1nc DA

The plan sets a precedent that shreds overall presidential power

Kenneth Klukowski 11, Research Fellow, Liberty University School of Law; Fellow and Senior Legal
Analyst, American Civil Rights Union; National-Bestselling Author. George Mason University School of
Law, J.D. 2008; University of Notre Dame, B.B.A. 1998, “MAKING EXECUTIVE PRIVILEGE WORK: A MULTI-
FACTOR TEST IN AN AGE OF CZARS AND CONGRESSIONAL OVERSIGHT” 2011, 59 Clev. St. L. Rev. 31)
VI. CONCLUSION Most controversies between Congress and the White House over information are decided more
by politics than by law, and so a settlement is usually reached favoring the party with the public wind to its back. n348
Questions of law should not be decided in that fashion . Therefore, the reach and scope of executive
privilege should be settled by the courts in such situations, so that the President's power is not impaired
whenever the political wind is in the President's face and at his opponents' backs, or the President is inappropriately
shielded when political tides flow in his favor. While the best outcome in any interbranch dispute is the political branches reaching a settlement, "such compromise may not always be

where it sets a precedent that degrades one of the three branches of

available, or even desirable." n349 It is not desirable

government. If one branch of government demands something to which it is not constitutionally

entitled and that the Constitution has fully vested in a coequal branch, the vested branch should not
be required to negotiate on the question . Negotiation usually involves compromise. This negotiation would often result in one
branch needing to cede to the other, encouraging additional unconstitutional demands in the future . Though this may
perhaps be a quicker route to a resolution, it disrupts the constitutional balance in government . As the Supreme Court has recently explained,

"'convenience and efficiency are not the primary objectives--or the hallmarks--of democratic government.'" n350 President Reagan declared that "you aren't

President; you are temporarily custodian of an institution, the Presidency. And you don't have any right to
do away with any of the prerogatives of that institution, and one of those is executive privilege. And this is
what was being attacked by the Congress." n351 Thus, any White House has the obligation to fight to protect
executive privilege, and the courts should draw the line to preserve that constitutional prerogative. Likewise, there are
times when it is the President who is refusing to give Congress its due under the Constitution, where Congress must assert its prerogatives for future generations. Conversely, where
confidentiality is not warranted, courts must ensure public disclosure and accountability.

Flexible executive power solves terrorism, rogue states, and WMD prolif – new legal
checks are existentially dangerous
John Yoo 17, J.D. from Yale, Emanuel Heller Professor of Law and director of the Korea Law Center, the
California Constitution Center, and the Law School’s Program in Public Law and Policy, "Trump’s Syria
Strike Was Constitutional", National Review, https://www.nationalreview.com/2017/04/trump-syria-
strike-constitutional-presidents-have-broad-war-powers/
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 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 can lead 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 presidents. 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.
 2nc overview
Executive flexibility in foreign operations is an impact filter – it deters and de-
escalates tension globally by suppressing hotspots and terrorist activities –
specifically, it solves global terrorism, rogue states, and WMD proliferation – that’s
1nc Yoo
4th generation conflicts are the only scenario for conflict – deterrence solves great
power conflict
Gable, Associate Professor of Political Science at the University of Michigan, 2011
[William R, 14-03-2011, Strategy Research Project, AN ERA OF PERSISTENT CONFLICT
Exceptional individuals are key contributors to the turmoil the U.S. experienced in the last decade through the
present, and their objectives could portend continued conflict. While the existence of these exceptional individuals alone does not necessarily assure

conflict, the ideologies they espouse are underpinned by religion adding a nondeterrable dimension to their

struggle. The actual or perceived preponderance of U.S. power will not diminish the likelihood of future
attacks. In fact, such attacks will only serve to enhance these organizations‘ status and power, fueling every aspect of their operations from recruiting to financing operations.
Consequently, threats from non-state actors will continue. Depending on the potential destruction inflicted by any terrorist attack, the attacker‘s sanctuary,

and the threat posed to the aforementioned governments, the U.S. may be compelled to fight wars similar to the war in Afghanistan. Conflict with another state is

possible, though less likely . Although the relative decline of U.S. economic power in relation to China appears to

constitute a potential ―window‖ or threat to peace, both governments are aware of the risks and are working to
mitigate them. Moreover, the U.S., China, and Russia represent deterrable nuclear powers, states dissuaded from conflict
with each other due to the potential costs of a nuclear exchange. Conflict between these states appears unlikely. However, existing theory

suggests problems with nondeterrable states that are not responsive to punishment or are willing to
take risks that prompt conflict. North Korea and Iran seem to fit this description. Their efforts to develop,
acquire, and possibly proliferate nuclear weapons, combined with the potential threat posed by a non-state

actor acquiring such weapons, form conditions that indicate a strong possibility of war. In particular, Iran‘s nuclear
program presents a potentially ominous window. Should diplomacy, sanctions, and cyber attacks fail to sidetrack Iran‘s nuclear program, the U.S. will be presented

with an ever-narrowing window to act with force to deny Iran this capability. This could result in conflict with Iran. While false optimism is a potent and
pervasive cause of war, recent experience with war and the nature of these and likely future conflicts will diminish

leaders support for initiating war. Similarly, the current economic conditions and concern over the national
debt will dampen leaders‘ enthusiasm for wars. But existing theories that discuss these factors fail to
consider the impact of non-state actors. Thus, conflict is still possible despite them. Overall, the
combination of factors seems to indicate continuing conflict with nonstate actors and potential conflict with
states over development and proliferation of nuclear weapons. These factors identify specific circumstances where U.S.
involvement in war is likely, and represent the primary drivers for concluding that the current era will be one of persistent
conflict . The U.S. government should use all of the elements of power to focus on these factors to prevent what history and theory suggest the inevitability of war.

is likely – it would be nuclear – that’s extinction

Robert Creamer 11, Political Organizer and Strategist – Strategic Consulting Group, “Post-Bin Laden, It's
Time to End the Threat of Nuclear Terrorism for Good”, Huffington Post, 5-12,
http://www.huffingtonpost.com/robert-creamer/post-bin-laden---it-is-ti_b_860954.html
Worse, al Qaeda and other terrorist organizations have vowed to obtain and actually use nuclear weapons.
The status quo -- the balance of terror -- that for six decades prevented a nuclear war between the U.S. and Russia is
every day being made more unstable by the increasing numbers of nuclear players -- and by the potential entry of
non-state actors. Far from being deterred by the chaos and human suffering that would ensue from
nuclear war -- actors like al Qaeda actively seek precisely that kind of cataclysm . The more nuclear weapons that
exist in the world -- and more importantly the more weapons-grade fissile material that can be obtained to build a nuclear weapon -- the more
likely it is that one, or many more, will actually be used. In the 1980's the specter of a "Nuclear Winter" helped spur the movement for nuclear
arms reduction between the U.S. and Soviet Union. Studiesshowed that smoke caused by fires set off by nuclear
explosions in cities and industrial sites would rise to the stratosphere and envelope the world . The ash would
absorb energy from the sun so that the earth's surface would get cold, dry and dark. Plants would die . Much
of our food supply would disappear . Much of the world's surface would reach winter temperatures in the
summer.

Same with WMD prolif

Matthew Kroenig 14, Associate Professor and International Relations Field Chair Department of
Government Georgetown University & Nonresident Senior Fellow Brent Scowcroft Center on
International Security The Atlantic Council, The History of Proliferation Optimism: Does It Have A
Future?, February 2014,
http://www.matthewkroenig.com/The%20History%20of%20Proliferation%20Optimism_Feb2014.pdf
The spread of nuclear weapons poses a number of severe threats to international peace and security including:
nuclear war, nuclear terrorism, global and regional instability , constrained freedom of action, weakened alliances, and further
nuclear proliferation. Each of these threats has received extensive treatment elsewhere and this review is not intended to replicate or even necessarily to improve upon these previous efforts. Rather the goals
of this section are more modest: to usefully bring together and recap the many reasons why we should be pessimistic about the likely consequences of nuclear proliferation. Many of these threats will be illuminated with a

The greatest threat posed by the spread of nuclear weapons is

discussion of a case of much contemporary concern: Iran’s advanced nuclear program. Nuclear War.

nuclear war. The more states in possession of nuclear weapons, the greater the probability that somewhere,
someday, there will be a catastrophic nuclear war . To date, nuclear weapons have only been used in warfare once. In 1945, the United States used nuclear weapons on
Hiroshima and Nagasaki, bringing World War II to a close. Many analysts point to the sixty-five-plus-year tradition of nuclear non-use as evidence that nuclear weapons are unusable, but it would be naïve to

think that nuclear weapons will never be used again simply because they have not been used for some time . After all,
analysts in the 1990s argued that worldwide economic downturns like the great depression were a thing of the past, only to be surprised by the dot-com bubble bursting later in the decade and the Great Recession of the late

Naughts.49 This author, for one, would be surprised if nuclear weapons are not used again sometime in his lifetime. Before reaching a state of MAD, new nuclear states go
through a transition period in which they lack a secure- second strike capability . In this context, one or both
states might believe that it has an incentive to use nuclear weapons first . For example, if Iran acquires nuclear weapons, neither Iran, nor its nuclear-armed
rival, Israel, will have a secure, secondstrike capability. Even though it is believed to have a large arsenal, given its small size and lack of strategic depth, Israel might not be confident that it could absorb a nuclear strike and respond

In
with a devastating counterstrike. Similarly, Iran might eventually be able to build a large and survivable nuclear arsenal, but, when it first crosses the nuclear threshold, Tehran will have a small and vulnerable nuclear force.

these pre-MAD situations, there are at least three ways that nuclear war could occur. First, the state with the
nuclear advantage might believe it has a splendid first strike capability. In a crisis, Israel might, therefore, decide to launch a preventive nuclear strike
to disarm Iran’s nuclear capabilities. Indeed, this incentive might be further increased by Israel’s aggressive strategic culture that emphasizes preemptive action. Second, the state with a small and

vulnerable nuclear arsenal , in this case Iran, might feel use ‘em or loose ‘em pressures. That is, in a crisis, Iran might decide to strike first rather than
risk having its entire nuclear arsenal destroyed. Third, as Thomas Schelling has argued, nuclear war could result due to the reciprocal fear of surprise
attack .50 If there are advantages to striking first, one state might start a nuclear war in the belief that war is inevitable and that it
would be better to go first than to go second . Fortunately, there is no historic evidence of this dynamic occurring in a nuclear context, but it is still possible. In an Israeli-Iranian
crisis, for example, Israel and Iran might both prefer to avoid a nuclear war, but decide to strike first rather than suffer a devastating first attack from an opponent. Even in a world of MAD, however, when both sides have secure,
second-slrike capabilities, there is still a risk of nuclear war. Rational deterrence theory assumes nuclear-armed states are governed by rational leaders who would not intentionally launch a suicidal nuclear war. This assumption
appears to have applied to past and current nuclear powers, but there is no guarantee that it will continue to hold in the future. Iran's theocratic government, despite its inflammatory rhetoric, has followed a fairly pragmatic

as nuclear weapons continue

foreign policy since 1979. but h contains leaders who hold millenarian religious worldviews and could one day ascend to power. We cannot rule out the possibility that,

to spread , some leader somewhere will choose to launch a nuclear war , knowing full well that it could result in self-destruction. One does
not need to resort to irrationality , however, to imagine nuclear war under MAD. Nuclear weapons may deter leaders from intentionally
launching full-scale wars, but they do not mean the end of international politics. As was discussed above, nuclear-armed states still have conflicts of interest and
leaders still seek to coerce nuclear-armed adversaries . Leaders might, therefore, choose to launch a limited nuclear
war.51 This strategy might be especially attractive to states in a position of conventional inferiority that might have an incentive to escalate a crisis quickly. During the Cold War, the United States planned to use nuclear
weapons first to stop a Soviet invasion of Western Europe given NATO’s conventional inferiority.52 As Russia’s conventional power has deteriorated since the end of the Cold War, Moscow has come to rely more heavily on

Russian strategy calls for the use of nuclear weapons early in a conflict (something that most Western
nuclear weapons in its military doctrine. Indeed,

strategists would consider to be escalatory) as a way to de-escalate a crisis. Similarly, Pakistan’s military plans for nuclear use in the event of

an invasion from conventionally stronger India. And finally, Chinese generals openly talk about the possibility of nuclear use
against a U.S. superpower in a possible East Asia contingency. Second, as was also discussed above, leaders can make a “threat that leaves something to chance.”53
They can initiate a nuclear crisis. By playing these risky games of nuclear brinkmanship , states can increases the risk of nuclear
war in an attempt to force a less resolved adversary to back down. Historical crises have not resulted in nuclear war, but many of them, including the 1962
accidents nearly led to war.54 When we think about future
Cuban Missile Crisis, have come close. And scholars have documented historical incidents when

nuclear crisis dyads, such as Iran and Israel, with fewer sources of stability than existed during the Cold War, we can see that
there is a real risk that a future crisis could result in a devastating nuclear exchange .
 Heg Impact – 1NC
A strong presidency is key to American hegemony and a robust, stable international
order
Waśko-Owsiejczuk 17, Ewelina, University of Bialystok “Is America safer today? The first changes to
U.S. foreign and security policy during the presidency of Donald Trump” Przegląd Politologiczny (Political
Science Review) Issue 3, pp 161-178
The influence and role of the U.S. president in creating foreign and security policy is superior to that
of other organs of public authority . This is mainly due to the specifics of the presidential system and the U.S. Constitution, which
assigns him a wide range of power as chief executive . It is worth noting that the U.S. Constitution details the powers of
Congress in detail. This is not the case for the function and position of the president, where the wording is very
general, leaving a wide field for arbitrary interpretation, which is the starting point for extending the capabilities
and power of the president (Dziemidok-Olszewska, 2009, p. 154 et seq). Thus, the president of the United States has quite a
diverse role as a symbol of the state and the people of the United States, as the head of the armed forces, chief of
diplomacy, leader of the party, chief executive, national spokesman, promoter of economic development and
world leader (Amos, Jordan, Taylor, Meese, Nielsen, Schlesinger, 2009, p. 77). As some researchers point out, the broad powers conferred on the president
make him the most important actor in U.S. foreign and security policy (Ulrich, 2012, p. 63). While serving as head of state and head of government, the U.S.
president is responsible for the preparation and implementation of the budget, nominating powers (e.g. the nomination of the secretary of state) and the
administrative activities of overseeing the cabinet, agencies and executive committees (Wordliczek, 2003, pp. 96–118). Such strong power in the presidential system
carries the risk of abuse. Thus, a braking mechanism is needed, which in the U.S. is the principle of checks and balances between the executive, legislative and
judiciary branches of government (Hill, 2001, p. 43). In the context of foreign and security policy, Congress carries out their control function by accepting
presidential nominations or receiving reports on the activities of government agencies (Waśko-Owsiejczuk, 2014, p. 87). However, the most important element of
control the legislative body has over the executive body is the right to declare war and to allocate a budget for it, which is the responsibility of Congress and not the
president (Michałek, 2005, pp. 65–66). In order to implement foreign and security policy, the president is equipped with important tools, including executive orders
and presidential directives. Executive orders, which do not require congressional approval, are usually directed at federal agencies. Often these are important
decisions that cause changes in American legislation. Presidential directives are also an important security policy instrument. Although signed or endorsed by the
president of the United States, this document is usually handled by the National Security Council. Presidential directives are often secret and, although they are
usually targeted at specific government agencies, their scope includes the executive, legislative and judicial branches of the federal government, as well as state and
local governments (Waśko-Owsiejczuk, 2014, p. 58). Apart from the legal position of the president in shaping foreign and security policy, non-constitutional factors
also play a role, such as the personality of a given president, his skills and style of governance, and the situational context in which leadership is exercised
(Antoszewski, 2014, p. 23). President Harry Truman’s assistant, Richard Neustadt, once said: “Americans like to judge their leader not in terms of competence or
incompetence, but in terms of strength or weakness” (see: Czulda, 2010, p. 60). The personality characteristics and predispositions that one should have in order to
function effectively as the head of a superpower include strength, courage and confidence. Less important is competence, or whether the candidate in question is
an economics or foreign policy expert, since he is assisted by a wide circle of trusted associates. This must be a strong leader who cares for citizens’ security and the
development of the country. The president of a superpower should also have charisma and be a good speaker, thus exciting his listeners (Waldman, 2000, p. 105).
What is more important than political correctness are attributes such as decisiveness and firmness in the
leader of the most powerful state in the world (Ludwikowski, Ludwikowska, 2009, pp. 122–123). There is even a concept called
the imperial presidency, referring to the position and function of the U.S. president . Here, it is understood that the president is
seen as almost predestined to be the leader of an international empire (Shafritz, 1993, pp. 378–379). Americans are able to forgive their president many things, but
not weakness and the inability to exercise power. The external environment plays an important role in the process of shaping foreign and security policy. The
political parties and Congress can be either a partner or opponent to the president. The media, public opinion, interest groups, and the international community
(see: Amos, Jordan, Taylor, Meese, Nielsen, Schlesinger, 2009, p. 77) can all exert pressure, thus influencing the decision-making process of the White House.
Another important group is the National Security Council, whose main purpose is to advise the U.S. president on state security, taking into account internal,
national, foreign and military policies. This group includes the vice president, the secretary of state, the treasury secretary, the defense secretary and the
president’s national security adviser (Shafritz, 1993, p. 317; Best, 2011, p. 1 et seq). The
unique (privileged) position of the United States in
the international system also has influence on the role and position of the president in foreign and security policy.
Since the end of the Cold War and the breakup of the Soviet Union, the United States has become a superpower1 with a dominant
role in the international system.2 Two factors – military and political – play a crucial role here. U.S. defense expenditure
accounts for nearly 50% of global defense spending (Roser, Nagdy, 2017). Its enormous military potential and modern
military technology provide the United States with a dominant international position. Americans want to maintain their status
as the most powerful military in the world not only to deter potential enemies from attacking the U.S., but also to enable military action in almost every region of
the world. The military potential of the superpower is so large that it is the only state in the world which has armed forces capable of carrying out military
operations on a global scale. According to the doctrine of two and a half wars, the superpower can simultaneously carry out two wars and one conflict in any part of
the world (Balcerowicz, 2010, pp. 74–77). Equally important is the political factor . The power of the United States is also
manifested through its role and position in international organizations. It is difficult to imagine the functioning and smooth operation
of organizations without U.S. involvement, especially those that originated from their own initiative, such as the UN, NATO and NAFTA. The strength of the position
of the U.S. on the international stage can be observed not only through records and regulations, or through its permanent membership on the UN Security Council,
but also through the actions of the superpower. For example, one of its actions was the unlawful invasion of Iraq in March 2003, despite criticism and opposition
from the international community, including most of the members of the UN Security Council. The actions of the United Nations after the U.S. invasion of Iraq were
also important in showing the strength of the position of the U.S. in the international system. Not only did the United States face no consequences, but the UN
called on other states to support the efforts of the U.S. coalition to rebuild Iraq (Waśko- Owsiejczuk, 2016b, pp. 133–153). As it turned out, the UN was completely
helpless against the unlawful actions of its strongest member. The dominant position of the U.S. in the world, coupled with the
strong position of the president in a presidential system of government, not only makes the role of the
leader of the superpower superior in creating foreign and security policy, but is of crucial importance for
the whole international system . Thus, the decisions and actions of the U.S. president have a significant impact
and implications not only on the internal security of the country, but also on the other participants of
international relations .
Uniqueness
 prez power high – general

