Congress CP

MNDI 2009 Tanay, Grant, Donald, Cory
The Method
INDEX
INDEX...................................................................................................1
***Congress Counterplan***...................................................................3
Congress Best.........................................................................................4
Congress Avoids/Solves Pres Powers......................................................5
Solvency Immigrants............................................................................11
Solvency Nursing Homes......................................................................12
Solvency Health Care...........................................................................13
Generic Solvency..................................................................................16
Congressional Approach Solves Better.................................................17
Solvency Edu., Health Care, Welfare....................................................19
Solvency Natives..................................................................................20
Solvency Veterans................................................................................21
Solvency Broadband.............................................................................22
Congress Can Overturn Court Decisions..............................................23
AT: Perm...............................................................................................24
AT: Courts Rollback..............................................................................25
***Presidential Powers***.....................................................................26
Uniqueness Pres Powers Low...............................................................27
Pres Powers Brink Now.........................................................................29
Pres Powers Turns Solvency.................................................................31
Generic Link.........................................................................................32
Generic Internal Link............................................................................37
Separation of Powers Good..................................................................41
Rule of Law Internal Link......................................................................44
Rule of Law Impact...............................................................................48
Nuclear War Impact..............................................................................49
Constitution Internal Link.....................................................................51
Constitution Impact..............................................................................53
Tyranny Internal Link............................................................................58
Tyranny Impact....................................................................................60
Democracy Impact...............................................................................61
***AFF Answers to Pres Powers***.......................................................63
Uniqueness Pres Powers High..............................................................64
Pres Powers Key to Separation of Powers............................................69
Pres Powers Key to Heg........................................................................70
***Judicial Activism***..........................................................................72
Uniqueness – Activism High.................................................................73
Uniqueness – Activism Low..................................................................74
Court Policy = Activist..........................................................................80
Court Action on Poverty = Activist.......................................................81
Court Action on Poverty = Activist.......................................................84
Activism Snowball Effect......................................................................85
Activism Hurts Rule of Law...................................................................86
Activism Hurts Separation of Powers....................................................87
“The hot tub is too hot!” 1

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***Morgan Powers CP***......................................................................89

1NC Shell..............................................................................................90
Solvency Extensions.............................................................................91
Solvency Natives..................................................................................92
Solvency Immigration...........................................................................94
Solvency Prisons...................................................................................97
Solvency Broadband.............................................................................99
Solvency Generic................................................................................101
AT: Perm Do Both...............................................................................110
AT: Judicial Rollback...........................................................................112
AT: Separation of Powers...................................................................115
AT: Can’t Solve Rights........................................................................117
Internal Net Benefit............................................................................118
Hate Crimes Module...........................................................................119
Hate Crimes Extensions.....................................................................121
Gun Control Module............................................................................125
Congress > Courts..............................................................................127
Congress > Courts (Immigration).......................................................129
Congress > Courts (Enforcement)......................................................132
Aff Trades Off With Gun Regulation....................................................135
Aff Trades Off With Immigration Reform............................................136
Supreme Court...................................................................................137
Court of Appeals.................................................................................140
AT: Congress Overturns Courts..........................................................142
AT: Hate Crimes Bad..........................................................................143

The Method
***Congress Counterplan***

The Method Lab
Congress Best
[ ] Congress works best
Long, 2001: [Carolyn Long - assistant professor of political science at
Washington State University, Vancouver, Congress Confronts the
Court, 2001, p. 92-93. Google Books]
Congress brings institutional strengths to this
As a representative branch of government,
conversation about the Constitution that do not exist on the Supreme Court.
Congress can rake the pulse of the American public and reflect its will in its legislative
proposals. Moreover, its manner of deliberating legislation provides the opportunity for
groups such as the Coalition for the Free Exercise of Religion and the
American Indian Religious Freedom Coalition to also participate in the
legislative process. Ultimately, encouraging and recognizing the role of
multiple constitutional interpreters provides the country with multiple
avenues for the protection of individual rights and liberties.

The Method
Congress Avoids/Solves Pres Powers

[ ] Congressional action checks Presidential powers
Edwin Vieira, March 17, 2008 – Edwin Vieira Jr. is an attorney and
author who concentrates on issues of constitutional law: [March 17,
2008, “Myths of Presidential Power,” The New American, vol. 24 iss. 6;
pg. 24. http://proquest.umi.com.proxy.lib.umich.edu/pqdweb?
did=1456160991&sid=2&Fmt=3&clientId=17822&RQT=309&VName=
PQD]
Over the course of many successive administrations, the presidency has

slowly accumulated unconstitutional power that the Founding Fathers never
intended. The Bush administration daily bombards Americans with hyperbole about the "inherent
powers" of the president. With each new act the president predicates on these mythical powers, their
destructive consequences expand. Recently, the president indicated in a "signing statement"
that he would disregard four provisions of the 2008 National Defense Authorization Act which, he claimed,
"could inhibit the president's ability ... to execute his authority as commander in chief." One provision
forbids expenditures "to establish any military installation or base for the permanent stationing of United
States Armed Forces in Iraq." Another requires intelligence agencies to turn over to congressional
committees "any existing intelligence assessment, report, estimate or legal opinion." A third creates a
commission to investigate mismanagement, waste, and excessive force by contractors operating in Iraq
and Afghanistan. And the fourth provides protection for whistle-blowers working for government
contractors. Defiance of Congress - and of the Constitution - so blatant requires that the legal record be set
straight. The Constitution provides that "The executive Power shall be vested in a President of the United
States." This does not grant limitless authority. Rather, constitutional "executive Power"
consists of those powers explicitly delegated to the president, and created in
the "Laws" that Congress enacts "for carrying into Execution the ... Powers
vested by this Constitution in the Government of the United States, or in any
Department or Officer thereof." Inasmuch as "All legislative Powers ... granted
[by the Constitution] shall be vested in a Congress of the United States" and
"Congress shall have Power ... to make all Laws which shall be necessary and
proper for carrying into Execution" the president's powers, the president
enjoys no lawmaking power. The president cannot add to or subtract from his
constitutional or statutory powers or duties by proclamations, executive
orders, directives, "signing statements," or any other decrees. The
Constitution subjects the president to Congress' control in several ways: *
First, exercising its authority "To make all Laws which shall be necessary and proper," Congress
may give to or withhold from the president whatever constitutionally valid executive powers it deems fit,
qualifying or restricting those powers as to the periods of time in which they may be effective, the
purposes for and conditions under which they may be employed, the extent to which their operations may
be subject to judicial review, and so on. * Second, because "No Money shall be drawn from the Treasury,
but in Consequence of Appropriations made by Law," Congress may specify precisely when, where, and
how the president shall spend - or not spend - whatever "Money" may be necessary "for carrying into
Execution" any or all of his powers. * Third, within the limits of its own constitutional
authority, Congress can create whatever agencies, offices, and officers it
deems "necessary and proper" to fulfill the functions of the executive branch,
and can set their durations, purposes, powers, terms and conditions of service, and budgets. * Fourth, the
president can neither dispense members of the executive branch from their
duties as imposed by law, nor add to those duties - Kendall v. United States ex rel.
Stokes, 37 U.S. (12 Peters) 524, 610, 612-613 (1838). And he must assume ultimate responsibility for
whatever transpires in the executive branch. * Fifth, if the president balks at carrying out Congress'
directives, or if he orders, is complicit in, allows, or recklessly disregards illegal activities within the

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executive branch - in violation of his constitutional duty to "take Care that the Laws be faithfully executed"
- he can be impeached, convicted, and removed from office for "high Crimes and Misdemeanors," and then
prosecuted criminally, not only under the laws of the United States proper but also for "Offences against
the Law of Nations" that Congress has "define[d]." That the status of commander in chief is explicitly
delegated establishes that it is not inherent in "The executive Power." Had it not been delegated, the
president could not claim it. Moreover, the president is not commander in chief of the country as a whole -
akin to some Führer or Duce - or even of the General Government. In the words of the Constitution, he is
merely "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several
This narrow specification of
States, when called into the actual Service of the United States."
authority proves how little power the president can exercise. Here, one must
contrast the executive power the king of Great Britain exercised in the late 1700s. As Sir William
Blackstone explained in his Commentaries on the Laws of England, the king enjoyed "the sole prerogative
of making war and peace"; acted "as the generalissimo, or the first in military command, within the
kingdom"; and exercised "the sole power of raising and regulating fleets and armies" and "the sole
supreme government and command of the militia."
The Constitution, however, denies the
president all of this authority, except the office of commander in chief,
assigning it instead to Congress.

The Method
[ ] Congressional action is critical to confine presidential
powers and keep separation of powers intact
Boston Globe, 2006 – Charlie Savage is a Boston Globe Staff writer:
[July 24, 2006, “Panel Chides Bush on bypassing laws ABA group cites
limits to power,” Boston Globe
http://www.boston.com/news/nation/washington/articles/2006/07/24/pa
nel_chides_bush_on_bypassing_laws/?page=1
WASHINGTON -- President Bush should stop issuing statements claiming the power to bypass parts of laws
he has signed, an American Bar Association task force has unanimously concluded in a strongly worded
32-page report that is scheduled to be released today. The bipartisan panel of legal specialists includes a
former FBI director, a former federal appeals court chief judge, former Republican officials, and leading
scholars. The panel said presidents do not have the authority to declare that
sections of the bills they sign are unconstitutional, and that they thus need
not be enforced as Congress wrote them. Bush has used these so-called
signing statements to challenge more than 750 laws that have been enacted
since he took office, more than all previous presidents combined.`` The
president's constitutional duty is to enforce laws he has signed into being,
unless and until they are held unconstitutional by the Supreme Court," the report said. ``The
Constitution is not what the president says it is." The task force will present its findings
next month in Hawaii at a meeting of the bar group's 550-member House of Delegates. The delegates will
vote on whether to adopt the recommendations. The task force chairman and a former federal
prosecutor, Neal Sonnett , said he hoped the House of Delegates would back the
panel's call to roll back the use of presidential signing statements.`` The
recommendations that we make are an effort to correct practices that, if they continue, threaten to throw
this country into a constitutional crisis," Sonnett said. ``Most of the members of the House of Delegates
are very concerned about upholding the rule of law. That is, after all, the mission of the ABA. So I'm
hopeful that we will get a resounding show of support." The ABA's board of governors created the task
force in June, at the request of the bar group's president, Michael Greco, a Boston lawyer. The move
followed the publication of a series of articles in The Boston Globe about Bush's expanded use of signing
statements. Citing an expansive theory of executive power that is not supported by most legal scholars,
the administration has declared that the Constitution puts Bush beyond the reach of Congress in military
matters and executive branch operations.The laws Bush has challenged include a ban on torturing
detainees, oversight provisions in the USA Patriot Act, restrictions against using US troops in combat
against rebels in Colombia, and numerous requirements to provide information to Congress, among many
others. At the same time, Bush has vetoed just one bill since he took office. In its report, the task force
acknowledged that its work had been prompted by ``the number and nature of the current president's
signing statements," but it emphasized that its criticism was ``not intended to be, and should not be
viewed as, an attack on President George W. Bush." The panel noted that especially since the 1980s,
previous presidents of both parties had also used signing statements to challenge laws, albeit less
frequently. President Clinton, for example, used signing statements to challenge 140 laws over his eight
years in office. The task force characterized all such statements as inappropriate.`` Our
recommendations . . . are directed not just at the sitting president, but at all
chief executives who will follow him, and they are intended to underscore the
importance of the doctrine of separation of powers," the panel wrote. Last month at a
Senate Judiciary Committee hearing, an administration lawyer, Michelle Boardman,
defended the use of presidential signing statements. Boardman argued that
the president was showing respect to Congress by using signing statements, because
a veto would take out the entire bill. But the task force said a president does
not have that option. The Constitution requires the president either to veto a
bill in its entirety -- giving Congress a chance to override his decision -- or to
sign the bill and enforce all its components as Congress wrote them, they
said.`À line-item veto is not a constitutionally permissible alternative, even when the president believes
that some provisions of a bill are unconstitutional. . . . A president could easily contrive a constitutional
excuse to decline enforcement of any law he deplored, and transform his qualified veto into a monarch-like
absolute veto," the panel wrote. At the hearing last month, Boardman also argued that presidents must
use signing statements, because it is often impractical to veto an entire bill over small constitutional

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problems if the bill contains other measures that the executive branch deems are urgently needed. The
ABA task force, however, said that the Constitution's limits on presidential power trump such pragmatic
considerations.`` The Founding Fathers contemplated bills with both attractive and unattractive features
packaged in one bill with heterogeneous provisions," the panel wrote. ``The president nonetheless was
expected to veto ùrgent' bills that he believed were unconstitutional in part.`` If the urgency were
genuine, Congress could either delete the offending provisions or override the president," the panel wrote
in its report. If Congress and the White House cannot reach an agreement on the signing statements, the
task force added, both sides should take steps to put the issue before a court for review. The report urged
Congress to pass legislation giving it standing to sue a president over such signing statements. The idea of
legislation allowing Congress to sue the White House over signing statements has also been floated by the
Arlen Specter, Republican of Pennsylvania, who has
Senate Judiciary Committee chairman,
accused Bush of `à very blatant encroachment" on the constitutional
prerogative of Congress to write laws.

The Method
[ ] Congress provides necessary opposition to the
President’s policies
Douglas J. Hoekstra, 1985 (Professor at James Madison University,
‘”Presidential Power’ and Presidential Purpose”, Cambridge University)
The more determinedly a president seeks power, the more he contributes to the energy of government. In
Congress and the agencies and in the national parties, energy is generated
by support or opposition. But first there must be something to support or to
oppose. Most Washingtonians look to the White House for it. There often is no
other place to look. Not just any initiatives are acceptable. A president's fortunes depend on the
"viability" of the initiatives launched, and thus in Neustadt's view presidential ambitions converge with
sound policy, with both shaped by the president's unique place as the only officer with a national
constituency. The things a president must think about if he would build his influence are not unlike those
bearing on the viability of public policy. The very breadth and sweep of his
constituencies and of their calls upon him, along with the uncertainty of their
response, will make him keen to see and weigh [the] balance of political,
managerial, psychological and personal feasibilities. And because the president's own
frame of reference is at once so all-encompassing and so political, what he sees as a balance for himself is
likely to be close to what is viable in terms of public policy
[ ] The Congress checks the Presidential authority creating

a necessary balance of power
Paul Jenks, 5-29-2007 (Government Relations, “Checks on Power”,
http://www.llrx.com/congress.checksonpower.htm)
Recent Congressional changes has brought into view a number of different

mechanisms Congress has at is disposal to check Presidential authority. The
most basic check on Presidential authority lies in the creation of statutory authority. Outside of powers
allocated by the Constitution, every other power the President has comes from
statutes (law) approved by Congress. For over 200 years Congress has been
allocating all kinds of authority to the President. This check on authority however can be
subject to all kinds of interpretation. The President may maintain he already has the authority to do
something and goes ahead and does it. This has happened in recent cases relating to intelligence
gathering authority. Sometimes Congress maintains the statute requires the President
to do something that the President does not. For example the Clean Air Act (the Supreme Court
recently ruled) requires the Environmental Protection Agency (EPA) to monitor certain particulate
emissions from power plants. The EPA (an Executive Agency) didn't think it had that authority.
[ ] Congress checks the power of executive agencies

Paul Jenks, 5-29-2007 (Government Relations, “Checks on Power”,
http://www.llrx.com/congress.checksonpower.htm)
Congress also has the power to review the performance of executive

agencies. They do so with oversight hearings. Though not a real check on Presidential
authority, hearings could provide some pause for some more controversial
actions of a President. Recent hearings featuring the Attorney General illustrate this. The Attorney
General is embroiled in a controversy over the firing of US Attorneys (an executive branch prerogative).
Congress chose to call the Attorney General in for a very uncomfortable hearing. If anything criminal is
found during a Congressional oversight investigation, the case could be referred to the Justice Department,
but then again - that is under the President's authority. You can perhaps see the pitfalls of this type of
check on executive powers. In the end, if Congress doesn't want the President to have a
specific power (assuming it is not a constitutionally granted power), they can

The Method Lab
legislate it away, if there are more than 2/3rds of the members of Congress
who agree.

The Method
Solvency Immigrants
[ ] Congress is all that’s preventing undocumented
immigrants from receiving aid
Rebekah Diller, 2008 (Deputy director of the Justice Program at the
Brennan Center for Justice at New York University, “Restoring Legal Aid
for the Poor”
http://brennan.3cdn.net/cb6f9e733fc82c6cb5_b8m6iiy2r.pdf)
The capacity of people to secure meaningful access to the courts is also

impeded by the extreme and ill-conceived funding restrictions imposed on
LSC-funded legal aid programs in 1996. First, Congress restricted LSC clients
from using the full range of legal tools available to clients of all other lawyers,
such as participating in class actions and seeking court-ordered attorneys’ fee awards.4 Second,
Congress made all undocumented immigrants, certain categories of legal
immigrants, and people in prison ineligible for LSC-funded services.5 Finally, Congress
imposed an extraordinarily harsh poison pill restriction on LSC-funded
programs that extends the federal funding restrictions to cover the non-LSC
funded activities of LSC recipients. As a result, more than $450 million from state and local
governments, private donations, and other non-LSC sources is restricted under the same terms as the LSC
funds.6 All of these restrictions should be removed, starting with the poison pill “restriction on state, local,
and private funds” that encumbers all the money possessed by LSC recipient programs from all sources
other than LSC. The restriction on state, local, and private funds is virtually unprecedented, and
immediately should be excised from the next LSC appropriations rider.

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Solvency Nursing Homes

[ ] Congress’s regulations are vital for nursing homes to
functions adequately
Eleanor Kinney, 1994 (“Private Accreditation as a Substitute for Direct
Government Regulation in Public Health Insurance Programs: When Is
It Appropriate?” Duke University School of Law)
Private accreditation for nursing homes has always been controversial.

Congress had been concerned about the adequacy of state licensure for
nursing homes since the inception of the Medicare and Medicaid programs and had admonished
states to improve licensure programs.2 In the late 1960s, Congress began holding extensive hearings on
the serious quality problems in nursing homes throughout the United States93 and produced a
multivolume report outlining the serious quality problems in nursing homes and the inability of states as
well as HEW to assure quality effectively.4 Consequently, in the Social Security Amendments of 1972,
Congress specifically took steps to address these problems by creating a new
category of nursing facility, called "skilled nursing facilities," to provide skilled
nursing care under both the Medicare and Medicaid programs. All skilled nursing
facilities, whether participating in Medicare or Medicaid, were subject to the same conditions of
participation and the same federally funded state survey and certification program.

The Method
Solvency Health Care
[ ] Private organizations cant keep up with federal
standards on health care
However, there are important issues regarding the delegation of the standard setting function as well.
Under the predominant model for use of private accreditors in government
health insurance programs, such as the Medicare program, the standards of
private accreditors can serve only as the basis of the Medicare program's
quality definition and assurance function if they track the Medicare
Conditions of Participation.'63 For example, as discussed above, HCFA deferred recognition of
two private accreditors for home health agencies after Congress changed the conditions of
participation for home health agencies, because the standards of the private
accreditors needed revision to comport with the revised federal standards.'64
Thus, even though the Medicare statute ostensibly encourages the use of private accreditation to define
quality, the pressure on private accreditors to be recognized by the Medicare program results in a
convergence of the standards of private accreditors with the Medicare Conditions of Participation. This
phenomenon is unfortunate. According accrediting bodies the imprimatur of
government approval when their standards conform to government
standards for government health insurance programs has a potentially
undesirable impact on the development of new quality standards and
measures. It is significant that the JCAHO, the predominant accreditor for health care institutions, has
really not been the leader in developing quality standards for any health care institution. Indeed, the two
major quality assurance movements of the last twenty years, the emphasis on outcomes as the definitive
feature of quality165 and the total quality management movement,66 developed first within health
institutions and the health services research community. Only later, and then only in response to pressure
from these constituencies, did JCAHO standards incorporate these innovative developments into quality
assurance in the health care field.167 Now the JCAHO sees outcomes and other similar clinical indicators
as crucial components of quality assurance that serve to meet the public accountability needs of health
care institutions:
[ ] Congress has more regulations on healthcare and solves

better than private accreditors
Another problem with government delegation of the standard setting function

for public health insurance programs for private accrediting bodies is
accountability, particularly to consumers. Generally, when the federal
government sets important standards for public health insurance programs, it
uses rulemaking procedures such as the notice-and-comment procedures
under the Administrative Procedure Act, which provides notice to consumers of the
proposed standards and an opportunity to comment. With private accreditors, the process
for influencing the content of standards is less accessible. Private accreditors
do not have comparable formal processes by which to contact consumers in a
systematic fashion and to assure that all consumers have an opportunity to
influence the content of the standards. Furthermore, few legal remedies exist to enforce the
accountability of private accreditors in their exercise of the standard setting function, particularly for

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consumers. Specifically, due process protections are really only available to parties challenging the
compliance determination function of an accrediting body, an adjudicative activity, and not the standard
Generally, individuals have greater rights to
setting function, a legislative activity.
protection under due process when government or its delegates are
adjudicating rights and responsibilities under existing laws and policy than when
government and its delegates are engaged in the legislative function of policymaking. The Supreme Court
has been quite emphatic in its declaration that legislative decisions do not warrant the provision of an
individual process for those who would challenge the decision.

The Method
[ ] Empirically proven, healthcare works more efficiently
through the government than private sectors
Bill Cissell, 6-13-09 (“Private Sector versus Government Health Care
Management”, http://hedir.hpcareernetwork.com/?p=440)
Supporters of government involvement in health care point to the fact that

the US government is already assuring health care for the aged, those with
low incomes, veterans and government employees, including members of
Congress. The federal and state governments of the US already pay for more than 44% of health care
costs in our country. Also, they note that thecost of health care in the US is above 17% of GDP, while it is
11% of the GDP of France. According to an article in The Dallas Morning News of May 18, 2009, the
average cost of health care for an individual in the US in 2006 was $6,714, while for the individual in
France it was $3,450. While anybody living in France for more than three months is
covered by the national health insurance program, it is estimated that approximately 45
million citizens of our country have no health insurance. The French health care system is not perfect;
people of lower middle income complain that they cannot afford supplemental health insurance available
to those who can afford it. As a result, many have to pay more for their medical care costs than the rich
and the poor, with the latter having their supplemental health insurance paid by the French government.
France is struggling to cover rising health care costs within its national budget, but its problem is
considerably smaller and more manageable than the health care costs problems facing both the
government and private citizens in our country. Germany has per capita health care costs
similar to those of France. The average cost per person in Germany in 2005
was $3,628, which was just over half the cost in the US, and German health
care costs were 10.7% of GDP, as compared with over 16% in the US in that
year. The World Health Organization rated the German health care system as 25th or 191 national
systems, or 12 positions ahead of the US “system”.
[ ] Congressional management in healthcare is far superior

to that of private industries
Bill Cissell, 6-13-09 (“Private Sector versus Government Health Care
Management”, http://hedir.hpcareernetwork.com/?p=440)
While top Republican leaders say government cannot run a health care system a well as private sector
businesses, we have decades of evidence that governments in other countries
are running their health care systems more effectively than the combined
governments and private sector businesses management pattern in our
country. American private sector businesses failed badly in recent years in
managing the real estate market, banking, hedge fund investments,
automobile manufacturing and marketing, high tech corporations, utilities
distribution and insurance businesses. Why should we buy the old saw that private industry
can manage health care better than governments?

The Method Lab
Generic Solvency
[ ] Non-governmental legal aid groups cannot solve
Laura MacCleery, 06-16-09 (NYU Press, “A Legal Practice Well Worth
Doing” http://www.brennancenter.org/blog/category/civil_legal_aid/)
The decline in interest rates undercuts the interest earned on a key kind of
account maintained by lawyers, called the Interest on Lawyers Trust Accounts (IOLTA), a major source of
funding for legal aid organizations. Cash-strapped legal aid groups may be
fielding more demands than ever, yet find themselves less able to provide
services than they were even just last year. And it is no secret that, even in flush times,
the best efforts of these groups barely scratch the surface of the legal needs of poor communities and
families. While the victims of Bernie Madoff will almost certainly have their day in court, it's clear that for
many victims of mortgage fraud and predatory lending schemes, workplace harassment, landlord-tenant
disputes, credit problems, or those grappling with mental illness, securing a lawyer with the
time and inclination to properly address their needs remains a pipedream.
[ ] Governmental agencies are more efficient than private

organizations
Avinash Dixit, 1997 (MIT Press, “Power of Incentives in Private versus
Public Organizations” American Economic Association)
Some differences are matters of degree. Government agencies' outputs are

often harder to quantify and measure. The goods and services they supply
usually have few close substitutes, making it difficult to use market- based or
yardstick competition for incentives. Sometimes this can be done; the Gore report (1995 pp.
95-8, 130-1) stresses the concept and gives examples. Some government agencies have one
advantage over private firms: they provide services to poor, old, or disabled
people, and the managers' or workers' own compassion or social concern can
motivate their performance without the need for incentives. In fact the workers may
go so far in helping their clientele as to clash with the agency's other objectives; James Heckman et al.
(1996) provide an example of this.

