. Every evidence of the Framers’ understanding of the Constitution is that the government would have every ability to meet a foreign danger. As James Madison wrote in The Federalist, “security against foreign danger is one of the primitive objects of civil society.”

Therefore, the “powers requisite for attaining it must be effectually confided to the federal councils.” After World War II, the Supreme Court declared, “this grant of war power includes all that is necessary and proper for carrying these powers into execution.” Covert operations and electronic surveillance are clearly part of this authority . During the writing of the Constitution, some Framers believed that the President alone should manage intelligence because only he could keep secrets. Several Supreme Court cases have recognized that the President’s role as Commander-in-Chief and the sole organ of the nation in its foreign relations must include the power to collect intelligence. These authorities agree that

intelligence rests with the President because its structure allows it to act with unity, secrecy, and speed. Presidents have long ordered electronic surveillance without any judicial or congressional participation. More than a year before the Pearl Harbor attacks, but with war clearly looming with the Axis powers, President Franklin Roosevelt authorized the FBI to intercept any communications, whether wholly inside the country or international, of persons “suspected of subversive activities against the Government of the United States, including suspected spies.” FDR was concerned that “fifth columns” could wreak havoc with the war effort. “It is too late to do anything about it after sabotage, assassinations and ‘fifth column’ activities are completed,”

FDR wrote in his order. FDR ordered the surveillance even though a federal law at the time prohibited electronic surveillance without a warrant. Presidents continued to monitor the communications of national security threats on their own authority, even in peacetime . If

Presidents in times of peace could order surveillance of spies and terrorists, executive authority is only the greater now, as hostilities continue against al Qaeda.

Aff Answers

Uniqueness

Restrictions inevRestrictions inevitable – it’s only a question of making them deliberate or haphazardWittes 9 - senior fellow and research director in public law at the Brookings Institution, author of Law and the Long War: The Future of Justice in the Age of Terror, member of the Hoover Institution's Task Force on National Security and Law (Benjamin, “Legislating the War on Terror: An Agenda for Reform,” 11-3-9, Book, p. 17) //AD

A new administration now confronts the same hard problems that plagued its ideologically opposite predecessor, and its very efforts to turn the page on the past make acute the problems of institutionalization. For while the new administration can promise to close the detention facility at Guantanamo Bay and can talk about its desire to prosecute suspects criminally, for

example, it cannot so easily forswear noncriminal detention. While it can eschew the term "global war on terror," it cannot forswear those uses of force—Predator strikes, for example—that law enforcement powers would never countenance. Nor is it hastening to give back the surveillance powers that Congress finally gave the Bush administration. In other words,

its very efforts to avoid the Bush administrations vocabulary have only emphasized the conflicts hybrid nature—indeed- emphasized that the United States is building something new here, not merely applying something old.¶ That point should not provoke controversy. The evidence that the United States is fumbling toward the creation of hybrid institutions to handle terrorism cases is everywhere around us .

U.S. law, for example, now contemplates extensive- probing judicial review of detentions under the laws of war—a naked marriage of criminal justice and wartime traditions. It also contemplates warrantless wiretapping with judicial oversight of surveillance targeting procedures—thereby mingling the traditional judicial role in reviewing domestic surveillance with the vacuum cleaner-type acquisition of intelligence typical of

overseas intelligence gathering. Slowly but surely, through an unpredictable combination of litigation, legislation, and evolutionary developments within executive branch policy, the nation is creating novel institutional arrangements to authorize and regulate the war on terror. The real question is not whether institutionalization will take place but whether it will take place deliberately or haphazardly,

whether the United States will create through legislation the institutions with which it wishes to govern itself or whether it will allow an endless sequence of common law adjudications to shape them.¶ The authors of the chapters in this book disagree about a great many things. They span a considerable swath of the U.S. political

spectrum, and they would no doubt object to some of one another's policy prescriptions. Indeed, some of the proposals are arguably inconsistent with one another, and it will be the very rare reader who reads this entire volume and wishes to see all of its ideas implemented in legislation. What binds these authors together is not the programmatic aspects of their policy prescriptions but the

belief in the value of legislative action to help shape the contours of the continuing U.S. confrontation with terrorism. That is, the authors all believe that Congress has a significant role to play in the process of institutionalization—and they have all attempted to describe that role with reference to one of the policy areas over which Americans have sparred these past several years and will likely continue sparring over the next several years.

War power checks good and inevitable – either that non-uniques the DA or means the plan is key to solveFlower and Beavers 13 (Ruth, Elizabeth, “Congress must rein in president's war power,” The Hill, 9-29-13, http://thehill.com/blogs/congress-blog/foreign-policy/325205-congress-must-rein-in-presidents-war-power) //AD

Congress passed the War Powers Resolution over President Nixon’s veto in an effort to curb the president’s rapidly growing powers, as evidenced by the Vietnam War. The law sets up a clear framework: the president must “in every possible instance” consult with Congress, report to Congress within 48 hours

of introducing armed forces into hostilities, and withdraw troops after 60 to 90 days if Congress does not provide authorization. Finally, Congress retains the power to order the troops withdrawn by concurrent resolution. Yet no president has considered the War Powers Resolution binding, nor fully complied with its requirements. Thus, a law meant to decisively scale back executive war powers has become effectively useless. But does

this matter? Is it necessary to have a clearly-defined, fully functional framework which requires the president to involve Congress in decisions of war? The example of Syria clearly demonstrates the benefits of the democratic process. When President Obama asked Congress for authorization, that decision slowed the process enough to allow the American people to voice their clear opposition. It also allowed the international community the opportunity to coalesce toward diplomacy and peace. Further,

the pas de deux of consultation, deliberation, and decision-making between the political branches in a lead-up to war is consistent with the requirements of the Constitution. Fearing an all-powerful executive capable of singlehandedly plunging the nation into senseless war, the Founders intentionally separated the war powers by giving to Congress the

power to declare war and to the president, the role of commander-in-chief, once war had been initiated. Clearly, the War Powers Resolution as it stands is insufficient to ensure that Congress will be involved in the process. If democratic principles of war-making are to be revived, some key policies must be in place. First, Congress must decide what war actually is. The War Powers Resolution fails to define “hostilities,” and this is a giant loophole through which presidents have become accustomed to slipping unilateral hostile actions. For example, President Obama did not consider the enforcement of a no-fly zone, without troops on the ground in Libya in 2011 to constitute “hostilities” or “war,” as imagined by the law. Long gone are the days of uniformed armies fighting clearly declared wars between states. Instead,

modern warfare seems destined to involve such unconventional aspects as civilian rebel groups, unmanned drones, and air strikes. By clearly defining “hostilities” and “war,” Congress asserts its own authority and upholds the democratic process as an effective means of oversight over the wide-ranging

technologies and tactics of modern warfare. Second, Congress should stop providing “blank check” authorizations for military force to the president. Perhaps the best and most recent example is the vague language of the Authorization for the Use of Military Force in 2001, which was best described by Representative Barbara Lee of California as giving the president “the authority to

wage war at any time, in any place, for nearly any purpose.” Indeed, the test of time has demonstrated the danger of such broad authority, as the AUMF has been cited as legal authority for a multitude of controversial practices, including the indefinite detentions in Guantanamo Bay and the assassination of U.S. citizen Anwar al-Awlaki. The congressional power to limit presidential authority is meaningless if not exercised, and the failure to exercise such power may have unintended far-reaching consequences. Lastly, Congress should utilize its most potent tool – the “power of the purse.” The Constitution is clear that the legislative branch controls the borrowing and appropriation of

money. Thus, Congress should refuse to allow money to be borrowed for purposes of war, and especially not for military actions in contravention of the War Powers Resolution. In addition to limiting the president’s widespread powers, the requirement of specific revenue for military action would cause both political branches to pause before entering

into impulsive or potentially endless war. Further, it would encourage fiscal responsibility and draw much-needed public attention to the truly exorbitant cost of war. This is the time for elected representatives to re-assert themselves and the voices of the American people into the decision-making process. Rather than enabling the president to unilaterally commit American life and treasure, Congress must set up an effective framework to ensure that even decisions of war are subject to the consent of the governed.