Prez power are high but the plan restores Congress

James M. Goldgeier 18, CFR visiting senior fellow, 8-14-2018, "The Unconstrained Presidency: Checks
and Balances Eroded Long Before Trump," Council on Foreign Relations,
https://www.cfr.org/article/unconstrained-presidency-checks-and-balances-eroded-long-trump
In the age of Donald Trump, it often feels as though one individual has the power to chart the United States’
course in the world all by himself. Since taking office as U.S. president, Trump has made a series of unilateral
decisions with enormous consequences. He walked away from the Trans-Pacific Partnership, the Paris agreement on climate change, and the Iran
nuclear deal. He imposed tariffs on Canada, China, Mexico, and the European Union. In June, he single-handedly upended the G-7 summit by insulting Canadian
Prime Minister Justin Trudeau and withdrawing the United States from the group’s joint communiqué. In July, his European travels produced more diplomatic
fireworks, with a NATO summit in Brussels that raised questions about his commitment to the organization—before his deferential press conference with Russian
President Vladimir Putin. Each choice has brought howls of outrage—but little real pushback. Congress, for
example, has proved unable to block the president from starting a trade war with China and with U.S. allies. For all of
Trump’s talk of a shadowy “deep state” bent on undermining his every move, the U.S. government’s vast
bureaucracy has watched as the president has dragged his feet on a plan to deter Russian election interference .
Even the United States’ closest allies have been unable to talk Trump out of damaging and potentially withdrawing from institutions of the liberal international
order that the country has led for decades. How can a political system vaunted for its checks and balances allow one person to act so freely? In
reality, the
problem goes well beyond Trump, and even beyond the well-documented trend of increasing presidential power.
Constraints on the president—not just from Congress but also from the bureaucracy, allies, and international
institutions—have been eroding for decades. Constraints are like muscles: once atrophied, they require
bulking up before the competitor can get back in the game. Trump did not create the freedom of
action he is now routinely displaying. He has merely revealed just how difficult it is to prevent it.

Trump’s war powers are historically high

Maya Oppenheim 17, "Donald Trump has more 'power to go to war than any president in last 40
years'", Independent, https://www.independent.co.uk/news/world/americas/donald-trump-power-
war-40-years-vietnam-university-of-waterloo-a7884281.html
Donald Trump has more power to go to war than any American president in the last 40 years , a new report

has found. A study published by the University of Waterloo in Canada found the military actions of former presidents
George W Bush and Barack Obama have ultimately handed President Trump greater power to carry out
military intervention . In examining US military interventions between 2001 and 2016, the paper found significant
parallels in the way Bush and Obama tackled and traversed consultation and authorisation procedures with Congress and
the United Nations Security Council (UNSC). Both of President Trump’s predecessors went to war unilaterally rather than getting

permission from Congress. Although it’s worth noting this is by no means a precedent started by Bush and Obama .
Republican and Democrat presidents have a long history of carrying out military operations without
approval of congress – especially since the end of the Second World War. "Right now, Donald Trump has an enormous
amount of power to launch military action, perhaps more than any president since the Vietnam War ," the report’s
author, Aaron Ettinger, said.

And won’t take any action in the future

John T. Bennett 18, "Analysis: Trump’s Syria Strikes Highlight Congress’ War Powers Impotence", Roll
Call, https://www.rollcall.com/news/politics/trump-syria-congress-war-powers-impotence
Even as President Donald Trump has in recent weeks built a more hawkish national security team and again fired
missiles at Syrian targets , Congress is not likely to take back the war-making powers it has steadily given up.
The days leading up to Friday night’s strikes by U.S., French and British forces on Syrian President Bashar Assad’s chemical weapons infrastructure offered a telling illustration of how this
Bob Corker intended to
Congress, like most since World War II, has struggled to play its constitutional role in America’s armed conflicts. Senate Foreign Relations Chairman

unveil on Thursday a measure that would update the military force authorization measure that was passed three
days after the 9/11 terrorist attacks. When Thursday rolled around, the Tennessee Republican said he would delay
releasing the measure. Then he said he planned to share it with members Friday. That night, as U.S. warships launched missiles at a sovereign country in an operation
unrelated to the 9/11 assault or the group that carried it out, no members signaled they had seen such a documen t. And so it has gone

with the legislative branch’s war-making role for decades. By repeatedly not requiring presidents to
obtain congressional authorization before relatively small-scale military strikes, lawmakers have given Trump
and future presidents the go-ahead to take actions like Friday night’s. With the exception of the 2003 Iraq war, Congress in

recent years has largely allowed presidents in both parties free rein in using military force.
 counterterrorism working now
Counterterrorism is working now because of aggressive actions abroad
Daniel Byman 17, Senior Fellow at Brookings - Foreign Policy, Center for Middle East Policy, “The year
in review: Counterterrorism”, 12-29-17, https://www.brookings.edu/blog/order-from-
chaos/2017/12/29/the-year-in-review-counterterrorism/
Surrounding
U.S. national security suffered in 2017. Russia is running amok, allies are losing faith in American security and prosperity commitments, and the liberal order is in crisis.

these clouds, however, a silver lining stands out : counterterrorism . U.S. counterterrorism proved successful
this year , especially against jihadist movements that have plagued the United States and the world since 9/11.
Jihadist terrorism still poses a problem, of course, and other forms of terrorism have risen too in intensity, but a look at the terrorism balance
sheet for 2017 shows a net positive . Yet, the U.S. disengagement from the Middle East provides fertile soil for terrorist groups to grow. Long-term
counterterrorism success requires a reexamination of U.S. policy in the Middle East at large. The collapse of the Islamic State’s caliphate in Iraq and Syria

represents the biggest counterterrorism success . The Islamic State will go underground and otherwise try to
adapt, but losing their territory dealt a big blow : only three years ago, the group seemed deeply rooted in Iraq
and Syria and was metastasizing in Egypt, Libya and other countries in the Muslim world . In addition to the U.S. assault on the Islamic
State’s territory, the group’s virtual presence is under siege due to counterterrorism efforts , with both the quality and quantity of its

propaganda suffering. Even with the collapse of the Islamic State’s caliphate, so-called “homegrown violent extremists” (HVEs) will likely attack, the

group will strive to restore itself in Iraq and Syria, and frustrated, would-be foreign fighters may also strike. Some of the Islamic
State’s thousands of foreign fighters will also return home, posing an additional danger. Regardless, the collapse of the caliphate dealt a big blow to Islamic State. Setting aside the fall of the

the counterterrorism picture looks positive from the perspective of U.S. homeland security . In 2017,
caliphate,

nine people died on U.S. soil from jihadist terrorist attacks (a security guard killed in Denver, two Americans and six foreign tourists, killed during the car-
ramming attack in New York City). That’s nine too many but it should not obscure that the overall number is low . This low

number probably stems from a mix of strong U.S. counterterrorism measures abroad , aggressive
investigations and better defenses at home , and the overall weakness of jihadist networks in the United States.
 AT: Trump Starts Wars

Trump’s executive power is perceived as strong now—it’s deterring Russia, Iran, and
Syria from starting wars
John Hannah 18, Foundation for Defense of Democracies senior fellow, 4-16-2018, “Trump Was Right
to Strike Syria,” https://foreignpolicy.com/2018/04/16/trump-was-right-to-strike-syria/
Let’s give credit where credit is due. First, U.S. President Donald Trump set a red line and enforced it. He warned that the large-
scale use of chemical weapons by the Syrian regime would trigger a U.S. attack. When Syrian President Bashar al-Assad crossed that red line a
Trump has
year ago, Trump responded with 59 cruise missiles that took out about 20 percent of Syria’s operational aircraft. A year later,
acted again after Assad chose to challenge him a second time. This attack was twice as big and hit multiple targets,
including what U.S. defense officials called the “heart” of Syria’s chemical weapons program, substantially degrading Assad’s ability to produce
the deadly agents. That ain’t peanuts. No, there’s no guarantee it will end Assad’s use of chemical weapons — in which
case Trump and his military have made clear that they’ll strike again, almost certainly harder than the time before. And no, nothing that
happened Friday night will, in isolation, alter the trajectory of Syria’s bloody civil war. But the effective deployment of U.S.
power in defense of a universal norm barring the use of some of the world’s worst weapons against innocent men, women, and children is
nevertheless to be applauded — limited an objective as it may be. Also to be praised is the possible emergence of
a commander in chief whose threats to use force need to be taken seriously by U.S. adversaries. Once
established, this kind of credibility (while no panacea) can be a powerful instrument in the U.S. foreign-
policy arsenal. Once lost, it is hard to recover , and the consequences can be severe. For evidence, just see the post-2013
results, from Crimea to Syria. A second important virtue of Friday night’s attack was its multilateral character. With barely a week’s notice,
Britain, France, and the United States, the three most powerful militaries of the trans-Atlantic alliance,
all permanent members of the United Nations Security Council, seamlessly operated on the seas and in
the skies of the Middle East to defend their common interests and values against a murderous Russian
and Iranian client. What’s the worth of that kind of unity, coordination, and seriousness of purpose? It’s hard to quantify precisely. But
anyone who’s ever toiled as a practitioner in the national security space knows, deep in their bones, that it matters — a lot. And it especially
matters in the case of a U.S. president who has too often unfairly — and, to my mind, dangerously — discounted the value of Europe, the West,
and the post-World War II system of institutions and alliances that his predecessors built. In that power and righteousness of the world’s
leading liberal democracies acting in concert, there’s a significant value-added that no mere counting of ships, planes, and missiles can
adequately capture. Kudos to the president and his team for their skill in mounting this posse. It’s an important framework that they hopefully
will continue to invest in to confront the multitude of urgent international challenges now staring us in the face. A few other related
observations: Say what you will about the wisdom of some of the president’s public messaging last week,
but once he made clear that he again would act to enforce his red line, U.S. adversaries took him
deadly seriously. Russian ships dispersed from port. Syria abandoned its own air bases and rushed to
co-locate its aircraft near Russian military assets. And Iranian-backed fighters, including Hezbollah
forces, allegedly vacated certain positions and went to ground for fear of a possible U.S. strike. Again,
the fact that the United States’ worst adversaries appear to take Trump’s threats with the seriousness
they deserve is a very good thing, a genuine national security asset that needs to be husbanded,
reinforced, and carefully but systematically exploited going forward. But hopefully last week’s experience also serves
as a reminder to the president of the deep wisdom inherent in the criticism that he’s long leveled at his predecessors: Don’t telegraph
your military punch. Another observation: There was much nervous hand-wringing before the strike
about a possible U.S.-Russia confrontation. Rightly so. No one wants World War III to break out over
Syria. All prudent and appropriate measures should be taken to mitigate those risks. But in some circles, the
hyping of the concern threatened to become absolutely paralyzing, a justification (or excuse) for doing nothing in
the face of Assad’s abominable use of weapons of mass destruction.
Trump’s actions are not designed to escalate but signal resolve to reduce instability.
James Carafano 17, Heritage Vice President for Foreign and Defense Policy, 4-20-2018, “Trump Has a
Foreign Policy Strategy,” https://nationalinterest.org/feature/trump-has-foreign-policy-strategy-
20284?page=2%2C1]
Even the strongest America, however, can’t be a global power without the willingness to act globally. And that's where Trump's
declaration of “America First” comes in.
What it means for foreign policy is that the president will put the vital interests of the U nited S tates above the maintenance of
global institutions. That is not an abandonment of universal values. Every American president deals with the challenge of protecting
interests and promoting values. Trump will focus on American interests and American values, and that poses no threat to friends
and allies . In many cases, we share the same values. In many cases, what's in America's vital interest is also in their interest—and
best achieved through joint partnership.
Here is how those animating ideas are currently manifesting themselves in Trump's strategy:
A strategy includes ends (what you are trying to accomplish), means (the capabilities you will use to do that) and ways (how you are going to do
it). The ends of Trump’s strategy are pretty clear. In both talk and action in the Trump world, it boils down to three parts of the world:
Europe , Asia and the Mid dle East . That makes sense. Peace and stability in these regions are vital to U.S. interests
and are under assault . The United States wants all three parts of the world to settle. It is unrealistic to think all the problems
can be made to disappear, but it is not unrealistic to significantly reduce the potential for region-wide
conflict.
The means are more than just a strong military. Trump believes in using all the instruments of power , hard and soft .
He has unleashed Nikki Haley on the U nited N ations. He has ordered Rex Tillerson to revamp the State Department so that it is
focused on the core tasks of statecraft and the effective and appropriate use of foreign assistance. He wants an intelligence community
that delivers intelligence and doesn’t just cater to what the White House wants to hear. And he has ordered Homeland
Security to shift from being politically correct to operationally effective. Further, it’s clear that Tillerson, Kelly, Mattis and Sessions are all trying
to pull in the same direction.
The ways of the Trump strategy are not the engagement and enlargement of Clinton, the rearranging of the world by Bush, or
the disengagement of Obama. The world is filled with intractable problems. Trump is less interested in trying to
solve all of them in a New-York minute and more concerned about reducing those problems so that they give the
less trouble .
United States and its friends and allies less and
Trump is traveling a path between running away and invading . It might be called persistent presence . The
U nited S tates plans to engage and use its influence in key parts of the world consistently over time to protect our

interests. Done consistently, it will not only protect our interests; it will also expand the global safe
space by causing bad influences to fade.
Recent activities in the Middle East are a good example. The bomb strike on Syria was not a prelude to regime change or
nation-building in Syria. It was a warning shot to Assad to cut it out and stop interfering in U.S. efforts to finish off
ISIS, stabilize refugee populations and keep Iraq from falling apart . Engagement with Egypt was to signal
America is back working with partners to stabilize the region and counter the twin threats of Islamist
extremism and Iran . Neither is a kick-ass-and-withdraw operation. These are signs of long , serious
engagement , shrinking the space in which bad actors can operate .
Links – General
 link – congress

Congress bad—slow, wrong interests, divided.