The Method
Congressional Approach Solves Better

[ ] Society requires a community-based approach to the
practice of law, which can be provided through governmental
organizations.
Laura MacCleery, 06-16-09 (NYU Press, “A Legal Practice Well Worth
Doing” http://www.brennancenter.org/blog/category/civil_legal_aid/)
After losing many of the struggles to enshrine social entitlements that were
part of the so-called "War on Poverty," immediate goals for legal practitioners
did - and had to - rise to the forefront as part of a far more piecemeal
approach to legal practice.Particularly against the current legal backdrop of
largely conservative courts, as well as federal funding restrictions that prohibit
many legal aid lawyers from bringing class actions and other important types of cases, it became
more crucial for legal services and community-based lawyers to ensure that
their work did not re-victimize poor clients as those clients sought
justice.Scores of law review articles were published as part of what Shdaimah calls the
"progressive lawyering" approach, which encouraged legal services lawyers to use
opportunities to listen more closely to clients, to maximize client autonomy and lawyer-
client collaboration, and to gain self-awareness about the limitations of lawyerly expertise in telling
client stories. The obvious class divisions among lawyers and poor clients were also highlighted.As a
conversation, it revealed a clear need for community-based and more holistic, inclusive approaches to the
practice of law that included access to non-legal help as well as self-help, and
justified organizations' attempts to transcend a narrowly legal approach by grappling with at least some
other negative pressures in clients' lives.Most
of these insights are now accepted widely
by legal services lawyers. They are an important aspect of both aspirations
and achievements of legal services organizations, including such local, multi-
dimensional organizations such as Make the Road by Walking or The Neighborhood Defender
Service of Harlem.
[ ] The State maintains control and stability through

securing legitimacy
Jerry D. Goodstein, 2009 (Professor at Washington State University,
“States, Power, Legitimacy, and Maintaining Institutional Control: The
Battle for Private Sector Telecommunication Services in Zimbabwe”
Organization Studies)
The role of state power in maintaining institutional control and this important
relationship with legitimacy emphasized by Stinchcombe (1968) have received little
attention from organizational scholars. In large part this is because studies of institutions
previously have been carried out in contexts with stable institutional structures and where state autonomy
to control critical sectors of society is rarely challenged (Simons and Ingram 2003). In these settings,
states seek to maintain institutional control primarily through securing
legitimacy. When we study contexts with less stable institutional environments, such as postcolonial
states, we see a much greater role for the use of state power in the
maintenance of institutional control. These contexts provide an opportunity to learn more about
the state’s use of coercive strategies to maintain institutional patterns of control and authority when
directly challenged by organizations attempting to disrupt existing institutions such as constitutions, laws,
and property rights (Lawrence and Suddaby 2006; North 1990). These settings also allow researchers to
direct attention to those challenging powerful states and attempting to limit the use of state coercion and
power. The use of power and coercive actions represent important and

The Method Lab
understudied strategies by which states undertake critical ‘institutional work’

to maintain institutions and associated structures and processes (Lawrence and
Suddaby 2006). We know little about how states call on other centers of power to legitimate these
strategies, or the strategies individuals or organizations employ to disrupt existing institutionalized
patterns of control and authority (Lawrence and Suddaby 2006).

The Method
Solvency Edu., Health Care, Welfare
[ ] Congressional involvement solves better for education,
health care, and welfare benefits
Noah Pickus 2009 (Duke University, “Perspective on Politics”
Cambridge University Press)
The book also prompts questions about the continued success of the Canadian model. Bloemraad
observes, for example, that government funding has been significantly cut back in recent years, and as a
result, relations between government agencies and community organizations in Canada are increasingly
strained. One might also ask whether the more bureaucratic Canadian model risks
undermining the cultural vitality of ethnic groups as it increases their political participation.
Canadian multicultural policies might also risk reifying ethnic and racial identities and hardening divisions
that in practice, a more
in society. The author acknowledges such concerns but contends
benign and fluid dynamic develops. Specifically, immigrants are provided
resources to shoulder some of the responsibility for their own integration, and
just as important, are seen to be doing so. In addition, Canadians’ broad support for
public institutions (such as schools), as well as for health and welfare
benefits, makes it easier for immigrants to become integrated as full citizens.

The Method Lab
Solvency Natives
[ ] Empirically proven- Congress can solve for Native health
services
M.T. Allison et al. 2007 (Native American Liaison, Arizona Department
of Health Services, “Future public health delivery models for Native
American tribes” The Royal Institute of Public Health)
In 1975, the US Congress passed P.L. (public law) 93-638, the Indian Self-Determination
and Education Assistance Act. Among other provisions, this act allowed the contracting of IHS
and Bureau of Indian Affairs functions by federally recognized Native
American tribes and tribal organizations. Since the passage of this act, Native American
tribes and tribal organizations have contracted a majority of the IHS functions and facilities, with
approximately 44% of the existing IHS budget now being contracted to tribes and tribal organizations. In
1997, a study conducted by the National Indian Health Board (a national Native American health care
advocacy entity) showed that a majority of the Native American tribes receiving their
health care from tribally contracted entities rated their health care as now
being better than it was under direct IHS management. Moreover, as Table 3
indicates, 74% of the total health care facilities are tribally operated. The IHS program is
delivered to a service population of 1.4 million American Indians/Alaska
Natives through 155 service units composed of 594 direct health care
delivery facilities, including 49 hospitals, 231 health centers, five school
health centers, and 309 health stations, satellite clinics, and Alaska village
clinics. The range of services includes traditional inpatient and ambulatory
care and preventive activities. In addition, the IHS is responsible for environmental health on
reservations including health facilities management, health facilities construction, and sanitation system
construction and maintenance.

The Method
Solvency Veterans
[ ] The Congress can successfully provide social services to
Veteran; VR&E empirically proves
Christine Scott and Carol D. Davis, 3-12-09 (Specialist in Social Policy,
Information Research Specialist, “Veterans’ Benefits: The Vocational
Rehabilitation and Employment Program”, Congressional Research
Service)
Congress authorized the Department of Veterans Affairs (VA), through the

Vocational Rehabilitation & Employment Service (VR&E), to provide the
support disabled veterans’ need to successfully complete rehabilitation plans
tailored to their individual needs. The VR&E has recently restructured its
program in an effort to better accomplish the goal of enabling disabled
veterans to gain appropriate employment or live independently. More specialists
and counselors have been hired in regional VA offices, and the VR&E has instituted outreach efforts to
encourage more veterans who might be eligible for these services to apply to participate in the program.
The VR&E has also entered into cooperative agreements with other federal
agencies, such as the Department of Labor and the Department of Education,
and with private organizations, providing an integrated approach to
addressing the employment needs of disabled service members and
veterans.

The Method Lab
Solvency Broadband
[ ] Congress has the power to provide broadband service to
those in poverty
S. Derek Turner, August 2006 (Research Director, Free Press ,
“Broadband Reality Check : The Truth Behind America’s Digital
Decline”)
U.S. broadband connections are slow, expensive and not available to

everyone. Congress and the FCC have the power to reverse these disturbing
trends, but they need to take an honest look at the lack of meaningful
competition in the broadband services market. Faith-based policy and wishful thinking
will not bring broadband to rural areas, and the repeated use of misleading data will not help low-income
consumers afford broadband.
[ ] The Congress can promote universal internet access to

all
Stephanie Condon, 9-30-2008 (CBS Staff Writer, “Broadband data
collection bill clears Congress” http://news.cnet.com/8301-13578_3-
10054490-38.html)
Passed unanimously in the Senate on Thursday, the Broadband Data

Improvement Act now awaits the president's signature. The legislation,
introduced by Sen. Daniel Inouye, D-Hawaii, in 2007, calls for the Federal
Communications Commission to collect a broader swath of information
regarding who has broadband access. "We cannot manage what we do not measure," Inouye
said. "This bill will give us the baseline statistics we need in order to eventually achieve the successful
deployment of broadband access and services to all Americans." The bill requires the
commission to redefine broadband. In April, the commission voted to consider 768Kbps,
which is the entry-level speed offered by major DSL providers like Verizon, the low end of "basic
broadband," a range that extends to under 1.5Mbps. For years, the commission had considered 200Kbps
service to be "high speed." Internet service provider reports to the FCC would also
have to be adjusted under the bill, so the FCC can identify the actual
numbers of broadband connections by customer type and geographic area.
The commission would also be required to identify tiers of broadband service in which most connections
can transmit high-definition video, as well as collect demographic data for geographical areas not served
by any advanced telecommunications provider. The bill also requires other government
offices to collect information, such as whether Internet subscribers use dial-
up or broadband. The bill also establishes a grant program for organizations
to track and promote Internet usage. "With this legislation, the Senate has
taken a crucial step toward a national broadband policy," said Ben Scott, policy
director of Free Press, a media reform organization. "The data collected would lay the
foundation for policies in the next Congress to promote universal, affordable
high-speed Internet access for all Americans."

The Method
Congress Can Overturn Court Decisions

[ ] Congress can functionally overturn Supreme Court
decisions
Puro, 2000: [Stephen PUro - Professor Political Science and Public
Policy, Saint Louis University, 2000, “SYMPOSIUM CONGRESS: DOES IT
ABDICATE ITS POWER?: CONGRESS-SUPREME COURT RELATIONS:
STRATEGIES OF POWER”, 19 St. Louis U. Pub. L. Rev. 117, 2000 pg. ]
The 1950s and 1980s featured statutory and constitutional conflict between
the Court and Congress. In general, Congress and the Court had different
ideological positions on many issues, including government actions against
persons accused of subversive activities and the scope of civil rights laws.
Congress established an institutional voice that regularly reversed Supreme
Court decisions. To give examples, in the late 1950s Congress authorized a more conservative
interpretation of suspected individuals' rights against government investigations. The Supreme
Court recognized this interpretation's stability and certainty by reversing
some of its earlier rulings and restoring investigative power to Congress. In the
1980s, Congress, which opposed conservative Court decisions narrowing the
scope of civil rights and liberties, passed legislation to broaden civil rights
protections, especially those of the 1964 Civil Rights Act. For example, Title VI of the Civil Rights Act of
1964 established that programs receiving federal funds could not discriminate based on race or national
origin and that federal funding could be terminated if the programs discriminated. In Grove City College v.
Bell the Court, agreeing with the Reagan Administration, narrowed the statute's application to specific
programs only, not the entire institution, in a case technically involving Title IX of the Federal Education
Congress's
Act of 1972. Congress overturned this ruling in the Civil Rights Restoration Act of 1987.
willingness to rewrite legislation that has been overturned by the Supreme
Court has been limited by divisions within Congress and the constitutional or
legislative interpretations of key committee members. Canon and Johnson argue that
the Court can make lasting policy interpretations more easily when Congress has sharply divided policy
preferences. But when there are solid coalitions opposing the Court in Congress, Congress can enforce its
preferences against the Court's.

The Method Lab
AT: Perm
[ ] Congress solves best alone, the perm makes clash
inevitable
Bruce Fein, 9-18-07 (Constitutional Lawyer and Chairman of the
American Freedom Agenda, "Strengthening Congress?" The
Washington Times)
The Founding Fathers believed congressional tyranny was more to be feared

than executive usurpations and abuses. The opposite has proven true. Power
has migrated to the president as the United States has climbed to
superpower status and national security affairs have come to dominate
the political agenda. And Congress has lost institutional pride, resolve and
cohesiveness in clashes with the White House over legislation and oversight.
Loyalty to party trumps loyalty to constitutional checks and balances. And
members of Congress are too unschooled or uncaring to resist their descent
into semi-irrelevancy or vassalage to the president. Congressional oversight
has been frustrated by extravagant claims of executive privilege to prevent
current or former executive officials from testifying, for example, Karl Rove,
Harriet Miers and Joshua Bolten. Information is power. And without
information as to what the executive branch is doing, Congress is
powerless to deter wrongdoing or lawlessness by exposure or to know
what new laws are appropriate. President Bush, for example,
frightened Congress into enacting the Protect America Act in early
August by claiming secret information about international terrorism
proved congressional inaction would cause American deaths. Congress
had no independent way to verify Mr. Bush's assertion and succumbed
to his fear-mongering. The congressional power to legislate has been
compromised by signing statements that declare the president's intent to
disregard provisions of bills he has signed into law because he maintains they
are unconstitutional. Signing statements are tantamount to absolute
line-item vetoes, which the U.S. Supreme Court held unconstitutional in
Clinton v. New York. They result in enforcement of laws Congress did not
pass. Members vote for an entire bill, not an expurgated edition published by
the president.

The Method
AT: Courts Rollback
[ ] The supreme court should not be able to overrule
congress.
The Boston Globe 2007 [Christopher Shea "Supreme downsizing - A
growing group of scholars from both left and right say the nation's
highest court is out of control. Cut back its power, they argue, and the
country will be better off." October 7, 2007, Lexis]
But perhaps the court shouldn't be in such a powerful position at all. Adrian
Vermeule, a rising-star professor at Harvard Law School with a deep family legacy in
Boston intellectual circles, says this entire conception of the Supreme Court - nine
wise and isolated elders fighting over when and whether to overrule Congress - is
hopelessly flawed. It promises only perpetual rancor and inconsistency, he
argues: the bane of good law. The court, he concludes, should stay out of
controversial matters of politics and law almost entirely, deferring - except in
painfully obvious cases - to the wisdom of elected representatives in
Congress.
[ ] Supreme Court refused to strike down a congressional

proposals
Bader, June 22, 2009 [Hans, Counsel at the Competitive Enterprise
Institute in Washington "Supreme Court limits Voting Rights Act's
reach, but declines to strike down key section of the Act"
http://www.examiner.com/x-7812-DC-SCOTUS-
Examiner~y2009m6d22-Supreme-Court-limits-Voting-Rights-Acts-
reach-but-declines-to-strike-down-key-section-of-the-Act]
By an 8-to-1 vote, the Justices refused to strike down the pre-clearance

requirements of the Act as unconstitutional, in the case decided today, Northwest Austin
Municipal Utility District No. 1 v. Holder. Justice Clarence Thomas dissented, saying that Section 5 of the
Act violated federalism provisions of the Constitution, since the extraordinary remedy of requiring pre-
clearance could only be imposed if state and local governments were engaging in discrimination that was
too pervasive to be checked on a case-by-case basis in lawsuits.
In 1966, the Supreme Court, in an 8-to-1 vote, upheld an earlier, less

burdensome preclearance requirement, based on rampant, systematic discrimination against
black voters, reasoning that its “strong medicine” was a temporary abrogation of constitutional federalism
principles necessary for black people to be able to vote. Justice Black partially dissented in that case,
South Carolina v. Katzenbach, arguing that Section 5’s “requirement that States come to Washington to
have their laws judged is reminiscent of the deeply resented practices used by the English crown in
dealing with the American colonies,” which Americans protested in the Declaration of Independence.

The Method Lab
***Presidential Powers***

The Method
Uniqueness Pres Powers Low
[ ] Congress is containing executive power now
Greenwald, February 12, 2009: [Glenn Greenwald – constitutional law
and civil rights litigator in New York. February 12, 2009,
Commondreams.org, “Congres Takes First Step to impose Limits on
Obama’s Executive Power.” Initially published at Salon.com
http://www.commondreams.org/print/38083 ]
the State Secrets Protection Act of 2008 [1], which was

Earlier this week, I wrote about
co-sponsored by numerous key Senators [including Joe Biden and Hillary Clinton, as well as
the Senate Judiciary Committee's Chair (Pat Leahy) and ranking member (Arlen Specter)], and which
was approved by the Judiciary Committee last year with all Democrats voting
in favor. That bill [2], in essence, sought to ban the exact abuse of the State
Secrets privilege which the Bush administration repeatedly invoked and
which, now, the Obama administration has embraced: namely, as a weapon to
conceal and immunize government lawbreaking (by compelling the dismissal of entire lawsuits in advance)
rather than a limited, document-by-document evidentiary privilege. Yesterday -- as
an obvious
response to the Obama DOJ's support for the Bush view of the privilege --
Leahy and Specter, along with Russ Feingold, Claire McCaskill, Sheldon
Whitehouse and Ted Kennedy, re-introduced that bill in the Senate. When doing
so, Leahy made clear [3] that the bill was more needed than ever in light of the actions of the Obama
administration: During the Bush administration, the state secrets privilege was used to avoid judicial
review and skirt accountability by ending cases without consideration of the merits [ed: exactly what the
Obama DOJ endorsed this week]. It was used to stymie litigation at its very inception in cases alleging
egregious Government misconduct, such as extraordinary rendition and warrantless eavesdropping on the
communications of Americans [ed: exactly what the Obama DOJ endorsed this week]. . . . We held a
Committee hearing on this issue last year, and the appropriate use of this privilege remains an area of
concern for me and for the cosponsors of this bill. In light of the pending cases where this privilege has
been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill-afford to
delay consideration of this important legislation.
Sen. Feingold explicitly criticized the
Obama administration [4] earlier this week for its endorsement of exactly
these abusive theories. Several hours before the Senate bill was introduced,
several key House Democrats introduced a similar bill in the House [5]. The
ACLU promptly endorsed [6] the bill. A President who seeks to aggrandize his
own power through wildly expansive claims of executive authority ought to
be vigorously criticized. But the ultimate responsibility to put a stop to that
lies with the Congress (and the courts). More than anything else, it was the failure of the Congress
to rein in the abuses of the Bush presidency (when they weren't actively endorsing those abuses) that was
the ultimate enabling force of the extremism and destruction of the last eight years. What we need far
more than a benevolent and magnanimous President is a re-assertion of Congressional authority as a
check on executive power.
Even if Obama decided unilaterally to refrain from
exercising some of the powers which the Bush administration seized, that
would be a woefully insufficient check against future abuse, since it would
mean that these liberties would be preserved only when a benevolent ruler
occupies the White House (and, then, only when the benevolent occupant decides not to use the
power). Acts of Congress -- along with meaningful, enforced oversight of the
President -- are indispensable for preventing these abuses. And that's true whether
or not one believes that the current occupant of the Oval Office is a good, kind and trustworthy ruler. My
time is limited this morning, but Chris in DC -- a Washington lawyer and regular commenter here --
elaborates on his own blog [7] as to why it is a re-assertion of Congressional authority (not kind and good
acts from Obama) that is the paramount priority: What is often overlooked in all these discussions about
the specific abuses of the Bush administration, amid all the resentment toward a particular president and
his Republican party, is how much severe damage these excesses are doing to the very structure of our
constitutional system. That corrosion of all sources of institutional (and popular) power other than the
federal executive branch is, to me, far more egregious, more significant, and more difficult to reverse than

The Method Lab
the control and individual acts of a certain president or party in power at any given time. As Marcy
Wheeler notes [8], the co-sponsors of this bill are among the most influential in the Senate. The bill is
endowed with the two most precious Beltway commodities -- bipartisanship (with Specter on board) and
the blessing of a saintly "centrist" (McCaskill). It's a bill that is co-sponsored by the two leading Senators
on the Senate Judiciary Committee as well as the Chairman of the House Judiciary Committee (Conyers). If
they are serious about imposing meaningful limits on the Obama DOJ's attempt to shield the executive
branch from judicial scrutiny, they will be able to move this bill quickly. I hope to have more shortly on
ways to push that process along, but more vital even than limits on this privilege is having a Congress that
once again acts as a meaningful check on executive transgressions. Restoration of that system is of far
more enduring value than Obama's issuance of magnanimous and irrevocable-on-a-whim decrees.
[ ] Pres power low - Obama vows to decrease the amount

of executive power now
Globe and Mail, November 12, 2008: [November 12, 2008, The Globe
And Mail (Canada)division of CTVglobemedia publishing, “Executive
Excess.” Editorial pg. A22. Lexis Nexis]
The United States and the world should be heartened that president-elect
Barack Obama plans to promptly reverse some of the more egregious policies
of George W. Bush. According to the chief of his transition team, John Podesta, Mr. Obama is
beginning a review of Mr. Bush's executive orders as President, and might
rapidly overturn some of them - such as those restricting stem-cell research and opening up
wilderness to oil drilling - with his own counterorders. Many of the Bush administration's
worst policies were enacted by executive order, without congressional
approval. But Mr. Obama should think twice about his method. Executive orders, which give the
president considerable unilateral policy-making power, have a checkered history. On one hand, in the
complex political system of the U.S., presidents sometimes need to bypass an often fractious Congress. On
the other, executive orders have mandated the Second World War internment of Japanese-Americans, cut
off aid money from organizations that accepted abortion as a family-planning tool and, under Mr. Bush,
sidestepped Supreme Court rulings that prisoners in the war on terror should be treated in accordance
with the Geneva Conventions. They should be viewed with caution. Since 2001, Mr. Bush has steadily
pushed the envelope of presidential power. One of his former legal advisers, John Yoo, was well known for
advancing the notion of the U.S. presidency as a "unitary executive," with a minimum of legislative or
judicial oversight. Bush administration officials have routinely ignored congressional subpoenas.
Although Mr. Obama no doubt recognizes the dangers for U.S. democracy of
executive orders, politicians are rarely eager to surrender power. The Clinton
administration was at times almost paralyzed by congressional investigations - albeit into comparatively
trivial subjects - that Mr. Bush has been mostly able to dodge. If a rebuilt Republican Party manages to
retake one or both of the houses of Congress during the Obama administration, the White House will be
tempted to resort to Bush-like tactics. Mr. Obama is keen to mark a clean break with Mr. Bush's unpopular
policies and practices immediately after taking office in January. Yet the greatest tests of his resolve to
change the way Washington does business are well down the road. A commitment to bypass Congress by
executive order only when absolutely necessary would be an excellent early sign of the president-elect's
seriousness.