Decline inevWar power decline inevitable through the court – plan’s action keyWittes 8 - 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 (Benjamin, Law and the Long War: The Future of Justice in the Age of Terror, June 2008, google books) //AD

What 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.

Link

Link turn – balance The plan’s balance of power solves – boosts policy effectivenessWeinberger 9 - Assistant Professor in the Department of Politics and Government at the University of Puget Sound, M.A. and Ph.D. in Political Science from Duke University (Seth, "Balancing War Powers in an Age of Terror", The Good Society, 18(2), http://muse.jhu.edu/journals/good_society/v018/18.2.weinberger.html) //AD

For the Founding Fathers, that balance emerged from the fundamental structure of constitutional government that they created. "Ambition must be made to counteract ambition," James Madison wrote in a powerful argument for the separation of powers.2 At first glimpse, this might

seem to contradict Ford's advice to avoid "a constant rivalry" over the conduct of America's war efforts. But, if the rivalry over control of war powers occurs not with the branches fighting over the right to use this or that particular power but rather involves the presidency and Congress wielding their own specific powers both in pursuit of a coherent policy as well as to prevent the other from becoming too strong, then Ford's vision can be merged with that of the Founders. While constant rivalry and competition between the branches may not be desirable, neither is a situation in which one branch exercises unchecked power . A sound theory of war powers should create a situation in which each branch uses its unique strengths and weaknesses not only to check the ambitions of the other but also to develop common solutions to the challenges that threaten the security of the nation.3 The war on terror has posed considerable problems for the constitutional balance of powers between the executive and legislative branches. In its efforts to protect

the United States in the wake of the September 11 attacks, the Bush administration has tried to expand the scope and breadth of executive power. Time and time again, when the constitutionality of its policies have been challenged, the executive branch has responded with claims of inherent presidential power to take actions necessary to defend the country. However, in almost every instance of a legal challenge to those policies, the administration has lost . What do these challenges and defeats mean for the overall distribution of war

powers? On the one hand, the powers claimed by the executive branch would give the president unprecedented powers for a potentially indefinite period, as it is hard to imagine that terrorism —a

tactic rather than an enemy—will ever be defeated. On the other hand, it must be recognized that the threat of international terrorism is no idle matter. Terrorism of the kind that manifested itself on September 11, 2001, is a threat unlike any other that the United States has

ever faced. The question of allocating war powers between the president and Congress is a critical one. If too much power is concentrated in the hands of the executive , the country risks undermining basic constitutional protections of individual freedoms and eroding the democratic nature of the republic; if too much of a role is given to Congress, the country may not be able to effectively develop policies to protect itself. And when there is no clear theory guiding the actions of the government, policy muddles along, with the executive branch taking the lead by putting an idea into action and hoping that it will withstand judicial scrutiny. Thus there is a need for a balanced theory of war powers that respects the constitutional allocation of power and heeds the advice of President Ford.

Link turn – terror/rightsExecutive flex undermines counterterror and liberty – legal limits are a more effective security strategySayre 14 – citing Tiberiu Dragu: Assistant Professor, Wilf Family Department of Politics, New York University, and Mattias Polborn: Professor, Department of Economics and Department of Political Science, University of Illinois (Mike, “THE RULE OF LAW IN THE FIGHT AGAINST TERRORISM: LESS EXECUTIVE POWER, MORE SECURITY,” American Journal of Political Science, 5-4-15, http://ajps.org/2015/05/04/the-rule-of-law-in-the-fight-against-

terrorism-less-executive-power-more-security/) //AD

In the aftermath of 9/11 terrorist attacks, it has become increasingly difficult to argue that the executive branch of the United States be bounded by constitutional rules that might hamper its capacity to ensure collective security. Given the potentially horrific costs of failing to stop another large-scale terrorist attack,

the citizens themselves viewed a rigid adherence to legal limits as problematic and were willing to grant the executive more powers at the expense of fundamental rights and liberties. But does increasing the executive’s counterterrorism powers make us safer from terrorism? Our article, “The Rule of

Law Against Terrorism“, shows that legal limits on executive counterterrorism powers can be beneficial on security grounds alone and therefore strengthening institutions that uphold the rule of law in the fight against terrorism can be an effective way to achieve security from terrorism. Security crises pose fundamental challenges to the constitutional structure of liberal governments. Unexpected security dangers

such as catastrophic terrorist attacks serve as a reminder that collective security is a precondition for the proper functioning of a liberal order, raising the following question: What is the role of legal limits on executive power, if any, when citizens demand more security and allowing executive officials legal flexibility of action appears necessary to achieve it? This question becomes most compelling when governments seek to prevent a security crisis rather than simply react to it. Few if any would argue that executive officials should wait until the actual realization of catastrophic terrorist attacks and not take preventive actions to ward off such security threats. To prevent crises of such proportions, the executive must have the means to act proactively. Crisis prevention seemingly requires permanent executive discretionary powers, and thus represents a constant challenge to the ideal of limited government enshrined in

the U.S. Constitution and the Federalist Papers. The tension between the institutional structure of liberal government and successful crisis prevention came to the fore in the aftermath of the 9/11 terrorist attacks. To enhance their governments’ capacities to prevent terrorist attacks, the discretionary powers of the executive were promptly augmented in the United States and other liberal societies. In turn, many of the executive’s counterterrorism activities have infringed upon the rights and liberties of aliens and non-citizens, in particular. In the United States, for example, the executive undertook scores of repressive counterterrorism policies , ranging from ethnic profiling to increased restrictions on immigration, to increased surveillance of certain ethnic and religious communities and even torture of aliens suspected of

terrorist activities. The rationale for such repressive policies is that executive discretion is essential to respond effectively to terrorist activities, and thus the executive should be afforded legal flexibility to thwart security dangers. Without necessarily denying that the ethnic and religious communities in which potential terrorists have roots are important in fighting terrorism, the presumption is that executive discretion increases security from terrorism because there are political controls on how executive counterterrorism powers are used. If repressive policies would be harmful for terrorism prevention, so the argument goes, the executive will restrain itself from undertaking such suboptimal counterterrorism policies because citizens can punish ineffective usage

of executive power at election times. The logic behind the security rationale for executive discretion appears simple and intuitive. If the executive cares about security from terrorism and also about being in office, and if the citizens are more likely to reelect the executive if it is successful in preventing terrorism, then allowing executive officials legal flexibility of action should translate

into more security from terrorism. Our research questions this security rationale on its own terms. To this end, we

developed a game-theoretic model to show that that even if citizens are less likely to reelect the government when failing to prevent terrorist

attacks, that is, even if electoral controls on how executive counterterrorism powers are used are effective, security from terrorism can actually decrease if the executive has legal flexibility to choose any policy it finds optimal. In contrast, security from terrorism always increases if there are explicit legal limits on the executive’s counterterrorism actions. We also show that the executive achieves the objective of terrorism prevention more effectively when there are some limitations on its counterterrorism powers rather than when executive officials have legal flexibility to devise security policy. At the minimum, the analysis suggests that the burden of empirical proof should be on executive officials who must show that discretionary powers achieve the intended security benefits and, perhaps, whether such benefits can be achieved without setting aside fundamental liberal-democratic principles. Moreover, our analysis indicates that

even when citizens want a readjustment in the balance between security and liberty, it is not necessarily security-beneficial if the executive itself decides on the scope of government power. Our research underscores a novel rationale for legal limits and checks on executive powers. The traditional Madisonian argument for such institutions is that they stem abuses of governmental power and thus help preserve citizens’ rights and liberties. Security crises challenge

this very rationale. Times of duress are associated with unfettered governmental powers; ordinary, regular situations with separation of powers and checks and balances institutions. Without disputing the importance of constitutional limits and institutional

checks within the tradition of a liberal distrust of government, the analysis here underscores another, perhaps less intuitive virtue: such institutional arrangements can increase a government’s capacity to prevent crises. Thus they might be a necessary component of structuring the government if the social objective is terrorism prevention.