Howell & Moe 16 - Professor in American Politics at the University of Chicago & Professor of Political
Science at Stanford [William Howell & Terry Moe, Relic: How Our Constitution Undermines Effective
Government--and Why We Need a More Powerful Presidency, Basic Books, 2016]
American government is dysfunctional, and anyone tuned in to politics sees evidence of it every day. As
a decision-maker, Congress is inexcusably bad. It is immobilized, impotent, and utterly incapable of
taking responsible, effective action on behalf of the nation. So why is this happening? The most common
view is that Congress’s problems are due to the polarization of the Republican and Democratic Parties
over the last few decades. By this rendering, if the nation could just move toward a more moderate
brand of politics—say, by reforming primary elections or campaign finance—Congress could get back to
the way it functioned in the good old days, when it (allegedly) did a fine job of making public policy. And
then all would be well.1 But this just isn’t so. Polarization has surely been detrimental to American
government. Yet even if the political conditions of the good old days could somehow be re-created, it is
wrong to think that Congress would then function admirably. The brute reality is that the good old days
were not good. With relatively few exceptions, Congress has always been incapable of crafting
effective policy responses to the nation’s problems.2 Congress’s most fundamental inadequacies are
not due to polarization. Nor are they of recent vintage. They are baked into the institution. Congress is
an irresponsible, ineffective policymaker largely because it is wired to be that way—and its wiring is
due to its constitutional design. The Constitution ensures that members of Congress are electorally
tied to their local jurisdictions, that they are highly responsive to special interests and narrow
constituencies, and that these forces—which we will refer to, summarily, as parochial forces—
profoundly shape their approach to policy. Congress as a whole reflects the parochialism of its
members. It is not wired to solve national problems in the national interest. It is wired to allow
hundreds of parochial legislators to promote their own political welfare through special-interest politics.
And that is what they typically do.3 Much as Congress deserves to be everyone’s favorite whipping boy,
then, its pathologies are not really of its own making. They are rooted in the Constitution, and it is the Constitution that is the fundamental problem. The pathologies that the Constitution creates, moreover, are not limited to Congress. They
extend to the entire system of governance. This happens, in no small part, because the Constitution puts Congress right at the center of the system by granting it the authority to make the laws, and its pathologies inevitably infect every other niche and component of government. Congress is not just one of three branches of government. The founders made Congress—and all the
localism and special interests it channels—the first branch of government, expecting it to be the most important and consequential, with the second (the executive) and third (the judiciary) fully expected to trail behind. These system-wide problems are considerably worsened by the very hallmark of the Constitution’s approach to democratic governance: its much-celebrated
separation of powers. The founders embraced separation of powers some 225 years ago, when the nation was a simple agrarian society of roughly four million people. Government was not expected to do much, and the founders—mainly worried about avoiding “tyranny of the majority” and other populist excesses— purposely designed a government that couldn’t do much.
Separation of powers was their structural means of accomplishing that. Its myriad checks and balances made governmental action very difficult and thus stacked the deck in favor of the status quo. This approach to governance may have been fine for a simple agrarian society in the late 1700s. Or maybe not. Whatever the case, that time is long gone and it isn’t coming back. 4
Americans today inhabit a profoundly different world. The United States of the twenty-first century is an exceedingly modern, postindustrial, highly interconnected, technologically advanced, fast-changing country that is awash in serious social problems— from terrorism to pollution to drugs to poverty, and on and on— that government is fully expected to address and try to resolve.
Modern society also generates, quite inevitably, all sorts of basic social needs— for economic growth, a stable money supply, transportation systems, health care, retirement, education, and much more— that the government is called upon to deal with, and that can readily become serious problems if they are not handled well. In today’s times, these issues are very real, very
pressing, and very consequential— and government must act, and act effectively, if it is to protect and promote the well-being of the nation. How it should act, of course, is a matter of partisan and ideological controversy. Liberals tend to favor top-down programs run by the government itself, and they tend to favor higher levels of spending and taxes. Conservatives are more likely
to favor governmental approaches designed to give private-sector actors the incentives to mitigate the problems at hand, and they tend to favor lower levels of spending and taxes. Yet most conservatives and liberals can agree that— while their favored approaches differ markedly— government needs to take some sort of action in addressing the nation’s major problems, and it
needs to do so effectively. Whatever the policy approach, money should be spent wisely and efficiently, and problems should actually get solved. American government lacks the capacity to do these things. Part of the reason, of course, is that separation of powers makes it difficult for government to act. Ours is a system of government in which power is parceled out, authority is
divided, and the various branches of government, quite by design, are set against one another. But there is more to the government’s incapacity than even this conveys. As we’ll explain in the chapters to follow, the same constitutional wiring ensures that, when government does act, it tends to produce weak, cobbled-together, patchwork policies that lack coherence and are not
effective. To make matters worse, even when those policies are shown— through actual experience— to be ineffective and greatly in need of fixing, they typically do not get fixed; they tend to live on despite their manifest inadequacies, creating an ever-growing conglomeration of programs that don’t solve society’s problems but continue to soak up society’s resources. 5 We can’t
blame the founders for any of this. They had no idea what modern society would look like, what its problems would be, or what kind of government might be appropriate for the modern era. They weren’t clairvoyant. Indeed, they knew they weren’t— and they assumed that, as society changed over time in whatever ways, future generations would change the Constitution to meet
new and evolving needs. 6 But for the most part, future generations didn’t do that. The Constitution— again, due to its original design— has proven difficult to amend, and fundamental changes to the organization of government have mostly been off the table. The upshot is that the United States of today is burdened with a government designed for a bygone era. The times have
radically changed, but the core of the Constitution— separation of powers, with a parochial Congress at its center— has not, leaving the nation with a government that is out of sync with the society it is supposed to be governing. It is a relic of the past. Most of this book is devoted to explaining why this is so. The connection between the Constitution and ineffective government is
not on the public’s radar screen, and it needs to be. Huge majorities distrust the federal government these days. Many are sharply critical of the president. And Congress is regarded with thinly veiled contempt. 7 But the Constitution? It is above the fray— and above criticism, embraced with the kind of abiding reverence usually associated with religion. Public officials do bad things.
The government does bad things. But the Constitution is good. And if the government and its officials fail the nation in various ways— which they do, regularly— then it is their fault, not the Constitution’s. Viewing the Constitution as beyond criticism is a big mistake. The Constitution is an antiquated document, imposed on modern America from the distant past, and it has enormous
consequences for how the nation is governed, for how well it functions, and for countless important aspects of our everyday lives. There should be nothing off-limits about exploring the Constitution’s impacts. These are matters of objective fact, and they need to be studied, assessed, and openly debated if Americans are to have a clear sense of why their government is disappointing
them and what can be done about it. This book is our attempt to encourage new thinking along these lines. We don’t want to stop, however, with an analysis that points to the Constitution as a fundamental source of ineffective government. We also want to take the next step and consider what can be done about it. What can the nation do to bring its government into sync with
modern times? If we allow ourselves to pursue pie-in-the-sky alternatives, the possibilities are many. These would include the most obvious option: a parliamentary system— which is the form of government that prevails, with some variation, in every developed democracy but our own. 8 A reasonable case can be made that if the United States could design a new government from
scratch, a parliamentary system of some kind would be superior to the separation-of-powers system our nation is burdened with now. It is not an accident that the countries of Europe and Scandinavia did not follow America’s constitutional lead and that the new democracies of Eastern Europe, which formed in the 1990s, didn’t either. As a practical matter, however, there is no
chance that the United States is ever going to adopt a parliamentary system— or in any fundamental fashion, do away with separation of powers— as such a transformation would require a wholesale rewriting of the Constitution. So there is no point, here in this book, in considering these as live possibilities or assessing their merits. At the other end of the spectrum are reforms that
might be doable, such as those that we mentioned earlier, like addressing party primaries or campaign finance. But while these are much discussed nowadays, and while they surely direct attention to obvious problems afflicting American politics, they don’t get to the most fundamental source of ineffective government, which is the Constitution. In our view, the best path to major
improvement is a middle course between these two extremes: a course that is pragmatic because it is within the realm of possibility, but also takes direct aim at the fundamentals that most need to be addressed. The problem is that the nation is burdened with an outdated Constitution. The solution is to update it. As we will show, this can be done in a way that is exceedingly simple,
is low in risk, and leaves almost the entirety of the Constitution still in place— including separation of powers— but nonetheless promises to have great payoffs for effective government. What we’re suggesting, stated most generally, is a simple reform that makes Congress less central to the legislative process and presidents more central. The rationale for diluting Congress’s
importance is straightforward. Congress is wired to behave in ways that undermine effective government, and as a practical matter, nothing much can be done about that. Its members are rooted in their states and districts, they are wide open to special-interest influence, they are concerned about their own political welfare, and with rare exceptions they are collectively incapable

The nation is far better off

of rising above their parochialism and fragmentation to craft truly effective policies for the nation. That being so, the path to effective government requires moving Congress from the front seat of legislative policymaking to the back seat, where its pathologies can do less damage. 9

with presidents in the front seat. Just as legislators are wired to behave in certain distinctive ways, so
are presidents—but their wiring is very, very different, and it actually propels them to be champions of
effective government. This is true regardless of whether the presidents are Republicans or Democrats,
conservatives or liberals, insiders or outsiders. All presidents share basically the same wiring, and they
can be counted upon to behave in the same basic ways. Crucial features set presidents apart from
members of Congress. The first is that presidents are truly national leaders with national constituencies
who think in national terms about national problems—and they are far less likely than legislators to
become captive to narrow or local special-interest pressures. They are politicians. They are not perfect.
Their policy agendas won't please everyone. But compared to members of Congress, they are paragons
of national leadership. Second, presidents occupy the highest office in the land, having reached the
pinnacle not only of their careers but of their entire lives—and as a result, invariably, they are strongly
motivated by concerns about their legacies. Their legacies, in turn, are ultimately defined—by
historians, most notably—not on the basis of day-to-day public opinion or short-term events but rather
on the basis of demonstrated success in crafting durable, effective policy solutions to important
national problems. Members of Congress are not driven by such lofty concerns. They are famously
myopic, incremental, and parochial; they think about the next election; and they use policies for
short-term and often local advantage. Third, presidents are chief executives motivated and positioned
to provide a coherent approach to the whole of government, whereas Congress can provide nothing of
the sort. Its hundreds of members are mainly concerned about the various parts of government that
matter to them as parochial politicians. Congress takes a piecemeal approach to the countless separate
policies, programs, and agencies of government while presidents care about the entire corpus of
government and about making it work. For these reasons, presidents are wired to be the nation's
problem-solvers in chief and to use the powers of their leadership to promote effective government.
They have great difficulty, how- ever, following through on these motivations. The Constitution sees to
it—purposely, by design—that they are significantly limited in the formal powers they wield and heavily
constrained by the checks and balances formally imposed by the other branches, par- ticularly Congress.
Presidents cannot require Congress to act, they don't control the legislative process, they can't
determine the con- tent of public policy—and the nation, as a result, is saddled with a constitutional
system that makes it virtually impossible to take advantage of what presidents have to offer as the
champions of effective government. Something needs to be done about that. Fortunately, this chal-
lenge can be met without a radical transformation of the Consti- tution and a risky leap into the
unknown. Under the reform we're proposing, the Constitution remains basically the same. So does
Congress. So does separation of powers. The reform involves a simple, straightforward constitutional
amendment that changes the way policy decisions get made: giving presidents broad and permanent
agenda-setting power, and thereby moving Congress to the back seat of policymaking and presidents to
the front.

Executive power and flexibility is more decisive, qualified, effective, and accountable
than Congress---they’re beholden to special interest groups and can’t make decisions
David Brooks 13, a New York Times Op-Ed columnist, writes about politics, culture and the social
sciences, “Strengthen the Presidency,” 12/12/2013, New York Times,
https://www.nytimes.com/2013/12/13/opinion/brooks-strengthen-the-presidency.html
After a law is passed, there are always adjustments to be made. These could be done flexibly. But, instead, Congress
throws implementation and enforcement into the court system by giving more groups the standing to sue. What
could be a flexible process is turned into “adversarial legalism” that makes government more intrusive and
more rigid. Fukuyama describes what you might call the demotion of Pennsylvania Avenue. Legislative activity could once be understood by what happens at either end of that street.
But now power is dispersed among the mass of rentier groups. Members of Congress lead lives they don’t want to lead

because they are beholden to the groups . The president is hemmed in by this new industry, interest group
capitalism. The unofficial pressure sector dominates the official governing sector. Throw in political polarization and
you’ve got a recipe for a government that is more stultified, stagnant and overbearing . Fukuyama ultimately throws up his hands.
Things would be better, he observes, if we had a more unified parliamentary system, with more administrative discretion. But we don’t. “So we have a problem.” But there is a
way out: Make the executive branch more powerful . This is a good moment to advocate greater executive
branch power because we’ve just seen a monumental example of executive branch incompetence: the botched Obamacare rollout. It’s important to advocate greater executive
branch power in a chastened mood. It’s not that the executive branch is trustworthy; it’s just that we’re better off when the presidency is strong than
we are when the rentier groups are strong, or when Congress , which is now completely captured by the
rentier groups, is strong. Here are the advantages. First, it is possible to mobilize the executive branch to come to policy
conclusion on something like immigration reform. It’s nearly impossible for Congress to lead us to a conclusion about
anything . Second, executive branch officials are more sheltered from the interest groups than Congressional
officials . Third, executive branch officials usually have more specialized knowledge than staffers on Capitol Hill
and longer historical memories. Fourth, Congressional deliberations, to the extent they exist at all, are rooted in rigid
political frameworks. Some agencies, especially places like the Office of Management and Budget, are reasonably removed from excessive partisanship. Fifth, executive
branch officials, if they were liberated from rigid Congressional strictures, would have more discretion to respond
to their screw-ups , like the Obamacare implementation. Finally, the nation can take it out on a president’s party when a
president’s laws don’t work. That doesn’t happen in Congressional elections , where most have safe seats. So how
do you energize the executive? It’s a good idea to be tolerant of executive branch power grabs and to give agencies

flexibility . We voters also need to change our voting criteria. It’s not enough to vote for somebody who agrees with your policy preferences. Presidential candidates need to answer
two questions. How are you going to build a governing 60 percent majority that will enable you to drive the Washington policy process? What is your experience implementing policies through
big organizations?

The structure of Congress inherently favors delay and inaction --- that’s awful for crisis
response
John Yoo 4, Emanuel S. Heller Professor of Law @ UC-Berkeley Law, visiting scholar @ the American
Enterprise Institute, former Fulbright Distinguished Chair in Law @ the University of Trento, served as a
deputy assistant attorney general in the Office of Legal Council at the U.S. Department of Justice
between 2001 and 2003, received his J.D. from Yale and his undergraduate degree from Harvard, “War,
Responsibility, and the Age of Terrorism,” UC-Berkeley Public Law and Legal Theory Research Paper
Series, http://works.bepress.com/cgi/viewcontent.cgi?article=1015&context=johnyoo
In order to weigh the advantages of the Congress-first approach, it is also important to understand its potential costs. The costs may not be obvious, since grounding the use of force in ex ante
The legislative process increases the costs of government
congressional consent bears a close resemblance to the process for enacting legislation.

action. It is heavily slanted against the enactment of legislation by requiring the concurrence not just of the
popularly elected House but also the state-representing Senate and the President. This raises decision costs by
increasing the delay needed to get legislative concurrence, requiring an effort to coordinate between executive
and legislature, and demanding an open, public discussion of potentially sensitive information . Decision costs are not
encapsulated merely in the time-worn hypotheticals that ask whether the President must go to Congress for permissions to launch a preemptive strike against a nation about to launch its own

decision costs might arise from delay in using force that misses a window of opportunity, or
nuclear attack. Rather, these

one in which legislative discussion alerts an enemy to a possible attack, or the uncertainty over whether
congressional authorization will be forthcoming.

Congress is too slow to respond to 21st century threats --- executive deference is
critical
Andrew Rudalevige 6, the Thomas Brackett Reed Professor of Government @ Bowdoin College, “The
New Imperial Presidency,” UMich-Ann Arbor Press, Book, p. 264-67
Thatfragmentation is most obvious at the other end of Pennsylvania Avenue. Despite common grammatical usage, including in this book,
Congress is not an “it” but a “they.” That is, Congress is not singular but plural and a fractious plural at that. The geographic basis of
House representation— the “territorial imperative”—means that no two House members share identical interests.6 The
distinctive constituencies and terms of the House and Senate generate few overlapping sympathies across the chambers. Sequential
majorities and supermajorities are required for action, but only a small minority for inaction. This became even more true after the
application of reforms in the 1970s designed to apply the openness and decentralization aimed at the executive branch to Congress itself. The reforms enhanced the power of subcommittees
and gave party rank-and-‹le more power to override seniority in selecting committee chairs. What nineteenth-century observers like Woodrow Wilson condemned as “committee government”
often atomized further into “subcommittee government” instead. As a result, one scholar noted, members of Congress can make laws “only with sweat patience, and a remarkable skill in the
 even an alert and aggressive Congress has
handling of creaking machinery.” But stopping laws is a feat “they perform daily, with ease and infinite variety.”7¶ Thus

endemic weaknesses.8 Its large size and relative lack of hierarchy hamper quick decision making . The specialized
jurisdictions inherent in the committee system, so necessary for dividing labor, also divide issues and make their comprehensive

consideration across functional lines nearly impossible. (Nor do House members’ two-year terms give much incentive for long-term planning.) For similar
reasons Congress has difficulty in planning and agenda setting. The ready acceptance of the idea of a presidential legislative program after World War II

was partly a question of legislative convenience, a way to weed through innumerable proposals and provide a focus for limited floor time. Finally, with so many members,

each seeking press attention, Congress also finds it hard to keep a secret. As President George H. W. Bush’s counsel, Boyden Gray, put it,
“ any time you notify Congress, it’s like putting an ad in the Washington Post. Notification is
tantamount to declaration .”9¶ In short, Congress has the problems inherent to any body of individuals that must take collective action. The decisions that are rational
for a single member—especially those aimed at gaining particular benefits for his or her district—are not always good decisions for the body as a whole.10 James Madison wrote as early as
1791 that whenever a question of “general. . . advantage to the Union was before the House . . . [members] commonly resorted to local views.” Then, as now, coalition building had to
overcome decentralized inertia, with the result that governing often comes down to, in the words of LBJ budget official Charles Schultze, “a lot of boodle being handed out in large numbers of
small boodle.”11¶ Worse, fragmentation is not limited to the legislative branch. After all, Congress created most of the executive branch as well—and in its own image. The “politics of
bureaucratic structure” result in a bureaucracy far different than what organization theorists would draw up on a blank page, one rarely aligned along functional lines or with clear lines of
executive authority. Legislative majorities hope to institutionalize their own interests in government agencies and to structurally insulate those preferences against future majorities seeking to
meddle. They hope to gain access to the bureaucratic decision-making process and to influence it whenever desirable. They hope to gain points with constituents for fixing the errors agencies
make, perhaps to the point of structuring agencies that cannot help but make errors. If nothing else, the historical pattern of executive branch development has spurred a particular array of
legislative committees—and organized special interests linked to both.12¶ As the size and scope of the national government grew, its organizational inefficiencies became more obvious and
more meaningful. This in turn focused increased attention on the need for direction and coordination— for a chief executive who could actually manage the executive branch. The areas of
homeland security and intelligence analysis are only the most recent cases where failures of communication or analysis within the bureaucracy have magnified the need for those qualities.¶
the practical advantages of
Globalization in some ways highlights the continuing limits of the presidency’s authority: its incumbent is not, after all, president of the world. Yet