The Method
Pres Powers Brink Now

[ ] Presidential powers become irreversible, necessary to
check now
Feldman, January 8, 2006: [ Noah Feldman professor of law at Harvard
Law School. January 6, 2008, New York Time Magazine, “Who can
check the President?” http://www.lawandsecurity.org/get_article/?
id=47 ]
It is customary, when making a plea on behalf of Congress, to give the

legislature special consideration because it is the branch originally designed
to represent the people. But this is not wholly justified: after all, nowadays the people directly
elect the president, and the politicization of Supreme Court nominations ensures a fair amount of popular
input into the composition of the court. It is also not certain that a rejuvenated Congress would be more
The real reason, then, to hope
effective in supervising the president than the Supreme Court.
that Congress will resurrect its lost powers is that the balance of powers
remains, as the framers thought, the best guarantor of liberty in a
constitutional government. The basic fact of presidential power is now
irreversible.
[ ] The time to act is now: unchecked presidential authority

will soon become commonplace if there is no intervention.
Shane, May 2009: [Peter M. - Chair in Law at the Ohio State
University’s Moritz College of Law, internationally recognized authority
on constitutional and administrative law. May 2009, Excerpt from
“Madison’s Nightmare: How Executive Power Threatens American
Democracy,”
http://www.press.uchicago.edu/Misc/Chicago/749396.html
the checks and balances of American government have

For the last quarter century,
been increasingly battered by the merger of two powerful currents. One is
the gathering concentration of power in the hands of the federal executive, a
trend nurtured since the New Deal by Presidents both Democratic and Republican, although at different
rates of acceleration. The second current has been the relentless campaign of the right wing of the
Republican Party since 1981 to steer the capacities of our national government toward the fulfillment of a
conservative social, economic, and foreign policy agenda. Together, the
growing concentration
of executive power and the campaign for partisan predominance have
produced an era of aggressive presidentialism, a theory of government and a pattern of
government practice that treat our Constitution as vesting in the President a fixed and expansive category
This constitutional
of executive authority largely immune to legislative control or judicial review.
perfect storm has put the design of our democratic republic at risk, upending
many of the norms and informal institutional practices that have helped to sustain the Madisonian checks
and balances in our national government, at least since the end of World War II. The campaign for partisan
predominance has sometimes entailed the assertion of congressional or judicial power in constitutionally
dubious ways—most notably, the impeachment of President Clinton and the Supreme Court’s decision in
Bush v. Gore. Its gravest implications for day-to-day governance, however, arise from the conjoining of
In order to further its
partisanship with the attempted aggrandizement of presidential authority.
revolutionary policy ambitions, the Reagan Administration developed a more
aggressive theory of presidential power than any prior Administration had
propounded. In its hands, and during the Administrations of both Presidents

The Method Lab
Bush, presidentialism took unprecedented new forms, challenging historic

conceptions of both legislative and judicial power. The ideological zeal with which these
Presidents and their supporters pursued their constitutional vision fully exemplifies the spirit of partisan
the
passion and narrow self-interest that Madison located at the heart of faction. This is not to let
Clinton Administration off the hook. Even as it disavowed aspects of right-wing
constitutional interpretation, the Clinton Administration found some of its
tenets congenial for accomplishing its own ends. U.S. participation in the spring 1999
NATO air campaign against Serbia was based on claims of presidential authority arguably more dubious
than any since the end of the Vietnam War. After the Republicans took control of Congress in 1994,
President Clinton likewise made claims for the presidential control of domestic regulatory policy making
that were nearly unprecedented in substance and certainly unparalleled in volume—hoping, no doubt, to
The Clinton-era developments
reassert his relevance on the national political stage.
illustrate one of the great dangers of presidentialism—its resistance to
contraction. The usurpation of authority works as a one-way ratchet. Even if
only some Presidents advance executive power unduly as a matter of
partisan ideology, all Presidents, whenever their power is challenged, will be
tempted to embrace their predecessors’ more audacious claims as sources of
legal authority and strike out on their own. Unless somehow rebuked, the
example of any President asserting authority without a genuine constitutional
basis thus becomes historical precedent for the next President committed to
the practice of presidentialism whether as a matter of ideological
commitment or mere political calculation. As recent history has unfolded, it is the legal
theorists working for our most recent Republican Administrations who have most vigorously championed
presidentialism as an accurate reading of what our constitutional Framers historically intended. It is not.

The Method
Pres Powers Turns Solvency
[ ] Presidential power disrupts the governing system of the
US, rendering it ineffective and gutting any solvency. Only in a
system where the president doesn’t unilaterally rule can the
American government be operational.
Democracy,”
Of course, neither fair deliberation nor even the more general hobbling of government’s tyrannical
the Framers’ sole objective. First and foremost, they wanted a
impulses, was
government that would work and that would work effectively to advance the
“permanent and aggregate interests of the community” in both domestic and
international affairs. From that standpoint, any government of separated
powers poses obvious difficulties. Because a monarchy revolves around a single source of
authority that embodies the sovereign power of the state, it can act quickly on behalf of the nation. This is
not so for America. In the United States, it is the people who are sovereign, and there is no one source of
official authority that is charged with acting unilaterally on their behalf. The
Framers thus gave
us a form of institutional interdependence that helps to check tyranny and that
orients the system toward consensus, but at a price. Their system inevitably entails delays in decision
Norms or habits of institutional cooperation are
making and a bias in favor of gradualism.
essential to enable a government of this kind—a government of separated
powers—to achieve its multiple potential virtues. It is not merely foreseeable,
but intended, that the three branches of government experience tension and
competition. Friction, to some extent, is a sign of the system at work. But life
cannot be all friction. As the British Prime Minister Lord John Russell famously put the point: “Every political
constitution in which different bodies share the supreme power is only enabled to exist by the forbearance
of those among whom this power is distributed.”A system of separated powers, in other
words, works only if every branch is committed to effective governance and
is willing to hold back from deploying its powers to their extreme theoretical
limits. In a separation of powers system designed to embody checks and balances, where powers are
allocated to each branch precisely with the purpose of rendering each branch vulnerable to the discretion
of the others, some degree of institutional self-restraint is imperative. To put this point another way, no
paper plan for the operation of government can ever be sufficient in and of
itself to guarantee the responsible exercise of power, even if it is a plan built
on thoughtfully designed checks and balances. A paper plan for government can operate
in vastly different ways depending on its participants’ commitment to the values that animate that plan
and their allegiance to those values in the form of norms or implicit, but widely recognized, rules and
customs.

The Method Lab
Generic Link
[ ] Unilateral executive action expands presidential power
Kenneth Mayer, 2001: [Kenneth Mayer, professor of political science at
the University of Wisconsin, “With the Stroke of a Pen.” 2001, pg. 56. ]
analyses of the president’s constitutional power rely on
Much of the time,
historical evidence of how individual presidents viewed that power and how
they put it into practice. Practice matters because of the importance of
precedent to the expansion of presidential power, because the parameters of
presidential authority have often been shaped by case-by-case judicial review, and because presidents
have used their authority (often through executive orders_) in order to shape
institutional patterns and processes that in turn enhance their ability to
exercise administrative control. Each time a president relies on executive prerogative to take
some type of action, it makes it easier for a future president to take the same (or similar) action. “The
boundaries between the three branches of government are…strongly affected of custom or acquiescence.
When one branch engages in a certain practice and the other branches
acquiesce, the practice gains legitimacy and can fix the meaning of the
Constitution.

The Method
[ ] Unilateral executive policy increases presidential
powers
Waterman, March 2009: [ Richard Waterman – professor of Political
Science at the University of Kentucky. Presidential Studies Quarterly,
“The Administrative Presidency, Unilateral Power, and the Unitary
Executive Theory.” Washington: March 2009 Vol. 39. Iss. 1; pg. 5
Abuses of power occurred, however, when the Nixon administration attempted to remove civil servants or
to deploy them to remote locations. Later, though, Ronald Reagan was able to use newly emerging powers
emanating from Jimmy Carter-era civil service reform legislation to transfer career employees to less
amenable locations, which forced them to resign if they wished not to relocate. These steps, taken during
the Reagan administration, while politically controversial, were nonetheless legal, and the results often
advanced the policy interests of the president. While controversial and maybe even undesirable, these
personnel actions were legally permissible and fell within the ambit of executive authority delegated by
the Civil Service Reform Act. A different idea, however, arose in the form of the
unitary executive theory. It posits that the president has sole responsibility
for the control and maintenance of the executive branch, further extending
the debate on the scope of the president's removal power (Calabresi and Yoo 1997,
2003; Fitts 1996). Proponents of the theory have sought to repudiate the Supreme Court's decision in
Humphrey's Executor v. United States (1935), which prohibits presidents from removing officials, such as
the commissioners of the independent regulatory commissions, from office for political reasons. The
unitary executive theory proclaims the president to be the sole responsible
official for all that occurs within the executive branch. In consequence, all of
the executive branch must be responsible to its chief executive. This new
theory of presidential leadership, propounded in some conservative legal
circles (the Federalist Society) and regularly cited by the George W. Bush
administration in signing statements, has been presented as a legal
justification for more expansive presidential power. In particular, it has increased the
traditional authority presidents have employed since Nixon's presidency with regard to the administrative
presidency strategy. It raises serious legal questions about the boundaries of presidential power and
Congress's ability to limit presidential discretion. By asserting that Congress does not have the right to
enact laws that limit the president's powers as chief executive or commander in chief, the unitary
presidency provides presidents with broad unchecked power in the personnel removal area. This is but one
way in which the unitary executive theory changes what, to date, has been a practice based on accepted
constitutional premises. Another component of the administrative presidency approach is the use of the
budget to control agencies. Presidents are on solid constitutional ground when they do so in consort with
Congress by approving new spending limits in congressionally enacted legislation. Presidents also can and
have aggressively used the provisions of the Budget and Impoundment Act of 1974 to defer or rescind
spending. While the 1974 law outlawed impoundments - whereby a president refuses to spend
congressionally allocated funds without congressional permission - it also created the deferral and
rescission process, which provides presidents with extraordinary flexibility to control bureaucratic
spending, particularly when the president and Congress are in the hands of the same political party. The
Reagan administration flooded Congress with such requests. It also used the same law's reconciliation
process to force Congress to accept budget reductions the administration favored. Thus, presidents have a
series of constitutionally and legally prescribed ways to control spending on bureaucratic agencies. The
unitary executive theory and other instruments of unilateral power further
expand the realm of presidential power. In his extravagant use of signing
statements, for example, George W. Bush unilaterally created what
essentially amounted to a line-item veto. This allowed the president to sign a
particular bill and then quietly, in a signing statement that generally received
less public scrutiny, assert that the president would ignore certain provisions
of the bill with which he disagreed. This mechanism provides yet another
means of skirting the constitutional structure and avoids the perils of
governing in a world of separated powers. If a president does not like a bill's provision,
rather than withhold funding, presidents can merely assert that they will not enforce the law, a dubious
claim given the mandate of their oath of office and their duty to "take care" that laws are faithfully
executed. Although much time and effort has been focused on the constitutional mechanisms at the

The Method Lab
president's disposal, to date, less attention has been paid to the implications of this new and expansive
theory of presidential power. What, then, are the implications of the greater use of unilateral power and
the unitary executive theory for the administrative presidency?

The Method
[ ] Unilateral executive passage increase pres powers
Boston Globe, April 30, 2006: [ Charlie Savage, globe staff member.
Globe Newspaper Company, “Bush Challenges hundres of laws:
President cites powers of his office.”
http://www.boston.com/news/nation/articles/2006/04/30/bush_challeng
es_hundreds_of_laws/ ]
Though Bush has gone further than any previous president, his actions are
not unprecedented. Since the early 19th century, American presidents have
occasionally signed a large bill while declaring that they would not enforce a
specific provision they believed was unconstitutional. On rare occasions, historians say,
presidents also issued signing statements interpreting a law and explaining any concerns about it. But it
was not until the mid-1980s, midway through the tenure of President Reagan, that it
became common for the president to issue signing statements. The change
came about after then-Attorney General Edwin Meese decided that signing
statements could be used to increase the power of the president. When
interpreting an ambiguous law, courts often look at the statute's legislative history, debate
and testimony, to see what Congress intended it to mean. Meese realized
that recording what the president thought the law meant in a signing
statement might increase a president's influence over future court rulings.
Under Meese's direction in 1986, a young Justice Department lawyer named Samuel A. Alito Jr. wrote a
strategy memo about signing statements. It came to light in late 2005, after Bush named Alito to the
Supreme Court. In the memo, Alito predicted that Congress would resent the president's attempt to grab
some of its power by seizing ''the last word on questions of interpretation." He suggested that Reagan's
legal team should ''concentrate on points of true ambiguity, rather than issuing interpretations that may
seem to conflict with those of Congress." Reagan's successors continued this practice. George H.W. Bush
challenged 232 statutes over four years in office, and Bill Clinton objected to 140 laws over his eight years,
according to Kelley, the Miami University of Ohio professor. Many of the challenges involved longstanding
legal ambiguities and points of conflict between the president and Congress. Throughout the past
two decades, for example, each president -- including the current one -- has
objected to provisions requiring him to get permission from a congressional
committee before taking action. The Supreme Court made clear in 1983 that only the full
Congress can direct the executive branch to do things, but lawmakers have continued writing laws giving
congressional committees such a role. Still, Reagan, George H.W. Bush, and Clinton used the presidential
veto instead of the signing statement if they had a serious problem with a bill, giving Congress a chance to
override their decisions. But the current President Bush has abandoned the veto entirely, as well as any
semblance of the political caution that Alito counseled back in 1986. In just five years, Bush has challenged
more than 750 new laws, by far a record for any president, while becoming the first president since
Thomas Jefferson to stay so long in office without issuing a veto. ''What we haven't seen until this
administration is the sheer number of objections that are being raised on every bill passed through the
White House," said Kelley, who has studied presidential signing statements through history. ''That is what
is staggering. The numbers are well out of the norm from any previous administration."
[ ] Unilateral executive policies can only be checked by

congress so that they do not increase presidential power
Boston Globe, April 30, 2006: [ Charlie Savage, globe staff member.
Globe Newspaper Company, “Bush Challenges hundres of laws:
President cites powers of his office.”
http://www.boston.com/news/nation/articles/2006/04/30/bush_challeng
es_hundreds_of_laws/ ]
Such political fallout from Congress is likely to be the only check on Bush's
claims, legal specialists said. The courts have little chance of reviewing
Bush's assertions, especially in the secret realm of national security

The Method Lab
matters.''There can't be judicial review if nobody knows about it," said Neil Kinkopf, a Georgia State law
professor who was a Justice Department official in the Clinton administration. ''And if they avoid
judicial review, they avoid having their constitutional theories rebuked."
Without court involvement, only Congress can check a president who goes
too far. But Bush's fellow Republicans control both chambers, and they have shown limited interest in
launching the kind of oversight that could damage their party. ''The president is daring
Congress to act against his positions, and they're not taking action because
they don't want to appear to be too critical of the president, given that their own fortunes
are tied to his because they are all Republicans," said Jack Beermann, a Boston University law professor.
''Oversight gets much reduced in a situation where the president and Congress are controlled by the same
party." Said Golove, the New York University law professor: ''Bush has essentially said that 'We're the
executive branch and we're going to carry this law out as we please, and if Congress wants to impeach us,
go ahead and try it.' " Bruce Fein, a deputy attorney general in the Reagan administration, said the
American system of government relies upon the leaders of each branch ''to exercise some self-restraint."
But Bush has declared himself the sole judge of his own powers, he said, and then ruled for himself every
time.''This is an attempt by the president to have the final word on his own
constitutional powers, which eliminates the checks and balances that keep
the country a democracy," Fein said. ''There is no way for an independent
judiciary to check his assertions of power, and Congress isn't doing it, either.
So this is moving us toward an unlimited executive power."

The Method
Generic Internal Link

[ ] Presidential power destroys separation of powers,
democracy, and rule of law.
Slonim, July 24, 2006: [Nancy Cowger Slonim – American Bar
Association spokewwoman. July 24, 2006, American Bar Association,
“Blue-ribbon task force finds president Bush’s signing statements
undermine separation of powers.” Embargoed for AM Editions.
http://www.abanet.org/media/releases/news072406.html ]
Presidential signing statements that assert President Bush’s authority to disregard

or decline to enforce laws adopted by Congress undermine the rule of law
and our constitutional system of separation of powers, according to a report released
today by a blue-ribbon American Bar Association task force. To address these concerns, the task force
urges Congress to adopt legislation enabling its members to seek court review of signing statements that
assert the President’s right to ignore or not enforce laws passed by Congress, and urges the President to
veto bills he feels are not constitutional. The Task Force on Presidential Signing Statements and the
Separation of Powers Doctrine was created by ABA President Michael S. Greco with the approval of the ABA
Board of Governors in June, to examine the changing role of presidential signing statements after the
Boston Globe on April 30 revealed an exclusive reliance on presidential signing statements, in lieu of
vetoes, by the Bush Administration. In appointing the special task force Greco said, “The use of
presidential signing statements raises serious issues relating to the constitutional doctrine of separation of
powers. I have appointed the Task Force to take a balanced, scholarly look at the use and implications of
signing statements, and to propose appropriate ABA policy consistent with our Association’s commitment
to safeguarding the rule of law and the separation of powers in our system of government.” The task force
report and recommendations will be presented to the ABA’s policy-making House of Delegates for adoption
at its upcoming Annual Meeting Aug. 7-8. Until the ABA House has taken formal action, the report and
recommendations represent only the views of the task force. The bipartisan task force,
composed of constitutional scholars, former presidential advisers, and legal
and judicial experts, noted that President George W. Bush is not the first
president to use signing statements, but said, “It was the number and nature
of the current President’s signing statements which … compelled our
recommendations.” The task force said its report and recommendations “are
intended to underscore the importance of the doctrine of separation of
powers. They therefore represent a call to this President and to all his successors to fully respect the
rule of law and our constitutional system of separation of powers and checks and balances.” The task force
determined that signing statements that signal the president’s intent to disregard laws adopted by
Congress undermine the separation of powers by depriving Congress of the opportunity to override a veto,
and by shutting off policy debate between the two branches of government. According to the task force,
they operate as a “line item veto,” which the U.S. Supreme Court has ruled unconstitutional. Noting that
the Constitution is silent about presidential signing statements, the task force found that, while several
recent presidents have used them, the frequency of signing statements that challenge laws has escalated
substantially, and their purpose has changed dramatically, during the Bush Administration. The task force
report states, “From the inception of the Republic until 2000, Presidents produced fewer than 600 signing
statements taking issue with the bills they signed. According to the most recent update, in his one-and-a-
half terms so far, President George Walker Bush ... has produced more than 800.” The report found that
President Bush’s signing statements are “ritualistic, mechanical and generally carry no citation of authority
or detailed explanation.” Even when “[a] frustrated Congress finally enacted a law requiring the Attorney
General to submit to Congress a report of any instance in which that official or any officer of the
Department of Justice established or pursued a policy of refraining from enforcing any provision of any
federal statute, … this too was subjected to a ritual signing statement insisting on the President’s authority
to withhold information whenever he deemed it necessary.” “This
report raises serious
concerns crucial to the survival of our democracy,” said Greco. “If left
unchecked, the president’s practice does grave harm to the separation of
powers doctrine, and the system of checks and balances, that have sustained
our democracy for more than two centuries. Immediate action is required to
address this threat to the Constitution and to the rule of law in our country.”

The Method Lab
Greco said that the task force’s report “constructively offers procedures that consider the prerogatives
both of the president and of the Congress, while protecting the public’s right to know what legislation is
adopted by Congress and if and how the president intends to enforce it. This transparency is essential if
the American people are to have confidence that the rule of law is being respected by both citizens and
government leaders.” The bipartisan and independent task force is chaired by Miami lawyer Neal Sonnett,
a former Assistant U.S. Attorney and Chief of the Criminal Division for the Southern District of Florida. He is
past chair of the ABA Criminal Justice Section, chair of the ABA Task Force on Domestic Surveillance and
the ABA Task Force on Treatment of Enemy Combatants; and president-elect of the American Judicature
"Abuse of presidential signing statements poses a threat to the rule of
Society.
law," said Sonnett. "Whenever actions threaten to weaken our system of
checks and balances and the separation of powers, the American Bar
Association has a profound responsibility to speak out forcefully to protect
those lynchpins of democracy."

The Method
[ ] Agressive Executive powers destroy rule of law,

separation of powers, and constitution
Tim Wheeler, July 27, 2006 – Labor specialist staff writer at People’s
Weekly World Newspaper: [July 27, 2006, “Legal panel hits Bush’s
‘signing statements’,” People’s Weekly World Newspaper Archive 2006
editions, http://www.pww.org/article/articleview/9551/1/332 ]
A panel of the American Bar Association struck a blow for democracy and the
rule of law July 23 when it came out strongly against President George W.
Bush’s use of “signing statements” to nullify laws passed by Congress, legal
experts said this week. These signing statements, issued when Bush signs a
statute into law, “assert Bush’s authority to disregard or decline to enforce
laws adopted by Congress,” an ABA blue-ribbon task force report states.
These sweeping claims of unilateral presidential power “undermine the rule
of law and our constitutional system of separation of powers,” the report adds.
Michael S. Greco, president of the ABA, said the task force’s creation was prompted by a news article in
the Boston Globe that exposed Bush’s practice of using signing statements to nullify part or all of a law he
disagrees with instead of vetoing it. Bush’s veto last week of the stem cell research bill was the first of his
presidency. “This report raises serious concerns crucial to the survival of our
democracy,” Greco said. “If left unchecked, the president’s practice does
grave harm to the separation of powers doctrine and the system of checks
and balances that have sustained our democracy for more than two
centuries.” He added, “Immediate action is required to address this threat to
the Constitution and to the rule of law in our country.” The report will be submitted to
the ABA’s upcoming convention in Hawaii. Bush has used signing statements at least 800 times, more than
all his predecessors combined. From the dawn of uthe Republic, presidents have understood, in the words
of George Washington, a president must “approve all the parts of a bill or reject it” with a veto. However,
in the words of Senate Judiciary Chairman Arlen Specter (R-Pa.), Bush seems to think he can “cherry-pick
the provisions he likes and exclude the ones he doesn’t like.” The report is especially
noteworthy because the task force includes several conservatives, including
Bruce Fein, a Justice Department official in the Reagan administration, and
former FBI Director William Sessions. It was chaired by Miami lawyer Neal
Sonnett, who said, “Abuse of presidential signing statements poses a threat
to the rule of law.” Sonnett continued, “The American Bar Association has a
profound responsibility to speak out forcefully to protect these linchpins of
democracy.” Marjorie Cohn, president-elect of the National Lawyers Guild, told the World in an e-mail
message that two of Bush’s signing statements stand out as especially dangerous: “his statements of
intent not to follow the McCain ‘anti-torture’ amendment” and a signing statement in which
he vowed “not to report to Congress the use of the Patriot Act to secretly
search homes and seize private papers.” Sen. John McCain’s anti-torture
amendment was approved by a 90-9 Senate vote, yet Bush proclaimed in the
signing statement that he would “construe” the law to permit him to continue
to authorize torture in violation of U.S. and international law. Cohn added,
“Bush’s use of signing statements represents a potent threat to the doctrine
of separation of powers.” She pointed out that even Sen. Specter, a Bush loyalist, favors
legislation requiring the president to submit all signing statements to Congress for review and also to
make signing statements subject to judicial review. “This would represent a clear break with Specter’s
prior tendencies to submit to Bush’s will,” she wrote. Anthony Romero, executive director of the American
Civil Liberties Union, said the ACLU opposed Bush’s nomination of Judge Samuel Alito to the Supreme Court
because Alito was an adherent of the so-called “unitary executive theory” and urged an “aggressive
expansion” of presidential powers, including “increased use of presidential signing statements … in order
to trump congressional intent and legislative history.” Alito recommended use of signing statements, in his
own words, “to increase the power of the executive to shape the law.”Romero said, “This claim of

The Method Lab
sweeping presidential power is the basis of Bush’s claim that he can

authorize torture, the jailing of U.S. citizens as ‘enemy combatants’ without
charging them.”