Our paper also contributes to an empirical literature on terrorism and political violence. Scholars have noted

that liberal democracies often resort to repressive policies and focus their coercive efforts on political, ethnic or religious communities associated with a particular security threat. Scholars have also empirically shown that

repressive tactics at odds with fundamental liberal-democratic principles can negatively affect security from terrorism , empirical findings that raise the following puzzle: why would a rational government intending to achieve security from terrorism nevertheless engage in repressive tactics that undermine it? Our model shows that it can be an equilibrium behavior for the executive to undertake repressive policies that harm security from terrorism, a behavior induced by electoral incentives to provide security from terrorism.

Flex badTotal flex results in net worse decision-making – the aff makes the process more effectivePearlstein 9 - lecturer in public and international affairs, Woodrow Wilson School of Public & International Affairs (Deborah N, “"Form and Function in the National Security Constitution," July 2009, Connecticut Law Review, 41 Conn. L. Rev. 1549, LN) //AD

It is in part for such reasons that studies of organizational performance in crisis management have regularly found that "planning and effective [*1604] response are causally connected." n196 Clear, well-understood rules, formalized training and planning can function to match cultural and individual instincts that emerge in a crisis with commitments that flow from standard operating procedures and professional norms. n197 Indeed, "the less an organization has to change its pre-disaster functions and roles to perform in a disaster, the more effective is its disaster [sic]

response." n198 In this sense, a decision maker with absolute flexibility in an emergency-unconstrained by protocols or plans-may be systematically more prone to error than a decision-maker who is in some way compelled to follow procedures and guidelines, which have incorporated professional expertise, and which are set as effective constraints in advance.¶ Examples of excessive flexibility producing adverse consequences are ample. Following Hurricane Katrina, one of the most important lessons independent analysis

drew from the government response was the extent to which the disaster was made worse as a result of the lack of experience and knowledge of crisis procedures among key officials, the absence of expert advisors replacing those rules with more than the most general guidance about custodial intelligence collection. available to

key officials (including the President), and the failure to follow existing response plans or to draw from lessons learned from simulations conducted before the fact. n199 Among the many consequences, [*1605] basic items like food, water, and medicines were in such short supply that local law enforcement (instead of focusing on security issues) were occupied, in part, with breaking into businesses and taking what residents needed. n200¶ Or consider the widespread abuse of prisoners at U.S. detention facilities such as Abu Ghraib. Whatever the theoretical merits of applying coercive interrogation in a carefully selected way against key intelligence targets, n201 the

systemic torture and abuse of scores of detainees was an outcome no one purported to seek. There is substantial agreement among security analysts of both parties that the prisoner abuse scandals have produced predominantly negative consequences for U.S. national security. n202 While there remain important questions about the extent to which some of the abuses at Abu Ghraib were the result of civilian or senior military command actions or omissions, one of the

too often overlooked findings of the government investigations of the incidents is the unanimous agreement that the abuse was (at least

in part) the result of structural organization failures n203 -failures that one might expect to [*1606] produce errors either to the benefit or detriment of security.¶ In particular, military investigators looking at the causes of Abu Ghraib cited vague guidance, as well as inadequate training and planning for detention and interrogation operations, as key factors leading to the abuse. Remarkably, "pre-war planning [did] not include[] planning for detainee operations" in Iraq. n204 Moreover, investigators cited failures at the policy level- decisions to lift existing detention and interrogation strictures without n205 As one Army General later investigating the abuses noted: "By October 2003, interrogation policy in Iraq had changed three times in less than thirty days and it became very confusing as to what techniques could be employed and at what level non-doctrinal approaches had to be approved." n206 It was thus unsurprising that detention and interrogation operations were assigned to troops with grossly inadequate training in any rules that

were still recognized. n207 The uncertain effect of broad, general guidance, coupled [*1607] with the competing imperatives of guidelines that differed among theaters of operation, agencies, and military units, caused serious confusion among troops and led to decisionmaking that it is overly kind to call arbitrary . n208¶ Would the new functionalists disagree with the importance of government planning for detention operations in an emergency surrounding a

terrorist nuclear attack? Not necessarily. Can an organization anticipate and plan for everything? Certainly not. But such findings should at least call into question the inclination to simply maximize flexibility and discretion in an emergency, without, for example, structural incentives that might ensure the engagement

of professional expertise. n209 Particularly if one embraces the view that the most potentially damaging terrorist threats are nuclear and biological terrorism, involving highly technical information about weapons acquisition and deployment, a security policy structure based on nothing more than general popular mandate and political instincts is unlikely to suffice; a structure that systematically excludes knowledge of and training in emergency response will almost certainly result in mismanagement. n210

In this light, a general take on role effectiveness might suggest favoring a structure in which the engagement of relevant expertise in crisis management is required, leaders have incentives to anticipate and plan in advance for trade-offs, and [*1608] organizations are able to train subordinates to ensure that plans are adhered to in emergencies. Such

structural constraints could help increase the likelihood that something more than arbitrary attention has been paid before transcendent priorities are overridden.

Checks goodStronger checks on war powers boost foreign threat perception – increases deterrence credibility Waxman 14 - Professor of Law, Columbia Law School; Adjunct Senior Fellow for Law and Foreign Policy, Council on Foreign Relations (Matthew C, “The Constitutional Power to Threaten War,” 8-25-14, Yale Law Journal, vol. 123 (2014), 2013, PDF) //AD

A second argument, this one advanced by some congressionalists, is that stronger legislative checks on presidential uses of force would improve deterrent and coercive strategies by making them more selective and credible.The most credible U.S. threats, this argument holds, are those that carry formal approval by Congress, which reflects strong public support and willingness to bear the costs of war; requiring express legislative backing to make good on threats might therefore be thought to enhance the potency of threats by encouraging the President to seek congressional authorization before acting.181 A frequently cited instance is President Eisenhower’s request (soon granted) for standing congressional authorization to use force in the Taiwan Straits crises of the mid- and late-1950s – an authorization he claimed at the time was important to bolstering the credibility of U.S. threats to protect Formosa from Chinese aggression.182 (Eisenhower did not go so far as to suggest that congressional authorization ought to be legally required, however.) “It was [Eisenhower’s] seasoned judgment … that a commitment the United States would have much greater impact on allies and

enemies alike because it would represent the collective judgment of the President and Congress,” concludes Louis Fisher. “Single-handed actions taken by a President, without the support of Congress and the people, can threaten national prestige and undermine the presidency. Eisenhower’s position was sound then. It is sound now.”183 A critical assumption here

is that legal requirements of congressional participation in decisions to use force filters out unpopular uses of force, the threats of which are unlikely to be credible and which, if unsuccessful, undermine the credibility of future U.S. threats.¶ A third view is that legal clarity is important to U.S. coercive and deterrent strategies; that ambiguity as to the President’s powers to use force undermines the credibility of threats. Michael Reisman

observed, for example, in 1989: “Lack of clarity in the allocation of competence and the uncertain congressional role will sow uncertainty among those who depend on U.S. effectiveness for security and the maintenance of world order. Some reduction in U.S. credibility and diplomatic effectiveness may result.”184 Such stress on legal clarity is common among lawyers, who usually regard it as important to planning, whereas strategists tend to see possible value in “constructive ambiguity”, or deliberate fudging of drawn lines as a negotiating

tactic or for domestic political purposes.185 A critical assumption here is that clarity of constitutional or statutory design with respect to decisions about force exerts significant effects on foreign perceptions of U.S. resolve to make good on threats, if not by affecting the substance of U.S. policy commitments with regard to force then by pointing foreign actors to the appropriate institution or process for reading them.