presidential leadership vis-à-vis the legislature, at least, are further magnified in an era where rapid transportation,
instantaneous communication, and huge flows of trade have changed the context of governance in ways that play
to presidential strengths. Both opportunities and threats arise quickly and demand immediate response.
Their resolution requires a broad national view, not territorialism; resident expertise, not the give-and-take of log-
rolling compromise. Further, if, as Richard Neustadt suggested, the cold war’s omnipresent fear of nuclear war made the president
for a time the “final arbiter” in the balance of power, the rise of rogue states and nonstate actors with access to
similar weaponry ups the ante again. In this one sense at least the “modern presidency” described earlier may have given way to a “postmodern” one.13 As the
Bush administration argued to the Supreme Court on behalf of the president’s power to designate enemy combatants,¶ The court of appeals’ attempt to cabin the Commander-in-Chief
authority to the conduct of combat operations on a traditional battlefield is particularly ill-considered in the context of the current conflict. . . . The September 11 attacks not only struck
targets on United States soil; they also were launched from inside the Nation’s borders. The “full power to repel and defeat the enemy” thus necessarily embraces determining what measures
to take against enemy combatants found within the United States. As the September 11 attacks make manifestly clear, moreover, al Qaeda eschews conventional battlefield combat, yet
indiicts damage that, if anything, is more devastating.14
 link – oversight
Congressional oversight crushes war powers
Kriner ‘9 (Douglas, Assistant Professor of Political Science, Boston University, “CAN ENHANCED
OVERSIGHT REPAIR “THE BROKEN BRANCH”?,”
http://www.bu.edu/law/central/jd/organizations/journals/bulr/volume89n2/documents/KRINER.pdf)
The presumption is widespread that through rigorous oversight of the executive branch Congress can maintain a degree of
influence over policymaking, even in an era of expanded presidential powers and broad delegations of authority
to the executive branch. Immediately after the Democratic takeover of both houses of Congress in 2006, California Congressman Henry
Waxman argued that investigations may be "just as important, if not more important, than legislation." n75 Similarly, in academic circles
Thomas Mann spoke for many when he argued that the rise of oversight in the 110th Congress "has been the most important change since the
2006 election in terms of relations between the Congress and the administration." n76 However, the precise mechanisms through which
oversight alone can influence executive behavior and the course of policymaking are frequently ignored. Recommendations by oversight
committees are nonbinding and have no force of law. Congress does have budgetary control over executive departments and agencies, an
important means of leverage. However, as noted [*785] by skeptics of congressional dominance theories in the literature on bureaucratic
control, budgetary tools are somewhat clumsy instruments for encouraging greater executive compliance with legislative intent. n77 Moreover,
oversight committees themselves normally lack appropriations authority, which diminishes the credibility of any threatened committee
sanctions for noncompliance. n78 Indeed, in most situations an oversight committee's only formal recourse is to propose new legislation that
would legally compel a change in course. However, such efforts are subject to the collective action dilemma and intricate procedures riddled
with transaction costs and super-majoritarian requirements, not to mention a presidential veto. n79 If
oversight can only constrain
executive branch activities through such formal mechanisms, then there are strong reasons to question
whether it can truly serve as a real constraint on the executive's freedom of action. And if it does not, then
oversight is merely inconsequential position-taking, not a tool for continued congressional influence over policymaking when legislative options
fail. However, thereare strong theoretical reasons and growing empirical evidence to suggest that
congressional oversight can influence executive branch behavior through more informal means. Vigorous
congressional oversight can inform policy discourse , influence public opinion and bring popular pressure
to bear on the executive to change course . In David Mayhew's words, members of Congress can wield considerable influence
not only by legislating, but also by "making moves" in what he terms the "public sphere." n80 Surveying over 200 years of congressional history,
Mayhew identified more than 2300 "actions" members of Congress have taken in the public sphere in an attempt
to shape the national policy discourse and mobilize popular opinion. n81 Again and again , oversight and
investigative committee hearings have served as a critically important forum in which members of
Congress take stands, stake out positions in contrast to those of the executive branch, and battle for
influence over the attentive public. As a result, Mayhew argues that "the politics involving members of Congress needs to be
modeled not just as opinion expression - the custom in political science analysis - but also as opinion formation." n82 [*786] But can
congressional oversight really influence public opinion? After all, the vast majority of Americans rarely tune to C-SPAN to catch the latest
proceedings from hearing rooms in the Russell or Cannon congressional buildings. However, Congress may have an important ally
in the mass media, which aids them in their quest to reach a broader audience. A large literature within political
communications suggests that the media "indexes" the scope and tone of its coverage to the political debate in
Washington, particularly in Congress. n83 Moreover, many congressional hearings are made-for-television events
and are consciously designed to generate conflict. Conflict, according to many journalistic norms, is inherently newsworthy, and
thus the press may play an important role in amplifying the congressional challenge to administration
policies and actions and in broadening the audience such congressional cues reach. n84 A number of recent studies have found strong
empirical evidence that the positions articulated in Congress may indeed have a considerable influence on public opinion, particularly in
questions of military policy. n85 Many studies rely on observational data. n86 Matthew Baum
and Tim Groeling's research
demonstrates strong correlations between media-reported congressional rhetoric surrounding multiple
major military missions in the last quarter century and popular support for those endeavors. n87 However, such studies
relying exclusively on observational data usually only demonstrate correlations between congressional actions and public opinion. If this
relationship is endogenous - that is, if members of Congress respond to public opinion when crafting their rhetoric and actions even as they
seek to lead it - then raw correlations between the two tell us little about the direction of the causal [*787] arrow. n88 Is Congress leading
public opinion, or are shifts in public opinion producing changes in congressional positions?
Oversight has zero chance of working but still substantially undermines executive
secrecy
Posner and Vermeule, Chicago and Harvard law professor, 2010
(Eric and Adrian, Executive Unbound, pg 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
what drives executive reluctance to share information is that, even on select intelligence
reasons. Collective Action Problems Part of

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
Congress finds it more costly to coordinate and to undertake collective action (such as the detection
the executive branch,

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
monitoring is a collective good. If rational and self-interested,
numbers, insofar as monitoring executive discretion is at issue. From the standpoint of individual legislators,

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 undermines the separation of powers during periods of unified
partisanship in anything like its modern sense

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
congressional leaders of the
of certain congressional committees power to subpoena documents from the executive22—but these are palliatives. Under unified government,

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
 Link – Statutory

Codifying rules against the executive raise the stakes and creates a chilling effect in
future instances
Pildes, NYU law professor, 2003
(Richard, “Views of Law: The Dark Side of Legalism”, 44 Va. J. Int'l L. 145, lexis)

In some contexts, unwritten norms can be more effective constraints, precisely because they enable a desirable flexibility for dealing with exceptional
contexts involving political power. . . . Indeed, advocates of formal legal codification as a solution to problems of political
power sometimes trade too easily on an implicit or explicit claim that the only alternative to law is force and
chaos. Instead, the alternative to a legal text such as the UN Charter is a world in which limitations on state use of force are left to debate, determination, and enforcement through the
system of international relations itself. . . . The choice is between the greater rigidity (and loss of flexibility ) that tends to come with formal

codification and the greater flexibility (and opportunity for unprincipled exercise of power) that comes from a less text-bound system of general principles of
international relations. … We should ask, for example, whether the multilateral military intervention in Kosovo that eventually took place (or the international intervention that never did take
place in Bosnia) would have been easier to bring about – and many more lives have been saved – had the general norm against state use of force or the mechanisms by which collective force
Would a more flexible
was mobilized been left to political debate and practice, rather than being codified into the form of a strong legal rule embodied in the UN Charter.

interpretation of this principle have been easier to achieve if the general “rule” had been left expressed
as a norm instead of being turned into a textually embodied, formal rule of international law ? . . . First, the Security Council had to decide
whether the conditions that justified collective deployment of force were present in the Kosovo context. Second, once the Security Council failed to come to that conclusion, the further
decision had to be made whether the collective use of force by NATO, not endorsed by the Security Council, nonetheless complied with the Charter. … Would collective action to stop the
ethnic cleansing in Kosovo have emerged more quickly had the codified provisions of the UN Charter not stood in the way? [Update: I believe roughly a year was spent debating the
intervention, including its legality] It is impossible to know, given the relationship between material national self-interest and rule-of-law like considerations in the actions and discourse of
states in this area. Would the arguments against intervention have been considered less forceful if the rules of the Charter had not been codified in text but instead existed as softer principles
If codification of these rules against the use of collective force (except with Security Council authorization, and even then, for
of international relations?

contributed to inaction or delay in any of these humanitarian contexts in recent years, that would be a serious
perhaps only limited purposes),

cost of legal formalization that must be taken into account. Again, remember that we are dealing with relatively exceptional, singular
contexts . . . . There is a critical question of whether legalization of norms has, as a dark side, the reduction in flexible interpretation of the underlying norms in new contexts. We
ought not to preclude that debate by an overly simple assumption that more law, or more legalization, is
always to the good. Perhaps the advantages of general, written rules, despite how over-or under-inclusive they might be – justifies this loss of flexibility; perhaps the relevant
actors are likely to be just as appropriately flexible with law as they are with norms. But we need to consider these questions before simply assuming that legalization, clarity, and textual
commitment are unadorned virtues.
 link booster – prez fights plan
The President has institutional incentives to resist encroachments on authority even if
he agrees with the policy – the perm ensures a fight
Eric Posner 8, and Adrian Vermeule, *professor of law at the University of Chicago **professor of law
at Harvard, Constitutional Showdowns, 156 U. Pa. L. Rev. 991, lexis
In many historical cases, Congress and the President agree about the policy outcome but disagree about lines of
authority . For example, suppose that the executive branch has made a controversial decision, and a suspicious Congress wants the relevant executive officials to testify about their
role in that decision. The President believes that Congress has no right to compel the officials to testify, whereas Congress believes that it has such a right. However, the President, in fact, does
The President's
not mind if the officials testify because he believes that their testimony will reveal that the decision was made in good faith and for good reasons. [*1016]

problem is that, if he allows the officials to testify, Congress and the public might interpret his acquiescence as recognition that
Congress has the power to force executive officials to testify. If he refuses to allow the officials to testify, then he preserves his claim of executive
privilege but loses the opportunity to show that the decision was made in good faith. In addition, he risks provoking a constitutional impasse in which Congress could eventually prevail - if, as
we have discussed, public constitutional sentiment turns out to reject executive privilege in these circumstances. Congress faces similar dilemmas, for example, when it approves of officials
Political agents have long relied on
nominated by the President for an agency or commission but wants to assert the power in general to impose restrictions on appointments.

a middle way to avoid the two extremes of acquiescence, on the one hand, and impasse, on the other. They acquiesce in the decision made
by the other agent while claiming that their acquiescence does not establish a precedent . Or, equivalently, they argue that their

acquiescence was a matter of comity rather than submission to authority . Are such claims credible? Can one avoid the precedential
effect of an action by declaring that it does not establish a precedent - in effect, engaging in "ambiguous acquiescence"? The answer to this question is affirmative as long as the alternative
explanation for the action is in fact credible. If, for example, observers agree that the President benefits from the testimony of executive officials, then his acquiescence to a congressional
subpoena has two equally plausible explanations: that he independently benefits from the testimony, or that he believes that public constitutional sentiment rejects executive privilege. The
response is thus ambiguous, and Congress may be no wiser about what will happen in the future when the President does not wish to permit officials to testify because their testimony would
harm him or executive branch processes. If so, the ambiguous nature of the action does not establish a focal point that avoids an impasse in the future. On the other hand, if the President's
claim that he benefits from the testimony is obviously false, then his authority will be accordingly diminished. This is why ambiguous acquiescence is not a credible strategy when the President
and Congress disagree about the policy outcome. If the President thinks the war should continue, Congress thinks the war should end, and the President acquiesces to a statute that terminates
the war, then he can hardly argue that he is acting out of comity. He could only be acting because he lacks power. But an agent can lack authority in more complicated settings where no
serious [*1017] policy conflict exists. If the President makes officials available for testimony every time Congress asks for such testimony, and if the testimony usually or always damages the
President, then his claim to be acting out of comity rather than lack of authority eventually loses its credibility. Repeated ambiguous acquiescence to repeated claims over time will eventually

be taken as unambiguous acquiescence and hence a loss of authority. For this reason, a President who cares about maintaining his
constitutional powers will need to refuse to allow people to testify even when testimony would be in his short-term interest.

He wants to retain the authority even if he doesn’t want to use it

Dafna Linzer 11, senior reporter at ProPublic, Administration Prepares to Defy Efforts to Limit
Obama’s Options for Guantanamo, www.propublica.org/article/administration-prepares-to-defy-efforts-
to-limit-obamas-options-for-guantan
Obama administration officials say they plan to reject Congressional efforts to limit the president's options

on Guantanamo , setting the stage for a confrontation between the president and the new Congress on an
issue that has been politically divisive since Inauguration Day.¶ The Guantanamo provisions, which include limits on where
and how prisoners can be tried, were attached to a spending bill for military pay and benefits approved by Congress late last year. Some
Administration officials are recommending that President Obama sign the spending bill and then issue a “signing statement” challenging at least some of the
Guantanamo provisions as intrusions on his constitutional authority. Others have recommended that he express opposition to the Guantanamo sections without
addressing their constitutionality.¶ The statement, officials said, would likely be released along with a new executive order that outlined review procedures for
some -- but not all -- of the 174 Guantanamo prisoners still held without charge or trial. ¶ Obama has used signing statements in the past, but this one would carry
political significance as the first test of his relationship with a Congress in which the House is firmly in Republican control. ¶ Officials said the White House is still
weighing how to calibrate the signing statement. A statement rejecting all of the bill's Guantanamo provisions would almost certainly be viewed as provocative by
Congressional Republicans and some Democrats. But administration officials view the provisions as clear encroachments on
the president's right to prosecutorial discretion and some are pushing for their blanket repudiation.¶ The reliance on detention orders
and a signing statement -- tools used repeatedly by former President Bush, who built Guantanamo nearly a decade ago -- is seen by Obama's advisers as among the
few options left for an administration that has watched the steady erosion of its first White House pledge nearly two years ago: to close the prison. ¶ "There is
obviously an irony here," said one Obama administration official, "but if we resort to this, it is to close Guantanamo, not keep it open."¶ While the signing statement
and the executive order would leave some room for Obama, they would do little to bring his policy goals to fruition. Over the last two years, Congress and the
administration, working separately and in conflict, have woven together a complicated set of categories, policies and restrictions that make it difficult, if not
impossible, to close Guantanamo.¶ What the White House once saw as bipartisan support for shuttering the prison soon became a bipartisan effort to thwart the
administration's plans.¶ The spending measure effectively bars the president from prosecuting any detainees in federal court or conducting military commission
trials on U.S. soil. The bill makes it increasingly difficult to transfer detainees to foreign countries, even if the administration deems them safe to release. And it
complicates the review process Obama plans in the executive order for nearly 50 detainees the administration has designated as too dangerous to free.¶ A small
circle of policymakers and lawyers from the White House, the Justice Department and State Department spent the closing hours of 2010 considering drafts for a
statement. A number of administration officials who discussed the internal deliberations declined to be identified because they were not authorized to speak on
this subject.¶ They said the statement could amount to a presidential intent to disregard some, but not all, of the provisions relating to Guantanamo detainees.
Under consideration are claims that the provisions amount to "undue infringement" on the president's authority to exercise prosecutorial discretion, or that they
are viewed by the White House as an "unnecessary and unwarranted intrusion," on that power. ¶ Several advisers were pushing for a broader statement that would
also take issue with provisions related to detainee transfers. Obama has twice issued signing statements claiming that legislative provisions interfered with his
constitutional authority to conduct foreign relations and could do so again. But there is some concern that the White House is on less firm ground in that area. The
bill, while making future transfers difficult, does not ban them outright. ¶ "There is an honest debate right now, centered primarily inside the White House Counsel's
office, and among a number of top staff," said one official who spoke on the condition of anonymity. "The question is: Can we work with some of this stuff and, if
not, how sharply do we make that point."¶ The president could veto the spending bill. But officials said the White House will not block legislation on military pay
and benefits, especially after the military's support for repealing "Don't Ask, Don't Tell," legislation in December. Spokesmen at the White House and the National
Security Council did not respond to requests for comment. ¶ The White House has, until now, balked at confrontation even as it watched its policy options dwindle.
Not one administration official who spoke about the internal deliberations could say for sure whether the White House, in moving to protect the right to prosecute
presidents want to preserve maneuverability and authority , that is natural,"
detainees in federal court, would in fact use it. ¶ "All
said Elisa Massimino, president of the civil rights organization Human Rights First. "But President Obama has had the authority to
move prisoners to the United States, he's done the background work to identify people to bring to justice and he's squandered the opportunities to exercise that
authority. It is striking to now see a fiercer desire to preserve authority than to use it ," she said.
 at: john yoo bad
The people bashing him are stupid and wrong
WSJ 10, citing DOJ senior ethicist and Associate Deputy Attorney David Margolis, “Vindicating John
Yoo”, https://www.wsj.com/articles/SB10001424052748704757904575078182303405948
So after five years of investigation , partisan accusations and unethical media leaks , the Justice

Department's senior ethicist has concluded that Bush Administration lawyers John Yoo and Jay Bybee committed
no professional misconduct . The issue now is whether the proteges of Attorney General Eric Holder who led this exercise at Justice's Office of Professional
Responsibility (OPR) should themselves be in the dock. That's our reading of the analysis by Associate Deputy Attorney General David Margolis, a career official who reviewed both the Bush-
his report is far more scathing about OPR than it is
era legal memos on interrogating terror suspects and their review by the lawyers at OPR. Remarkably,

about Messrs. Yoo and Bybee, who he says made legal errors but did so in good faith, out of honest legal analysis, and in
the ethical service of their clients in the executive branch at a time of war. Mr. Margolis's review overrules both a draft OPR report whose contents were
leaked to the media last year and a final OPR report that was released along with the Margolis review late Friday. Those OPR reports recommended disciplinary action and potential
disbarment for Messrs. Bybee and Yoo for their advice while working in the Office of Legal Counsel in the frantic months after September 11. The leaks were themselves an
unethical attempt to smear the reputations of the lawyers while they were under a gag order and unable to
reply. House Judiciary Chairman John Conyers nonetheless leapt to praise Friday's release of earlier drafts, touting them as evidence that the OLC memos were "legally flawed and
fundamentally unsound." Senate Judiciary Chairman Pat Leahy promptly called for Judge Bybee to resign from the federal bench. Both Democrats have scheduled more grandstanding, er,
hearings, for the coming days. Justice is defending its pre-weekend document dump by saying that it had to release the entire record. But notably, Justice failed to release a 14-page January
19, 2009 letter from then-Attorney General Michael Mukasey and Deputy AG Mark Filip that eviscerated the first OPR draft. The Mukasey-Filip memo has since appeared on media Web sites,
and its withering analysis clearly made an impression on Mr. Margolis. The selective disclosure by Mr. Holder suggests the political nature of this entire exercise. --- Readers can review the
documents for themselves, but two OPR judgments deserve particular scorn. The first is the claim that Messrs. Yoo and Bybee were so close to their client, i.e., the White House, that they
knew what the President and CIA wanted to hear. But it is perfectly appropriate for a lawyer to know what his client wants, and, by OPR's standard, 99% of professional lawyers could be
considered guilty of misconduct. The ethicists at OPR also claim the Bush attorneys were wrong to stick to a legal analysis of interrogation practices and should have also considered their
the duty of the Office of Legal Counsel is precisely to offer legal advice, not to render policy
moral and policy implications. But

judgments. Interrogation policy was determined by the CIA and the White House , as it should have been. The last
thing the country needs is for lawyers to tell the CIA how to get actionable intelligence from enemy combatants. What's more, as Mr. Mukasey's memo makes clear, the legal canons of
Washington, D.C. and many states expressly prohibit lawyers from offering such policy advice to sophisticated clients such as the U.S. government. This is precisely so lawyers don't muddy
their legal counsel with policy bias. The rotten quality of the OPR efforts -- and Mr. Margolis's repudiation of them -- raises real questions about the lawyers who produced this work. H.
Marshall Jarrett, who supervised the first OPR draft, is a protege of Mr. Holder who managed not to produce his draft report until the Bush Administration was preparing to leave office. After
Mr. Mukasey "memorialized" his concerns, as his letter put it, the Jarrett draft was leaked without the Mukasey response. Mr. Holder reassigned Mr. Jarrett in April 2009 to lead the Executive
Office for U.S. Attorneys, an arguably more powerful post. His OPR effort makes him unfit for such a job. Mr. Holder replaced Mr. Jarrett at OPR with Mary Patrice Brown, who tried to salvage
OPR's original conclusions with a new but equally deficient argument. After abandoning OPR's earlier specific allegations that Messrs. Yoo and Bybee had violated D.C. Rule of Professional
Conduct 1.1 to provide competent representation and rule 2.1 to exercise independent legal judgment, Mr. Margolis writes, Ms. Brown's final report "did not specify the rule or rules of
professional conduct that were violated." Instead, she added consideration of a "best practices" memo and guiding principles. Mr. Margolis writes that these documents raise several concerns,
not least that "neither of them existed at the time Yoo and Bybee worked at OLC." Ms. Brown is reportedly in line for a judicial nomination, and Republicans ought to keep her embarrassing
performance in mind when they vote on confirmation. --- Mr. Margolis deserves credit for his independent analysis, but we also can't help but notice the striking change of tone in the last few
Mr. Margolis's only duty was determining whether the Bush attorneys had adhered to proper ethical
pages of his report.