The Method
Separation of Powers Good

[ ] Separation of powers good
Martin Redish - Professor of Law and Public Policy at Northwestern
University School of Law, 1995: [Martin Redish, published 1995, Oxford
University Press, “The Constitution as Political Structure.” pg. 111.
http://books.google.com/books?
id=cb_BlipRCVQC&printsec=frontcover&source=gbs_navlinks_s ]
The most significant problem with the modern attacks on separation of

powers is that they completely ignore the very real fears that led to adoption
of the system in the first place. No critic has adequately demonstrated either
that the fears of undue concentrations of political power that caused the
Framers to impose separation of powers are unjustified, or that separation of
powers is not an important means of deterring those concentrations. It might be
argued that the dangers of tyranny thought to be prevented by the use of separation of powers are at best
speculative. After all, no one can predict with certainty that, but for the formal separation of branch power,
the nation would be likely to sink into a state of tyranny. It is, then, conceivable that all of the Framers’
efforts to separate and check powers have been wasted. But that is a risk inherent in the use
of any form of prophylactic protection: we cannot be sure that, but for the
use of protection, the harm we fear would result. The decision regarding whether to
employ a particular prophylactic device, then, must come down to a comparison of the costs incurred as a
result of the device’s use with an estimate of both the likelihood and severity of the feared harm.
Although some undoubtedly believe that separation of powers imposes
severe costs on the achievement of substantive governmental goals, it would
be inaccurate to suggest that government ahs been paralyzed as a result of
separation of powers. Too much legislation is enacted by Congress to accept
such a criticism. More importantly, in critiquing the failure of the federal government to act, one
must do so behind a Rawlsian “veil of ignorance”: Assuming that abolition of separation of powers would
result in an increase in governmental action, we cannot know whether those actions will be ones with
which we agree. Moreover, the facilitation of governmental programs could just as easily lead to a
withdrawal of existing governmental programs that we deem to be wise and just. For example, but for
separation of powers, election of Ronald Regan could have easily led to the abolition of social welfare
programs that had been instituted in previous Democratic administrations. Political liberals who
criticize separation of powers for the constraints it imposes on governmental
actions should therefore recognize how removal of separation of powers
could turn into a double-edged sword. Thus, the costs imposed by
maintenance of separation of powers are probably nowhere near as great as
critics have suggested. Whether the costs that we actually do incur are justified by the system’s
benefits requires us to examine the likelihood and severity of harm that could result if separation of
powers were removed. AS previously noted, some might question the likelihood of
tyrannical abuse of power if separation of powers were abolished. After all,
Britain lacks our system of formalistic separation of powers, and democracy
still flourishes. Why, the, could we not do the same here? The same could,
however, be said of the First Amendment rights of free speech and press: In
Britain, speech and press receive no countermajoritarian constitutional
protection, yet it is reasonable to believe that for the most part those
institutions flourish there. Yet undoubtedly, few would feel comfortable with
the repeal of the First Amendment. If we have begun to take the value of
separation of powers for granted, we need only look to modern American
history to remind ourselves about both the general vulnerability of

The Method Lab
representative government and the direct correlation between the

concentration of political power and the threat to individual liberty. The
widespread violation of individual rights that took place when President Lincoln assumed an inordinate
level of power, for example are well document. Arguably as egregious were the threats to basic freedoms
that arose during the Nixon administration, when the power of the executive branch reached what are
widely deemed to have been intolerable levels. Though in neither instance did the executive’s usurpations
of power ultimately degenerate into complete and irreversible tyranny, the reason for that may well have
been the resilience of our political traditions, among the most important of which is separation of powers
itself. In any event, it would be political folly to be overly smug about the security of either representative
government or individual liberty. Although it would be all but impossible to create an empirical proof to
demonstrate that our constitutional tradition of separation of powers has been an essential catalyst in the
avoidance of tyranny, common sense should tell us that the simultaneous division of power and the
creation of inter-branch checking play important roles toward that end. To underscore the point, one need
only a limited modification of the actual scenario surrounding the recent Gulf War. In actuality, the war was
an extremely popular endeavor, thought by many to be a politically and morally justified exercise. But
imagine a situation in which a president, concerned about his failure to resolve significant social and
economic problems at home, has callously decided to engage the nation in war, simply to defer public
attention from his domestic failures. To be sure, the president was presumably elected by a majority of the
electorate, and may have to stand for reelection in the future. However, at this particular point in time, but
for the system established by separation of powers, his authority as commander in chief to engage the
nation in war would be effectively dictatorial. Because the Constitution reserves to the arguably even more
representative and accountable Congress the authority to declare war, the Constitution has attempted to
prevent such misuse of power by the executive. It remains unproven whether any governmental structure
other than one based on a system of separation of powers could avoid such harmful results.
[ ] Executive orders are bad regardless of the situation.

Separation of powers is always a better means of responding
to circumstances.
Tushnet, June 2005: [Mark V. Tushnet – response to Curtis Bradley and
Jock Goldsmith Harvard Review. Academic OneFile, “Controlling
Executive power in the war on terrorism.” ]
Imagine this scenario: after a series of bombings in New York, the President
directs U.S. armed forces to round up Arab American males over the age of
fifteen in the New York metropolitan area and confine them in a sports
stadium; those who military officers determine pose no continuing threat to
domestic security are released back to their communities, a process that
predictably will lead to some detentions lasting a month and more. (1) The
discussion by Professors Bradley and Goldsmith of the Authorization for the Use of Military Force (2)
(AUMF) adopted on September 18, 2001, (3) raises the intriguing question: would such action be
authorized by the AUMF already in place? (4) This Reply addresses only a few aspects of the problems
Professors Bradley and Goldsmith consider, in an attempt to draw out some of the more general
implications of their analysis for constitutional law. How does--or should--the
U.S. Constitution
regulate the exercise of power in response to threats to national security, to
ensure that power is used wisely? (5) Broadly speaking, two mechanisms of control are
available: a separation-of-powers mechanism and a judicial-review mechanism. (6) Both
mechanisms aim to ensure that the national government exercises its power
responsibly--with sufficient vigor to meet the nation's challenges, but without
intruding on protected liberties. (7) Under the separation-of-powers
mechanism, nearly all of the work of regulating power is done by the principle
that the President can do only what Congress authorizes. (8) Its primary
concern is what Professors Bradley and Goldsmith call Executive Branch
unilateralism, a fear that Presidents acting on their own might make unsound
decisions, engaging in too much (or too little) military action, intruding on
liberties too much (or too little). Under the judicial-review mechanism, courts enforce two sets

The Method
of principles: principles allocating power between the President and Congress, and principles protecting
individual liberties, such as those embodied in the Fourth and Fifth Amendments. Its primary concern is
that the government as a whole will act improvidently. To avoid unilateral executive (or congressional)
action, the judicial-review mechanism makes the concerns that underlie the separation-of-powers
mechanism enforceable by the courts. I believe that neither the separation-of-powers nor the judicial-
review mechanism of control is adequate to the task of structuring the exercise of national power under
modern conditions, and that we would benefit from creative thinking about good constitutional design.
Defenders of the separation-of-powers mechanism make both a positive and
a negative case. (9) The positive case rests on the classic "ambition
counteracting ambition" theory articulated in The Federalist Papers. (10)
Congress and the President stand in structural opposition to each other, with
each side alert to possible "power grabs" by the other that would threaten--
simultaneously--the people's liberties and the prerogatives and power of the
opposing branch. (11) In addition, the people influence the President and Congress differently, with
members of the House of Representatives concerned that their constituents might turn them out of office
if they fail to challenge presidential initiatives that the people believe threaten their liberties, the President
having a nationwide constituency more sensitive than smaller and more parochial constituencies to
national security concerns, and the Senate free to deliberate about what good policy would be without
concern for short-run political disadvantage. (12) The separation-of-powers mechanism
rejects executive unilateralism, but identifies no enduring substantive limitations on what the
President and Congress may do; the only limitations are those worked out in the interactions between the
President and Congress.

The Method Lab
Rule of Law Internal Link

[ ] Aggressive presidential power deteriorates rule of law
and undermines American democracy. Action is critical now to
curb the political power of the executive
Democracy,”
Other presidentialist legal thinkers, including advocates for presidentialism under Democratic
Administrations,have argued that presidentialism is such good governmental
practice that either we should read the Constitution in a more modern vein in
order to mandate presidentialism or we should welcome practices of legislative and judicial
deference to the President that allow government to behave in a presidentialist fashion. The historical
record, however, does not bear out the claims for presidentialism as good
practice. If we look at the functioning of our national executive when
behaving most consistently with the tenets of presidentialism, we frequently
find that the assumption of unilateral presidential authority prompts a
narrowness in consultation, and a defensiveness and rigidity in outlook, that
degrade the quality of executive decision making. Furthermore, as might have been
predicted, presidentialism operates as an ethos of government in a way that
undermines other critical values, such as allegiance to the rule of law and
respect for coequal branches and divergent political outlooks. As discussed in
chapters 4 and 5, the results, made dramatically manifest in the “Bush 43” Administration, have included
dangerously irresponsible government lawyering and a fetishizing of presidential prerogative in ways that
defy common sense and the public interest. When presidentialist practice is analyzed
clearly, it seems to rest on ideas about democracy and the rule of law that
are unattractive and deeply unpersuasive. Of course, the nation sometimes
benefits from unilateral presidential action—Washington’s proclamation of neutrality,
Lincoln’s Emancipation Proclamation, and the resolution of the Cuban missile crisis are but three
celebrated examples of the many undoubtedly available. But the realization of these benefits
does not require anything like the wholesale adoption of aggressive
presidentialism, either as constitutional theory or prevailing government practice. In all but the most
exceptional circumstances, searching congressional oversight, robust presidential accountability to the
rule of law, and a pluralist approach to policy development within the executive branch are all consistent
with the level of executive branch energy we need in order to thrive as a nation. The ambitions of
the unilateral presidency cannot be squared with either the presidency
envisioned by our Constitution or contemporary needs. Its proponents may argue that
the historical conception ought to be replaced with a new unilateral presidency because a more
autonomous, less fettered presidency actually works better in the national interest than does a presidency
subject to strong checks and balances. But time and time again, it has become evident that
Presidents, left relatively unchecked by dialogue with and accountability to
the other two branches, behave disastrously. The new unilateral presidency is
thus not appealing either as constitutional interpretation or as good
institutional design. To put the point another way, the Framers got this right. It is now critical
to restore checks and balances to robust health and reinvigorate American
democracy so that no narrow faction of the American polity can dominate policy making throughout all

The Method
our institutions of national government.

The Method Lab
[ ] Unilateral presidential policies destroy rule of law – that

is fundamental to preservation of free societies and
democracy.
James Pfiffner – Professor of Public Policy at George Mason University –
August 30, 2007: [James Pfiffner is University Professor of Public Policy
at George Mason University. His major areas of expertise are the
Presidency, American National Government, and Public Management.
American Political Science Association, “George W. Bush and the Abuse
of Executive Power.”
http://www.allacademic.com/meta/p210154_index.html : All Academic]
Even if President Bush was a noble defender of freedom, the authority that he
claims to be able to ignore the law, if allowed to stand, would constitute a
dangerous precedent that future presidents might use to abuse their power.
Joel Aberbach points out that “In the end, this is not a partisan issue, for someday the
Democrats will have unified control, and even that somewhat-less-disciplined
party might countenance a government of the type Bush and Cheney have
apparently structured.”56Madison argues in Federalist No. 10, “Enlightened statesmen will not
always be at the helm.” Thinking constitutionally means looking ahead and realizing that future executives
Claims to power ratchet up; they
will likely claim the same authority as their predecessors.
do not swing like a pendulum unless the other two branches protect their own
constitutional authorities. The rule of law is fundamental to a free society and
to democracy, because neither can exist without it. As Thomas Paine argued in Common Sense, “in
America THE LAW IS KING. For as in absolute governments the King is law. . .” (emphasis in original).James
“The accumulation of all powers, legislative,
Madison put it this way in Federalist 47:
executive, and judiciary, in the same hands, whether of one, a few, or many,
and whether hereditary, self-appointed, or elective, may justly be pronounced
the very definition of tyranny.” In each of the above cases of claims to constitutional authority
President Bush was asserting that he alone could exercise the authority of each of the three branches.
[ ] Attempts at concentrating power or passing executive

legislation weaken rule of law
James Pfiffner – Professor of Public Policy at George Mason University –
August 30, 2007: [James Pfiffner is University Professor of Public Policy
at George Mason University. His major areas of expertise are the
Presidency, American National Government, and Public Management.
American Political Science Association, “George W. Bush and the Abuse
of Executive Power.”
http://www.allacademic.com/meta/p210154_index.html : All Academic]
President Bush was undermining the rule of law itself by claiming the
authority to ignore those parts of the law that he claimed impinged on his
own prerogatives and refusing to accept the legitimacy of either Congress or
the Courts to limit his authority. The president should have enough power to
accomplish reasonable policy goals, but not enough to override the other two
branches unilaterally, acting merely on the basis of his own judgment. In these cases of
extraordinary claims to executive authority, President Bush was claiming that the checks and balances in

The Method
the Constitution were not binding on him. The United States Constitution created a
system in which the concentration of power in one branch would be
countered by actions of the other two branches. This may very well happen in the case
of President Bush, but his claims have severely challenged the balance of constitutional authority. The
principles of constitutionalism and the rule of law are basic to the United
States polity. Insofar as President Bush, in cases such as these, refused to acknowledge the
constitutional limits on his executive authority, he undermined both of these fundamental principles.

The Method Lab
Rule of Law Impact

[ ] Rule of law key to freedom and prevents nuclear
extinction.
Charles S. Rhyne, Law Day Speech for Voice of America delivered on
the first Law Day, May 1, 1958
Law and courts exist to protect every citizen of the United States in his person and property
and in his individual rights and privileges under the Constitution. The ultimate power to change or expand
the law in our system remains with its source, the people. They can elect as lawmakers those who will vote
for wise laws and vote out of office those who do not. They can also amend the Constitution as experience
dictates the necessity of change. In these days of soul-searching and re-evaluation and inventorying of
basic concepts and principles brought on by the expansion of man’s vision to the new frontiers and
horizons of outer space, we want the people of the world to know that we in America have an unshakable
belief in the most essential ingredient of our way of life—the rule of law. The law we honor is the basis
and foundation of our nation’s freedom and the freedom for the individual which exists here. And
to Americans our freedom is more important than our very lives.The rule of law has been the
bulwark of our democracy. It has afforded protection to the weak, the oppressed, the
minorities, the unpopular; it has made it possible to achieve responsiveness of the government to the
will of people. It stands as the very antithesis of Communism and dictatorship. When we talk about
“justice” under our rule of law, the absence of such justice behind the Iron Curtain is apparent to all. When
we talk about “freedom” for the individual, Hungary is recalled to the minds of all men. And when we talk
about peace under law—peace without the bloodbath of war—we are appealing to the foremost desire of
all peoples everywhere. The tremendous yearning of all peoples for peace can only be
answered by the use of law to replace weapons in resolving international
disputes. We in our country sincerely believe that mankind’s best hope for preventing the tragic
consequences of nuclear-satellite-missile warfare is to persuade the nations of the entire world to submit
all disputes to tribunals of justice for all adjudication under the rule of law. We lawyers of America would
like to join lawyers from every nation in the world in fashioning an international code of law so appealing
that sentiment will compel its general acceptance. Man’s relation to man is the most neglected field of
study, exploration and development in the world community. It is also the most critical. The most
important basic fact of our generation is that the rapid advance of knowledge in science and technology
has forced increased international relationships in a shrunken and indivisible world. Men must either live
together in peace or in modern war we will surely die together. History teaches that the
rule of law has enabled mankind to live together peacefully within nations and it is clear that this same
rule of law offers our best hope as a mechanism to achieve and maintain peace between
nations. The lawyer is the technician in man’s relationship to man. There exists a worldwide challenge to
our profession to develop law to replace weapons before the dreadful holocaust of nuclear
war overtake our people.

The Method
Nuclear War Impact

[ ] Presidential powers cause nuclear war
Ray Forrester Professor, Hastings College of the Law, University of
California August 1989 [The George Washington Law Review 57 Geo. Wash. L. Rev. 1636
“Presidential Wars in the Nuclear Age: An Unresolved Problem.” Abramson, Wherever President Goes, the
Nuclear War 'Football' is Beside Him, Los Angeles Times, April 3, 1981, at 10, col. 1 (copyright, 1981, Los
Angeles Times. Reprinted by permission).
one man [person] alone has the ability to

On the basis of this report, the startling fact is that
start a nuclear war. A basic theory--if not the basic theory of our Constitution--is that
concentration of power in any one person, or one group, is dangerous to
[humankind]mankind. The Constitution, therefore, contains a strong system of checks
and balances, starting with the separation of powers between the President,
Congress, and the Supreme Court. The message is that no one of them is
safe with unchecked power. Yet, in what is probably the most dangerous governmental power
ever possessed, we find the potential for world destruction lodged in the
discretion of one person. As a result of public indignation aroused by the Vietnam disaster, in
which tens of thousands lost their lives in military actions initiated by a succession of Presidents, Congress
in 1973 adopted, despite presidential veto, the War Powers Resolution. Congress finally asserted its
checking and balancing duties in relation to the making of presidential wars. Congress declared in section
2(a) that its purpose was to fulfill the intent of the framers of the Constitution of the United States and
insure that the collective judgment of both the Congress and the President will apply to the introduction of
United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is
clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such
situations. The law also stated in section 3 that [t]he President in every possible instance shall consult
with Congress before introducing United States Armed Forces into hostilities or into situations where
imminent involvement in hostilities is clearly indicated. . . . Other limitations not essential to this
discussion are also provided. The intent of the law is clear. Congress undertook to check the President, at
least by prior consultation, in any executive action that might lead to hostilities and war. [*1638]
President Nixon, who initially vetoed the resolution, claimed that it was an unconstitutional restriction on
his powers as Executive and Commander in Chief of the military. His successors have taken a similar view.
Even so, some of them have at times complied with the law by prior consultation with representatives of
Congress, but obedience to the law has been uncertain and a subject of continuing controversy between
Congress and the President. Ordinarily, the issue of the constitutionality of a law would be decided by the
Supreme Court. But, despite a series of cases in which such a decision has been sought, the Supreme
Court has refused to settle the controversy. The usual ground for such a refusal is that a "political
question" is involved. The rule is well established that the federal judiciary will decide only "justiciable"
controversies. "Political questions" are not "justiciable." However, the standards established by the
Supreme Court in 1962 in Baker v. Carr, 369 U.S. 186, to determine the distinction between "justiciable
controversies" and "political questions" are far from clear. One writer observed that the term "political
question" [a]pplies to all those matters of which the court, at a given time, will be of the opinion that it is
impolitic or inexpedient to take jurisdiction. Sometimes this idea of inexpediency will result from the fear of
the vastness of the consequences that a decision on the merits might entail. Finkelstein, Judicial Self-
Limitation, 37 HARV. L. REV. 338, 344 (1924)(footnote omitted). It is difficult to defend the Court's refusal
to assume the responsibility of decisionmaking on this most critical issue. The Court has been fearless in
deciding other issues of "vast consequences" in many historic disputes, some involving executive war
power. It is to be hoped that the Justices will finally do their duty here. But in the meantime the spectre of
single-minded power persists, fraught with all of the frailties of human nature that each human possesses,
including the President. World history is filled with tragic examples. Even if the Court assumed its
responsibility to tell us whether the Constitution gives Congress the necessary power to check the
President, the War Powers Resolution itself is unclear. Does the Resolution require the President to consult
with Congress before launching a nuclear attack? It has been asserted that "introducing United States
Armed Forces into hostilities" refers only to military personnel and does not include the launching of
nuclear missiles alone. In support of this interpretation, it has been argued that Congress was concerned
about the human losses in Vietnam and in other presidential wars, rather than about the weaponry.
Congress, of course, can amend the Resolution to state explicitly that "the introduction of Armed Forces"
includes missiles as well as personnel. However, the President could continue to act without prior
consultation by renewing the claim first made by President [*1639] Nixon that the Resolution is an
unconstitutional invasion of the executive power. Therefore, the real solution, in the absence of a
Supreme Court decision, would appear to be a constitutional amendment. All must obey a clear rule in the
Constitution. The adoption of an amendment is very difficult. Wisely, Article V requires that an
amendment may be proposed only by the vote of two-thirds of both houses of Congress or by the

The Method Lab
application of the legislatures of two-thirds of the states, and the proposal must be ratified by the
legislatures or conventions of three-fourths of the states. Despite the difficulty, the Constitution has been
amended twenty-six times. Amendment can be done when a problem is so important that it arouses the
attention and concern of a preponderant majority of the American people. But the people must be made
aware of the problem. It is hardly necessary to belabor the relative importance of the control of nuclear
warfare. A constitutional amendment may be, indeed, the appropriate method. But the most difficult issue
remains. What should the amendment provide? How can the problem be solved specifically? The
Constitution in section 8 of Article I stipulates that "[t]he Congress shall have power . . . To declare
War. . . ." The idea seems to be that only these many representatives of the people, reflecting the public
will, should possess the power to commit the lives and the fortunes of the nation to warfare. This approach
makes much more sense in a democratic republic than entrusting the decision to one person, even though
he may be designated the "Commander in Chief" of the military forces. His power is to command the war
after the people, through their representatives, have made the basic choice to submit themselves and
their children to war. There is a recurring relevation of a paranoia of power throughout human history that
has impelled one leader after another to draw their people into wars which, in hindsight, were foolish,
unnecessary, and, in some instances, downright insane. Whatever may be the psychological influences
that drive the single decisionmaker to these irrational commitments of the lives and fortunes of others, the
fact remains that the behavior is a predictable one in any government that does not provide an effective
check and balance against uncontrolled power in the hands of one human. We, naturally, like to think that
our leaders are above such irrational behavior. Eventually, however, human nature, with all its weakness,
asserts itself whatever the setting. At least that is the evidence that experience and history give us, even
in our own relatively benign society, where the Executive is subject to the rule of law. [*1640] Vietnam
But the
and other more recent engagements show that it can happen and has happened here.
"nuclear football"--the ominous "black bag" --remains in the sole possession of the
President. And, most important, his decision to launch a nuclear missile
would be, in fact if not in law, a declaration of nuclear war, one which the nation and,
indeed, humanity in general, probably would be unable to survive.

The Method
Constitution Internal Link

[ ] Executive power hurts both our ability to uphold the
constitution and be successful in combating terrorism
Michiko Kakutani, July 6, 2007, – Staff Writer and Pulitzer Prize-winning
critic for the New York Times: [July 6, 2007, “The Case Against Those
Expanding White House Powers,” The New York Times, Section E,
Lexis]
In their chilling and timely book Frederick A. O. Schwarz Jr., senior

counsel at the Brennan Center for Justice at the New York University
School of Law, and Aziz Z. Huq, who directs the Liberty and National
Security Project at the Brennan Center, argue that the Bush
administration's ''monarchist claims of executive power'' are
''unprecedented on this side of the North Atlantic,'' and that its ''executive
unilateralism not only undermines the delicate balance of our Constitution,
but also lessens our human liberties and hurts vital counterterrorism
campaigns'' by undermining America's moral authority and standing in the
world.'' Unchecked and Unbalanced'' contains little new reporting and is
heavily indebted to the groundbreaking work of journalists like Jane
Mayer of The New Yorker, James Risen and Eric Lichtblau of The New
York Times, Dana Priest of The Washington Post and Charlie Savage of
The Boston Globe. But the book serves as a valuable compendium and
chronicle of the Bush administration's aggressive efforts to expand the power
of the executive branch, providing a detailed account of the unilateral
actions it has taken on matters ranging from torture policy to domestic
surveillance, and it is necessary reading for anyone interested in how
those efforts by the Bush White House have tipped the constitutional
system of checks and balances. Mr. Schwarz was chief counsel for the
Church committee, which investigated executive branch overreaching
in the mid 1970s, and he and Mr. Huq have done a powerful job of
situating the actions of the current White House in perspective with the
imperial presidency of Richard M. Nixon (who once declared that
''when the president does it, that means that it is not illegal''). Equally
devastating is their deconstruction of Bush administration lawyers' efforts to
assert a doctrine of unfettered presidential prerogative. They remind the
reader that the founding fathers had ''scant affection for strong
executives'' like England's king, and they argue that many of the Bush
White House's claims are rooted in ideas ''about the 'divine' right of
kings'' that ''did not survive the English Civil War and the Glorious
Revolution of 1688'' and that certainly did not find their ''way into our
founding documents, the 1776 Declaration of Independence and the
Constitution of 1787.''Like many reporters Mr. Huq and Mr. Schwarz
point out that expanded executive power was not a response to the terrorist
attacks of 9/11 but the realization of a vision that conservatives like Dick
Cheney had harbored since the 1970s, when they grew aggrieved over post-

The Method Lab
Watergate reforms that put the brakes on presidential power.