No linkCongressional checks are meaningless – no hamper on authorityCooper 15 – National correspondent, Reed College (Ryan, “Obama's war-powers farce: If you want to limit presidential power, don't start illegal wars,” The Week, 2-17-15, http://theweek.com/articles/539263/obamas-warpowers-farce-want-limit-presidential-power-dont-start-illegal-

wars) //AD

President Obama is seeking a new Authorization for Use of Military Force, as the U.S. continues its bombing campaign against the Islamic State. It comes just a tad late: about three and half months after it was necessary, according to the War Powers Act. This raises the question: Why is he even bothering? Matt Yglesias, following on the heels of his interview with

the president, argues that this drive for a new AUMF is about limiting presidential power, because it would introduce a more limited legal framework for future wars. I don't doubt that's a major part of the administration's rationale. Scrambling to hem in the next person's ability to do stuff you consider bad is a traditional end-of-presidency activity. But as Greg

Sargent points out, this is closing the barn door after the horse has bolted. When it comes to legal limits on the president's authority to start new wars, Obama has already blown a hole in them big enough to drive through an aircraft carrier. If the president wanted to stop President Cruz's future wars of aggression, he should have done

so in 2011, when he started his first illegal war in Libya. The War Powers Act, as commonly interpreted, says that the president can use force for 60 days without congressional authorization, and if he doesn't get it, then he has to stop hostilities within 30 days. Even that might not have passed legal muster in Libya, because the law states that any unauthorized use of force has to be in response to "a national emergency created by attack upon the United States, its territories or

possessions, or its armed forces." At any rate, Obama casually blew off the 90-day limit anyway. The Justice

Department's Office of Legal Counsel is supposed to be the authoritative voice on legal interpretation for the executive branch, but when the OLC insisted the War Powers Act applied in this situation, Obama ignored the lawyers and brought in political hacks to cook up another rationale. Eventually they settled, ludicrously, on arguing the new war didn't really constitute "hostilities." When Congress refused to pass a new AUMF, he ignored that, too. The latest war with the Islamic State has followed the same script, except this time Obama is claiming it's the 2001 AUMF that covers the use of force. Though somewhat less preposterous than the Libya case, it's still nonsense. That statute is clearly directed at those who "planned, authorized, committed, or aided " the 9/11 attacks, and

the Islamic State didn't even exist in 2001. Of course, the 2001 AUMF has turned into a blank legal check for dirty wars around the globe, and Obama's proposal leaves it in place, making this whole exercise pointless . As Jameel Jaffer of the ACLU told Sargent: "If you don’t repeal the original AUMF, you create the possibility the president will continue to rely on it," Jaffer said. "Any limitations Congress imposes under the new AUMF could be ignored. This is a meaningless exercise unless it includes

repeal of the original AUMF." [The Washington Post] Finally, there's the political reality. Congressional restrictions on presidential power are only as good as Congress' willingness to act when the restrictions are breached. And right now there is approximately zero reason to think that Congress gives a crap about illegal war. In response to Libya, Congress should have threatened to remove him from office. But the best it could do was offer some

annoyed muttering, which lapsed into virtual silence by the time Obama turned to the Islamic State. In other words, in today's political climate, Obama is basically asking for the authority to start war against anyone who's watched an Islamic State video. Indeed, the main axis of debate is whether the proposed authority is broad enough. Except for Sen. Rand Paul, Republicans are basically fine with Obama being able to make war wherever he wants. So until Congress starts caring about fulfilling its constitutional prerogatives, lawmakers might as well save their breath when it comes to new authorizations.

Flexibility link is wrong – no impactStreichler 8 – Stuart Streichler, Adjunct Faculty at Seattle University School of Law. Ph.D. at Johns Hopkins University; J.D. at the University of Michigan Law School; B.S. at Bowling Green State University, "Mad about Yoo, or Why Worry about the Next Unconstitutional War", The Journal of Law 26 Politics, Winter, 24 J. L. 26 Politics 93, Lexis) //AD

When Yoo discusses the need for flexibility in the process for warmaking, he creates a false dilemma .

He suggests that the president has discretionary power to start wars or that the president must secure prior authorization from Congress through a “fixed, legalistic process.”230 For Yoo, the latter would inevitably hamper the government’s ability to respond to terrorist threats.231 Yet even if Congress has the power to decide whether to go to war, the president retains substantial powers to respond quickly to defend the country. No lawmaker would insist on Congress deliberating while terrorists set off weapons of mass destruction in the United States. Americans who lived with the risk of nuclear attack during the Cold War

accepted the president’s authority to respond to the Soviet Union without waiting for the results of legislative debate. Additionally, Congress has demonstrated that it can move quickly to authorize the use of military force. Three days after September 11, the Senate voted 98-0 to authorize the president to use force in response to the attacks,232 and the House approved the measure a few hours later (420- 1).233 Another four days passed before the president signed it.234 The last time Congress declared war in response to an attack on the United States, it did not take lawmakers long to do so. The Senate (82-0) and the House (388-1) issued a declaration of war thirty-three minutes after President Franklin D. Roosevelt’s “Day of

Infamy” speech.235 Furthermore, whatever their capacity for dynamic response, presidents do not always react to security threats with speed and energ position with flexibility, there is more to constructing an adaptive foreign policy than letting the president initiate military hostilities. Executive decisions on war that appear, in the short term, to reflect a flexible approach may limit policy options over the long run, constraining foreign policymakers and military planners. Yoo expresses no doubt that the president’s capacity to make decisions in foreign affairs and defense—to “consider policy choices” and to “evaluate threats”—is “far superior” to Congress’s.236 That overstates the reach such an

unqualified conclusion. Seemingly for every example where executive decision-making works well, another can be cited exposing its de y affect the president’s decision on whether to take the nation to ficiencies . President John F. Kennedy’s management of the Cuban missile crisis, though not without its critics, is often cited as a classic model of decision-making in crisis. The same president’s handling of the Bay of Pigs invasion has been roundly criticized.237 As Yoo presents his argument on executive decision-making, it does not matter

who occupies the office of the president. In fact, that can make a good deal of difference. With the presidency structured around one individual, the decision-making process is shaped by the chief executive’s native abilities, judgment, and experience.238 A whole range of personal qualities ma war: how the president assesses risk (especially with the uncertain conditions that prevail in

foreign affairs); whether he or she engages in wishful thinking; whether he or she is practical, flexible, and openminded.239 While every president consults with advisers, small group dynamics add another layer of difficulties in the executive decision-making process. Even talented White House staffers and independent-minded cabinet secretaries succumb to groupthink, as it has been called—the overt and subtle pressures driving group cohesiveness that can distort the decisionmaking process.240 This effect can be pronounced in foreign policy, with stressful crises that often involve morally difficult choices.241 Members of the president’s team, not fully aware they are doing so, may overrate their own power or moral position, cut off the flow of information, downplay contrary views of outside experts, limit consideration of long-term consequences, underestimate