standards. On that question, he is unequivocal in saying they did. However, at the end of his 68-page review he indulges in some
superfluous commentary that Messrs. Yoo and Bybee exhibited "poor judgment" and that some of their legal analysis was mistaken. This is a matter of opinion -- akin to writing an op-ed piece
-- unrelated to the question of whether they behaved unethically, and it is precisely the kind of judgment that Mr. Margolis says earlier in the report that he will not render. His change of tone
is notable enough that it raises a question of whether Mr. Margolis decided to add this concluding rhetoric as a way to propitiate Mr. Holder and to save at least some face for the AG's

proteges. Republicans should ask Mr. Margolis about this if Democrats proceed with their hearings. The larger story here is the vindication of Mr. Yoo
and the other Bush attorneys, who were pilloried unfairly over ethics in what was really a policy dispute in
the war on terror. Democrats wanted to appease the anti-antiterror left, and they fixed on punishing mid-level
officials as prominent enough to get public attention but not so prominent as to seem like a banana republic seeking revenge against a former President or Vice President. Their
campaign has now been exposed as a partisan, and unethical, smear.
 at: no spillover/precedent
Yes spillover – actions modifying core areas of executive authority set a precedent
that degrades the overall scope of the President’s office and start a snowball effect of
greater and greater restrictions – that’s 1nc Klukowski

The plan extreme restraint, causes spillover

Rottinghaus 17 (2017, Brandon Rottinghaus, University of Houston, Exercising Unilateral Discretion:
Presidential Justifications of Unilateral Powers in a Shared Powers System, American Politics Research)
Presidents gain legal authority to act from both the Constitution and from statutes, making the Court a key
element in the explanation of the use of presidential prerogative (Whittington, 2009). This arrangement is supported by Justice
Robert Jackson’s famous “practical grouping” of presidential power in Youngstown Sheet and Tube Co. et al. v. Sawyer, 343 U.S. 579 (1952).
When the president acts under authority delegated by Congress, in addition to his constitutional authority, presidential power is at its
maximum and most safe from judicial oversight. This is confirmed by recent scholarship, which has shown that even during wartime the
Supreme Court usually casts itself as an auditor of process, checking to see if Congress has delegated authority to the president, rather than as
an umpire of zero sum contests between executive power and individual rights (Pildes & Issacharoff, 2004). Because, as Justice Jackson wrote
in Youngstown, “presidential powers are not fixed but fluctuate, depending on their disjunction or conjunction with
those of Congress,” the Court may intervene to limit the exercise of unilateral power on Congress’ behalf. This
intervention is rare in practice but this arrangement does provide for the possibility of judicial oversight and this
may alter the amount of discretion employed by the president in a unilateral order . Joint, Congress–Court
rejection of a president’s orders would limit executive reach so presidents are strategic in considering institutional
disagreement when they face a united front in the other two branches of government . We presume the circumstances
under which the president will issue a unilateral order with broad or narrow discretion are influenced by the political constraints of Congress
and the Courts. Mayer (2009) argues that “broad grants [of authority], ambiguity and the potential for swift action are a compelling
combination” (p. 432). When presidents have broad discretion, it gives the president the authority to act when they
determine such action to be expedient. Presidents in general prefer to justify their orders with broad discretion, providing them
maximum flexibility and the greatest latitude to secure their policy aims with an order. Yet, there is a potential cost to issuing an order with
broad authority, even if properly used, in that Congress may object to an expansive use of authority or the courts may strike
the order down on the grounds it exceeds the executive’s authority . A Congress and Supreme Court which is at
ideological loggerheads with a president may object to the president’s use of an order with broad discretion
because of the policy latitude it affords a president. A president must weigh the possible backlash in their
justification of the authority relied upon in an order. Although unilateral orders are rarely overturned, the prospect of a
rebuke from either Congress or the Courts ( and risking permanent inability to act in the future ) may alter
a president’s behavior . Strategic presidents will issue an order with broad justification in political circumstances when they think they
can get away with it. What political circumstances motivate presidents to cite broad authority? We argue the greater the distance in ideology
between the president and the median member of Congress, the more likely the president should be to issue more orders under broad
discretion. When the president and Congress are similar in ideological orientation, presidents are more comfortable broadening their legislative
reach through statute with a unilateral order because they believe Congress will back them up if there are any interpretive differences.
Congress is comfortable allowing (not challenging) the president who issues an order with broad discretion because they generally agree
ideologically and they trust the president to pursue an agreeable policy outcome. From these findings and extending this logic, we estimate the
distance between the president and the median member of Congress and expect that presidents are more likely to issue an order with broad
discretion when there is greater distance in ideology between the president and the median members of each chamber (Hypothesis 1). Using
similar logic, the greater the distance in ideology between the president and the median member of the Supreme Court, the more likely the
president is to issue more orders with broad discretion (independent of Congress; Hypothesis 2). With broad discretion, the president is
comfortable exercising unilateral power when only one branch may push back. The Court has also usually avoided solo, head-on confrontations
with the chief executive (Cooper, 2002). The Courts have generally been deferential to the executive, especially on matters involving executive
prerogative, in times of crisis and when the president has taken decisive action (Melnick, 2005). The president has flexibility to execute the laws
but this ends if he seeks to alter the “plain letter of the law” (Rudalevige, 2014). The Court’s doctrine of decision making on cases involving
executive power favors the president and, even when challenged, presidents are more likely to reap outcomes favorable to their use of
executive power (specifically challenges to the use of executive orders) when the majority of the justices deciding the case are from the same
political party as the president (Howell, 2003). Ideological goals within the Court that are more proximate from the White House’s ideology
(often on issues of executive power) yield a president who should be more willing to exercise the full weight of his discretion in unilateral
orders and a court that embraces a doctrine to allow more executive institutional control. The additive frictional effect, however, should have
the opposite outcome. Presidents want to avoid joint confrontation with both Congress and the Courts given that this is
a powerful recipe for halting executive use of power (either temporarily or permanently) as discussed in the previous section. For
instance, when the executive is delegated broad discretion, it positions him to implement policy that may deviate from legislative intent
(Mayer, 2009) prompting a possible judicial challenge (Thrower, 2016). Because the president can justify his order using a number of statutory
and nonstatutory options, presidents tend to choose an option that is least odious to possible judicial oversight (J. D.
Bailey & Rottinghaus, 2014; Quint, 1989). Wishing to avoid an interbranch entanglement, presidents may “seek favorable legislative terms that
can insulate their decisions from judicial review” (Whittington, 2009, p. 655). Being generally risk averse, in practice this implies
that presidents mitigate larger claims of discretionary action when acting unilaterally . As Justice Jackson’s holding implies,
presidents who run afoul of Congress (here operationalized as greater ideological distance) and who face a court predisposed to disagree with a
president (here also operationalized as greater ideological distance), a strategic president should adjust their citation pattern and narrow their
authority as cited in the text of the order. Therefore, when the president’s ideology is farther from both the median justice’s ideology and the
median member of a Congressional chamber’s ideology, he should (a) continue to use their discretionary unilateral power but (b) mute that
power so as not to aggravate two branches of government (Hypothesis 3).5 That is, we should continue to see presidents utilizing executive
power based on statutory authority, but that power will be justified using more narrow authority instead of broad authority. When the
president and Congress are farther apart ideologically, but not the Court, presidents face the need for greater interpretative room to establish
an executive order and will maximize their ability to control the outcome of that policymaking process. The Court may decline to
intervene and/or Congress may ignore the issue, but the potential of disagreement or stoppage of a policy
should be enough incentive for presidents to self moderate their use of discretion. The potential of having two
branches of government jointly minimize a policy and set a precedent that may be difficult to work
around will incentivize a strategic president to narrow the scope of their authority under the cited
justifications in the text of the order. This allows the White House to insulate their unilateral decision-making process for possible review and
rejection.

Triggers a “Congressional awakening” of snowballing constraints on executive

authority
Christopher DeMuth 16, Distinguished Fellow-Hudson Institute, Our Voracious Executive Branch,
2016, https://www.hudson.org/research/12576-our-voracious-executive-branch
American government has assumed a new form. The federal executive branch—the president, his political appointees, and the hundreds of
agencies that report to them—has come to exercise lawmaking powers that were long the unquestioned preserve of

Congress. For decades now, the executive has made law through “administrative rulemaking” under loose statutory standards such as “protect the public health.” More recently, it has
moved to sheer declaration, independent of or contrary to statutory law; this includes Obama administration actions on immigration policy, Obamacare

implementation, greenhouse gas regulation, restroom rules for transgendered persons, and other matters. The transformation has

weakened our constitutional inheritance of checks and balances. This is more than a matter of three branches moderating each other—
they also perform distinct functions, with separate sources of political legitimacy. Making law requires choosing among the differing, often conflicting interests and values abroad in society.
Since the rise of republican government in the 18th century, lawmaking has been the responsibility of legislatures whose members represent a nation’s diversity. Laws thus typically reflected
negotiation and compromise and were practical (and, yes, often muddled) rather than ideological. Executive lawmaking also involves compromise—the Environmental Protection Agency must
agencies often enact
navigate the positions of Exxon Mobil and the Sierra Club—but the terrain is much narrower and the destination more predictable. As a result,

policies a legislature would not. EPA embarked on its greenhouse gas program in 2010 after a
Democratic Congress declined to legislate one following extended consideration. President Obama has justified
this and other incursions precisely on grounds that Congress had failed to adopt the policies he sought.
The new dispensation also alters the nature of government. It fuses lawmaking to the classic executive
functions of law enforcement and program administration, and to the president’s duties as head of state and national leader.
The cumbersomeness of representative lawmaking and its separation from executive and presidential functions were important protections of limited government. Consolidated

executive power is efficient and flexible. It makes law on the fly and metes out selective favors and punishments down to the level of the individual business
firm, school, and Catholic order. The affected parties respond with increased political spending—going beyond conventional lobbying to continuously monitoring the agencies and adapting to
These dynamics have expanded the federal domain into innumerable
their latest moves; they become agency “stakeholders.”

matters previously decided by state and local governments and by private citizens, institutions, and markets. The federal executive has become, in
essence, a unitary national government of nearly unlimited jurisdiction. The presidency has consequently
become an inherently powerful office. Richard Neustadt taught JFK and his successors that they had few formal powers and had to cultivate broad public and
congressional support in order to accomplish their goals. No more. As political scientists Kenneth S. Lowande and Sidney M. Milkis have shown, presidents now deploy their lawmaking
prerogatives for partisan purposes—to galvanize key party constituencies, even on behalf of broadly unpopular policies, and to spare congressional allies the inconvenience of having to vote
on those policies. The practice has fueled the polarization of our politics, as we have seen in the agitated reactions to President Obama’s policy strokes on immigration, transgender locker
rooms, and micromanagement of college dating behavior. It has also generated never-ending partisan campaigning to acquire the office’s immense powers, heavily financed and excitedly
reported through every daily twist and turn, which in the current round has commandeered American politics for more than a year. Where the White House is concerned, “the permanent
the complexities
campaign” is no longer a metaphor. Executive government has many influential proponents. Traditional progressives of the Woodrow Wilson school believe

of modern society demand government by expert, neutral, flexible administrators in place of

amateur, parochial, slow-moving legislators. Modern Democratic party progressives take a different tack: They see
executive government as a potent device for mobilizing the powerful interest-groups (public-employee unions) and
recondite causes (intersectional feminism) that have come to dominate their party. The proponents also include several eminent law professors and political scientists who, whatever their
progressive sympathies, believe Congress has become irredeemably dysfunctional —leaving us to make the most of executive government, which is
at least functional. Recent academic books and articles valorize “the executive unbound,” disparage Congress as a “relic,” and propose that the president’s powers be strengthened further by
constitutional amendment or outright seizure. The opposing camp includes skeptics of comprehensive executive power such as myself. It finds its political voice in Tea Party advocates of the
old-time Constitution and in members of Congress opposed to the president—today including Republican leaders Paul Ryan and Mitch McConnell and backbench institutionalists Mike Lee and
Ben Sasse. But history seems to be on the side of the proponents. The Bush administration took many extralegal actions during and
after the 2008 financial crisis, such as using TARP funds to bail out automobile manufacturers, which set the
stage for the Obama administration’s actions in more normal times. Both Donald Trump and Hillary Clinton have
expressed admiration for President Obama’s unilateral methods and vowed to follow his lead. But how,
exactly, did we arrive at this state of affairs? The conventional explanations are wrong: The executive state is not a realization of progressive political
theories, nor is it a partisan enterprise or a response to a polarized, paralyzed Congress. It is instead an organic adaptation to the circumstances of modern
life—affluence, widespread education, elevated sensibilities, and advanced information and communications technologies. The Big Bang of executive government came in the early 1970s,
following a quarter-century of unprecedented economic growth and a time when American government was still relatively nonpartisan and Congress was fully functional. Indeed, Congress was
feverishly busy—chartering a fleet of new regulatory agencies and programs concerned with environmental protection, product and workplace safety and health, consumer protection, and
personal finance. Soon after came an array of energy conservation programs. The civil rights agencies, established in the 1960s, began to expand their portfolios—policing not only racial
discrimination but also discrimination based on sex, age, and other personal characteristics, and requiring “affirmative action” to promote participation of these groups in the workplace,
schools, and universities. There had, of course, been many earlier regulatory programs in the Progressive and New Deal eras. But they had been concerned mainly with regimenting production
in transportation, communications, power, and banking, typically at the expense of consumers. And, although they possessed wide discretion to promote “the public interest,” they exercised
that discretion by adjudicating narrow issues involving one or a few firms—such as whether to renew a radio station’s license, or to permit an airline to add a new route over the objections of
rivals. The new agencies were radically different. Instead of cartelizing production, they promoted consumption and consumerism and, more broadly, personal health, welfare, dignity, and
lifestyle. Rather than managing self-contained commercial disputes, the new agencies were missionary and aspirational, pursuing open-ended objectives of strong interest to growing numbers
of citizens. And, critically, they operated not through case-by-case adjudication but rather “informal rulemaking.” The practice had barely existed before 1970. An agency, after public notice
and comment—and free of live hearings with established standards of evidence—could issue rules covering entire economic sectors, specifying automobile design, food labels, manufacturing
methods, employment practices, and much else, right down to the exact placement of railings in warehouses. The rules were typically highly detailed and prescriptive and often involved
compliance costs and social benefits of scores or hundreds of millions of dollars. The new agencies were less like executive courts and more like executive legislatures. The old-line New Deal
and Progressive agencies were impressed and shifted to informal rulemaking themselves. The post-1970 agencies and their methods were more than a response to the policy preferences of
the affluent society. More fundamentally, they were a response to the more democratic politics that affluence had wrought. In the Progressive and New Deal eras, few people were interested
in the kinds of issues that came to the fore in the 1970s—and, even if they had been, they would have been unable to organize and mobilize effectively on behalf of such issues. In those days,
the national political agenda was controlled by civic, business (management and union), and party elites, who focused on their immediate economic interests and blocked competing,
disruptive enthusiasms—especially anything involving hard-to-negotiate issues of ideology or values. That all changed with the post-World War II growth of incomes, education, and leisure
time, dramatic improvements in transportation and communications, and the emergence of national media. These developments ushered in a new era of widespread political participation and
“activism” and sundered the old policy gatekeepers. Ralph Nader showed the way with his auto safety campaign in the mid-1960s, followed by the organizers of the first Earth Day in 1970. The
profusion of new policy causes pressing on Congress precipitated a rank-and-file revolt, led by northern liberal Democrats with the support of all manner of Republicans, that greatly weakened
the seniority system and the prerogatives of committee chairmen. The congressional reforms of the early 1970s cleared the way for a more individualistic, entrepreneurial, responsive form of
legislating aligned to the political demands of the times. But the dismantling of agenda-setting hierarchies left Congress more unwieldy than ever and incapable of managing the numerous
causes now clamoring for members’ attention. The solution was to hand the causes over to specialized, hierarchical agencies with broad or ambiguous rulemaking mandates that large
groups responded with a flurry of
legislative majorities could agree upon. This was a landmark innovation in government. Business and professional

litigation and legislative proposals seeking to harness rulemaking with traditional legal and
constitutional restraints. But Congress and the courts rejected essentially all of them, and moved in a
sharply different direction. Congress continued to delegate broad rulemaking powers—while enacting new requirements for
agency “sunshine” and freedom-of-information and restrictions on nonpublic advisory meetings. The courts fashioned new doctrines of judicial