The Method
Constitution Impact
[ ] Executive power hurts both our ability to uphold the
constitution and be successful in combating terrorism
Lexis]
In their chilling and timely book Frederick A. O. Schwarz Jr., senior counsel at the Brennan Center for
Justice at the New York University School of Law, and Aziz Z. Huq, who directs the Liberty and National
Security Project at the Brennan Center, argue that the Bush administration's ''monarchist
claims of
executive power'' are ''unprecedented on this side of the North Atlantic,'' and
that its ''executive unilateralism not only undermines the delicate balance of
our Constitution, but also lessens our human liberties and hurts vital
counterterrorism campaigns'' by undermining America's moral authority and
standing in the world.'' Unchecked and Unbalanced'' contains little new reporting and is heavily
indebted to the groundbreaking work of journalists like Jane Mayer of The New Yorker, James Risen and
Eric Lichtblau of The New York Times, Dana Priest of The Washington Post and Charlie Savage of The
the book serves as a valuable compendium and chronicle of the
Boston Globe. But
Bush administration's aggressive efforts to expand the power of the
executive branch, providing a detailed account of the unilateral actions it has taken on matters
ranging from torture policy to domestic surveillance, and it is necessary reading for anyone interested in
how those efforts by the Bush White House have tipped the constitutional system of checks and balances.
Mr. Schwarz was chief counsel for the Church committee, which investigated executive branch
overreaching in the mid 1970s, and he and Mr. Huq have done a powerful job of situating the actions of
the current White House in perspective with the imperial presidency of Richard M. Nixon (who once
Equally devastating is
declared that ''when the president does it, that means that it is not illegal'').
their deconstruction of Bush administration lawyers' efforts to assert a
doctrine of unfettered presidential prerogative. They remind the reader that the founding
fathers had ''scant affection for strong executives'' like England's king, and they argue that many of the
Bush White House's claims are rooted in ideas ''about the 'divine' right of kings'' that ''did not survive the
English Civil War and the Glorious Revolution of 1688'' and that certainly did not find their ''way into our
founding documents, the 1776 Declaration of Independence and the Constitution of 1787.''Like many
reporters Mr. Huq and Mr. Schwarz point out that expanded
executive power was not a
response to the terrorist attacks of 9/11 but the realization of a vision that
conservatives like Dick Cheney had harbored since the 1970s, when they
grew aggrieved over post-Watergate reforms that put the brakes on
presidential power.
[ ] None of their impacts outweigh destruction of the

constitution
John A. Eidsmoe is a Constitutional Attorney, Professor of Law at
Thomas Goode Jones School of Law and Colonel with the USAF, 1992 3
USAFA J. Leg. Stud. 35, p. 57-9
Other misfortunes may be borne, or their effects overcome. If disastrous war

should sweep our commerce from the ocean, another generation may renew it; if it exhaust our
treasury, future industry may replenish it; if it desolate and lay waste our fields, still under a
new cultivation, they will grow green again, and ripen to future harvests. It were but a trifle even
if the walls of yonder Capitol were to crumble, if its lofty pillars should fall, and its
gorgeous decorations be all covered by the dust of the valley. All these might be rebuilt. But

The Method Lab
who shall reconstruct the fabric of demolished government? Who shall rear
again the wellproportioned columns of constitutional liberty? Who shall frame
together the skilful architecture which united national sovereignty with State rights, individual security,
and public prosperity? No, if these columns fall, they will be raised not again. Like the
Coliseum and the Parthenon, they will be destined to a mournful, a melancholy immortality. Bitterer tears,
however, will flow over them, than were ever shed over the remnants of a more glorious edifice than
It is possible that a
Greece or Rome ever saw, the edifice of constitutional American liberty.
constitutional convention could take place and none of these drastic
consequences would come to pass. It is possible to play Russian roulette and
emerge without a scratch; in fact, with only one bullet in the chamber, the odds of being shot are
only one in six. But when the stakes are as high as one's life, or the constitutional
system that has shaped this nation into what it is today, these odds are too great to take
the risk.

The Method
[ ] Must uphold the constitution

Stephen L. Carter, professor of law at Yale, 1-1986 66 B.U.L. Rev. 71, p.
83-4
The fact that any rule can constrain creative freedom is sometimes missed by those who assert that
constitutional theories fall into two categories, "interpretive" and "non-interpretive." The error is the
assumption that one school assigns to the Constitution a different importance than the other. This simply
isn't so. When Aloysius cries "intent of the Framers" and Bernadette ripostes "emergent moral consensus"
their disagreement is not over the weight to be assigned to the Constitution, but
rather over the rules that will bind the interpreter in the creative act of transforming its symbols into
policy. Paul Brest and Laurence Tribe do not respect the Constitution any less than do Robert Bork and
Raoul Berger; their argument is over what demands that respect places on the interpreter. Each theorist's
view on the best means for channeling the creative imagination of the reader is put forth as a set of
interpretive rules.] The crucial question for many constitutional theorists is whether the
rules governing interpretation can be set out with clarity sufficient to render constitutional
adjudication something other than the judge's imposition of her own value
preferences. Those I call "delegitimizers" are of the view that mainstream liberalism cannot resolve
this question: liberals, if they seek rules to cabin judicial freedom, are stuck with a Bickelean exaltation of
process and a process that occasionally produces repugnant results. The only answer liberals can come up
with, so the argument goes, is the fundamental rights form of judicial review, that is, to ignore the process
-- and any coherent rules for interpretation that the process might require -- and impose better results. But
this of course is what classical liberalism forbids, for there must, in liberal theory, be a way of
recognizing law and distinguishing it from simple power. Judges in the liberal state
are to enforce this recognizable law. If they do something else -- for example,
enforcing their preferences and calling them law -- they are violating the rules that
make liberal constitutional adjudication possible. Thus the essence of the critique is not
that the fundamental rights jurisprudence reaches substantive results that are good or bad -- such notions
are quite irrelevant 54 -- but rather, that liberal political theory cannot explain it. And if even liberals admit
that they must sometimes step outside their own system in order to avoid morally repugnant results, then
their system must on its own terms be immoral.

The Method Lab
[ ] Constitution prevents nuclear war – must uphold it

Congressman Dennis Kucinich, D-Oh, March, 2002
http://www.downwinders.org/Kucinich_Peace_p.html
"Politics ought to stay out of fighting a war," the President has been quoted as saying on March 13th 2002.
the United States Constitution explicitly requires that
Yet Article 1, Section 8 of
Congress take responsibility when it comes to declaring war. This President is very
popular, according to the polls. But polls are not a substitute for democratic process. Attributing a negative
dismissing constitutionally mandated congressional
connotation here to politics or
oversight belies reality: Spending $400 billion a year for defense is a political decision.
Committing troops abroad is a political decision. War is a political decision. When men and
women die on the battlefield that is the result of a political decision. The use of nuclear
weapons, which can end the lives of millions, is a profound political decision. In a
monarchy there need be no political decisions. In a democracy, all decisions
are political, in that they derive from the consent of the governed. In a
democracy, budgetary, military and national objectives must be subordinate to the political process.
Before we celebrate an imperial presidency, let it be said that the lack of free and open political process,
the lack of free and open political debate, and the lack of free and open political dissent can be fatal in a
democracy. We have reached a moment in our country's history where it is urgent that people everywhere
speak out as president of his or her own life, to protect the peace of the nation and world within and
without. We should speak out and caution leaders who generate fear through talk of the endless war or the
final conflict. We should appeal to our leaders to consider that their own bellicose thoughts, words and
deeds are reshaping consciousness and can have an adverse effect on our nation. Because when one
person thinks: fight! he or she finds a fight. One faction thinks: war! and starts a war. One nation thinks:
nuclear! and approaches the abyss. And what of one nation which thinks peace, and seeks peace? Neither
individuals nor nations exist in a vacuum, which is why we have a serious responsibility for each other in
this world. It is also urgent that we find those places of war in our own lives, and begin healing the world
through healing ourselves. Each of us is a citizen of a common planet, bound to a common destiny. So
connected are we, that each of us has the power to be the eyes of the world, the voice of the world, the
conscience of the world, or the end of the world. And as each one of us chooses, so becomes the world.
Each of us is architect of this world. Our thoughts, the concepts. Our words, the designs. Our deeds, the
bricks and mortar of our daily lives. Which is why we should always take care to regard the power of our
thoughts and words, and the commands they send into action through time and space. Some of our
leaders have been thinking and talking about nuclear war. Recently there has been much news about a
planning document which describes how and when America might wage nuclear war. The Nuclear Posture
Review recently released to the media by the government: 1. Assumes that the United States has the right
to launch a preemptive nuclear strike. 2. Equates nuclear weapons with conventional weapons. 3.
Attempts to minimize the consequences of the use of nuclear weapons. 4. Promotes nuclear response to a
chemical or biological attack. Some dismiss this review as routine government planning. But it becomes
ominous when taken in the context of a war on terrorism which keeps expanding its boundaries,
rhetorically and literally. The President equates the "war on terrorism" with World War II. He expresses a
desire to have the nuclear option "on the table." He unilaterally withdraws from the ABM treaty. He seeks
$8.9 billion to fund deployment of a missile shield. He institutes, without congressional knowledge, a
shadow government in a bunker outside our nation's Capitol. He tries to pass off as arms reduction, the
storage of, instead of the elimination of, nuclear weapons. Two generations ago we lived with nuclear
nightmares. We feared and hated the Russians who feared and hated us. We feared and hated the
"godless, atheistic" communists. In our schools, each of us dutifully put our head between our legs and
practiced duck-and-cover drills. In our nightmares, we saw the long, slow arc of a Soviet missile flash into
our neighborhood. We got down on our knees and prayed for peace. We surveyed, wide eyed, pictures of
the destruction of Nagasaki and Hiroshima. We supported the elimination of all nuclear weapons. We knew
that if you "nuked" others you "nuked" yourself. The splitting of the atom for destructive purposes admits a
the dichotomized thinking,
split consciousness, the compartmentalized thinking of Us vs. Them,
which spawns polarity and leads to war. The proposed use of nuclear
weapons, pollutes the psyche with the arrogance of infinite power. It creates
delusions of domination of matter and space. It is dehumanizing through its
calculations of mass casualties. We must overcome doomthinkers and sayers
who invite a world descending, disintegrating into a nuclear disaster. With a
world at risk, we must find the bombs in our own lives and disarm them. We
must listen to that quiet inner voice which counsels that the survival of all is

The Method
achieved through the unity of all.
[ ] Moral obligation to uphold the constitution

Daryl Levinson, professor of law at University of Virginia, Spring 2000
UC Law Review
Extending a majority rule analysis of optimal deterrence to
constitutional torts requires some explanation, for we do not usually
think of violations of constitutional rights in terms of cost-benefit
analysis and efficiency. Quite the opposite, constitutional rights are most
commonly conceived as deontological sideconstraints that trump even
utility-maximizing government action. Alternatively, constitutional rights
might be understood as serving rule-utilitarian purposes. If the disutility to
victims of constitutional violations often exceeds the social benefits
derived from the rightsviolating activity, or if rights violations create
long-term costs that outweigh short-term social benefits, then
constitutional rights can be justified as tending to maximize global utility,
even though this requires local utility-decreasing steps. Both the
deontological and ruleutilitarian descriptions imply that the optimal level of
constitutional violations is zero; that is, society would be better off, by
whatever measure, if constitutional rights were never violated.

The Method Lab
Tyranny Internal Link

[ ] Unchecked presidential power creates dictatorship
Dean, 2002: [John Dean, a FindLaw columnist, form Counsel to the
President of the United States, 2002, “Presidential Powers in times of
emergency.” http://writ.news.findlaw.com/dean/20020607.html ]
"Constitutional dictatorship is a dangerous thing," Rossiter advises. Such governments
are the result of necessity, of the sheer imperative of survival. The greatest danger with such a
form of government, and its related institutions and laws, is that they can
remain after the crisis has abated. These are not decisions that should be made by the
President and Congress each time the crisis escalates; rather, we should think about them carefully in
advance in order to make prudent decisions later. One need only look at the haste and
thoughtlessness with which we have adopted the potentially dangerous USA
PATRIOT Act, most of which Republicans and Democrats alike had earlier rejected, to understand why
legislating in the aftershock of terrorism should be avoided if possible. Our present emergency
laws and regulations are a hodgepodge, a patchwork quilt. They respond to
precedents from past great crises, and that is wise, but unfortunately these precedents do not
contemplate a protracted war on terrorism, or an enemy unlike any we have ever confronted. Congress
has the power to determine whether it wants the American equivalent of a
constitutional dictator in the White House. The only way to be certain that we don't make
that decision during a crisis, is to revise and codify our emergency laws now - before fear and anger in the
aftermath of a possible attack might cause us to make bad decisions, and too easily trade liberty for
security in numerous areas. As I write this column, President Bush has announced that he will address the
nation about his plans for restructuring the government for fighting the war on terrorism. None of Professor
Rossiter's observations about our history is more chilling than his finding that each national crisis has left
the nation a little less democratic than before. With the President's announcement, it is not too soon to
consider whether, in fighting terrorism, we really want a constitutional dictator to lead us. I certainly don't,
nor do I know anyone who does, but if a future attack comes, and is devastating, the pressure to resort to
constitutional dictatorship may be irresistible.
[ ] Executive power culminates in tyranny

Lexis]
Although briefings were provided to a handful of Congressional leaders, Mr. Schwarz and Mr. Huq report,
those leaders were prohibited from saying anything about them to anyone, including other Intelligence
Committee members, a stipulation that ''gutted the possibility of effective oversight.'' ''Making the
executive supreme makes the nation no safer -- either from its enemies or its
own worse impulses,'' the authors conclude. ''Indeed, the abiding genius of
the Founding Generation was its rejection of the idea that unchecked
unilateral power is ever properly vested in any one branch of government.
Our government was framed 'to control itself,' as James Madison wrote in the Federalist
Papers. 'Ambition must be made to counteract ambition.' Dividing powers between three
branches, the Founders harnessed human passions in the cause of limited government. Madison, again
writing in the Federalist Papers, provided the enduring explanation for this division of government: 'The
accumulation of all power, legislative, executive, and judiciary, in the same
hands, whether of one, a few, or many, and whether hereditary, self-
appointed, or elective, may justly be pronounced the very definition of

The Method
tyranny.' ''

The Method Lab
Tyranny Impact
[ ] Tyranny outweighs full scale nuclear war
R.J Rummel, Professor Emeritus of Political Science @ U of Hawaii,
1994 Death by Government
http://www.hawaii.edu/powerkills/NOTE1.HTM
Power kills, absolute Power kills absolutely. This new Power Principle is the message emerging
from my previous work on the causes of war1 and this book on genocide and government mass murder--
what I call democide--in this century. The more power a government has, the more it
can act arbitrarily according to the whims and desires of the elite, the more it
will make war on others and murder its foreign and domestic subjects. The
more constrained the power of governments, the more it is diffused, checked
and balanced, the less it will aggress on others and commit democide. At the
extremes of Power2, totalitarian communist governments slaughter their people by
the tens of millions, while many democracies can barely bring themselves to
execute even serial murderers. [HE CONTINUES] Consider also that library stacks have
been written on the possible nature and consequences of nuclear war and
how it might be avoided. Yet, in the life of some still living we have
experienced in the toll from democide (and related destruction and misery among the
survivors) the equivalent of a nuclear war, especially at the high near 360,000,000 end of the
estimates. It is as though one had already occurred! Yet to my knowledge, there is only one book dealing
with the overall human cost of this "nuclear war"--Gil Elliot's Twentieth Century Book of the Dead.
[ ] Presidential power equates to tyranny – causes war and

conflict
Rockwell, 1996: [Llewellyn H., president of the Mises Institute, speech
at the John Randolph Club, October 6, 1996,
http://www.lewrockwell.com/rockwell/prez.html ]
The presidency must be destroyed. It is the primary evil we face, and the cause of nearly all our
woes. It squanders the national wealth and starts unjust wars against foreign
peoples that have never done us any harm. It wrecks our families, tramples on our rights, invades our
communities, and spies on our bank accounts. It skews the culture towards decadence
and trash. It tells lie after lie. Teachers used to tell schools kids that anyone can be president.
This is like saying anyone can go to Hell. It's not an inspiration; it's a threat. The presidency – by
which I mean the executive state – is the sum total of American tyranny. The
other branches of government, including the presidentially appointed Supreme Court, are mere adjuncts.
The presidency insists on complete devotion and humble submission to its dictates, even while its steals
the products of our labor and drives us into economic ruin. It centralizes all power unto itself, and crowds
out all competing centers of power in society, including the church, the family, the business, the charity,
and the community. I'll go further. The U.S. presidency is the world's leading evil. It is the chief mischief-
maker in every part of the globe, the leading wrecker of nations, the usurer behind third-world debt, the
bailer-out of corrupt governments, the hand in many dictatorial gloves, the sponsor and sustainer of the
New World Order, of wars, interstate and civil, of famine and disease. To see the evils caused by the
presidency, look no further than Iraq or Serbia, where the lives of innocents were snuffed out in pointless
wars, where bombing was designed to destroy civilian infrastructure and cause disease, and where
women, children, and the aged have been denied essential food and medicine because of a cruel embargo.
Look at the human toll taken by the presidency, from Dresden and Hiroshima
to Waco and Ruby Ridge, and you see a prime practitioner of murder by
government.

The Method
Democracy Impact
[ ] Democracy solves war and extinction
Carnegie Commission on Preventing Deadly Conflict, October 1995,
“Promoting Democracy in the 1990’s,”
http://www.carnegie.org//sub/pubs/deadly/dia95_01.html, accessed on
12/11/99
OTHER THREATS This hardly exhausts the lists of threats to our security and well-being in the coming
years and decades. In the former Yugoslavia nationalist aggression tears at the stability of Europe and
could easily spread. The flow of illegal drugs intensifies through increasingly powerful international crime
syndicates that have made common cause with authoritarian regimes and have utterly corrupted the
institutions of tenuous, democratic ones. Nuclear, chemical, and biological weapons continue to proliferate.
The very source of life on Earth, the global ecosystem, appears increasingly endangered. Most of these
new and unconventional threats to security are associated with or
aggravated by the weakness or absence of democracy, with its provisions for
legality, accountability, popular sovereignty, and openness. LESSONS OF THE TWENTIETH
CENTURY The experience of this century offers important lessons. Countries that govern
themselves in a truly democratic fashion do not go to war with one another.
They do not aggress against their neighbors to aggrandize themselves or glorify their leaders.
Democratic governments do not ethnically "cleanse" their own populations,
and they are much less likely to face ethnic insurgency. Democracies do not sponsor terrorism against one
another. They do not build weapons of mass destruction to use on or to threaten one another. Democratic
countries form more reliable, open, and enduring trading partnerships. In the long run they offer better
They are more environmentally responsible
and more stable climates for investment.
because they must answer to their own citizens, who organize to protest the destruction
of their environments. They are better bets to honor international treaties since they value legal
obligations and because their openness makes it much more difficult to breach agreements in secret.
Precisely because, within their own borders, they respect competition, civil liberties, property rights, and
the rule of law, democracies are the only reliable foundation on which a new world order of international
security and prosperity can be built.
[ ] Democracy solves nuclear and biological warfare,

genocide and environmental destruction
Larry Diamond, 1995 Hoover Institution, Stanford University,
December, PROMOTING DEMOCRACY IN THE 1990S, 1995, p.
http://www.carnegie.org//sub/pubs/deadly/diam_rpt.html //
Nuclear, chemical and biological weapons continue to proliferate. The very source
of life on Earth, the global ecosystem, appears increasingly endangered. Most of
these new and unconventional threats to security are associated with or aggravated by the
weakness or absence of democracy, with its provisions for legality,
accountability, popular sovereignty and openness. The experience of this century offers
important lessons. Countries that govern themselves in a truly democratic fashion
do not go to war with one another. They do not aggress against their neighbors to aggrandize
themselves or glorify their leaders. Democratic governments do not ethnically
"cleanse" their own populations, and they are much less likely to face ethnic
insurgency. Democracies do not sponsor terrorism against one another. They do not build
weapons of mass destruction to use on or to threaten one another. Democratic
countries form more reliable, open, and enduring trading partnerships. In the long run they offer better
They are more environmentally responsible
and more stable climates for investment.
because they must answer to their own citizens, who organize to protest the
destruction of their environments. They are better bets to honor international treaties since
they value legal obligations and because their openness makes it much more difficult to breach

The Method Lab
agreements in secret. Precisely because, within their own borders, they respect competition, civil liberties,
property rights, and the rule of law, democracies are the only reliable foundation on which a new world
order of international security and prosperity can be built.

The Method
***AFF Answers to Pres Powers***

The Method Lab
Uniqueness Pres Powers High

[ ] Presidential power is quickly spiraling out of control,
Congress is needed to control and restrict the moves for more
executive power.
New American, March 30, 2009: [Patrick Krey - M.B.A., J.D., L.L.M., is a
lawyer and freelance writer from New York. The New American, “A
presidency fit for a king: President Barack Obama is the latest in a long
line of presidents who is all too happy to wield expansive presidential
power that would have horrified the Founding Fathers.” Issue 25.7 pg
19. Gale Cengage: Gale Document Number: A196963174]
Obama might try to go through Congress to get some of the initiatives

passed but if that fails, he can just use the new fourth branch of government
as be sees fit. A perfect example of how a president can avoid Congress and instead use an executive
department is how Bush created the auto bailout. When Congress failed to pass the auto bailout, Bush
simply diverted funds from the earlier financial bailout to the auto industry while Congress sat on the
sidelines. Presidents have learned by example that if Congress won't do as they're told, they simply make
The concepts of separation of powers
it work through the gargantuan administrative state.
and checks and balances are mere afterthoughts. The king used to appoint
governors to see out his agenda, and a similar method is employed today by
Obama in the appointment of "czars." Czar is a popular term for an individual who will act
like a top-level deputy administrator for the president in governmental departments but who doesn't have
to go through the constitutional requirements for filling that role. Joe Biden boasts that he coined the term
"drug czar," and there was talk of a "car czar" that was abandoned after it was met with some ridicule by
the public. Czars are regarded by the mainstream press as seemingly all-knowing experts who are above
Fellow Democrat Senator Robert Byrd even
our traditional constitutional restraints.
criticized the president for his contemplated use of czars to oversee energy
and climate policy. In a letter written to Obama, Senator Byrd warned: "The
rapid and easy accumulation of power by White House staff can threaten the
Constitutional system of checks and balances.... At the worst, White House
staff have taken direction and control of programmatic areas that are the
statutory responsibility of Senate-confirmed officials." Absolute Power of the
President's Pen As Lord Acton famously said, "Power tends to corrupt;
absolute power corrupts absolutely" Perhaps no presidential action evidences the king-like
power of our president more than the issuance of an executive order. Much like the "king's decree" of old,
executive orders are a law unto themselves. In today's world of executive power, the
president can accomplish with a swipe of the pen what used to take an act of Congress. Among the now 17
executive orders issued by Obama was a rescission of the "Mexico City" policy prohibiting foreign aid being
used to fund abortion worldwide. Because of a letter containing 416 words signed by Obama, the U.S.
government will resume its role in globally funding abortions. The religious right who support so-called
"humanitarian" foreign aid should pause to consider how it is that the United States has become one of the
world's biggest financiers of abortion on demand.
[ ] Presidential power is rapidly increasing in the status

quo. This trend is occurring regardless of political affiliation or
individual in office.
Noah Feldman, January 8, 2006: [Noah Feldman is a contributing writer
for New York Times and professor of Law at NYU, January 8, 2006, New
York Times, “Who Can Check the President?” Late edition – final.