the risks of a particular policy, or fail to develop contingency plans.242 Once the group coalesces around a particular view, it becomes increasingly difficult for individual members to press the group to reassess rejected alternatives.243 The unique circumstances of working for the president can make matters worse . Members of the administration generally share the president’s outlook, ideology, and policy pref wed because executive officials give advice based on what they think the president wants to hear. Even if the president’s subordinates differ with the chief executive on particular questions, they can only go so far to challenge the president.244 In short, there are more questions surrounding presidential decisionmaking on war than Yoo is willing to admit. Congress, with the president still

involved, may be able to offset the structural disadvantages of a decision-making process taking place behind closed doors in the White House. While the executive branch tends to concentrate command authority in one person, power is dispersed on Capitol Hill. Not all members of Congress are equal, but no person has influence comparable to the president’s power within the executive branch. In comparison with the select handful of advisers who have the most influence with the president, the number of elected legislators and their diverse ideologies, constituencies, and persp ntrary to the president’s decision-making process, insulated by

executive privilege, the legislative process involves on-the-record votes and speeches by elected representatives and thus provides a forum for public

deliberation.245 To be sure, Congress is not an idealized debating society. Lawmakers have parochial concerns. They often bargain in private. Their public debates can be grounded in emotional appeals as

much as reason.246 Yet in eagerness to rate the president far above Congress in deciding to go to war, Yoo overlooks the value in having a decision-making process conducted in relatively open view and the possibilities for lawmakers to engage in serious deliberations on vital questions of national security.

link defenseSurveillance not key to war powers and Congressional checks boost presidential powers – FISA and recent restraints disprove the linkLevy 06 – (Robert A, “Wartime Executive Power and the NSA’s Surveillance Authority II,” Cato Institute, 2-28-06, http://www.cato.org/publications/congressional-testimony/wartime-executive-power-nsas-surveillance-authority-ii) //AD

I respectfully disagree — which is not to say I believe the president is powerless to order warrantless wartime surveillance. For example, intercepting enemy communications on the battlefield is clearly an incident of his war power. But warrantless surveillance of Americans inside the United States, who may have nothing to do with al- Qaeda, does not qualify as incidental wartime authority. The president’s war powers are broad, but not boundless . Indeed, the war powers of Congress , not the president, are those that are constitutionalized with greater specificity.44 The question is not whether the president has unilateral executive authority, but rather the extent of that authority. And the key Supreme Court opinion that provides a framework for resolving that question is Justice Robert Jackson’s concurrence in Youngstown Sheet & Tube v. Sawyer45 — the 1952 case denying President Truman’s authority to seize the steel mills. Truman had argued that a labor strike would irreparably damage national security because steel production was essential to the production of war munitions. But during the debate over the 1947 Taft-Hartley Act,46 Congress had expressly rejected seizure. Justice Jackson offered the following analysis, which was recently adopted by the Second Circuit in holding that

the administration could no longer imprison Jose Padilla:47 First, when the president acts pursuant to an express or implied authorization from Congress, “his authority is at its maximum .” 48 Second, when the president acts in the absence of either a congressional grant or denial of authority, “there is a zone of twilight in

which he and Congress may have concurrent authority, or in which its distribution is uncertain.”49 But third, where the president takes measures incompatible with the express or implied will of Congress — such as the NSA program, which violates an express provision of the FISA statute — “ his power is at its lowest. ” 50 Even under Youngstown’s second category (congressional silence), the president might have inherent wartime authority to interpret the

“reasonableness” standard of the Fourth Amendment in a manner that would sanction certain warrantless surveillance. But the NSA program does not fit in Youngstown’s second category. It belongs in the third category, in which the president has acted in the face of an express statutory prohibition. Naturally, if the statutory prohibition is itself unconstitutional, the administration is not only permitted but obligated to ignore it. That’s the argument administration supporters have proffered to excuse the NSA’s defiance of FISA.51 To bolster their case, they cite the only opinion that the FISA Court of Review has ever issued, In re: Sealed Case.52 There, the appellate panel mentioned several earlier cases53 that concluded the president has “inherent authority to conduct warrantless searches to obtain foreign intelligence information.”54 The Court of Review then added: “We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on

the President’s constitutional power.”55 Three responses: First, I do not contend that the president lacks “inherent authority to conduct warrantless searches to obtain foreign intelligence information.” He has such authority, but Congress, exercising its own concurrent wartime powers, has limited the scope of that authority by excluding warrantless surveillance intentionally targeted at a U.S. person in the United States. Second, the surveillance in the earlier cases cited by Sealed Case took place pre-FISA, so Congress had not yet laid out the rules. Third, the quote from Sealed Case conveniently stops one sentence short. Here is the very next sentence: “The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the

government’s contention that FISA searches are constitutionally reasonable.”56 In resolving that question, the Court of Review did not conclude that FISA “encroach[ed] on the President’s constitutional power .” Quite the

contrary, according to the court, FISA permissibly amplified the president’s power . The restrictive provisions in FISA were simply a clarification of his new and expanded authority. Thus, Sealed Case provides no support for the assertion that FISA unconstitutionally constrains the president’s inherent wartime

authority . Moreover, such claims leave important questions unanswered. For example: If warrantless domestic surveillance is incidental to the president’s inherent powers, so too are sneak-and-peek searches, roving wiretaps, library records searches, and national security letters — all of which were vigorously debated in deciding whether to reauthorize the PATRIOT Act. Could the president have proceeded with those activities even if they were not authorized by Congress? If so, what was the purpose of the debate? And if not, what

makes the NSA program different? Further, the attorney general asserts that the AUMF and the commander-in-chief power are sufficient to justify the NSA program. He, or his predecessor, made similar claims for military tribunals without congressional authorization,57 secret CIA prisons,58 indefinite detention of U.S. citizens,59 enemy combatant declarations without hearings as required by the Geneva Conventions,60 and interrogation techniques that may have violated our treaty commitments banning torture.61 Is any of those activities outside the president’s commander-in-chief and AUMF powers? If not, what are the bounds, if any, that constrain the president’s unilateral wartime authority?

Internal link

No signalingNo internal link – war power authority is irrelevant for signalingSitaraman 14 - Assistant Professor of Law, Vanderbilt Law School (Ganesh, “Credibility and War Powers,” Harvard Law Review, January 2014, www.harvardlawreview.org/issues/127/january14/forum_1024.php#_ftnref19) //AD

For all the talk of credibility, political scientists have offered devastating critiques of credibility arguments in the context of military threats. They have demonstrated not only that the concept is often deployed in incomplete and illogical

ways but also that as a historical matter, a country’s “credibility” based on its reputation and past actions has little or no effect on the behavior of opponents in high-stakes international crises. In the crises in the run-up to

World War I, in the Berlin crises of the late 1950s and early 1960s, and even in the crises leading to World War II, threats from countries that had previously backed down were not seen as less credible by their opponents. In some cases, the threats were even thought to be more credible. For constitutional lawyers, this research should be

particularly troubling because credibility has migrated from foreign policy into the constitutional law of war powers. In a series of opinions, including on Somalia (1992), Haiti (2004), and Libya (2011), the Justice Department’s Office of Legal Counsel

(OLC) has argued that the credibility of the United Nations Security Council is a “national interest” that can justify presidential authority to use military force without prior congressional authorization.4 This Essay

argues that the credibility justification for the use of force should be removed from the constitutional law of presidential war powers. Incorporating credibility as one of the “national interests” that justify presidential

use of force expands the President’s war powers significantly without a legitimate policy justification. I.