deference to agency actions—while requiring, as a condition of that deference, that agencies demonstrate responsiveness to public comments and conscientious pursuit of their policy
missions. The measures were highly complementary. They gave the executive extensive lawmaking discretion so long as agency procedures were transparent, participatory, and inclusive, and
agency decisions were responsive and explained in elaborate detail. The upshot was a uniquely American fusion of executive management and democratic form, with its own political
legitimacy and, in the decades to come, tremendous institutional momentum. It is a regime of ad hoc, nonelectoral, managed democracy. Democratized executive lawmaking has been growing
in scope and autonomy for more than 40 years now, mowing down a long succession of complaints about overregulation and unelected bureaucrats and proposals for legal and economic
reform. Stupendous advances in information and communications technologies have enabled progressively narrower causes—on beyond clean air and safe products to animal welfare (count
me in), bank overdraft charges, low-volume showers, supply-chain diversity, and gluten-free foods—to achieve collective self-awareness, organize for action, and secure their own bureaus.
The same technologies have progressively increased the relative advantages of hierarchical agencies over legislative committees in monitoring and managing constituency groups and, more
generally, in surveilling individual and group behavior. To executive officials, making policy by Internet postings and conference calls has come to seem natural. Congress has increasingly
become a latter-day founder of freestanding special-purpose governments. In recent years, it has begun handing agencies not only lawmaking power but also authority to set and collect taxes
and spend the revenues without congressional appropriations. Our executive government is a far cry from classical progressivism. It is based not on expertise but on specialization. Expertise is
mastery of an organized, independent body of knowledge that may contribute to solving practical problems. Specialization, in contrast, is mastery of the practicalities of the problems
themselves. Expertise is central at a few agencies—biological sciences at the Food and Drug Administration, macroeconomics at the Federal Reserve—but only a few. Most agencies are instead
specialized in the politics, institutions, personalities, and histories of a field of action. Many of those fields, such as affirmative action and mandatory disclosure, involve nothing that could
reasonably be called expertise (the programs require employers or producers to act in certain ways with the knowledge they have). Others, such as pollution control and product safety,
involve engineering and other technical information, but the agencies are mainly consumers, not suppliers, of that information. Regulated firms and other parties provide them with, for
example, technical assessments of the feasibility of automobile fuel efficiency standards or statistical regressions of chemical exposure and health effects. Often the information is conflicting
or ambiguous. The agencies use it selectively, in conjunction with value judgments and political calculations. Outside the FDA and the Fed and a few other agencies, the actual decision-makers
are generalists—political appointees who could as well be members of Congress, and civil servants who could as well be congressional staffers. Legislators and judges understand all of this, so
when they speak of agency expertise they are usually rationalizing decisions made on other grounds. In last year’s decision in King v. Burwell, the Supreme Court held that Obamacare tax
subsidies could be offered on federal as well as state health insurance exchanges. Its opinion emphasized that the administration’s decision to this effect had been made by the Internal
Revenue Service—which “has no expertise in crafting health insurance policy” (unlike, presumably, the Department of Health and Human Services). That helped get the Court where it wanted
to go—to deciding the question itself rather than deferring to the administration’s decision—but it was pure fiction. Whether to extend subsidies to federal exchanges involved no expertise
whatever. It was entirely a political question (with only one possible answer for the Obama administration), and the IRS and HHS were on the same political team. The distinction between
expertise and specialization is crucial for two reasons. First, expertise is supposed to be neutral and professional. It is envisioned as a superior substitute for the messy clash of private interests
in guiding public policy. But American regulatory agencies, as we have noted, are obliged to be messy—porous to outside influence, participatory, democratic. That guarantees they cannot be
aloof and detached in the manner (so it is said) of French and German administrators. Second, specialization is the opposite of detachment. It is a mechanism of engagement, efficiency, and
growth. Adam Smith emphasized the central role of the division of labor in promoting economic growth on the first page of The Wealth of Nations; the subsequent centuries of unprecedented
growth are a history of ever-increasing specialization in knowledge and practice. The more recent growth of executive government is a testament to the power of specialization in political
practice. The executive has eclipsed Congress precisely because of its superior capacity for growth. Specialized agencies can be multiplied
freedom from the legislature
essentially without limit, and each one is an efficient lawmaker because of its ’s need to achieve representative consensus. Finally, the
specialization of executive government is in political organization, and this is often at odds with the specialization that propels social prosperity. A common complaint about “one size fits all”
regulation—uniform standards for almost anything that comes to the regulator’s attention—is that it suppresses variety and innovation in production and ignores differences in personal
preferences and local circumstances. These are the “complexities” of the modern economy that expertise is supposed to accommodate! But for the politically specialized agency, suppressing
diversity is frequently the whole point—to accommodate the ideological positions, membership needs, or corporate interests of members of their “stakeholder communities.” The
evolutionary, adaptive nature of executive government may suggest that the prospects are dim for controlling its future course. Yet in private life, affluence and technology—in the form of the
automobile, television, birth-control pill, Internet, and mobile smartphone—have brought many serious problems along with their cornucopian benefits. Over time, we have learned to control
the problems. True progressivism consists of realizing the benefits while limiting the harms of the growing powers that wealth and technology place in our hands. That should be our goal in the
public sphere as well. A possible opening lies in the excesses of the Obama administration, which have broken the
mold of post-1970 regulation. Making national policy by decree violates the requirements of public notice, participation, and responsiveness that have legitimized executive lawmaking.
The Obamacare and Dodd-Frank programs are making mock of their consumerist pretensions. Billed as providing “Affordable Care and Patient Protection” and “Wall Street Reform and
Consumer Protection,” in practice both programs consist of active collaboration with large producers. They are throwbacks to New Deal industrial regimes and are degrading health insurance
The president’s imposition of New Deal utility controls on the Internet is even more jarringly
and banking services in ways that are increasingly conspicuous.

anachronistic and is alienating sophisticated technologists. The administration may be taking America to a further, darker stage of
executive lawmaking—more authoritarian and syndicalist. But it may instead be provoking reactions that, once underway, could
go beyond correcting individual abuses. The courts—and not only conservative judges and justices—are clearly rethinking many of their doctrines of
deference to executive discretion, and their decisions could rouse Congress to broader responses: The administration’s practice of skirting notice-

and-comment rulemaking, in its actions on immigration, transgender restrooms, and other matters, is being vigorously litigated. The cases are prompting Congress to

consider banning now-common agency lawmaking by such devices as “guidance documents” and the notorious “Dear Colleague” letters from the
Education Department’s Office for Civil Rights. The Supreme Court recently issued its second unanimous decision in recent years rejecting the administration’s denial of hearings to citizens
caught in its impossibly expansive definition of “waters of the United States.”This could embolden Congress to revisit the Clean Water Act and , even better, to
guarantee citizens hearings before tribunals that are independent of prosecuting agencies. Another recent Supreme Court decision held that the EPA must take account of the costs as well as
benefits of its pollution controls under a general “appropriate and necessary” statutory standard, and recent Court of Appeals decisions have applied similar reasoning to certain SEC rules. The
decisions point the way to a general statutory requirement that agency benefit-cost assessments be subject to judicial review. Strong legal and
constitutional challenges are underway to key features of Obamacare, Dodd-Frank, and the EPA’s Clean Power Plan and have produced some promising preliminary decisions. Further

successes would strengthen Congress’s hand in these momentous instances of executive unilateralism,
and might even prompt a movement away from congressional over-delegation. Measures such as these would be in the time-
honored political tradition, going back to the Declaration of Independence and Magna Carta, of taking concrete abuses as the occasion for instigating broader reform. In

seizing the opportunities as they arise, we should keep in mind that the ultimate goal is to correct the pathologies of concentrated executive power and to
make our system of specialized, pertinacious lawmaking more representative, moderate, and respectful of the problem-solving strengths of private society. And that will take something more:
a great reawakening in Congress itself that leads to more vigorous legislating and a more auspicious
balance of the powers of making and administering our laws.

Actions modifying presidential power set a precedent. The War Powers Resolution
and other historical examples prove
Christopher Paul 8, Senior Social Scientist at RAND, “US Presidential War Powers: Legacy Chains in
Military Intervention Decisionmaking,” Journal of Peace Research (Vol. 45, No. 5), JSTOR
There's an obvious kernel of truth to the old saying, 'Generals always fight the last war'. This article explores one of the sources of this kind
of policy inertia, 'legacy chains', by examining the sequence of disputes over military deployments that led up to the United States War
Powers Resolution of 1973 and its impact on the US military interventions that have followed. The War Powers Resolution was passed
by a Congress attempting to re store balance to war-making powers constitutionally divided between the Congress (as the only
body legally allowed to make a 'declaration of war') and the president (the commander in chief). This article traces the war powers
legacy chain through the US military operations in Korea, Vietnam, the Dominican Republic, Grenada, Panama,
Iraq, Haiti, and Iraq again. The exercise of war powers (and the disputes associated with them) for these military operations
show how legacies are formed and institutionalized within a policy sphere ; how institutionalized legacies
affect subsequent policy (in sometimes unintended ways); and how subsequent policies modify, transform, or
reinforce these legacies. Based on the War Powers example and other historical data , this article argues that past
policy affects subsequent policy by creating institutional legacies that shape the decision space in which
subsequent policy is made. These institutional legacies can be modified, transformed, and/or reinforced by
subsequent policymaking and then constitute 'legacy chains'. Legacy Chains Finegold & Skocpol (1995: 222) describe policy
legacies: Past and present policies are connected in at least three different ways. First, past policies give rise to
analogies that affect how public officials think about contemporary policy issues. Second, past policies
suggest lessons that help us to understand the processes by which contemporary policies are formulated
and implemented and by which the consequences of contemporary policies will be determined. Third, past
policies impose limitations that reduce the range of policy choices available as responses to contemporary
problems. All three of the ways in which they connect past policy to present policy can be viewed as changes in the institutional context in
which policy is made. These legacies are institutionalized in two different ways: first, through changes in formal rules or
procedures, and second, in the 'taken for granteds' , 'schemas' , and accepted wisdom of policy makers and
ordinary citizens alike (Sewell, 1992: 1-29). While a policy or event can leave multiple legacies, it often leaves a single major
legacy. For example, the War Powers Resolution formally changed the relationship between the president and the
congress with regard to war-making and the deployment of troops. Subsequent military interventions were
influenced by this change and have, in turn, left their own legacy (legal scholars might call it precedent ) as a link in that
chain. Legacy chains can be modified, transformed, or reinforced as they step through each 'link' in the chain. As another example, US
involvement in Vietnam left a legacy in the sphere of press/military relations which affected the intervention in Grenada in 1983 (the press was
completely excluded for the first 48 hours of the operation). The press legacy chain begun in Vietnam also affected the Panama invasion of
1989 (a press pool was activated, in country, but excluded from the action), but the legacy had been transformed slightly by the Grenada
invasion (the press pool system itself grew out of complaint regarding press exclusion in Grenada) (Paul & Kim, 2004). Because of the different
unintended institutional consequences. The War
ways in which policy legacies are institutionalized, some legacies have
Powers Resolution was intended to curtail presidential war-making powers and return some authority to the congress. In practice, the joint
resolution failed to force presidents to include congressional participation in their intervention decision making, but it had
the unintended consequence of forcing them to change the way they planned interventions to comply with the
letter of the law (see the extended ex ample presented later in the article).1

Checks now spill over and irreparably hamstring broad presidential powers
Eric Posner and Emily Bazelon 17, he’s a professor at U Chicago Law School, "Will the Presidency
Survive This President?", New York Times, https://www.nytimes.com/2017/05/20/sunday-
review/donald-trump-will-presidency-survive.html
With the courts and the intelligence community increasingly arrayed against him, and Congress now investigating his campaign and actions in office, Mr. Trump finds himself in a much diminished presidency. If he remains in office

it’s possible that Congress and the courts will essentially put the presidency into a kind
for an extended period in this weakened state,

of constitutional receivership until his term ends. What would that look like? It’s hard to know, but it would be a striking setback to
presidential power. After Watergate brought the presidency low, subsequent presidents took back power, largely with the acquiescence of Congress and the courts. Both George W. Bush and Barack
Obama flexed their executive muscles. Mr. Bush enhanced the president’s control over national security after the Sept. 11 attacks by opening Guantánamo, trying terrorism suspects before military tribunals, and authorizing
warrantless wiretapping. Mr. Obama took unilateral aggressive actions to reduce greenhouse gas emissions and reform immigration. They left the office stronger than when they arrived. Although their policies were controversial,

Trump has created an entirely new problem

both presidents were given deference because they made their judgments conscientiously and led the government professionally. But Mr.

for Congress, the courts and agencies: What do they do when the president himself is the pressing danger? Unlike other
presidents, Mr. Trump has lacked the basic competence to manage the government. If Congress and the courts diminish the power of the office to constrain

him, could they leave the office too weak for future presidents to be able to govern
effectively ?

The aff’s reactionary response to Trump crushes overall executive power

Jack Goldsmith 17, Law Professor @ Harvard, conversation with Bill Kristol, 12/30, “American
Institutions and the Trump Presidency,” http://jackgoldsmith.org/american-institutions-trump-
presidency/
GOLDSMITH: But there hasn’t been that kind of principled reflection, in my view, at all. And I will say, Trump
has had a good impact
across the country. I’ll give you a better example than my colleagues at Harvard Law: There’s much more widespread respect for
the intelligence community now. There’s so many people left of center in the Democratic Party who are standing up for the integrity of
the intelligence community. That is a major accomplishment of Donald Trump. And that would not have happened – only he could do that.
It’s happened a little bit with the rule of law, I think, and I actually do believe, and agree with you, that, maybe not my colleagues at
Harvard, but more generally in the populous, I think there is an appreciation for checks and balances, their importance, how
they operate. I think there is, in my view, a very healthy –
This is how it’s changed. So my colleagues – we all go back and forth to some degree on this, but the bulk of my colleagues
really were quite onboard for executive power under President Obama, and they weren’t so much onboard under George W.
Bush, and they’re definitely not onboard for it now. And I do think, especially to the extent that Trump is using some of
Obama’s playbook, especially in foreign affairs but also in domestic affairs, that maybe some of the views during the Obama
administration have tempered a bit.
But, more generally, I think that it’s not all a bad story. Trump has taught the country some basic civics lessons that I think are
very useful. And, hopefully, as a country we’ll remember – I’m not optimistic – but hopefully will outlast his presidency.
What’s likely to happen is – this is what happened – is that we’re going to have an overreaction to the Trump
presidency , that we’ll put huge constraints on the president that will – we need a powerful Presidency .
Arthur Schlesinger, Jr. who wrote The Imperial Presidency, and who was very critical of the imperial presidency, he always emphasized –
because, of course, he loved the presidency with the right kind of president – he always emphasized, correctly in my view, that the great
presidents are powerful presidents . Our system works best , the constitutional system works best when we
have powerful presidential leadership that’s principled .
And so one danger of Trump is that we’ll overreact to this president and shackle the presidency for a
while.

The plan creates a cycle of always looking and expecting statutory clarification that
limits presidential power because Congress is slow and uniformed.
Colella, Brooklyn JD, 1988
(Frank, “Beyond Institutional Competence: Congressional Efforts To Legislate United States Foreign
Policy Toward Nicaragua -- The Boland Amendments”, 54 Brooklyn L. Rev. 131, lexis)

Traditionally, the president has exercised greater control over foreign policy-making than has Congress. n28
Since the earliest days of the Republic, that office has been responsible for communicating with other governments on
behalf of the United States. n29 Continuous contacts with other nations generated innumerable issues for resolution. n30 As a result of the President's
continuous participation in the daily matters affecting foreign affairs, his position as chief spokesperson was established. The role did not emerge
from any constitutionally inherent superiority he possessed, but rather from the practical necessity of having
to make decisions. Decisions on day-to-day matters were often made "on the spot" by the executive
branch personnel. n31 When larger issues were involved, the president articulated the United States
position, again, for practical reasons. He was always in session and Congress was not. Congress could only be specially
convened with difficulty. n32 Moreover, the president's access to the facts, and the advice of
subordinates, permitted quick action if required by the circumstances. n33 In addition, Congress may be said to have
permitted the expansion of executive authority without challenge. "[Congress] did not equip itself with expertise, so as to acquire a dominant authority in foreign
relations, or even a continuous, informed participation." n34 It might even be said that Congress facilitated [*140] the expansion of presidential power over foreign
affairs by providing him large "grants of power with only general lines of guidance." n35 In effect, the executive branch obtained a large degree of discretion to
formulate and implement policy. n36 The expansion of presidential authority over foreign policy-making continued
well into the twentieth century, with the period between 1940 and 1970, principally because of the Second World War and its aftermath, seeing
the greatest rise in the president's authority over foreign affairs. n37 The exigencies of participating in that War, and the United States'
position immediately following it, permitted this expansion. n38 Later, however, this country's growing dissatisfaction with its
involvement in Vietnam, and a president weakened by the Watergate affair, set the stage for a dramatic confrontation between Congress and the executive over
which branch would control the direction of foreign policy-making. n39 Some have termed this confrontation over the means necessary to achieve a policy goal a
revolution -- with Congress entitled to claim victory. n40 Congress denied the president statutory authorization and the necessary funding to maintain United States
support for the South Vietnamese. n41 Unfortunately, the legislation hastened the [*141] overthrow of the South Vietnamese government "[b]y using the public
legislative process to prohibit the president from using force, the legislators signaled Hanoi that the South could now be plucked with impunity." n42 These
prohibitions on the use of force also confronted President Ford during the 1975 fall of Saigon. n43 As North Vietnamese troops overran Saigon, President Ford faced
the choice of either "breaking the law" by airlifting the United States soldiers and pro-American Vietnamese out of Vietnam, or following the law thereby permitting
them to be captured or killed. n44 President Ford did authorize the airlift. n45 Yet even as the airlift proceeded, Congress debated for two weeks the passage of a
resolution that would have authorized this action. n46 This legislation was originally proposed to prevent President Nixon from continuing the war, however, as
enacted it also applied to President Ford and the airlift, a situation Congress did not, and could not have [*142] foreseen. n47 Congressional efforts to
limit the scope of executive foreign policy-making via legislation have carried over into the 1980's. Along with it, the tension
between the executive and legislative branches has been exacerbated. While the executive seeks broader discretion, the legislature seeks to foreclose
discretion by statutory command. This conflict can degenerate into a foreign policy driven by questions
of statutory interpretation. n48 The need for flexibility and discretion is axiomatic in foreign policy-
making. n49 Therefore, legislative commands tend to receive narrow interpretation. n50 However, this narrowing process is corrosive
"because it leads inexorably to more legislation, more efforts to interpret it away, and so on in an
inextricable, self-generating circle." n51 As long as the circle continues to generate more legislation and
narrow constructions, executive/legislative tensions will exist and continue to thwart a meaningful cooperation between the branches. Unfortunately,
this is precisely what resulted from the numerous enactments seeking to micromanage the president's policy toward Nicaragua and
Central America.