The Method
Section 6; Column 1; Magazine; Pg. 52. Lexis Nexis]
OUR PRESIDENTIAL ERA Not since Watergate has the question of presidential
power been as salient as it is today. The recent revelation that President George W. Bush
ordered secret wiretaps in the United States without judicial approval has set off the latest round of
arguments over what the president can and cannot do in the name of his office. Over the past few
years, the war on terror has led to the use of executive orders to authorize
renditions and the detention of enemy combatants without trial -- for which the
Bush administration has been called to account by our European allies. The treatment of detainees has
also given rise to concerns in Congress about the prerogatives of the chief executive: both houses recently
voted to limit the president's authority to employ C.I.A. or other executive agents to engage in cruel and
inhumane interrogations. The limits of presidential power will almost surely be a
major topic of discussion during Samuel A. Alito Jr.'s Supreme Court
confirmation hearings, which are scheduled to begin this week. The stakes of the
debate could hardly be higher: nothing is more basic to the operation of a constitutional government than
the way it allocates power. Yet in an important sense, the debate is already long over. By historical
standards, even the Bush administration's critics subscribe to the idea of a pre-eminent president.
Administrative agencies at the president's command are widely understood
to be responsible for everything from disaster relief to drug approval to
imposing clean-air standards; and the president can unleash shock and awe
on his own initiative. Such ''presidentialism'' seems completely normal to most Americans,
since it is the only arrangement most of us have ever known. For better or worse, though, this is not
the system envisioned by the framers of the Constitution. The framers meant for the
legislative branch to be the most important actor in the federal government: Congress was to make the
laws and the president was empowered only to execute them. The very essence of a republic
was that it would be governed through a deliberative legislature, composed
carefully to reflect both popular will and elite limits on that will. The framers would no sooner
have been governed by a democratically elected president than by a king
who got his job through royal succession. The transformation of the United States from a
traditional republic to a democratic nation run in large measure by a single executive took a couple of
hundred years. Constitutional evolution, like its counterpart in the natural world, has occurred sometimes
gradually and sometimes in catastrophic jolts, like those brought about by war or economic crisis. The
process has not been entirely linear: presidential power grabs have often been followed
by a Congressional backlash, as in the wake of Richard Nixon's presidency.
But the overall winner has unquestionably been the president, who has reached
heights of power that the framers would scarcely have imagined. The modern presidency, as expressed in
the policies of the administration of George W. Bush, provides the strongest piece of evidence that we are
governed by a fundamentally different Constitution from that of the framers. While any constitution must
evolve over time to meet new circumstances and challenges, there is reason to think that, when it
comes to presidential power over national security, the latest developments
have gone too far.
[ ] Obama’s stance on war detainees and his justifications

indicate that he is following the same path as previous
presidents when it comes to executive power. This aggressive
presidential power, if left unrestrained, culminates in the
impacts.
Slate, April 9, 2009: [Bruce Fein is a constitutional lawyer with Bruce
Fein & Associates Inc. and frequent writer for Slate Magazine; April 9,
2009, Slate Magazine Online Issue, “Czar Obama: The president’s
incredibly imperialist wielding of executive power.”
http://www.slate.com/id/2215818/ ]

The Method Lab
President Barack Obama's claim to czarlike powers in a perpetual global war

against international terrorism has been blunted by a judicial appointee of
former President George W. Bush. Last week, in the case Fadi al Maqaleh,
United States District Judge John D. Bates denied that President Obama could
make suspected "enemy combatants" disappear into the Bagram Theater
Internment Facility at Bagram Airfield in Afghanistan without an opportunity
for exoneration. (While President Obama has abandoned the term enemy combatant for
Guantanamo Bay detainees, he has retained the label for detainees held elsewhere.) Bates' ruling is
a welcome check on an emerging pattern of mightily expansive claims of
executive authority by the new administration. In early February, President
Obama sought another imperial power before the United States Court of
Appeals for the 9th Circuit in the case Mohammed v. Jeppesen Dataplan. The
complaint alleged that the plaintiffs had been seized by American personnel, taken to airports, stripped,
blindfolded, shackled to the floor of a Gulfstream V, and taken to destination countries for torture and
harsh incarceration. The District Court dismissed the complaint because then-President Bush and Vice
President Cheney argued that state secrets would be exposed if the case were litigated. During oral
Obama echoed the state-secrets argument made by
argument before the 9th Circuit,
Bush and Cheney. Similarly, the president who promised "change" is wielding
the tool of state secrets in aiming to dismiss, without the gathering of
evidence, challenges to the National Security Agency's Terrorist Surveillance
Program, which entailed warrantless phone or e-mail interceptions of American citizens on American
soil in contravention of the Foreign Intelligence Surveillance Act of 1978. This defense has failed before
Judge Vaughn R. Walker in early rounds of the litigation. And, again, the state-secrets privilege is the
administration's response, if ancillary to a defense of retroactive immunity, in a brief filed last week to the
efforts of the Electronic Frontier Foundation to sue Bush administration officials for the NSA's wiretapping.
In principle, President Obama is maintaining that victims of constitutional
wrongdoing by the U.S. government should be denied a remedy to prevent
the American people and the world at large from learning of the lawlessness
perpetrated in the name of national security and exacting political and legal
accountability. Thus Mahar Arar, who was tortured by Syrian agents, allegedly with the complicity of
U.S. intelligence or immigration agents, has been denied a judicial remedy, again based on the state-
secrets rule, to hide the identifies of his U.S. government persecutors. Similarly, victims of torture
authorized by the president or vice president would encounter the state-secrets bar if they sought redress.
Disclosing the methods of torture, the government has argued, might enable al-Qaida detainees to
prepare better psychologically or physically to resist the criminal abuse! Such reasoning more befits the
pages of Alexander Solzhenitsyn's Gulag Archipelago than the U.S. Supreme Court opinion in ex parte
Milligan: "The Constitution of the United States is a law for rulers and people, equally in war and in peace,
and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No
doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of
its provisions can be suspended during any of the great exigencies of government."

The Method
[ ] Obama moving down path towards aggressive executive

power – this power justifies tyranny and abuse of liberites
New American, March 30, 2009: [Patrick Krey - M.B.A., J.D., L.L.M., is a
lawyer and freelance writer from New York. The New American, “A
presidency fit for a king: President Barack Obama is the latest in a long
line of presidents who is all too happy to wield expansive presidential
power that would have horrified the Founding Fathers.” Issue 25.7 pg
19. Gale Cengage: Gale Document Number: A196963174]
It is said that on the final day of deliberation at the Constitutional Convention of 1787, a female passerby
asked an exiting Ben Franklin, "Well Doctor, what have we got--a republic or a monarchy?" He replied, "A
Republic, if you can keep it." But if Ben Franklin were alive today to witness the
unlimited, king-like power of President Barack Obama, he would answer that
we are definitely living under an elected monarch. The Honorable John V. Denson, a
Circuit Court judge from Alabama and editor of Reassessing the Presidency: The Rise of the Executive
State and the Decline of Freedom, explains that "the Founders intended for the legislative branch of
Congress, composed of both the House and Senate, to be the dominant branch of the federal government,
which was then very limited in scope and power. Today the executive has become, by far,
the dominant branch of government, even to the point that it is the main
threat to the liberty and freedom of American citizens." (Emphasis added.) It must
be stressed that the aggrandizement of power within the executive branch
certainly did not start under the current occupant of the White House.
President Barack Obama is simply the latest in a long line of presidents who
is all too happy to wield expansive presidential power that would have
horrified the Founding Fathers. Obama's "progressive" agenda and his
actions after being in office for a little over a month illustrate that he plans to
build upon that legacy of centralization and control by leaps and bounds.
Obama's Imperial Presidency When writing in the Declaration of Independence about the "long train of
abuses and usurpations" committed on the colonists by the tyrannical king of Great Britain, Thomas
Jefferson identified a series of such abuses, including "[the king] has erected a multitude of New Offices,
and sent hither swarms of Officers to harass our people and eat out their substance." The description of
this abuse has eerie similarities to the growing list of executive departments collectively referred to as
"the administrative state." Defenders of liberty have much to worry about as unelected bureaucrats based
out of D.C. exercise powers that were once solely reserved to Congress, the states, or the people
themselves.

The Method Lab
[ ] Obama will continue to exercise presidential powers

Aziz Huq, - director of the liberty and national security project at New
York University's Brennan Center for Justice – December 23, 2008:
[December 23, 2009, “Dismantling the Imperial Presidency,” The
Nation January 12, 2009 edition,
http://www.thenation.com.proxy.lib.umich.edu/doc/20090112/huq ]
President-elect Obama's first appointments to the Justice, State and Defense

Departments mark no radical change. Rather, they return to a centrist
consensus familiar from the Clinton years. But pragmatic incrementalism and
studied bipartisanship will do little to undo the centerpiece of the
Bush/Cheney era's legacy. At its heart, that regime was intent on forcing the Constitution into a
new mold of executive dominance. Obama enters the White House in a slipstream of forces that will hinder
attempts to abandon this constitutional vision. He may be a careful constitutional scholar, but we
can't
rely on Obama alone to reorient the constitutional order. It will be up to progressives
to insist on fundamental repudiation of the Bush/Cheney era. At first blush, Obama's victory is cause for
optimism. As a senator he roundly rejected the signature Bush/Cheney national security policies: torture,
"extraordinary rendition," Guantánamo and--until July--warrantless surveillance. Obama appointees like
Eric Holder as attorney general speak unequivocally against these violations of constitutional and human
The most significant
rights (to be sure, in Holder's case it was after early equivocation).
Bush/Cheney innovation was planted at the taproot of our Constitution. It was
the insistence that the president can exercise what Cheney in 1987 called
"monarchical notions of prerogative." That he can, in other words, override
validly enacted statutes and treaties simply by invoking national security. This
monarchical claim underwrote not only the expansion of torture, extraordinary rendition and warrantless
surveillance but also the stonewalling of Congressional and judicial inquiries in the name of "executive
The Bush/Cheney White House leveraged pervasive
privilege" and "state secrets."
post-9/11 fears to reverse what Cheney called "the erosion of presidential
power" since Watergate. Relying on pliant Justice Department lawyers for legal cover, it put
into practice a vision of executive power unconstrained by Congress or the courts. It
achieved what James Madison once called the "accumulation of all powers, legislative, executive and
Radical
judiciary, in the same hands," which he condemned as "the very definition of tyranny."
change is needed to re-establish legitimate bounds to executive power. We
must again place beyond the pale Nixon's famous aphorism that "when the president does it, that means
it's not illegal." But radical change--as early appointments and policy signals from the Obama transition
And there are many
team suggest--comes easier as campaign slogan than governing practice.
reasons to fear a go-slow approach from Obama when it comes to restoring
the constitutional equilibrium. No matter how decent, any new president is
tempted by the tools and trappings of executive authority. However tainted the Oval
Office is now, Obama's perspective will change dramatically on entering the White House. He
is already reading more daily security briefs than Bush and beginning each day with a barrage of fearful
intelligence, hinting at dangers that largely never materialize. Submersion in that flow of intelligence will
wrenchingly change his sense of the world's risks. So Obama will be tempted to maintain
Bush's innovations in executive power. While the terror threat remains substantial, as the
Mumbai attack shows, the Bush administration has left counterterrorism policy in tatters. We have no
rational strategy for terrorist interdiction and prevention. Obama's nominations of Robert Gates as defense
secretary and Gen. James Jones as national security adviser suggest he is acutely aware of these deficits
and of the Democrats' perceived vulnerability on national security. uInternal pressure for changing the
White House position on executive power will thus wane as the new administration settles in. And pressure
from the other two branches is unlikely to swell.

The Method
Pres Powers Key to Separation of Powers
[ ] Unitary Executive theory key to Separation of Power
Calabresi, 1995: [ Steven Calabresi - Associate Professor at
Northwestern University School of Law. “Some Normative Arguments
for the Unitary Executive” 48 Ark. L. Rev. 23 OneFile ]
The goal, of course, is to ensure that “ambition [will] be made to counteract
ambition.” N61 This is accomplished in two ways. First, it is necessary to ensure that
each department will have a will of its own. This can be done in part by creating
separate electoral channels for each of the three departments back to the
ultimate “fountain of authority, the people…”n62 Second, it is necessary to guarantee that
“those who administer each department,” will have “the necessary
constitutional powers of those offices and the “provision for defence must in
this, as in all other [*46] cases, be made commensurate to the danger of
attack.” N64 This in turn, leads necessarily to the idea of a unitary executive. The
reason for this is because “it is not possible to give to each department an equal power of self defense” as
“in republican government the legislative, necessarily, predominate.” N65 Madison explained that “the
remedy for this inconveniency is, to divide the legislature into different branches: and to render them by
different modes of election, and different principles of action, as little connected with each other as the
nature of their common function; and their common dependence on the society, will admit.” N66 But
just as key to Madison as the weakening of the legislature was the
concomitant strengthening of the executive. Thus, he stated that “ as the
weight of the legislative authority requires that it should be thus divided, the
weakness of the executive may require, on the other hand that it should be
fortified.”

The Method Lab
Pres Powers Key to Heg

[ ] Strong Executive key to US leadership and solving
global solutions
Deans 2000: [Bob Deans – White House Writer for Cox Newspapers.
January 23, 200. The Atlanta Journal and Constitution. Lexis]
While no one can doubt the growing impact of the Internet, Silicon Valley and Wall Street on the daily lives
of all Americans, only the president can rally truly global resources around
American ideals to further the quest for equality and to combat the timeless
ills of poverty and war. It is that unique ability to build and harness a
worldwide consensus that is widening the circle of presidential power. “the
presidency will remain as important as it is or will become more important,”
predicted presidential scholar Michael Nelson, professor of political science at Rhodes College in Memphis,
Tenn. the voice of all Americans. The Taproot of presidential power is the Constitution,
which designates the chief executive, the only official elected in a national
vote, as the sole representative of all the American people. That conferred authority
reflects the state of the nation, and it would be hard to argue that any country in history has possessed the
military, economic and political pre-eminence that this country now holds. And yet, the nation’s
greatest strength as a global power lies in its ability to build an international
consensus around values and interests important to most Americans. On
Clinton’s watch, that ability has been almost constantly on display as he has
patched together multinational responses to war in the Balkans, despotism in
Haiti, economic crises in Mexico, Russia, Indonesia and South Korea, and
natural disasters in Turkey and Venezuela. The institutions for putting together coalition-
type action – the United Nations, NATO, the IMF, the World Bank and the WTO among them – are hardly
tools of American policy. But the United States commands a dominant, in some cases decisive, position in
each of those institutions. And it is the president, far more than Congress, who
determines how the United States wants those institutions to be structure
and to perform. “Congress is a clunky institution of 535 people that can’t
negotiate as a unit with global corporation or entities,” said Alan Ehrenalth, editor of
Governing magazine. “It’s the president who is capable of making deals with global
institutions.” It is the president, indeed, who appoints envoys to those institutions, negotiates the
treaties that bind them an delivers the public and private counsels that helps guide them, leaving the
indelible imprint of American priorities on every major initiative they undertake. “That means, for
example, that we can advance our interests in resolving ethnic conflicts, in
helping address the problems of AIDS in Africa, of contributing to the world’s
economic development, of promoting human rights,” said Emory University’s Robert
Pastor, editor of a new book, “A Century’s Journey,” that elaborates on the theme.
[ ] Nuclear war
Khalilzad 1995 [Zalmay, RAND, Washington Quarterly, spring, lexis]
Under the third option, the United States would seek to retain global leadership and to preclude the rise of
a global rival or a return to multipolarity for the indefinite future. On balance, this is the best long-term
guiding principle and vision. Such a vision is desirable not as an end in itself, but because a world in
which the United States exercises leadership would have tremendous advantages. First,
the global environment would be more open and more receptive to American values — understood as
democracy, free markets, and the rule of law. Second, such a world would have a better
chance of dealing cooperatively with the world's major problems, such as nuclear
proliferation, threats of regional hegemony by renegade states, and low-level
conflicts. Finally, U.S. leadership would help preclude the rise of another hostile

The Method
global rival, enabling the United States and the world to avoid another global cold or
hot war and all the attendant dangers, including a global nuclear exchange. U.S.
leadership would therefore be more conducive to global stability than a
bipolar or a multipolar balance of power system

The Method Lab
***Judicial Activism***

The Method
Uniqueness – Activism High
[ ] Court is activist now
Llorens, June 5, 2009: [Aramdno llorens – litigation attorney in San
Juan, Puerto Rico. June 5, 2009, “Stuart Taylor: conservative Roberts
Court Is Judicially Activist.”
http://www.talkleft.com/story/2009/6/5/82858/12069 ]
I wonder if this obvious fact will now break through to the Media.
I have written over and over
that Chief Justice Roberts has proven to be the most brazen judicial activist
the Court has seen in some time. Now conservative legal commentator Stuart
Taylor is saying the same thing: Conservative critics of Judge Sonia Sotomayor may be digging
themselves into a hole if they keep hurling the tired old "liberal activist" slogan at her. The reason is that
her supporters can plausibly retort that these days, the Supreme Court's conservatives are as activist as
the liberals, especially on racial issues. No kidding. Now will the Media feel it is acceptable to report this
That Roberts and his cohorts are NOT "moderate" and "modest?"
obvious fact?
That instead they are brazen, extreme conservative judicial activists? More . .
Taylor also demonstrates the conservative view of "judicial activism" - it's
bad when liberals do it but "necessary" when conservatives do it: Liberals
denounced this as flagrant judicial activism. I agreed to some extent in my July 7, 2007,
column because -- in my view -- Roberts's plurality opinion sought to transfer too much power over such
issues to judges, and away from the political branches and thus from the voters, by imposing a more
absolutist ban on any and all racial classifications than is justified by the Constitution's language and
history. (In my September 27, 2008, column, I also argued that all nine justices are judicial activists.)
But
is it judicial activism when the justices stretch the Constitution to go over the
heads of the political branches -- which are dominated by special-interest
lobbies -- not to overrule the voters but rather to give them what they want?
This is, of course, absurd. Voters express their preferences not by Quinnipiac
poll, but by electing representatives. President Obama was elected President
of the United States. The Democrats were swept into power in the Congress
by large majorities. Indeed, they will now hold the largest majorities seen in
the Congress since 1980. But Taylor here proves my axiom - to conservatives
there is no bad conservative judicial activism - only bad liberal judicial
activism. Thus, Taylor is demanding extreme conservative judicial activism in the Ricci case: But it
would more than justify a ruling for the white New Haven firefighters. Far from being activist, such a
decision would vindicate the central thrust of the 1964 Civil Rights Act and the Constitution's equal
Just because Taylor agrees with the POLICY result, he
protection clause. This is false.
thinks it would not be judicial activism if the Roberts Court were to overturn
the will of Congress and a 38 year old Supreme Court precedent. This is absurd.
Griggs was decided 38 years ago. Congress, including many Republican congresses, has had many
opportunities to overturn that decision by legislative action. As they did regarding the Ledbetter decision
(President Obama signed the law overturning the Supreme Court decision a t the beginning of his term),
the Grove City decision (which the Congress overturned in 1988 when it passed the Civil Rights
Restoration Act) and earlier when the Congress overturned a Supreme Court decision that effectively
repealed by judicial fiat many important aspects of the Civil Rights Act (the Congress passed a law signed
Taylor's position is intellectually
by the Republican President George H.W. Bush.)
incoherent. Which proves my point - for conservatives like Taylor "judicial
activism" is only bad when "liberals" do it. It is an empty judicial philosophy.
It is the conservative political philosophy regarding the Supreme Court.
Conservative judicial activism = good. "Liberal" judicial activism = bad.
Taylor does a service by laying it out so honestly. Speaking for me only

The Method Lab
Uniqueness – Activism Low

[ ] Sotomayor is not an activist, activism will be lowered in
courts
AP, June 29, 2009: [ Associated Press, “White House: Court Ruling
shows nominee not an activist.” June 29, 2009. KHQ 06.
http://www.khq.com/global/story.asp?s=10614212 ]
The White House says it should serve as proof that Sonia

WASHINGTON (AP) -
Sotomayor isn't an "activist" judge. President Barack Obama's spokesman
says a decision that was endorsed by Sotomayor at the appeals court level --
but was overturned today by the U.S. Supreme Court -- was an example of
Sotomayor following judicial precedent. The case involved white firefighters in New Haven,
Conn. The high court today found that those firefighters were unfairly denied promotions because of race.
Sotomayor had ruled the other way on the appeals court. Her confirmation hearings
White House spokesman Robert
are set to begin soon for a seat on the Supreme Court.
Gibbs says it's clear that Sotomayor's appeals court ruling was based on the
precedents of that judicial circuit. He says that should ease concerns of senators who are
worried that she'll ignore precedent and try to legislate from the bench.
[ ] So long as Chief Justice Roberst is in the court judicial

activism will be restricted and kept to minimum
Bravin, July 2, 2007: [Jess Bravin – Wall Street Journal staff writer, July
2, 2007. “Courts under Roberts limits judicial power.” Section A; Clumn
4; Pg. 1 ]
Supreme Court's first term under Chief Justice John Roberts reflects
conservatives' antipathy to what they label judicial activism by avoiding
decisions they believe are best left to elected executive, legislatures or free
market; trend runs counter to much of past 50 years, during which court saw
litigation as way to reshape American society; drawings (L)

The Method
[ ] The Supreme Court not suffering from judicial activism
Wall Street Journal, June 6 2009, Jeff Rowes, “Judicial Activism isn’t the
issue,” accessed 6/30/09,
http://online.wsj.com/article/SB124425367341590989.html?
mod=googlenews_wsj
The growing dispute between conservatives and liberals over the Supreme Court nomination
of Sonia Sotomayor obscures a more troubling point of agreement: The
government should almost always win. Many conservatives who think of themselves as
proponents of limited government would be surprised to discover that conservative judges begin
their constitutional analyses in almost every context by placing a thumb firmly on the
government side of the scale. It's called "judicial deference." Many liberals, who take
pride in being "empathetic," would be surprised to learn that liberal judges also subscribe to
judicial deference. The practical result is that judges of both persuasions almost never enforce any
constitutional limit on the power of government to regulate property and the economy. Given that the vast
majority of law concerns these two areas, the real crisis in constitutional law is not judicial
"activism" but judicial passivism. It all began in the late 1930s, when the Supreme Court
opened the floodgates for New Deal economic regulation. In essence, conservatives have adopted the big-
government agenda of that era. The liberal-conservative consensus explains why nomination fights focus
on a few "culture war" issues such as gay marriage or guns. Liberals and conservatives squabble over
these esoteric questions because there is such harmonious accord on everything else. The time-honored
justification for judicial deference is that when courts refuse to enforce property rights and allow economic
liberties to be trampled by legislatures they are showing respect for the democratic process. But this
notion is not faithful to the duty of the judiciary. The Constitution's framers understood that legislatures
are as much nests of vice as of virtue. That is why they went to such lengths to define the limits of
government, set forth our rights broadly, and create an independent, co-equal branch of government to
protect those rights. The absence of meaningful constitutional limits on the power of government over
property and the economy has had consequences that should cause both liberals and conservatives to
rethink the wisdom of sweeping judicial deference. For example, last fall Congress enacted the
Troubled Asset Relief Program, putting hundreds of billions of dollars at the
personal discretion of the secretary of the Treasury. This grant of authority --
which violates the basic constitutional duty of Congress to control the purse laid out in
Article I, Section 8 -- transformed the secretary into the most powerful unelected official in American
history. Such power, once acquired, is rarely relinquished. None of this would have been
possible, without the longstanding refusal of the Supreme
thinkable, much less
Court to enforce clear constitutional boundaries on the elected branches. In another
example, America has become a patchwork quilt of laws serving special interests because courts refuse to
protect economic liberty. In 1950, only one in 20 trades required a license. Now it is more than one in four
(according to recent research of Morris Kleiner published by the National Bureau of Economic Research),
and the clamor by industry groups for more licensing grows unabated.
[ ] Sotomayor marks a new, less activist time for the

Supreme Court
Coyle, Washington bureau chief and Supreme Court correspondent,
June 8, 2009. (Marcia, “Is Sotomayor a Judicial Activist? New Studies
May Shed Some Light,” The National Law Journal,
<http://www.law.com/jsp/article.jsp?id=1202431272514>)
Yung of The John Marshall Law School in Chicago is engaged in an ongoing empirical
Corey
study of judicial activism at the federal appellate court level. He is examining decisions
from 2008 and has completed work on five U.S. circuit courts of appeals so far -- the 2nd, 3d, 4th, 7th and
8th. "All of the definitions of activism normally used come down to the judge
believing his or her judgment is better than somebody else's judgment in the
constitutional system," Yung said. Specifically for federal appellate courts then, one
measure of activism is to examine when their judges reverse district court

The Method Lab
decisions, he said. If an appellate judge, in cases calling for deferential review, reverses district
courts at a higher rate than in cases in which nondeferential review is the standard, that judge is activist,
Based on preliminary data, Yung said, Sotomayor is "in the
according to Yung's measure.
mainstream, clearly, and less activist than the average judge -- more deferential to district
courts than the average judge among the five circuits I've looked at." And, he added, she is less activist
relative to her 2d Circuit peers. The average judge's score in his data now is 10.40. Sotomayor scores an
11.71. The lower the score, the more activist the judge, Yung said. And how does she rank in criminal
cases? Yung reports that the average judge's rank is 22.65; Sotomayor's rank is slightly more activist:
Lindquist and Cross also have begun analyzing Sotomayor's opinions.
19.05.
"They don't look activist," said Cross, but he cautioned that there is difficulty extrapolating
from what a judge has done on the circuit court to what that judge will do on the Supreme Court. "Public
discussion of judicial activism is shallow and maybe it always will be," said Cross. "But
the goal is to change the academics' view in the short term, and maybe that
will seep down into the public in the long term."