Understanding Credibility As a justification for the use of military force, the preservation of credibility is ubiquitous in foreign policy. President Clinton thought that if the United States failed to uphold its commitments in Somalia after the Black Hawk Down incident, then “[o]ur own credibility with friends and allies would be severely damaged. Our leadership in world affairs would be undermined . . . .”5 President Reagan argued that if the United States failed to confront guerrillas in Central America, “our credibility

would collapse.”6 Years earlier, President Truman said that defeat in Korea “would be an open invitation to new acts of aggression elsewhere.”7 For decades during the Cold War, credibility arguments were prominent in game theory analyses of deterrence, arms control, and U.S.-Soviet relations.8 Despite the

importance of these theories, political scientists at the time acknowledged that they “know remarkably little” about credibility9 and had “neither theoretically grounded expectations nor solid evidence” of how behavior affects expectations of future action.10 More recently, political scientists have turned to serious study of credibility.

These studies call into question the use of credibility arguments in the context of military threats . A.

Theories of Credibility The credibility of a threat is “the perceived likelihood that the threat will be carried out if the conditions that are supposed to trigger it are met.”11 When people believe a threat will be carried out, it is credible; when they believe it is a bluff, the threat is not credible. Credibility is an audience’s perception. If the United States thinks its threats are credible, but opponents do not, then the threats are not credible. Credibility is also not universal. Different actors might assess the credibility of a threat differently — and different individuals within the same government might debate the credibility of a threat.12 Political scientists

have identified five different theories by which people perceive threats as credible. The most prominent — and the one consistently invoked as “credibility” in foreign policy debates from Vietnam to Syria — is the past actions theory.13

The past actions theory links credibility to a country’s historical record of fulfilling its threats . It has two

central claims: First, credibility is determined by the historical evidence of a country’s actions. Second, there is a direct relationship between the perception that a country historically follows through on its commitments and the country’s credibility. The

theory’s rationale is that past actions might illustrate something important about the adversary’s character, interests, or capacity to act. But the core of the theory is narrower: the likelihood of a country following through on a threat today is dependent on whether the country followed through on its threats in the past. Commentators have also frequently offered a variation of the

past actions theory of credibility that focuses on reputation arguments.14 A reputation is a “judgment of someone’s character (or disposition) that is then used to predict or explain future behavior.”15 Reputation arguments in international politics assume that decisionmakers attribute behavior to character or dispositional traits, rather than to situational factors (such as national interests, public pressure, or military capabilities). When decisions are attributed to situation, the assumption is that most people in the same situation would act the same way. When decisions are attributed to disposition, it means that this individual actor will behave a certain way, independent of the situation. Note that the reputation and past actions theories are not exactly the same: A nation’s past actions may lead to a reputation if others interpret its

behavior in dispositional rather than situational terms and then use that past conduct to predict similar behavior in the future. A nation’s reputation, however, might also be ascribed to other dispositional traits (such as ideological commitments or

inherent characteristics). The leading alternative to the past actions and reputation theories of credibility is the current calculus theory.16 Current calculus theory holds that credibility is not a function of past actions or reputation, but rather a function of a country’s present capabilities and interests in a particular situation. On this theory, an adversary assesses credibility based on the country’s ability to effectuate its threat and the costs and benefits to that country in enforcing its threat. Two other theories are worth noting. The ingrained lessons theory holds that decisionmakers do not look to the threatening country’s history, but instead to their own history. For example, they will expect today’s adversary to back down if their

previous adversaries also backed down. The never again theory holds that breaking a commitment actually increases credibility of future threats because decisionmakers will understand that backing down a second time is too costly. This Essay focuses on the past actions and reputation theories, and given their dominance in foreign policy,

refers to them together as “credibility arguments.” B. The Logical Limits of Credibility Arguments In the context of military threats and the use of force, credibility arguments suffer from some important limitations. First, because both past actions and reputation are based on audience interpretations, a country can have multiple reputations and a single action can create different reputations among different audiences.17 To some, following through on a threat demonstrates resolve; to others, foolishness. Second, action in one context might not migrate into reputation in another.18 If the United States sets a “red line” on a fishing issue for Micronesia and then backs down, it is unlikely to send a signal to Iran that

all American “red lines” are bluffs. The Iranians may ignore the Micronesian case because it is fundamentally different from their own. Third, if we assume that credibility matters, then both sides know that it matters, and both sides can take it into account. Social scientists call the resulting problem recursion,19 but we generally know it as the “if she knows that I know that she knows . . .” problem. Take Syria.20 If we assume Assad is simpleminded, and the United States backs down, then Assad will think he can use chemical weapons again. But if Assad also knows that credibility is important, and the United States backs down, then Assad knows President Obama has paid a reputation cost in bluffing. Perhaps some in the United States will even say “never again!” If Assad then uses chemical weapons again, it will be harder for Obama to bluff a second time. As a result, backing down the first time actually makes any future threat by Obama more credible. And Assad knows this. Now take it one step further. If Assad knows that Obama knows this, then Assad will reason that Obama’s threat is a bluff

because Obama knows Assad will think Obama’s action is more credible. “Keeping the logic straight is difficult,” as Jonathan Mercer puts it, “but it is also irrelevant: no one knows how many rounds the game will go on , for there is no logical place to stop.”21 Credibility arguments are self-defeating because if we assume they matter, everyone else knows they matter too — and can account for them. Because the recursion game goes on ad infinitum, it is impossible to determine what policy to pursue. C. Evidence

from History Credibility arguments could also be justified with real world evidence. For example, data could shed light on the manner of leaders’ credibility determinations: Do they actually pay attention to the disposition of the opponent based on their past actions? Or do they undertake a current calculus and focus on interests, capabilities, and the immediate situational context? In a series of

qualitative studies, political scientists have shown that past actions and reputation theories of credibility have little historical basis for support.22 When leaders evaluate their opponents, they assess threats based on current calculations, not on past actions. And when leaders have justified conflicts based on preserving a reputation for resolve, others have not always interpreted their actions as was intended. Note that these studies are limited to the context of military threats and international crises. Scholars hypothesize that military threats might differ from other contexts because the stakes are so high that leaders analyze the situation instead of using heuristics like reputation.23 These findings therefore do not extend to all international issues.24 In the most extensive research on credibility theories, Professor Daryl Press reviewed thousands of pages of archival documents and found that the current calculus theory, not the past action theory, best explains decisionmaking in the “appeasement crises” of the 1930s, the Berlin crises of the late 1950s and early 1960s, and the deliberations during the Cuban Missile Crisis. On the past actions theory, the Nazis should have interpreted British and French threats as not credible because the Allies repeatedly backed down when Germany took aggressive steps in the 1930s. The historical evidence, however, shows that German leaders believed British and French threats were credible — even after the Allies backed down. For the German leaders, credibility was a function of the Allies’ power, not their reputation. Indeed, Press finds that German leaders almost never referenced past actions by the British and French. Accordingly, he concludes that appeasement was poor strategy not because the Allies undermined their credibility, but because it allowed Germany to increase its power.25 From 1958 to 1961, the world watched a number of Berlin crises unfold between the Soviets and the West. Soviet Premier Nikita Khrushchev set six-month deadlines

for the Allies to withdraw from West Berlin, and he threatened to cut off access to the city. Yet every time, Khrushchev backed down. On the past actions theory, British and American leaders should have interpreted each successive threat as less credible. However, Press found that Soviet threats actually became more credible, not less credible.26 During this same period, the Soviets expanded their nuclear arsenal; as their nuclear prowess grew, so did their credibility. Indeed, by the time of the Cuban Missile Crisis, American leaders strongly believed that Khrushchev would not back down if the United States acted in Cuba. Here too Press finds that British and American leaders almost never mentioned Khrushchev’s record of bluffing.27 In an important book on reputation, Mercer analyzed the