The plan emboldens Congress --- spills over to destroy the presidency
Rostow, Yale senior research scholar, 1989
(Eugene, “The United States Constitution In Its Third Century: Foreign Affairs: Distribution Of
Constitutional Authority: President, Prime Minister Or Constitutional Monarch?”, October, A.J.I.L. 740,
lexis)
I should summarize my answer to the question in these terms: Until the mid-1970s, our strenuously balanced Constitution was not only adequate, but altogether satisfactory. Since that time, however, an unusually vigorous and sustained congressional bid f or supremacy over the
Executive, stimulated by the Vietnam War and the Watergate scandal, has threatened to convert the American President into a prime minister or even a benign constitutional monarch. This possibility will not materialize over the long run, because what Madison called "the impulse of

the nation's safety is at risk

self-preservation" will prevail: the security of the United States requires a strong President working in harness with a strong Congress. The long run, however, may be too long for comfort. In the modern world,

so long as the foreign policy process is dominated by a Congress aspiring to take over the executive
power Bush regarded the constitutional defense of the Presidency as one of
. During his presidential campaign in 1988, Vice President said that he

the President's major responsibilities. it is to be hoped that The Reagan administration, like the Ford and Carter administrations before it, was not notably active on this front, and

Bush will succeed in restoring the constitutional balance between the Presidency and Congress
President quickly . Much

The conflict is
turns on the outcome of his effort. The remedies President Bush must seek are not structural, but substantive. Preaching or even practicing consultation and cooperation, desirable as they are if not indulged to excess, is no panacea.

about power passing statutes to regulate the President's habits

, and it cannot be solved by tinkering with tables of organization and flow charts, more that purport work , or
even amending the Constitution. If the extraordinary gains in power Congress has achieved during this period are to be undone, the change will have to be achieved by the President and the federal courts acting together. Congress cannot be expected to give up its hard-won modern
privileges voluntarily. Therefore, the judiciary should act. The courts have often been called the balance wheel of the Constitution. In this instance, the rhetorical cliche is apt. The courts are the only institution of government directly charged with the task of enforcing the constitutional
limits of power. The judiciary cannot act, however, without test cases, and the President has always been an important initiator of test cases. In the field of international relations, the Government of the United States has all the rights, powers, privileges, immunities and duties of
nationhood or "sovereignty" recognized in international law. The international powers of the nation are not to be deduced from the few spare words [*742] of the constitutional text, but from their matrix in international law. Those powers are divided by the Constitution between
Congress and the President. In this as in other areas of governmental responsibility, Congress is entrusted with specified legislative powers and the President with "the" executive power of the United States, save for a number of exceptions noted in the document itself, i.e., the Senate's
voice in the making of appointments and the ratification of treaties, and Congress's power to declare war. No one has ever improved on Hamilton's definition of executive power. All governmental power that is neither legislative nor judicial, he said, is executive. n2 For nearly 200 years,
that simple division of authority, interpreted in the light of experience, permitted effective policymaking through the only constitutional pattern for conducting foreign relations compatible with the nature of world politics, on the one hand, and with the American political culture, on the
other. The President is not elected by Congress. He is not a creature of Congress. And he is not required to report to Congress, except for his annual State of the Union message. The historical experience of the United States confirms the wisdom of Marshall's comment in Marbury v.
Madison that "the secrets of the cabinet" are beyond outside scrutiny, n3 and that "the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own
conscience." n4 In these areas, Congress can request information of the President; it can never command it. This is not to sa y that the President is above the law. Marbury v. Madison demonstrates the contrary. But the law is vindicated by many procedures without subordinating the
President to Congress or the courts in all cases. The constitutional process does not always produce wise results. That is another matter. But until recently, it worked as a political procedure. The mistakes the nation made were not the consequence of inadequate deliberation, but of
inadequate thought. It was also a strenuous procedure, in which the rivalry between Congress and the President fully met the standard of Justice Brandeis's celebrated maxim. Justice Brandeis wrote: The doctrine of the separation of powers was adopted by the Convention of 1787, not to
promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy. n5 In recent years,
however, the pattern has changed, on the surface at least. The tension between Congress and the President is no longer the push and pull of a natural tug of war between the Legislative and the Executive, [*743] operating as partners within the framework of well-understood rules and

The balance between Congress and the Presidency has shifted

habits. so much and so radically that "the inevitable friction" Justice Brandeis welcomed has become something

that is transforming the President into a ceremonial figurehead graciously

quite new -- a real war, marked by a slow presidential retreat

presiding over the activities of an omnipotent Congress. The powers of the Presidency historic constitutional have not been formally

encounter more and more resistance each time a President tries to use
annulled. They are still latent in the bloodstream of the Government. But they

them. As a result, the President is gradually stripped of his most important powers. being some of If present trends are not reversed,

he will soon be wrapped like Gulliver in a web of regulatory statutes and hopelessly weakened. Congress has not
given up trying to nullify the President's veto power, despite the decision of the Supreme Court in the Chadha case; n6 Congress has taken almost no steps to comply with that decision by repealing all the statutes within its orbit. Congressional leaders sometimes conduct diplomatic

Congress is
relations with foreign governments, as they have done recently with Nicaragua, for example, and with other governments as well. Substantive riders on appropriations bills and other devices to evade the President's veto power are more popular than ever.

now even proposing to put the President under the control of a congressional cabinet in the exercise of his
use of force, and foreign policy in general
responsibilities for intelligence and the . And it is more and more common for statutes to prescribe what have always been considered matters of executive discretion, e.g.,
how and where to conduct military operations. Why should one characterize the development of the relationship between Congress and the President in recent years as a crisis rather than a stage in the healthy and normal evolution of constitutional law? The justification for that opinion,
I submit, is neither a pious antiquarian interest in preserving the original Constitution, nor even a concern for effective government, important as it is, but a policy of vigilance against the risk of tyranny. What is at stake in this experience was powerfully analyzed by Madison in Nos. 47 and

Madison warned that the greatest danger to the constitutional order

48 of the Federalist Papers. was not the and to the liberty of the citizen

possibility of a tyrant President but the risk that Congress would take over the powers of the
, which he regarded as slight,

other two branches of government . "The accumulation of all powers, legislative, executive, and judiciary, in the same hands," Madison wrote, "may justly be pronounced the very definition of tyranny." n7 Power "is of an
encroaching nature," n8 Madison remarked, and something more than "parchment barriers" is required to restrict it "from passing the limit [*744] assigned to it." n9 The risk of congressional abuse of power is great, far greater than the risk from the President or the courts. Congress
"alone has access to the pockets of the people." n10 Its supposed influence over the people is an inducement to act, and it can expand its power in many ways, masking its encroachments "under complicated and indirect measures." n11 Madison concluded that "it is against the
enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions." n12 "The legislative department is everywhere extending its sphere of activity, and drawing all power into its impetuous vortex." n13 Confronting the growth of

congressional power, many scholars accept the thesis of congressional supremacy in the plausible name of "democracy." The choice of congressional supremacy as the major
premise for their analysis is most often made casually, almost instinctively, and almost always without extended consideration of what
is involved. These writers normally preface their treatment of the issue with the familiar, but erroneous, comment to the effect that Congress is simply trying "to recapture legislative power" that had drifted to the President since Lincoln, McKinley or Franklin D.
Roosevelt took office. It is amply clear, as two recent full dress reviews of the problem demonstrate, n14 that since the time of George Washington, Presidents and Congress have conducted America's foreign policy in roughly the same pattern of constitutional usage. Some proponents of
congressional supremacy dismiss this evidence of constitutional practice on a most astonishing ground. Arthur M. Schlesinger, Jr., for example, writes that the early Presidents "usurped power and thereby created no constitutional precedent -- an action to be distinguished from the
claims of legal sanctions for extreme acts characteristic of presidents of the last generation, claims that would set dangerous precedents for the future." n15 Schlesinger believes the exclusive power to declare war conferred on Congress in Article I, section 8 gives Congress the sole
authority to use or threaten to use the national force, save perhaps in the case of sudden attacks. n16 This common view rests on two simple errors. Under international law, to which the relevant paragraphs of Article I refer, declarations of war are required only for the rare occasions
when states engage in unlimited general war. As the Founding Fathers knew from intimate experience, such declarations are not required when states feel compelled to use limited force in defending themselves not only against "sudden attacks" but against many [*745] other breaches of
international law of a forceful character. n17 During the last 200 years, the United States has declared war only five times, but Presidents have used the armed forces abroad at least 200 times, usually on their own authority, sometimes with the support of joint resolutions before or after
the event. What President Kennedy did during the Cuban missile crisis of 1962, as Professor Schlesinger will recall, was a presidential action of this kind. And Hamilton argued that Congress's power to declare war, being an exception to the general powers of the Executive according to the
model the Founding Fathers knew best, that of the British Crown, should be confined to the terms of the text. The second error in Schlesinger's article is equally conclusive. Presidential uses of force in dealing with the threat of force or the use of force against the nation were never
presented by Presidents as unconstitutional and treated with guilty attempts at concealment. They began during President Washington's first term. Congress acknowledged such actions as obviously proper, then and later. I should contend that most of Lincoln's actions before and during
the Civil War and Franklin D. Roosevelt's actions before Pearl Harbor were valid exercises of the President's emergency prerogative powers, not unconstitutional violations of law at all. The United States has all the powers of statehood recognized in international law and therefore has
emergency powers like those of other nations. If Congress has not exercised these emergency powers, or cannot exercise them, the President has constitutional authority to do so. And circumstances may create situations, as Locke recognized, where it would be constitutionally proper for
the executive to act even in contravention of the written laws. n18 To my mind, it seems contrary to the most elementary notions of legal theory to claim that Lincoln's conduct of the Civil War, the most important single use of presidential power in American history, was unconstitutional.
From that judgment, I should except his suspension of martial law where the civil courts were open, but little beyond it. Nonetheless, the principle of congressional supremacy continues to be asserted. Thus, Frederick M. Kaiser finds that while the Constitution seems to establish a system
of checks and balances among seemingly separate branches of the Government, in fact it provides for legislative supremacy. The rationale behind this conclusion, Kaiser writes, "is that a representative assembly is less of a threat to the rights of citizens and to the other branches than is
the unitary office of President, where constitutional authority is centralized in one individual." n19 The status of Congress as "the first branch of government" is further confirmed, he contends, by the fact that it is created by the first article of the Constitution, by its power to override a
[*746] presidential veto and by its impeachment power. n20 And Professor Henkin, dismissing Hamilton, supports Hamilton's critics who insist that the President has only the few powers expressly granted him; that those powers are subtracted from the plenary powers of Congress, and
are therefore to be narrowly construed; and that in foreign as in domestic affairs Congress is primary and supreme. n21 In the end, however, Henkin's conclusions derive from a quite different and consciously extraconstitutional standard of judgment. The question for us to face, Henkin
says, is not what our constitutional history requires or permits, but "what kind of country we are and wish to be. I am disposed to state the question as: How should foreign affairs be run in a republic that has become a democracy?" n22 This is unilateral lawmaking with a vengeance,
going far beyond the interstitial. Henkin boldly admits what is implicit in the writings of Reveley, Lofgren, Kaiser, Fisher and other advocates of congressional supremacy. They claim their views are compatible with the constitutional experience of the United States. Henkin asks for a new
Constitution, based on the mystical proposition that the American "republic has become a democracy." From this vantage point, he has no difficulty in concluding that Congress can if it wishes regulate the President fully, save in the few areas where the President's claim to independent
power is historically too well established to be challenged. Given his major premise, it is surprising that Henkin concedes so much to orthodoxy. Such opinions take too simple a view. The constitutional arrangements required to safeguard democratic government in a large country are
more complex than those of a Vermont town meeting. And even a Vermont town meeting is not government by universal voice vote on every issue. The members of Congress are indeed elected by state-wide and district-wide constituencies. But the President is elected too. And judges
and many other officials have unimpeachable democratic legitimacy even though their authority is derived from appointment rat her than from election. n23 The defenders of congressional supremacy make much of the fact that Congress nec essarily has the last word. But Congress does
not have the last word on all subjects. Even in exercising its power over appropriations, it faces the constraining doctrine of "unconstitutional conditions." It cannot, for example, recognize foreign governments, retain or dismiss federal officials, n24 impose legislative punishments n25 or
decide on the strategy and tactics of wars. n26 Congress has the last word only in the superficial sense that it [*747] could if it wished refuse to appropriate money for the President and the courts. To make that possibility the central issue in the constitutional debate begs the question.
Congress would refuse such funds only under conditions of revolution, after the constitutional order had in fact collapsed or been destroyed. Short of revolution, the claims of congressional "supremacy" in this sense repudiate both the origins and the subsequent history of the
Constitution. The Founding Fathers came together first in Annapolis and then in Philadelphia because the nation was floundering under a government that was entirely congressional. The purpose and effect of the Constitution was to replace congressional government by a more complex
system consisting of three autonomous, overlapping and interdependent branches, each of which, however, is entirely independent in some of its functions. It is impossible to exaggerate the practical effects of the new doctrine that the three branches of the American Government are
not equal, but that Congress is primus inter pares. It would stand on its head one of the most important principles of policy that have hitherto governed the construction of the Constitution by the Supreme Court, by Presidents and by Congress. That principle is sometimes compressed
into a legal formula, first stated by Hamilton, and supported thereafter by Jefferson, Marshall and many others, as well as by the pattern of usage. If a power is executive in nature, Hamilton said -- that is, if it is neither legislative nor judicial -- whether it happens to be mentioned in the
text of the Constitution or not, it is presidential in character, unless it is excluded by the constitutional text. If a power is executive in this sense, presidential supremacy is the rule and congressional authority the exception, and exceptions are to be narrowly construed. n27 Hamilton's
formula applied to the President the principle expounded later in relation to Congress by Marshall in McCulloch v. Maryland. n28 The several powers of the national Government, Marshall wrote, were conferred by the people in a brief, general constitution designed to be read and
understood by the citizens at large. That document did not attempt to define the Government's powers in detail or to foresee every situation in which they would be applied in the future. The Constitution is not "a prolix code," but a legal instrument intended to be interpreted by "general
reasoning." When construing the powers of the national institutions, the rule of construction should not be narrow or niggardly, but one dominated by the great purposes of the Constitution itself. "Let the end be legitimate, let it be within the scope of the constitution, and all means
which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." n29 The modern idea of congressional supremacy would repudiate and reverse Marshall's rule of construction.
Congressional supremacy is taken to be the rule for all questions, not only for those which are legislative in [*748] character. The President would be confined to those powers mentioned in the Constitution as presidential, and even those powers would be narrowly construed as

exceptions to a general rule of congressional supremacy. The normal congressional impulse to nibble at the President's authority gained has

momentum in recent years from four major sources. The first and perhaps the most important has been the nearly incredible growth in congressional staff, which goes back to the Legislative Reorganization Act of 1946. n30 Before that fateful reform was adopted,
Congress and its committees relied largely on the administration of the day for assistance in research and drafting. Indeed, in those far-off times, members of Congress often did their own research and drafting. The Congressional Research Service of the Library of Congress provided some
supplemental help, but until the recent past that service was extremely small. Today, congressional staffs include some 35,000 people, and the Congressional Research Service another 5,000. It is hardly remarkable that Capitol Hill has been sprouting splendid marble palaces to house the
new bureaucracy. Like many other reasonable reforms, the growth of congressional staff has had unforeseen consequences. Members of Congress and their proliferating committees and subcommittees have discovered that able and independent staffs are a decided asset for electoral as
well as legislative purposes. Furthermore, appointing members of these staffs is a fruitful form of political patronage. And the staffs themselves have transformed the contest between the President and Congress. The young men and women who serve Congress are intelligent, hard
working and ambitious. They achieve satisfaction and reputation not by rubber-stamping the plans of the administration, but by revising or defeating them as conspicuously as possible -- by amending or rewriting administration drafts of bills, joint resolutions or committee reports; by
suggesting dramatic or hostile lines of questioning to their principals for committee hearings; and by producing committee reports and draft speeches intended to shape the legislative history of the bill as it is finally enacted. The influence of a growing congressional staff on the relations

increasing congressional power

between Congress and the President has been reinforced by a second source of result , the modern political habit of electing a Democratic Congress and a Republican President. The

has been popular with the voters, who regard it as another check and balance, restraining the
rather

malignant natural impulses of politicians It encourages partisan irresponsibility on . But the habit has decidedly negative features as well.

the part of Congress especially in foreign affairs

even on major national issues, These , and it constitutes an additional obstacle to rational districting for the House of Representatives. two

tendencies produce the practice of writing

together statutes intended to control the President and
a third, long and elaborate

they apply statutes

the courts in great detail as to new situations. and treaties [*749] The notion that legislatures can control the growth of law in such detail is a naive delusion, but it is widely shared. Thus, a number
of statutes -- the War Powers Resolution of 1973 and the intelligence oversight legislation, particularly -- require the President to report to Congress and to "consult" either with Congress or with named congressional committees or special groups. In the 100th Congress, Senators Nunn,
Warner, Mitchell and Byrd put forward a proposal to revise the War Powers Resolution by eliminating its legislative veto provisions as obviously unconstitutional, but substituting a requirement that the President consult with a fixed group representing committees in both Houses before

requirements
using or threatening to use the armed forces. The proposal has been resubmitted to the 101st Congress. The cure would be far worse than the disease. As sponsors of such legislation freely concede, the purpose of the is not "reporting" or

putting Congress
"consulting," but into the middle of the President's decision-making process "as
or small groups of senior members of Congress

equals." Laws like this would give the congressional leaders a veto over presidential action and thus
in fact

destroy the unitary Presidency congressional attacks on the President's

, one of the two great innovations of the American Constitution. Finally,

prerogatives in the field of foreign affairs draw strength from protest against the foreign policy widespread the United
States has pursued since 1945. That protest is based on a nostalgic yearning for the neutrality and comparative isolation of the United States during the century between 1815 and 1914. It is an important factor both in American domestic politics and in American foreign policy, despite its

The constitutional balance between Congress and the Presidency cannot be restored without
irrationality.

vigorous action by Presidents to defend the Presidency and by equally vigorous judicial intervention. Two principal reasons explain the weakness of the defending forces thus far. Recent

Congress, with the smell of victory in its

Presidents have hesitated to challenge the congressional claims of supremacy directly, because they have felt vulnerable to c ongressional reprisals in many forms, and

nostrils, has been in the mood to inflict reprisals. Moreover, during most of the Reagan administration, the Justice Department tended to agree with the premise of congressional supremacy, or at
any rate to agree with the view that such conflicts should be settled by political bargaining, and not by an "activist" Supreme Court.
Impact
 Yoo 7