The Method
[ ] Sotomayor is not an activist and the court is low in
activism
Savage June 20, 2009 [Charlie, Writer for the New York Times,
www.nytimes.com, "Uncertain Evidence for 'Activist' Label on
Sotomayor"]
When a federal appeals court ruled that the Voting Rights Act did not apply to state statutes that disqualify
felons from voting, Judge Sonia Sotomayor accused her colleagues of usurping the
role of Congress. 'The duty of the judge is to follow the law,'' Judge Sotomayor
wrote, ''not to question its plain terms. I do not believe that Congress wishes
us to disregard the plain language of any statute or to invent exceptions to
the statutes it has created.'' ''I trust that Congress would prefer to make any
needed changes itself,'' she added, ''rather than have courts do so for it.'' Since
President Obama nominated Judge Sotomayor for the Supreme Court, a ubiquitous accusation by
her critics – conservative group leaders, talk show hosts, anti-abortion advocates and writers at blogs
like RedState.org -- is that she is a ''judicial activist'' who legislates from the
bench. Yet, while Judge Sotomayor has occasionally made statements outside
court that conservatives find objectionable, it is far from clear that her judicial
record supports the accusation that she is an activist. Several empirical
studies have concluded that she is not particularly prone to overriding policy decisions by
elected branches.
[ ] The Supreme Court has realized the judicial activism is

unpopular, and has started straying away from it
Dionne, twice-weekly columnist for The Post, June 25, 2009. (E.J. Jr., “A
Compromise Sustains the Voting Rights Act,” Washington Post) IBA
While acknowledging the past achievements of the Voting Rights Act, Roberts asserted that "past success
alone . . . is not adequate justification to retain the preclearance requirements." He also claimed that
"considerable evidence" suggested that the statute "fails to account for
current political conditions." Reading between the lines, Pamela Karlan, a Stanford Law School
professor and one of the country's leading voting rights experts, concluded that Roberts tried and failed to
put together a majority for gutting Section 5. "What the decision indicates is that the
conservative wing of the court didn't have five votes," she said in an interview. "I
don't think this was a minimalist decision. I think it's a compromise decision
because there are five justices who didn't want to strike down the act." What's likely is that one
or two conservative justices (probably Anthony Kennedy and possibly Samuel Alito) realized
that overturning an act of Congress simply because a narrow court majority
decided it was outdated would rightly be seen as an outrageous form of
judicial activism.
[ ] The Court’s most recent vote proves that judicial

activism is low
Savage, Supreme Court correspondent for the Los Angeles Times, June
23, 2009. (David G.
“Supreme Court narrows but preserves Voting Rights Act,” Los Angeles Times) IBA Though the court sided
with the Texas water district that brought the case, its 8-1 decision preserved the core of the Voting Rights
The ruling also
Act, including its special scrutiny for any changes in election rules by Southern states.
protected the Roberts court from charges of conservative "judicial activism"

The Method Lab
in its refusal to tamper with an act of Congress, a often sensitive procedure

fraught with political risk. Monday's decision, considered among the most
important of the term, came as a surprise and a relief to civil rights
advocates. "This is a Pyrrhic victory for those who were behind bringing this case," said Jon
Greenbaum, legal director for the Lawyers' Committee for Civil Rights Under Law. "We are glad that . . .
the Voting Rights Act remains intact to protect the rights of voters."

The Method
Court Policy = Activist
[ ] When the Court makes policy decisions, it alienates the
public and undermines judicial legitimacy.
Richard Pacelle, Political Science Professor, Berkeley, 2002 (“The Role
Of The Supreme Court In American Politics: The Least Dangerous
Branch”, p. 12)
When Americans think of public policy, they normally consider Congress and
the president as the sources. Democratic theory considers these to be the
appropriate locations for policymaking. After all, if the public is unhappy with the policies
that emerge from the White House or the Capitol, voters can throw the scoundrels out of office in the next
national election. When the justices announce a decision such as Roe v. Wade (1973) that may offend as
many people as it pleases, the public seems helpless. There is no November election to
remove Chief Justice William Rehnquist, who opposes the constitutional right
to reproductive freedom, or Justice John Paul Stevens, who supports a
woman's right to choose.
[ ] Supreme court rulings that create policy or overturning

of decisions is activist
Zeigler, 1996: [Donald H. Ziegler – professor of law at NYU. American
Law Review, June 1996, Lexis]
Although the judiciary has primary responsibility for saying what the
constitution means, judges are considered activist when they articulate new
constitutional rights not explicitly mentioned in the Constitution, n9 or when
they overturn statutes based on their own readings of constitutional values.
N10 Judges are likewise considered activist when they stretch or loosen
doctrines designed to ensure that cases are properly before them for review,
such as the doctrines of standing, mootness, and ripeness, or the final judgment rule. N11 Finally,
judges are considered activist when they ignore distort or overrule prior
precedent.

The Method Lab
Court Policy = Activist

[ ] Legislative action by courts is judicially activist
Blackmar, 1998: [Charles Blackmar – professor of Law at St. Louis
University and former Supreme court Justice of Missouri. Summer
1998. 42-St. Louis L. Rev. -753, Lexis ]
It should help, at the beginning, to ask what is a judicial activist. Some

suggest that the ideal judge decides cases in accordance with “the law.”
Which is found in certain authentic sources. Activists, they say, have other
agenda. They are not afraid of disrupting the existing economic or social
order. They are impatient with rules about standing, ripeness, and mootness, and announce doctrines
that are broader than necessary for the case at hand in order to establish legal rule they consider
desirable. They do not feel constrained by precedent. They do not hesitate to
tread on the turf of the executive and legislative branches. They are willing to
undertake detailed supervision of governmental and private activities. They
are prone to discover new rights not known to the authors of the
constitutional text relied on, and supported, if at all, only marginally by the
language of the constitution. They are “result-oriented,” deciding first how
the case ought to come out and then looking for snippets in cases which give
superficial support.
[ ] Court Policy making or overruling is activist

Dickey, 1997: [Joshua Dickey – McGeorge School of Law. McGeorge
Law Review, Fall 1997 Lexis]
Drafting legislation does not fall within the judiciary’s power to adjudicate
legal rights and determine legal controversies. Therefore, under a formal
analysis, the judges’ participation in the drafting of legislation may violate
the doctrine of separation of powers. Moreover, neither the United State Constitution nor the
California constitution permits the judiciary to propound advisory opinions. Judges have a duty to
uphold the constitution. N95 Pursuant to this duty, judges determine the validity of legislation
when it comes before them as a case and controversty. However, prior to the enactment of legislation,
there is no case or controversy because nobody can be harmed by a particular piece of legislation that
does not exist. Thus, a judge acts beyond his or her constitutional power when the
judge comments upon the validity of legislation prior to the existence of a
true case and controversy. By drafting legislation, a judge implicitly asserts that the legislation is
valid. Given the judge’s duty to uphold the constitution, we must assume the judge thought that the
legislation was valid-otherwise the judge would not have drafted it. Therefore, a close analogy can
be drawn between a judge drafting legislation and a judge rendering an
impermissible advisory opinion.

The Method
Court Action on Poverty = Activist
[ ] Because of current court, rulings on poverty and social
policy are judicially activist
Johnson, June 26, 2009: [Ben Johnson – Managing Editor of FrontPage
magazine and co-author of several books. FrontPage, “Sotomayor’s
Racialist Judicial Activims.” Friday June 26, 2009.
http://frontpagemag.com/readArticle.aspx?ARTID=35367 ]
Conservatives’ meager attempts to navigate the difficult path opposing Sonia Sotomayor’s Supreme Court
nomination have thus far shown their own ineptitude. Some have rightly emphasized that her statement
“that a wise Latina woman uwith the richness of her experiences would more often than not reach a better
conclusion than a white male” is reverse racism – but it hardly excites public outrage beyond the already
convinced.
Conservatives should recognize this and force the next stage of the
public debate to revolve around a simple question: do the American people believe
convicted felons in prison should have the right to vote, and that laws denying them this privilege are
Sotomayor, whose
racist? If they disagree with both propositions, they are at odds with Sonia
positions on this and related issues demonstrate she is a judicial activist who
sees the world through the lens of identity politics. Sotomayor’s position came in a
terse dissent to the 2006 case Hayden v. Pataki. The case argued that New York’s law barring convicted
felons from voting until they are released from prison or complete parole is racist and thus
unconstitutional. Its supporters made this argument on the grounds that “[m]ore than 80% of the New
Yorkers disenfranchised…are Blacks or Latinos, who lose their right to vote at more than ten times the rate
of other citizens.” Plaintiff Joseph “Jazz” Hayden, before he began his humanitarian crusade on behalf of
the disenfranchised, was convicted in 1987 of stabbing a sanitation worker to death. Most Second Circuit
Court of Appeals judges disagreed with him, but Sotomayor found Hayden’s objection supported by the
“plain terms” of the Voting Rights Act. Her minority opinion (no pun intended) puts into perspective
precisely what a judicial activist she is and how deeply concerns of ethnicity
color her view of the law. Felon Disenfranchisement, from Ancient Greece to
the Present Felon “disenfranchisement” is the radical idea that those
imprisoned for serious infractions of the law should not be voting for those
who will make it. This prudent practice has a history in the United States that
predates the Constitution. Jason Schall notes in Harvard’s BlackLetter Law Journal that the idea is
as old as democracy itself, taking root in ancient Greece and continuing in Rome. The North American
colonies adopted sometimes stringent regulations disqualifying anti-social voters: In Virginia, the franchise
was denied to any “convict or person convicted in Great Britain or Ireland during the term for which he is
transported.” Maryland disenfranchised citizens upon their third conviction for drunkenness…In
Connecticut, first a majority of the town’s freeman, and then the selectmen of the town, had to present a
certificate as to the “honest and civil conversation” of an aspiring voter. Rhode Island required that voters
be “of civil conversation [and have] acknowledged and are obedient to the civil magistrate.” Other states
restricting voting rights in the nation’s early history included such Jim Crow strongholds as Ohio,
Minnesota, California, and Oregon. Even Reiman concedes, “At the time of the ratification of the
Fourteenth Amendment in 1868, twenty-nine states had felon disenfranchisement laws. Interestingly, in
virtually all of these states, blacks had been legally denied the right to vote based on their race. Thus, the
antebellum disenfranchisement statutes cannot be thought to have been racially motivated.” The second
section of the 14th Amendment specifically states voting rights should not be “in any way abridged,
except for participation in rebellion, or other crime.” In floor debates on the 14th Amendment, Rep.
Ephraim R. Eckley, R-OH, stated, “Under a congressional act persons convicted of a crime against the laws
of the United States, the penalty for which is imprisonment in the penitentiary, are now and always have
been disfranchised, and a pardon did not restore them unless the warrant of pardon so provided.”
(Emphasis added.) Disenfranchisement laws were later passed in a discriminatory fashion as part of Jim
Crow, often openly so. However, today’s voting rights milieu can hardly be called a racist dream. The vast
majority of states allow felons, even violent ones like Mr. Hayden, to regain suffrage rights after
completing their sentence, or finishing parole/probation. Vermont and Maine allow felons to vote from
prison. Not only has barring notorious prisoners from the ballot box been a staple of democracy from the
Age of Pericles to the formation of the United States, and not only is it specifically permitted by the U.S.
Constitution, but the Supreme Court had already settled the issue. In the 1974 case Richardson v. Ramirez,
the High Court rejected a previous challenge to such laws. William Rehnquist wrote the decision on behalf
of a six-justice majority that included Warren Burger and Harry Blackmun. Will Senate Democrats grill
Sotomayor over her view of stare decisis as they did John Roberts? Although leftists will not, Republicans
should. Seeking to overturn several thousands of years of juridical precedent on the flimsiest of bases

The Method Lab
qualifies Sotomayor as a judicial activist par excellence, and conservatives ought not let the point go
unmade because any action against this Latina will bring cries of racism. The Left’s Criterion of “Racism”
For the contemporary Left to denounce any bill – or anyone – as racist, it need not actually be bigoted; it
must simply offend one of the Left’s constituent groups. Jeffrey Reiman, author of the book The Rich Get
Richer and the Poor Get Prison, writes that he “supports granting voting rights to felons, even those who
are still in prison.” His reason? “Because the vast majority of convicted felons in the U.S., black or white,
are from the lower classes, disenfranchisement works simultaneously to dilute electoral representation of
blacks and of poor people.” And, he candidly declares, these groups tend to vote Democratic. Since these
laws affect the Left, they are bad. Sotomayor’s Racialist Lens Such thinking is at the heart of much of
Sotomayor’s available legal record. While on the board of the Puerto Rican Legal Defense and Education
Fund (now LatinoJustice PRLDEF), she signed a 1981 memo – which she failed to disclose to the Senate –
declaring “capital punishment is associated with evident racism in our society.’’ Polls show even most
liberals, including Bill Clinton and Al Gore, support the death penalty, and the PRLDEF will never question
their allegiance to egalitarianism. Sotomayor denounced the death penalty with reasoning will sound
familiar: “The number of minorities or the poor executed or awaiting execution is out of proportion to their
numbers in the population.” (Emphasis added.) At the time of the memo, Sotomayor was hardly a mere
PRLDEF functionary but a self-described “participant in [the] development” of its “policy.” Among the
strategies formulated during her years of leadership was an attempt to “attack economic problems of our
community.” She is particularly proud of the organization’s “cases attacking civil service testing.” The
“attack” in question targeted the New York Police Department. In the 1980s, the PRLDEF found too few
minorities could pass the examination required to receive a promotion, so the Legal Left branded it, too,
“racist.” Ultimately, it was replaced. “An Affirmative Action Baby” Sotomayor’s opposition to test scores in
particular and meritocracy in general is caused and reinforced by her personal history.
[CONTINUES]

The Method
[CONTINUED]
Sotomayor has called herself an “Affirmative Action baby” and does not believe her test scores merited
her acceptance at Princeton or Yale Law School. “If we had gone through the traditional numbers route of
[entering Princeton and Yale Law], it would have been highly questionable if I would have been accepted,”
she said. “With my academic achievement in high school, I was accepted rather readily at Princeton and
equally as fast at Yale, but my test scores were not comparable to that of my classmates.” She quickly
moved to scapegoat the test for her failure: “And that’s been shown by statistics, there are reasons for
that. There are cultural biases built into testing, and that was one of the motivations for the concept of
Affirmative Action to try to balance out those effects.” Her personal failure reconfirmed her belief the test
is biased and merit is a myth. In a batch of video interviews, she opposed “selection by merit alone.” Such
blatant disregard for the outcomes of tests may explain her ready dismissal of the NYPD examination and
her ruling against more qualified white firemen in Ricci v. Stefano. In her life on both sides of the bench,
Sotomayor has defined racism not by intent but by “disparate impact.” This is the cornerstone of the myth
of Institutional Racism, a myth which President Obama firmly believes. The resultant legal philosophy
demands, not equality of opportunity nor equality before the law, but equality of result. Compare her views
with those of Chief Justice John Roberts. As part of the Reagan Justice Department, Roberts drafted memos
on why it was vital employers only be prosecuted for discrimination if there were some indication of
“intent.” This distinction in judicial philosophy goes to the heart of the understanding
of the presidents making each appointment. President Reagan believed the Constitution protected our
God-given liberties. Thus, Roberts sees that individuals have the right to pursue happiness in any way
consistent with the law, provided they do not discriminate against other, co-equal members of society.
President Obama believes “the Constitution is a charter of negative liberties. It says what the states can’t
do to you, says what the federal government can’t do to you, but it doesn’t say what the federal
government or the state government must do on your behalf.” Sotomayor’s jurisprudence
restricts the actions of individuals, and even the government, if those free actions
negatively impact a preferred minority group. Their Lady Justice is constantly peeking over her blindfold to
denote the color, sex, and socioeconomic status of the plaintiffs. How else can “empathy” advance the
“weak” at the expense of the “strong”? Sotomayor’s Judicial Philosophy is Obama’s Judicial Philosophy
Before circumscribing his rhetoric to run for president, Professor Barack H. Obama planned “to put
together the actual coalitions of power through which you bring about redistributive change.” He stated
the Supreme Court can, and should, “take judicial notice of” societal phenomena and interpret the
Constitution accordingly. He insisted the U.S. Constitution “reflected the fundamental flaw of this country
that continues to this day.” And even on the campaign trail he demanded this flaw be atoned for – by you.
“I consistently believe that when it comes to…[racial] reparations, the most important thing for the U.S.
government to do is not just offer words, but offer deeds,” he said. Since poverty, lack of health
care, lack of child care, and felony conviction have a “disparate impact” on
minority groups, they must be set aright by economic redistribution (sorry,
“tax cuts for 95 percent of the American people”), expanding Medicare
coverage, moving toward his campaign proposal of universal preschool – and
repealing laws against felons voting, even if those felons are currently in
prison for violent offenses. The American people last November were swept away by the
rhetoric, charisma, and, yes, celebrity of Barack Obama and the stark contrast between Obama’s empty
cadences of hope and John McCain’s hopeless cadences. They did not vote to enshrine the jurisprudence of
Balkanization in the High Court.

The Method Lab
Court Action on Poverty = Activist

[ ] Empirically proven – any legislation passed by the courts
dealing with poverty is judicially activist and creates a
snowball effect where the court becomes extremely activist
Donald Horowitz - James B. Duke Professor of Law and Political Science
at Duke University – 1977: [Brookings Institution Press, 1977, “The
Courts and social policy.” Pg. 10. Google Books ]
Most obvious has been the influence of the school desegregation cases. These decisions created
a magnetic field around the courts, attracting litigation in areas where judicial
intervention had earlirer seemed implausible. The more general judicial
activism of the Warren Court signale its willingness to test the conventional
boundaries of judicial action. As this happened, significant social groups thwarted in achieving
their goals in other forums turned to adjudication as a more promising course. Some organizations
saw the opportunity to use litigation as a weapon in political struggles carried
on elsewhere. The National welfare Rights Organization, for example, is said
to have turned to lawsuits to help create a state and local welfare crisis that
might bring about a federal guaranteed income. The image of courts willing to “take to
heart” was attractive, too, to legislators who were not. Such social programs
as the poverty program had elgal assistance componenets, which Congress
obligingly provided, perhaps partly because they placed the onus for
resolving social problems on the courts. Soon there were also privately
funded lawyers functioning in the environmental, mental health, welfare
rights, civil rights, and similar fields. They tended to prefer the judicial road to
reform over the legislative. They raised issues never before tested in
litigation, and the courts frequently responded by expanding the boundaries
of judicial activity.

The Method
Activism Snowball Effect
[ ] Judicial activism creates a snowball effect, future
abuses of the court power destroy democracy
Mckeever, 1997: [Institution of Advanced Legal Studies “The United
States supreme court: A political and legal analysis.” Pg. ]
At the opposite end of the spectrum form the minimal court lies the unlimited court. This school of thought
is advanced by some contemporary liberals who believe that the Court can and should re-define its
creation. It ahs been argued, for example, that the court should abdicate responsibility for settling disputes
between Congress and the presidency and between the federal government and the States because, as a
practical matter, these can be left to political bargaining and competition between the parties concerned.
On the other hand, the court should play a much expanded role as a policy-maker on matters of civil rights
and liberties, since it is better equipped than any other institution to ‘do justice’ in this area of
government. The most important thing to note about this conception of the Court is that it is no longer
bound by the spirit or text of the Constitution when it dispenses justice. It becomes, in essence, a rolling
constitutional convention on human rights, empowered to expand the zone of individual liberty wherever it
detects an undesirable interference by government in the lives of its citizens. An
unlimited
Supreme Court has the great attraction of providing the American people
with a wide-ranging and relatively impartial watchdog over governmental
policies with significant implications for civil liberties. Unfortunately to allow
the Court to exercise such plenary power carries with it a high risk of
excessive judicial activism. Once all restraints have been removed from judicial control, what
remains of democratic government and the just powers of elected representatives? This concern is a
serious one, as the history of the Court suggests. In periods of general judicial activism,
such as the 1920s and 1930s, or the 1960s and 1970s, the Court has found it difficult to
draw a line beyond which it will not step. The expansion of judicial power has
an internal dynamic all its own, especially as the more the Court does, the
more it is asked to do. And the nearer it gets to the political end, the more
the Court loses its legitimacy as a judicial body. At the extreme, it becomes
not a court of law, but a super-legislature with the power to override the
Congress and President on at least some important matters of public policy.

The Method Lab
Activism Hurts Rule of Law

[ ] Judicial Activism Undermines the Rule of Law
Congressional Hearing 1997: [Congressional Hearing Summer 1997,
“Judical Activism: Defining the Problem and its Impact.” JSTOR.]
Activism, in my view, tends to undermine what the basic role of the courts is,
which is to preserve the rule of law. Senator Feingold mentioned Africa and the value of
having an independent judiciary to enforce property writes and to write contracts. That is the basic
function of the courts, and to the extent that they dilute that moral authority,
to the extent that they dilute their effort to do that, we undermine what is,
after all, the basis for a commercial and civil and free society, which is a
private sector, a strong private sector that supports all of what we in
Government – me as a former Government employee – do. The rule of law is central to
the great freedom that we enjoy the great economy that we enjoy. I hope that it
is not an accident that the subcommittee is called the Subcommittee on Constitution, federalism and
Property rights. I hope that that is understood as being linked because property rights are, I believe, a key
factor in all of this.

The Method
Activism Hurts Separation of Powers

[ ] Court policies enforcing human rights violates
separation of powers
John M. Rogers, University of Kentucky College of Law, 1999,
International Law and United States Law, p. 214-215.
While courts are better suited to resolve issues involving the rights
established by the constitutional Framers, by virtue of the training and
political independence of judges, the same is not true with regard to
determinations of international law. Whereas constitutional law was created—
or at least codified—by the Framers, international law is created by—or at
least reflected in the actions of—the very entities bound by the law. And in
our constitutional system that means the President and Congress. It is the
political branches that enter into treaties and executive agreements. It is also
the political branches that for the most part engage in the practice, and
reflect the sense of being bound (opinic juris), that are the requirements for
customary international law. These functions suggest that the political branches should have
the final say in determining international law issues. Moreover, to the extent a determination of
international law requires an examination of foreign practices, the political branches are arguably better
suited to determine what such foreign government practices are, and whether they are undertaken
pursuant to a sense of obligation. In the area of international human rights law in particular, giving U.S.
courts the power to treat public international law as directly applicable ‘higher law’ would seriously distort
The separation of powers
the allocation of powers in our federal constitutional system.
scheme of our Constitution is an important source of our own human rights.
Our courts do not have the power to decide whether statutes passed by
Congress are right or wrong, good or bad. That is up to our elected
representatives. The courts are limited in their ability to overturn the will of
the politically responsive branches. To do so the courts must find that the statute conflicts
with the Constitution. Although the Constitution is short in length, it contains enough law to permit the
courts to exercise significant power under our system, despite the politically unresponsive nature of the
judiciary.
The power is limited, however, by the requirement that a reasoned
and articulated basis in the Constitution be found. Otherwise the courts are
acting without legitimacy. The finality of judicial decisions under the Constitution is based not on
the assumption that courts will always be ‘right’ in some abstract sense, but on the policy reflected in
Marbuty v. Madison that fundamental determinations made by the Framers can best be preserved by
giving to the nonpolitical branch the final authority to ‘say what the law is’.
To say that the courts
have an additional body of ‘higher law’ to apply, to be found in the whole
amorphous body of customary international law, is to inject an enormously
distorting overdose of additional power into the Judicial Branch. This is particularly
so in the area of human rights, where practice is difficult to ascertain, and evidence that nations feel
bound by international human rights norms is difficult to distinguish from hypocrisy. But what harm is
there in merely giving courts the power to create more human rights? How can there be too many human
rights?24 These questions ignore the fact that rights involve costs to other persons’ interests. One
person’s right to freedom of religion may interfere with another’s right to a society free of religious
establishment. Rights to public assistance are paid for by working taxpayers. Enforcement of procedural
rights for criminal defendants results in some decrease in the punishment of criminals. Those human
rights that are required as a matter of public international law are
presumably worth their cost, but if courts—going beyond the domestic law
and self-executing international agreements— arbitrarily or erroneously find
‘rights’ in public international law when they are not there, then the
enforcement of such rights is unfair to the individuals or the members of the
public that bear the cost. It is precisely this kind of unfairness that the
politically responsive nature of the Legislative and Executive Branches was

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intended to avoid.