crises leading up to World War I.28 He finds that decisionmakers interpreted their adversaries’ backing down based more on the specific situational context, rather than on the disposition of the actors.29 Thus, when the Germans backed down, the Triple Entente of Britain, France, and Russia attributed those defeats to situational factors. To the extent they considered past actions, the Entente believed Germany would be more likely to follow through on its threats in the future because it had

previously been defeated. Note also that both Press’s and Mercer’s cases stack the deck in favor of past actions theory: the players were the same, there were repeated crises in a short period of time, and the crises involved the same issues. These are precisely the situations in which we would expect past action theories of credibility to be most powerful at explaining behavior. Looking specifically at military actions justified by credibility arguments, political scientists have also provided historical evidence that allies and adversaries do not necessarily interpret these actions as enhancing America’s reputation or credibility. In a study of the Korean War, Mercer recounts how Secretary of State Dean Acheson believed that Western European allies were at “near-panic” over whether the United States would act.30 They were not. When the British Cabinet met to discuss the issue, Korea was fourth on their agenda and some of the ministers could not locate Korea on the map.31 Meanwhile, the French were concerned that the Americans would be too resolute. They worried that the United States would start a world war over what they saw as an area that was strategically unimportant.32 In another study, Professor Ted Hopf analyzed the Soviet reaction to the United States’s withdrawal from Vietnam. Hopf found that the Soviets did not see United States withdrawal as decreasing American credibility in the Cold War.33

Impact

Prez PowersNo impact to Presidential powersHealy 11 - vice president at the Cato Institute (Gene, “Book Review: Hail to the Tyrant," The CATO Institute, June 2011, http://www.cato.org/publications/commentary/book-review-hail-tyrant ) //AD

Legal 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 allegedly 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 soil — “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.”

Impact turn – prez powers badUnchecked presidential powers destroy privacy and result in less effective policies through a dictatorship – war power checks key Schneier 05 – Chief Technology Officer of Resilient Systems, fellow at Harvard's Berkman Center for Cyber-law Internet and Society, and a board member of the Electronic Frontier Foundation (Bruce, “The Security Threat of Unchecked Presidential Power,” 12-21-05, https://www.schneier.com/blog/archives/2005/12/the_security_th_1.html) //AD

Yoo's memo ignored this. Written 11 days after Congress refused to grant the president wide-ranging powers, it admitted that "the Joint Resolution is somewhat narrower than the President's constitutional authority," but argued "the President's broad constitutional power to use military force ... would allow the President to ... [take] whatever actions he deems appropriate ... to pre-empt or respond to terrorist threats from new quarters." Even if Congress specifically says no. The result is that the president's wartime powers, with its armies, battles, victories, and congressional declarations, now extend to the rhetorical "War on Terror": a war with no fronts, no boundaries, no opposing army, and -- most ominously -- no knowable "victory." Investigations, arrests, and trials are not tools of war. But according to the Yoo memo, the president can define war however he chooses, and remain "at war" for as long as he chooses. This is indefinite dictatorial power . And I don't use that term lightly; the very definition of a dictatorship is a system that puts a ruler above the law. In the weeks after 9/11, while America and the world were grieving, Bush built a legal rationale for a dictatorship . Then he immediately started using it to avoid the law. This is, fundamentally, why this issue crossed political lines in Congress. If the president can ignore laws regulating surveillance and wiretapping, why is Congress bothering to debate reauthorizing certain provisions of the Patriot Act? Any debate over laws is predicated on the belief that the executive branch will follow the law. This is not a partisan issue between Democrats and Republicans; it's a president unilaterally overriding the Fourth Amendment, Congress and the Supreme Cour t. Unchecked presidential power has nothing to do with how much you either love or hate George W. Bush. You have to imagine this power in the hands of the person you most don't want to see as president, whether it be Dick Cheney or Hillary Rodham Clinton, Michael Moore or Ann Coulter. Laws are what give us security against the actions of the majority and the powerful. If we discard our constitutional protections against tyranny in an attempt to protect us from terrorism, we're all less safe as a result .

Misc

Unconstitutional/nuqExecutive war power authority is unconstitutional – congressional checks key and war power restraints are nonunqiueBlumrosen and Blumrosen 11 - Thomas A. Cowan Professor Emeritus Rutgers School of Law—Newark. B.A., J.D., University of Michigan; B.A., University of Michigan; J.D., Quinnipiac University School of Law(Steven M, Alfred W, “RESTORING THE CONGRESSIONAL DUTY TO DECLARE WAR,” Rutgers Law Review, 7-11-11, Vol. 63:2, http://www.warpower.us/LRArt.pdf) //AD

When the Constitution provided Congress with the power to declare war, did it give the people the right to have Congress take the nation to war or could Congress transfer that power to the President, though the Constitution forbade it? The deliberations that began on June 1, 1787 are dispositive. The Constitutional Convention determined that the power to declare war could not be given by Congress to the President, except as the Constitution authorized the Congress to provide in advance for specified situations. The power itself was ―legislative. ‖ The President has no ― legislative ‖ power .494 Therefore Congress could not transfer that power to him any more than Marbury could sue Secretary of State Madison in the Supreme Court rather than a federal district court, or

than the President could seize steel companies during war without congressional authority.495 From the adoption of the Constitution, voters had the right to evaluate their federal representatives on the basis of the legislator‘s views on taking the nation to war. The AUMF destroys or dilutes that right by taking the vote away from the representative and allowing the President to make such decisions. This exercise of the electorate‘s right to vote on the issue of taking the nation to war was emphasized at the Constitutional Convention and in ratifying conventions.

Since Congress had this duty to vote on war, the voters had a corresponding right to consider their representatives‘ votes on war. The AUMF destroys or dilutes that right, denying voters their Fifth Amendment rights. The nature of the right to vote has been extensively examined under the Due Process Clause of the Fourteenth Amendment, applicable to state and local governments. These twin due process clauses have been interpreted similarly.496 The test for recognizing a substantive right under the Fourteenth Amendment‘s Due Process Clause was described by Chief Justice Rehnquist in 1997 as follows: Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ―deeply rooted in this Nation‘s history and tradition,‖ . . . (―so rooted in the traditions and conscience of our people as to be ranked as fundamental‖), and ―implicit in the concept of ordered liberty,‖ such that

―neither liberty nor justice would exist if they were sacrificed,‖ . . . Second, we have required in substantive-due-

process cases a ―careful description‖ of the asserted fundamental liberty interest. . . . Our Nation‘s history, legal traditions, and practices thus provide the crucial ―guideposts for responsible decisionmaking,‖ . . . that direct and restrain our exposition of the Due Process Clause.497 Thus there may be an enforceable ―fundamental right‖ to constitutionally required

procedures when the right is ―deeply rooted and carefully described.‖ Both of these conditions apply to an AUMF. For more than 100 years, the Fourteenth Amendment‘s Due Process Clause has protected the rights of citizens to vote. That right, as we have seen,

includes influencing and electing representatives based on their views on taking the nation to war. By denying citizens the right to have their representatives vote on the issue of war, the President and Congress have denied both the Fifth and Fourteenth Amendment. Representatives no longer vote on that issue; they vote to let the President decide that issue. Ironically, on June 15, 1964, in Reynolds v. Sims, the Supreme Court, sitting across the street from Congress, explained that the right to vote was the ―essence of a democratic society.‖498 Two months later, Congress, on August 17, 1964, enacted the Gulf of Tonkin AUMF that deprived voters of their rights to influence their representatives on whether to take the nation to war.499 Chief Justice Earl Warren wrote in Reynolds: [T]he Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections. . . . It has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote, and to have their votes counted. . . . Racially based gerrymandering, and the conducting of white primaries, both of which result in denying to some citizens their right to vote, have been held to be constitutionally impermissible. And history has seen a continuing expansion of the scope of the right of suffrage in this country. The right to vote freely for the candidate of one‘s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a