Independently, presidential power deflects every WMD risk – uniquely solves nuclear terror which
outweighs traditional conflicts
Yoo 7, [the one and only John Yoo is Professor of Law at UC-Berkeley, Exercising Wartime Powers,
hir.harvard.edu/article/?a=1369]
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.
 econ impact
Restraining prez authority kills econ
Posner and Vermuele 9—Professor of Law, UChicago AND Professor of Law, Harvard Law School (Eric and Adrian, Fall 2009,
“Crisis Governance in the Administrative State: 9/11 and the Financial Meltdown of 2008,” University of Chicago Law Review, 76 U. Chi. L. Rev.
1613, Accessed 06-27-2013)
Finally, we mention a dynamic that further tightens the political constraints in times of crisis. Precisely because markets
expected the House to pass the EESA, the House's initial failure to do so created a perceived "crisis of authority," n202
suggesting a risk that dysfunctional political institutions would not be able to coordinate on any economic policy at
all. That second-order crisis supervened on the underlying economic crisis, but acquired force independent of it. The Senate had [*1665] to
scramble to undo the damage and did so in world-record time. The House quickly fell into line. In this way, measures urged by the
executive to cope with a crisis of unclear magnitude acquired a kind of self-created momentum . Rejection of
those measures would themselves create a political crisis that might, in turn, reduce confidence and thus trigger or
exacerbate the underlying financial crisis . A similar process occurred in the debates over the AUMF and the
Patriot Act, where proponents of the bills urged that their rejection would send terrorist groups a devastating signal
about American political will and unity, thereby encouraging more attacks . These political dynamics, in short,
create a self-fulfilling crisis of authority that puts legislative institutions under tremendous pressure to accede
to executive demands, at least where a crisis is even plausibly alleged. Critics of executive power contend that the executive exploits its
focal role during crises in order to bully and manipulate Congress, defeating Madisonian deliberation when it is most needed. n203 On an
alternative account, the legislature rationally submits to executive leadership because a crisis can be addressed only by a leader. Enemies
are emboldened by institutional conflict or a divided government; financial markets are spooked by it.
n204 A government riven by internal conflict will produce policy that varies as political coalitions rise and fall.
Inconsistent policies can be exploited by enemies , and they generate uncertainty at a time that financial
markets are especially sensitive to agents' predictions of future government action. It is a peculiar feature of the
2008 financial crises that a damaged president could not fulfill the necessary leadership role , but that role quickly
devolved to the Treasury secretary and Fed chairman who, acting in tandem, did not once express disagreement publicly.
 Heg impact - i/l
Inter-branch conflicts over authority cause foreign attacks on the US.
William G. Howell & Jon C. Pevehouse 11. Associate professors at the University of Chicago's Irving B.
Harris School of Public Policy. 06-27-11. “Chapter 1: Possibilities of Congressional Influence,” in While
Dangers Gather: Congressional Checks on Presidential War Powers, Princeton University Press. p.27-29.
THE IMPORTANCE OF CONGRESSIONAL APPEALS/DISSENT Because they are legally binding, legislation and appropriations passed by Congress
directly impinge on a president’s discretion to wage war. Not surprisingly, then, opponents of a president’s war typically call on
Congress to pass laws and cut appropriations. But the public debates that precede military actions also have important
consequences for presidential power. Two stand out. By expressing dissent , members of Congress can weaken the
president’s ability to credibly convey resolve to foreign allies and adversaries, and they can turn public opinion
against him.73 Here, we briefly summarize both of these avenues of congressional influence. 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.74 When
members of Congress openly object to a planned military operation, would-be adversaries of the U nited S tates 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. The dangers of domestic political dissent are not lost on presidents and members of
Congress. Indeed, for Bush (43) it constituted an important reason for seeking congressional authorization to use force against Iraq in the fall of
2002. In a Rose Garden ceremony on October 2, the president noted, “The statement of support from the Congress will show to friend and
enemy alike the resolve of the United States. In Baghdad, the regime will know that full compliance with all U.N. security demands is the only
choice and that time remaining for that choice is limited.”76 Then, in remarks eight days later on the House’s vote to authorize the use of force,
the president proclaimed, “The House of Representatives has spoken clearly to the world and to the United Nations Security Council: The
gathering threat of Iraq must be confronted fully and finally. Today’s vote also sends a clear message to the Iraqi regime: It must disarm and
comply with all existing U.N. resolutions, or it will be forced to comply. There are no other options for the Iraqi regime. There can be no
negotiations. The days of Iraq acting as an outlaw state are coming to an end.”77 By securing congressional authorization, it was supposed, the
president could communicate his views and intentions more effectively to the international community that Iraq’s defiance of United Nations
resolutions would no longer pass unnoticed.78 In doing so, it was hoped, Saddam Hussein would finally relent to Bush’s demands. Imagine what
might have happened during the lead-up to and execution of the Iraq War had Congress not authorized the use of force. Two outcomes seem
plausible, even likely. First, the president would have had an even more difficult time assembling an international coalition in support of military
action. Recall, after all, that the president expressly sought congressional authorization in the hopes that it would improve the chances of later
securing a UN Resolution in support of military action. Second, and in a more speculative vein, had Congress not authorized the use of force,
the military operation itself might not have gone so smoothly. During the early stages of the Iraq War, the U.S. military took pains to persuade
the enemy to lay down its arms and surrender, rather than fight and face certain death. Accompanying these claims were regular assurances
that the United States would see this war through to the end, that it would not stop until the entire Hussein regime was dismantled. To
substantiate these claims, Congress’s authorization was critical. For a moment, put yourself in the place of an Iraqi field officer in the spring of
2003. On the one hand, the United States military is bearing down upon you, threatening to kill you and every one of your comrades unless you
abandon the fight. On the other hand, should you surrender prematurely, and should the United States fail to depose the Hussein regime,
then you can expect to face the wrath of a spurned and spiteful ruler —as the southern Shi’a did a decade prior, after
they had risen up in defiance of the Hussein regime only to be persecuted the moment that U.S. troops withdrew. Which option seems
preferable critically depends on the likelihood that the United States will see the campaign to its end. For if you have reason to doubt
the nation’s resolve, and Congress’s refusal to authorize the use of force would buoy this concern , then the latter
option might be the right one—producing a longer, bloodier military conflict and raising the cost to an invading army. Similar concerns arose in
subsequent years when the United States contemplated troop withdrawals from Iraq. Though the insurgency continued to take its toll on U.S.
forces, the president’s popularity waned, and calls for the Iraqi government to police its own state intensified, Bush nonetheless refused to set
a firm timetable for troops to leave. And his reasons for doing so were plain enough. The president insisted that insurgents were
watching U.S. politics closely and that a timetable would encourage the insurgents to “just go ahead and
wait us out .” Setting a fixed withdrawal date, Bush concluded, simply “concedes too much to the enemy.”79 Whether this prediction was
accurate or not, its logic relied on the realization that others monitor U.S. politics generally , and Congress in
particular , to gauge the nation’s resolve.
 Speed Key

Speed key to stop 21st century threats-reacting is untenable

Winter, Former Secretary of the Navy, 2011
(David, “Adapting to the Threat Dynamics of the 21st Century”, 9-15,
http://www.heritage.org/research/reports/2011/09/adapting-to-the-threat-dynamics-of-the-21st-
century)

In today’s vastly different situation, the U.S. needs to effectively prosecute the war against terrorism in Iraq, Afghanistan,
and wherever else al-Qaeda and its associates appear. The U.S. needs to control piracy off Somalia and dissuade and deter Iran, North
Korea, and other rogue nations from hostile action, while remaining mindful that Russia still has more than 10,000
nuclear warheads[12] and that China is continuing its military buildup[13] and challenging its neighbors throughout the South China
Sea. Yet the U.S. military is far smaller today than during the Cold War, and the Administration appears to have subordinated the nation’s defense

needs to budget goals.[14] Given the rapid pace at which threats evolve today , the U.S. needs to prepare ahead of

time and not wait for a challenge to emerge. The military needs to be adequately sized, able to respond in a timely
manner, and equipped to perform a wide range of missions. The speed at which unanticipated challenges can emerge and new
weapons appear in the hands of U.S. adversaries makes any strategy of hopeful waiting untenable. While the
American buildup during World War II[15] demonstrated America’s exceptional capabilities, those who challenge the U.S. in the future will
probably not give many years of warning enabling us to prepare. Nor is the U.S. likely to have allies like Great Britain was 70 years ago,
able to hold off the adversary without us.
 4th Gen Conflict – 2NC

Executive branch is key to stopping global terrorism, rogue states, and nuclear
proliferation
Royal, Institute of World Politics, 2011
(John-Paul, “War Powers and the Age of Terrorism”,
http://cspc.nonprofitsoapbox.com/storage/Fellows2011/Royal-_Final_Paper.pdf)

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 w eapons of m ass d estruction 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
Today however, we know
could be deterred" (National Commission 2004, 362). This mindset assumed that peace was the default state for American national security.

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
fighting continues against terrorists in
possible terrorists insecure and on the run, using all elements of national power (National Commission 2004, 367). Thus,

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 w eapons of m ass d estruction 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
t these regimes may pursue proliferation of nuclear weapons and missile technology to other
the pas . In addition,

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.
 A2: Executive Not Accountable

The executive is comparatively more accountable

Eisner, Cornell law professor, 2001
(Oren, “Extending Chevron Deference to Presidential Interpretations of Ambiguities in Foreign Affairs
and National Security Statutes Delegating Lawmaking Power to the President”, January,
http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2835&context=clr)

Federal judges - who have no constituency - have a duty to respect legitimate policy choices made by those who
do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public
interest are not judicial ones: "Our Constitution vests such responsibilities in the political branches." 121 The judiciary, according to
Chevron, "is an inappropriate body to make the kinds of policy choices that are unavoidable in construing
contemporary regulatory statutes." 122 The justification for deference voices fundamental concerns about legitimacy and "echoes the
Lockean view [*433] that the exercise of power in a democratic government can be defined only through accountability to its source, the
electorate." 123 The President is clearly more democratically accountable than the courts or the executive agencies.
First, at least in their first term, Presidents are certainly very accountable to the voters because they seek re-election - a
source of accountability not shared with either the courts or the agencies. Even second term Presidents remain accountable
assuming that they prefer their party to retain control of the executive . Second, the very fact that Presidents are
elected and not appointed, as judges and agency administrators are, already creates democratic accountability
because the elected President and the President's views and policies presumably reflect the preferences of the
voters. Appointed courts, on the other hand, are accountable to no one, and at best, reflect only the preferences of the President, and are
twice removed from the voters. Similarly, the agencies are only accountable to the President and are also twice removed from the voter.
Chevron's rationale of democratic accountability therefore applies even more strongly to the President than it does to agencies, because the
principle of democratic accountability applies even more strongly to the President than it does to the agencies.
 A2: Groupthink
They don’t solve groupthink
Brooks 18
Rosa Brooks, Professor at the Georgetown University Law Center, Senior Fellow at New America,
NUCLEAR WEAPONS AND THE DEEP STATE: CAN BUREAUCRACY CONSTRAIN NUCLEAR WEAPONS?, From
the VIRTUAL ROUNDTABLE ON PRESIDENTIAL FIRST USE OF NUCLEAR WEAPONS, 2018,
http://www.publicbooks.org/virtual-roundtable-on-presidential-first-use-of-nuclear-
weapons/#ackerman
This is perhaps not terribly consoling. But we should not imagine that building in a more extensive and
consultative decision-making process would guarantee wiser decisions. Legislatively or through
embedded bureaucratic practice, we could create a system in which the president needs the
concurrence of, say, the secretary of defense and the attorney general before launching a preemptive
nuclear strike.
But homogenous groups, particularly in a hierarchical setting where people are habituated to abiding
by the decision of the commander in chief, will not necessarily put meaningful brakes on a presidential
decision. “Groupthink” led us to the 2003 Iraq War, a catastrophically foolish venture to which
hundreds of intelligent “experts” gave their wholehearted support. Even those with serious
reservations tend to go along to get along. We are social animals; that’s what we do. Especially inside
the Beltway.

No groupthink – nonfalsifiable and no studies

Anthony Hempell 4 [User Experience Consulting Senior Information Architect, “Groupthink: An
introduction to Janis' theory of concurrence-seeking tendencies in group work.,
http://www.anthonyhempell.com/papers/groupthink/, March 3]
In the thirty years since Janis first proposed the groupthink model, there is still little agreement as to
the validity of the model in assessing decision-making behaviour (Park, 2000). Janis' theory is often criticized
because it does not present a framework that is suitable for empirical testing ; instead, the evidence for groupthink
comes from largely qualitative, historical or archival methods (Sunstein, 2003). Some critics go so far as to say that Janis's work relies
on "anecdote, casual observation, and intuitive appeal rather than rigorous research " (Esser, 1998, cited in
Sunstein, 2003, p.142). While some studies have shown support for the groupthink model, the support tends to
be mixed or conditional (Esser, 1998); some studies have revealed that a closed leadership style and external threats (in particular,
time pressure) promote groupthink and defective decision making (Neck & Moorhead, 1995, cited by Choi & Kim, 1999); the effect of
group cohesiveness is still inconclusive (Mullen, Anthony, Salas & Driskel, 1994, cited by Choi & Kim, 1999). Janis's model
tends to be supported by studies that employ a qualitative case-study approach as opposed to
experimental research, which tends to either partially support or not support Janis's thesis (Park, 2000).
The lack of success in experimental validation of groupthink may be due to difficulties in operationalizing and conceptualizing it as a testable
variable (Hogg & Hains, 1998; Park, 2000). Some researchers
have criticized Janis for categorically denouncing
groupthink as a negative phenomenon (Longley & Pruitt, 1980, cited in Choi & Kim, 1999). Sniezek (1992) argues that there
are instances where concurrence-seeking may promote group performance . When used to explain behaviour in
a practical setting, groupthink has been frames as a detrimental group process; the result of this has been
that many corporate training programs have created strategies for avoiding groupthink in the
workplace (Quinn, Faerman, Thompson & McGrath, 1990, cited in Choi & Kim, 1999). Another criticism of groupthink is that Janis
overestimates the link between the decision-making process and the outcome (McCauley, 1989; Tetlock, Peterson, McGuire, Chang & Feld,
1992; cited in Choi & Kim, 1999). Tetlock
et al argue that there are many other factors between the decision
process and the outcome. The outcome of any decision-making process, they argue, will only have a certain
probability of success due to various environmental factors (such as luck). A large-scale study researching decision-
making in seven major American corporations concluded that decision-making worked best when following a sound
information processing method; however these groups also showed signs of groupthink, in that they had strong leadership which
attempted to persuade others in the group that they were right (Peterson et al, 1998, cited in Sunstein, 2003). Esser (1998) found that
groupthink characteristics were correlated with failures; however cohesiveness did
not appear to be a factor: groups consisting
of strangers, friends, or various levels of previous experience together did not appear to effect decision-making ability. Janis'
claims of
insulation of groups and groups led by autocratic leaders did show that these attributes were indicative
of groupthink symptoms. Moorhead & Montanari conducted a study where they concluded that
groupthink symptoms had no significant effect on group performance, and that "the relationship between
groupthink-induced decision defects and outcomes were not as strong as Janis suggests" (Moorhead & Montanari, 1986, p. 399; cited by Choi &
Kim, 1999). Overall, the groupthink hypothesis appears to be valuable as a descriptive, analytic and heuristic tool
(Esser, 1998) but is not a good model for empirical testing; it attempts to explain a complex phenomenon
but is difficult to operationalize into testable variables. While some areas of Janis' theory have been supported by
empirical or experimental, others remain ambiguous or even contradictory (Sunstein, 2003). When reading the assessments of others, it begs
the question of whether groupthink is suited to being used as a model for empirical analysis: is it fair to
measure groupthink theory on the basis of laboratory tests, when in real life groupthink occurs within a complex and volatile environment?
Janis's original method was one of inductive reasoning from archival records and case studies; perhaps it is better left as a qualitative model
that can help illuminate the inexact spheres of organizational behaviour and communications theory.

Congress doesn’t improve decision-making.

Nzelibe 7 [Jide Nzelibe (Asst. Professor of Law @ Northwestern); “Are Congressionally Authorized
Wars Perverse?”; Stanford Law Review: Vol. 59, 2007;
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=952490]
Contrary to the received wisdom, this experimental Article advances the empirically plausible
assumption that congressional authorization of the use of force might actually have a perverse effect.
Thus, rather than create a drag effect that minimizes the impulse to rush into imprudent wars,
congressional authorization might actually do the opposite: because such authorization allows the
President to spread the potential political costs of military failure or stalemate to other elected
officials, it will lead the President to select into more high risk wars than he would otherwise choose if
he were acting unilaterally. In other words, since congressional authorization acts as a political
“insurance policy” that partially protects the President against the possible political fallout from a
military misadventure, he is likely to be more willing to engage in wars where the expected outcome
is uncertain. More importantly, not only is the President likely to use congressional authorization as a
hedge to prevent future political opponents from exploiting his misfortunes, he is also likely to use it to
protect members of his party in Congress who are more likely to be electorally vulnerable in the absence
of such authorization. While this notion of congressional authorization as political insurance might
appear puzzling, it makes sense when understood as a cheap mechanism designed to protect a
vulnerable President or ruling party from the insecure political atmosphere that is likely to exist in the
aftermath of a high risk conflict. Significantly, two factors operate in tandem to ensure that the initial
Presidential decision to seek congressional authorization will not be particularly costly from a political
perspective. First, since a member of Congress is likely to have less information than the President about
the likely outcome of a high risk conflict, he or she is likely to defer to the President’s judgment that
the conflict will have a positive outcome and hope to ride the President’s electoral coattails as voters
rally around the flag. Thus, the purported institutional benefit of deliberation by multiple voices that
congressional authorization is supposed to confer is likely to be trivial, if not non-existent. Second,
since the electoral consequences of voting against a successful war are likely to be dearer than voting
for a losing war, the President is relatively assured of getting a favorable vote to use force from those
members of Congress who are elected from swing districts. In sum, seeking congressional authorization
for the use of force becomes a tradeoff in which Presidents are willing to accept the relatively low short-
term costs of involving other elected officials in the war decision-making process in exchange for
longterm political security.