debasement or dilution of the weight of a citizen‘s vote just as effectively as by wholly prohibiting the free exercise of the franchise.500 The AUMF that disregards the constitutional duty of Congress to declare war, coupled with the opportunity for

legislators to evade their responsibility to the voters, is precisely a danger to the debasement of the right of suffrage described by Chief Justice Warren. The AUMF neatly removes an obligation that the founders had assigned to Congress so that the public could make their views on going to war felt by their representatives. The enhanced power of the President as political leader, noted sixty-five years ago by Justice Jackson, may influence legislators to hew the ―party line,‖ rather than the interest of their constituents.501 It is time for the courts to honor the Constitution

without hiding behind the political question doctrine. The AUMF eliminates the citizen‘s opportunity to advise, reward or punish legislators depending on how they vote on declaring war, a right the Constitution confers on citizens. This right ultimately involves life or death, as important as the budgetary rights involved in Clinton v. New York,502 the individual rights of a person subject to deportation in INS v. Chadha,503 and the right to own a gun for self defense at home in District of Columbia v. Heller.504 It meets all the criteria of a ―fundamental right.‖ In Chief Justice Rehnquist‘s terms, it is

―objectively, deeply rooted in this Nation‘s history and tradition,‖ and is ―implicit in the concept of ordered liberty,‖ such that ―neither liberty nor justice would exist if they were sacrificed.‖505 The Declare War Clause on its face and from the history of June 1 creates a mandatory process for the decision to go to war.506 The statutory AUMF is inconsistent with that process. Therefore, it violates

both Article I, Section 8 and the Fifth Amendment. Congress and the President could resolve the ―declaration of war ‖ issue by adopting a limited authorization for the use of force in the manner suggested in Bas v. Tingy. Other

formulas may fit as well or better. The key is to make sure that the decision is made by Congress–and by no one else. The AUMF is exactly what Congress and the President might have achieved under one of Madison‘s withdrawn proposals on June 1,

1787. Charles Pinckney led the Convention to reject the idea that Presidents might declare war, or permit Congress to authorize the President to take the nation to war.507 This rejection should carry the AUMF down with it. Pinckney‘s struggle to ―keep a republic‖ on June 1, 1787 should be recognized as a major contribution to the making of America. The fact that

June 1, 1787 has been ignored for so long and by so many federal courts of appeals does not matter. The Constitution cannot be amended by the actions of the President and Congress.508 The Supreme Court has the flexibility to reject the opinions of

courts of appeals when the matter comes before it.509 CONCLUSION We have placed a heavy burden on June 1-4, 1787 to correct the errors of a dozen courts of appeals that have convinced each other that the power of Congress to ―declare war ‖ really means the opposite of what it says—that the Framers intended to share these powers between Congress and the President. This supposed ―sharing ‖ of ―joint ‖ powers has produced two of America ‘ s most damaging wars, killed more than 60,000 Americans and uncounted others, and piled an enormous debt on the United States with no visible gain to the country. We cannot prove that these two disasters would not have happened if Congress had taken the responsibility that June 1 imposed on its members. But there is one modest glimmer of hope in the otherwise tragic story of politics, law and war that has permeated this article. On September 12, 2001, when the President of the United States asked for the authority to ―deter and pre-empt any future acts of terrorism and aggression

against the United States,‖ something very important happened both in the Capitol and the White House.510 Facing the enormous pressure that the 9/11 atrocities generated to give the President unlimited authority to protect the nation, members of Congress and their staffs resisted turning the entire war power over to the President. They forced changes to limit the presidential ―blank check‖ demands as a response to 9/11.511 Weak as they proved to be the following year in adopting the AUMF against Iraq, they did manage to confine the President‘s claim to unlimited power, in the immediate impact of the 9/11 carnage. The Congress must decide whether to take military action against an enemy even if we are faced with a ―sudden attack ‖ and the President has responded with military force. Most of the information on which Congress will rely will come from the President.512 The 9/11 Resolution was rushed through the House and Senate by September 14. The Senate voted 98-0; and the House acted later in the day.513 The Gulf of Tonkin Resolution was passed by Congress on August 7, 1964 based on incidents that may have occurred on August 2 and 4.514 In both situations the Congress was put under extraordinarypressure by the President that precluded careful

consideration.515 One lesson from these two experiences is clear: Congress must carefully evaluate its response to a President‘s claims of serious attacks on the United States. Professor Phillip Bobbit has focused on the difficulties of assigning ―blame ‖ for a terrorist attack from an uncertain source , and the dangerous consequences of a rush to judgment.516 An attack against our water supply, electrical grid, or the transportation system, where the perpetrators plant phony evidence that the plot originated in Russia, China, or Iran could lead us to a nuclear response that would ―bomb us

all‖ into the stone age. This would suit only those who believe that western civilization is an abomination. Congress must be alert to determine what actions a President plans to take after a ―terrorist incident‖ against the United States, and satisfy itself and the public that the President has not ―rushed to judgment‖ about the culprits and their backers. The President‘s claim that time is of the

essence, is rarely the case. In connection with the Second Iraq War, the President pressured Congress to act favorably just before the bi-annual election in 2002, then waited five months to commence hostilities. The Gulf of Tonkin Resolution was rushed through on flimsy evidence in August, 1964. Johnson had no intention of using it until after the presidential elections in November, so he could run for election on a policy of keeping our boys out of Vietnam.517 After his victory, he made the decision to deploy more than half a million troops to Vietnam. Congress should gird itself for negotiations with the White House and for serious reviews of the facts, rather than the meaningless speechmaking that accompanied the 2002 AUMF against Iraq or the worry about the political consequences of a serious review of the Gulf of Tonkin Resolution. Congress has a problem of resources.518 The presidential staff consists of thousands of professionals in the Departments of Justice, Defense, State and the Intelligence agencies.519 Congress needs a stand-by committee of experts on both war and diplomacy to evaluate proposals for military action.520 While we believe that Presidents and Congresses will continue to rely on the AUMF because it simplifies life at both ends of

Pennsylvania Avenue, we also believe that the AUMF has served the nation so badly that we cannot continue to rely on the Vietnam War cases. Congress may reform itself, but at the moment, hope lies with a judiciary that may yet absorb the significance of June 1, 1787. There are other views on how to remedy the ineffectiveness of the Declare War Clause. Political Science Professor

Peter Irons concludes that only a ―slow, incremental grassroots activism that marked the civil rights movement in its struggle against Jim Crow laws ‖ can bring Congress to comply with the Constitution.521 Prolific analyst Louis Fisher concludes that a reform in education of the young to understand the limits of presidential power can lay a foundation for a change in perceptions concerning the balance of powers between the President and Congress, and that legislators should ―participate in the daily grind of overseeing administration

policies, passing judgment on them, and behaving as a coequal, independent branch.‖522 We believe that the judgment of Congress must be brought to bear on the issue of war, and that this cannot be accomplished alone through patient evolutionary processes or in a willingness of Congress to reform itself.523 It is high time for the judiciary–which has stumbled badly–to recognize that the world is as hazardous today as in 1787-88, and that the dangers of personal and political ambition are magnified by modern politics and technology. The original understanding of the Constitution will serve us better than the system that brought us the Vietnam War

and the war in Iraq. The appropriate remedy is a declaratory judgment, making clear that members of Congress must take personal responsibility for commencing war, as the nation was promised in 1787.