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***Morgan Powers CP***

The Method Lab
1NC Shell
Text: Using the fourteenth amendment section five of the Constitution,
The United States Congress
should_________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
______________________
[ ] Section 5 authorizes Congress not only to provide

remedies for violations of the Fourteenth Amendment, but also
to amplify its substantive protections.
Katzenbach v. Morgan, 384 U.S. 641, 648-49 (1966); cf. City of
Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989) (O'Connor, J.,
concurring and dissenting)
(Congress' power to enforce the Fourteenth Amendment includes "the power

to define situations which Congress determines threaten principles of
equality and to adopt prophylactic rules to deal with those situations"). The
Federal courts, in a variety of contexts, have upheld legislation under Section 5 that created broader rights
than the Constitution itself mandates. For example, in Katzenbach v. Morgan, 384 U.S. 641, the
Supreme Court held that Congress had authority to bar the states from
requiring literacy tests of persons who had attained a sixth grade education
in Puerto Rico, even though the Court had previously ruled in Lassiter v.
Northampton County Bd. of Elections, 360 U.S. 45, 53-54 (1959), that a state's use of
literacy tests does not deny equal protection. The Court reasoned that
Congress could prohibit such tests to protect against what Congress found to
be a denial of equal protection, the judiciary's more limited view of equal protection
notwithstanding. Morgan, 384 U.S. at 649, 652. The Court explained that Section 5 does
not "confine the legislative power . . . to the insignificant role of abrogating only those state
laws that the judicial branch was prepared to adjudge unconstitutional," id. at 648-649, but rather grants it
broad power to "extend[]" the protections provided by the Constitution. Id. at 657.4 There is thus
no merit to the City's suggestion that Section 5 of the Fourteenth
Amendment empowers Congress only to enact legislation redressing race
discrimination. See Defendant's Supplemental Brief in Support of Summary Judgment at 18. The
Equal Protection Clause itself has never been so narrowly construed. The Equal Protection Clause is
"essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v.
Cleburne Living Center, 473 U.S. 432, 439 (1985), citing Plyler v. Doe, 457 U.S. 202, 216 (1982). Indeed,
the Supreme Court, using various levels of scrutiny, has held that the Clause prohibits discrimination on
the basis of, inter alia, sex,5 national origin,6 alienage,7 disability,8 poverty,9 illegitimacy,10 length of
residency,11 property ownership,12 and living in a household of unrelated persons.13 Moreover, as the
cases collected in footnote 4, supra, demonstrate, Congress has power under Section 5 of
the Fourteenth Amendment to enact legislation providing for broader rights
than the Amendment itself secures directly

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Solvency Extensions
[ ] The Morgan Powers Give Congress the power not only to
provide remedies for violations of the 14 amendment, but to
also amplify its substantive protections, so we solve the entice
case.
J. DON FOSTER DEVAL and L. PATRICK 2002 (Deval is United States
Attorney Assistan Patrick ist Attorney General Southern District of
Alabama Civil Rights Division) www.ada.gov/briefs/lancastbr.doc
Section 5 of the Fourteenth Amendment grants Congress the "power to

enforce, by appropriate legislation, the provisions of the Fourteenth
Amendment," including those barring the states from depriving citizens of
"equal protection of the laws." U.S. Const. Am. 14, § 5. It is well established
that Congress' authority under the Fourteenth Amendment includes the
power to reach the conduct not only of States, but of local governments, such
as the City of Mobile. See, e.g., Lombard v. Louisiana, 373 U.S. 267, 273
(1963); The Civil Rights Cases, 109 U.S. 3 (1883); Ex Parte Virginia, 100 U.S.
339 (1880).3

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Solvency Natives
[ ] Congress can overrule court decisions dealing with
tribes
Students Britannica no date given( Well renowned Enclopdia
http://student.britannica.com/comptons/article-202561/American-
Indians-or-Native-Americans)
The United States Congress has complete authority over Indian affairs. It can
disband the Indian tribes as it did under the Indian General Allotment Act of 1887 and the termination
legislation of the 1950s, or it can permit them to organize as it did under the Indian
Reorganization Act of 1934. Congress can overrule court decisions dealing
with Indian tribes.
[ ] Congress can overrule cases dealing with Natives, Duro

case proves
Stephen L. Pevar 2008(Lawyer @American Civil Liberties Union
“TRIBAL
SOVEREIGNTY“www.saige.org/conf/08mi/.../PevarTribalSovereignty200
8.pdf)
The Supreme Court's most recent tribal sovereignty case is United States v. Lara, 541 U.S. 193 (2004). In a
1990 decision, the Duro case, the Supreme Court held that Indian tribes lack the
sovereign authority to prosecute non-member Indians in tribal court. In
response, Congress passed a law, called the "Duro fix," which states that
Indian tribes do have this sovereign power. In Lara, the Court held that
Congress, with its plenary power, has the authority to effectively overrule the
Court's decision in Duro. Indian tribes, therefore, have the inherent right to prosecute non-
member Indians. The "good" news about Lara is that it confirms the inherent right of Indian tribes to
exercise criminal jurisdiction over non-member Indians, but the "bad" news is that Lara confirms that
Congress has plenary power over Indian affairs. Here, Congress used its power to assist
tribes, but next time Congress might do the opposite.
[ ] Congress has total power over native tribes

Stephen L. Pevar 2008(Lawyer @American Civil Liberties Union
“TRIBAL
SOVEREIGNTY“www.saige.org/conf/08mi/.../PevarTribalSovereignty200
8.pdf)
Congress, the Supreme Court has held, has "plenary power" over Indian
tribes, full and complete power. Congress may limit the authority that tribes
otherwise possess, and thus tribal sovereign power is subject to federal
control. Indeed, as a unanimous Supreme Court held in Menominee Tribe v.
United States, 391 U.S. 404 (1968), Congress even has the authority to "terminate"
an Indian tribe, that is, forbid the tribe from exercising any governmental
powers, order the tribe to distribute all of its property to tribal members,
eliminate the tribe's reservation, and end the trust relationship between that
tribe and the federal government. Thus, according to the federal government, Indian tribes

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possess sovereign powers, but all of those powers are subject to.

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Solvency Immigration
[ ] The Equal Protection Clause applies to immigrants.
Since Morgan Powers allow for Congress to rule on Equal
Protection cases, Congress can do the plan
New York Times 7 (news paper from new York, “Is It Fixed Yet?”
September 9, 2007 lexis)
The courts are objecting.

In Hazleton, Pa., and then in Herndon, Va., judges have ruled
against harsh anti-immigrant ordinances. It turns out the First Amendment and the
equal-protection clause cover noncitizens too. Herndon's law forbidding day
laborers and contractors to talk shop has been ruled unconstitutional, so it plans
to shut down a successful day-labor hiring site rather than allow it to accept everybody, illegal immigrants
too.
[ ] The 14 amendment applies to non-citizes. Congress can

make rulings on the 14 amendment, so cp solves
New York Times7( News Paper, “Humanity v. Hazleton” July 28, 2007
lexis)
First, immigration is a federal responsibility. State and local governments have no right to
usurp or upend a vast, ''carefully drawn federal statutory scheme'' that governs who enters the country
and the conditions under which immigrants stay, study, work and naturalize. Congress may be botching
the job, but it has not delegated it. Second, the Constitution's guarantee of equal protection
applies to all persons, not just citizens. The presumption that the 14th
Amendment can be set aside while immigrants are hunted down and
punished is widespread but false. The judge wrote: ''We cannot say clearly enough
that persons who enter this country without legal authorization are not
stripped immediately of all their rights because of this single illegal act.''
.
[ ] Congress can do the plan 3 warrants 1.Graham v.
Richardson proves discrimination against immigrants in the
areas of social welfare violates the equal protection clause 2.
Congress has all the power iin the realm of immigrant policy 3.
All Congress needs is rational basis to do the plan, which
previous court cases give them
Notre Dame Journal of Law, Ethics & Public Policy 2009 (Journal of law
@ Notre Dame “NOTE: SITTING ON ELLIS ISLAND: THE FATE OF
DISPARATE IMMIGRATION POLICIES IN THE WAKE OF THE
GUANTANAMO BAY CASES” lexis)
The Equal Protection clause directs that "all persons similarly circumstanced shall
be treated alike." n131 In 1982, the Court identified the purpose of the clause as
to "work nothing less than the abolition of all caste-based and invidious class-
based legislation." n132 To that end, the Court held that illegal immigrant children were "persons
within the jurisdiction" of the state of Texas, n133 and thus protected under the Equal [*251] Protection
clause from a Texas statute which withheld from local school districts any state funds for the education of
children who were not "legally admitted" into the United States. n134 In Cuban American Bar Association,
Inc. v. Christopher, the Eleventh Circuit held that "aliens who are outside the United States cannot claim

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rights to enter or be paroled into the United States based on the Constitution." n135 The
Supreme
Court has repeatedly recognized aliens within the United States - at least those
documented - as members of a suspect class, and equal protection guarantees apply
to aliens as well as naturalized citizens. n136 In Graham v. Richardson, the
Court evaluated an equal protection claim against state welfare laws that imposed
citizenship and durational residency requirements on beneficiaries. n137 In
holding that the laws were violative of equal protection, the Court classified
aliens as a prime example of a "discrete and insular minority" n138 and
further required that classifications based on alienage, like those based on
nationality or race, be subject to close scrutiny as they are inherently suspect. n139 However, a
litany of court decisions affirms that Congress must only have a rational basis in its
formulation and adoption of regulations pertaining to aliens, even those that
discriminate among classes of aliens. n140 In Mathews v. Diaz, the Court decided the
constitutionality of Congress enacting legislation that discriminates in favor of citizens over aliens and held
that Congress has the power in the realm of naturalization and immigration to
make "rules that would be unacceptable if applied to citizens." n141 Despite these ephemeral
pronouncements of the courts, the constitutional rights of immigrants in the more complicated fact
patterns of real life is still an open question.

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[ ] Congress can and should repeal laws denying health

care to non-documented immagrants
American Society of Law, Medicine & Ethics and Boston University
American Journal of Law & Medicine 2009 ( Each Research Centers in
areas of Law and Medicine“ Health Care For All: Immigrants in the
Shadow of the Promise of Universal Health Care” lexis)
President Obama's ambitious universal health care plan aims to provide

affordable and accessible health care for all n1 The plan to cover the estimated 46.5
million uninsured, however, ignores the over thirty million non-citizens living in the
United States. n2 If the United States passes universal health care coverage, Congress should
repeal the prohibitions of the Welfare Reform Act, extend Medicaid coverage
to non-citizens, and allow non-citizens to purchase employer-based insurance
coverage. President Obama's plan follows the lead of state universal health care
legislation by retaining private, employer-sponsored insurance coverage and
expanding the eligibility requirements of the Medicaid program. n3 This
strategy will not aid uninsured immigrants or overburdened states and
hospitals, though, because current law excludes most non-citizens from non-
emergency health care services. n4 Federal law requires that hospitals screen and treat all
patients in an emergency, but non-emergency care remains a [*186] patchwork of illogical policies. n5
Undocumented immigrants are excluded from non-emergency Medicare and Medicaid, while most
documented immigrants are excluded from non-emergency Medicare and Medicaid for five years. n6 In
fact, prison is often the only place undocumented immigrants may receive non-emergency health care
services. n7 States and hospitals, therefore, shoulder the burden of caring for non-citizens without
assistance from the federal government. n8

The Method
Solvency Prisons
[ ] Prisoner rights are a question of equal protection;
multiple cases prove
New York Law School Law Review 2006 (School of Law in New York
“Incarcerated Men and Women, the Equal Protection Clause, and the
Requirement of "Similarly Situated"” lexis)
The Equal Protection Clause of the Fourteenth Amendment requires that "no State
shall 'deny to any person within its jurisdiction the equal protection of the
laws,' which is essentially a direction that all persons similarly situated should be treated alike." n29 If a
state enacts legislation that classifies people on the basis of, for example,
race or gender, it must be "reasonable." n30 Under the Equal Protection Clause, "[a]
reasonable classification is one which includes all persons who are similarly
situated with respect to the purpose of the law." n31 In order to bring an equal protection
claim, a plaintiff must be similarly situated to the group or person with whom the plaintiff compares
If two people are similarly situated but are treated differently by the
herself. n32
same program or statute, then the plaintiff can bring an equal protection
claim. n33 If the plaintiff is not similarly situated to the other person, then
there is no basis for such a claim. n34 [*601] If a state enacts a policy that contains, for
example, a gender or racial classification, a court will review the challenged legislation using one of the
levels of scrutiny established by the Supreme Court. n35 The levels of scrutiny permit states to enact
needed policies while simultaneously preserving individuals' rights to be free from discrimination. n36 The
Supreme Court addressed whether a racial classification violated the Equal Protection Clause in Korematsu
v. United States, holding that "courts must subject [legal restrictions which curtail the civil rights of a
single racial group] to the most rigid scrutiny." n37 In a subsequent case, the Court clarified that the "most
rigid scrutiny," also known as strict scrutiny, meant that the classification must be narrowly tailored to
serve a compelling state interest. n38 The Supreme Court has also determined that state actions involving
challenges to gender classifications must satisfy a lower standard of "intermediate scrutiny." n39 The
Court defined intermediate scrutiny to require that the state show "at least that the [challenged]
classification serves 'important governmental objectives and that the discriminatory means employed' are
'substantially related to the achievement of those objectives.'" n40 The courts employ strict scrutiny and
intermediate scrutiny tests to ensure that people are not discriminated against in a way that violates the
Equal Protection Clause. For cases involving social or economic regulations that do not involve a suspect
class such as race, the legislation at issue must meet the much lower "reasonable basis" or "rational basis"
standard of review; the legislation is valid "if the classification drawn by the statute is rationally related to
a legitimate state interest." n41 [*602] Incarcerated persons are entitled to protection
under the Equal Protection Clause despite the fact that they are separated from society for criminal
In addressing a prisoner's discrimination claim, n43 Justice Stevens
convictions. n42
argued in his dissenting opinion in Hewitt v. Helms that the treatment of a
particular prisoner should be compared with the treatment of the prison
population as a whole. n44 The Court in Turner v. Safely accepted Justice
Stevens's rationale and held that "when a prison regulation impinges on
inmates' constitutional rights, the regulation is valid if it is reasonably related
to legitimate penological interests." n45 Thus, the Court initially promulgated
the lower "reasonable basis" standard of review for cases involving equal
protection challenges concerning their confinement

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[ ] Prisoners maintain 14 amendment rights, that means

Congress can rule on those rights using Morgan Powers
University of Maryland School of Law 2006 ( School of Law, “JOHNSON
V. CALIFORNIA: SETTING A CONSTITUTIONAL TRAP FOR PRISON
OFFICIALS” Lexis)
As the Court grappled with whether to extend strict scrutiny to remedial

classifications, it established a separate line of precedent that dealt with
prisoners' constitutional challenges. Traditionally, federal courts did not interfere
with the internal affairs of prisons. n92 Courts generally accepted that a
prisoner was a "slave of the State," stripped of all personal rights except those that the law
chose to extend. n93 The modern Court, however, has recognized that prisoners do not
surrender all constitutional protections upon incarceration. n94 Among the prisoners'
rights retained are the right to be free from racial discrimination under the Equal
Protection Clause n95 and the right to be free from cruel and unusual punishment as prohibited by the
Eighth Amendment. n96 The modern Court has also acknowledged that certain constitutional rights must
be withdrawn or limited because of lawful incarceration, as well as legitimate penological goals such as
deterrence, rehabilitation, and prison security. n97 Beginning in the 1970s
with Procunier v.
Martinez, n98 the Court began to develop its modern framework for analyzing
prisoners' constitutional claims. n99 In Martinez, the Court was confronted with
prison regulations that censored inmate correspondence. n100 The Court
decided to review the regulations using strict scrutiny because the
correspondence restrictions also infringed on the First and Fourteenth
Amendment rights of nonprisoners. n101 The Martinez Court did not reach the question of the
proper standard of review for inmates' First Amendment claims. n102

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Solvency Broadband
[ ] Not allowing equal accesses to broadband is a violation
of equal protection. That means Congress can intervene
The American University Law Review August, 2006(Law School/Journal
“WI-FI EVERYWHERE: UNIVERSAL BROADBAND ACCESS AS ANTITRUST
AND TELECOMMUNICATIONS POLICY” Lexis)
Although universal access to telecommunications services is at the core of

American telecommunications law and policy, the United States has fallen far
short of achieving this goal. More than thirty percent of American homes lacked Internet access
in 2003, n18 often [*1702] because it was too expensive. n19 Roughly two-thirds of American
households did not have high-speed Internet access in 2005. n20 One-fifth of
Americans have never used the Web at all. n21 The provision of high-speed
Internet access by private industry alone is leaving behind most of the poor,
vast numbers of racial and ethnic minorities, and many residents of rural and
inner-city communities. n22 Such unequal access to computers, electronic
networks, telecommunications services, or information based on
demographic or socio-economic factors such as income, race, gender, age, or
location is known as a "digital divide." n23 Forbidding monthly fees and
surcharges for broadband, at up to five times the cost of a dial-up Internet connection, remain the
principal obstacle to universal broadband connectivity to the Internet. n24 For tens of
millions of families, broadband is simply too expensive; the average family with high-speed access boasts
an annual income of $ 72,000, n25 [*1703] two-thirds more than the $ 43,000 earned by the typical
American family. n26 For others, including many American households in rural or underserved areas,
broadband access is totally unavailable.
[ ] Congress solves the aff—Congress can take action to

overturn predecents that deny equal access to broadband
internet
The American University Law Review August, 2006(Law School/Journal
“WI-FI EVERYWHERE: UNIVERSAL BROADBAND ACCESS AS ANTITRUST
AND TELECOMMUNICATIONS POLICY” Lexis)
Making universal and affordable high-speed Internet access a reality in the

United States will require bold steps to accelerate innovation and conquer
local duopolies. Cities and counties are currently leading the next wave in
Internet infrastructure deployment: the establishment of fast, cheap,
ubiquitous Internet service on a wireless basis. n595 In too many states, however,
[*1800] anticompetitive laws reinforce local cable and DSL duopolies and block municipalities from
supporting broader high-speed Internet access. n596 Federal
legislation is needed to
overrule the Supreme Court's ruling in Missouri Municipal League, and to
ensure that all laws banning municipal entry into Internet access are
preempted as contrary to the overriding federal policies of uninhibited
competition and universal provision of telecommunications services of
equally high quality. Fortunately, members of Congress have already proposed
such legislation in the form of the Community Broadband Act of 2005, which
is being folded into broader telecommunications reform legislation. n597 To
break down structural and economic barriers to broadband entry, and to

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overcome our nation's gaping digital divide in access to high-speed Internet

service, Congress should enact such a ban on anticompetitive state laws.

The Method
Solvency Generic
[ ] Section 5 of the 14 amendment allows for Congress to
make judicial decisions, the Supreme Court will uphold it
Jeffery L. Yablon 1973 (From the Stanford Law Review Vol. 25, NO. 6
June 1973 Page 885) [http://www.jstor.org/stable/1227737]
IN 1966 The United States Supreme Court decided Katzenbach v. Morgan, in

which it was obliquely announced that section five of the fourteenth
amendment—the implementation clause—granted the power to Congress to
interpret the amendment and to invalidate state laws that Congress finds
inconsistant with its interpretation. Such Congressional interpretations wereto be given force
even though the Court itself would not have interpreted the Constitution as did Congress, for the court
declared that it would defer to a Congressional interpretation if it could
merely “percive a basis” for Congress’s view. In an attempt to control
Congress’s use of this power, The Morgan Court articulated certain limits.
These limits, however, were to ambiguous to circumscribe effectivley
Congress’ Morgan Powers.
[ ] Morgan Powers allow congress to interpret the 14

amendment and make decisions based on it
Rebecca Goldberg 2007 (winter, Curriculum development, Harvard Law
School; Law Clerk to the Honorable Robert D. Sack of the United States
Court of Appeals for the Second Circuit, 2008-09 lexis)
In recent years, however, some scholars have embraced an

understanding of Morgan that emphasizes Congress's power to
interpret the Fourteenth Amendment. This shift seems to have come
about at least in part as a response to Boerne and its progeny, which
most scholars have read to constitute a restriction on Congress's
power to interpret the Fourteenth Amendment. n42 In expressing their
disagreement with the Rehnquist Court's post-Boerne decisions, Robert
Post and Reva Siegel have characterized these decisions as breaking
with history - a history in which they see a pattern of the Court sharing
the power to interpret the Constitution with Congress. n43 Yet the
history they describe does not in fact exhibit this pattern. Post and
Siegel applaud the way the Morgan Court deliberately created
ambiguity, so as to encourage Congress to experiment broadly with 14
§ 5 legislation; n44 they also praise the Warren Court's willingness to
listen and be swayed by Congress's views regarding the suspect nature
of gender-based classifications. n45 While both of these examples
create a clear contrast with the Rehnquist Court's approach, n46
neither of them can precisely be described as the [*55] Court ceding
interpretative authority to Congress. n47 Post and Siegel speak in the
language of interpretation, but many of the issues they discuss in fact
relate to Congress's power to implement the Fourteenth Amendment.
n48 Though they consistently call on the Court to give Congress a

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greater role in constitutional interpretation, n49 it is unclear if they

believe that the Court should allow Congress to enunciate an
interpretation of the Constitution that directly conflicts, even slightly,
with the Court's own articulated view.

The Method
[ ] The “Morgan Power” aquired from the 14 amendment
allows Congress to do the plan
Carter 1986 (Prof of Law, Yale, The Morgan "Power" and the Forced
Reconsideration of Constitutional Decisions, University of Chicago Law
Review, 53 U. Chi. L. Rev. 819-820 pg jstor)
[ http://www.jstor.org/stable/pdfplus/1599585.pdf]
The Supreme Court's decisions on controversial issues invaria-bly generate

still greater controversy. Whatever romantic hopes the Framers might have
had for the institution and the fate of its pronouncements, the reality is
simple and somewhat sad: The Court's judgments on emotionally searing
questions of constitu-tional law rarely settle them. Every celebrated decision
seems to bring a celebrated condemnation of its immorality and a cele-
brated demand that it be overturned. Because amending the Con-stitution is
practically impossible, altering federal court jurisdiction too controversial, and
appointing new Justices an option rarely available, legislative circumvention
and legislative override have become the strategies of choice for those who
are disap-pointed with the Justices' conclusions.' The most provocative and
stimulating legislative proposals are often those possessing the most dubious
claims to constitutionality. Into this category fall all those bills said to
comprise exercises of the Morgan power. The Morgan power derives its
name and nearly all its ratherethereal substance from the Supreme Court's
1966 decision in Kat-zenbach v. Morgan.2 In that case, the Warren Court
sustained the constitutionality of section 4(e) of the Voting Rights Act of
1965, a provision essentially barring the enforcement of New York's Eng-lish
literacy requirement against otherwise qualified voters who are educated in
Puerto Rico.3 The result might have generated rela-tively little controversy
but for the Court's conclusion seven years earlier in Lassiter v. Northampton
County Board of Elections4 that literacy tests did not violate the fourteenth
and fifteenth amendments absent some showing of discriminatory
application. Was the Congress tacitly asserting the forbidden power to revise
the Court's constitutional judgments by ordinary legislation?5 Not at all, the
Court concluded. The congressional action, Justice Bren-nan explained for the
Morgan majority, was valid as an exercise of its power under section 5 of the
fourteenth amendment to enforce the amendment'sp rovisionsb y
"appropriate legislation."6T he ma-jority cautioned, however, that the
Congress has the power only to broaden the scope of fourteenth amendment
rights, not to narrow it.7

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[ ] The Morgan Powers Give Congress the power not only to

provide remedies for violations of the 14 amendment, but to
also amplify its substantive protections, so we solve the entice
case.
J. DON FOSTER DEVAL and L. PATRICK 2002 (Deval is United States
Attorney Assistan Patrick ist Attorney General Southern District of
Alabama Civil Rights Division) www.ada.gov/briefs/lancastbr.doc
Section 5 of the Fourteenth Amendment grants Congress the "power to

enforce, by appropriate legislation, the provisions of the Fourteenth
Amendment," including those barring the states from depriving citizens of
"equal protection of the laws." U.S. Const. Am. 14, § 5. It is well established that
Congress' authority under the Fourteenth Amendment includes the power to
reach the conduct not only of States, but of local governments, such as the City of
Mobile. See, e.g., Lombard v. Louisiana, 373 U.S. 267, 273 (1963); The Civil Rights Cases, 109 U.S. 3
Section 5 authorizes Congress not only to
(1883); Ex Parte Virginia, 100 U.S. 339 (1880).3
provide remedies for violations of the Fourteenth Amendment, but also to
amplify its substantive protections. Katzenbach v. Morgan, 384 U.S. 641, 648-49 (1966); cf.
City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989) (O'Connor, J., concurring and dissenting)
(Congress' power to enforce the Fourteenth Amendment includes "the power
to define situations which Congress determines threaten principles of
equality and to adopt prophylactic rules to deal with those situations"). The
Federal courts, in a variety of contexts, have upheld legislation under Section 5 that created broader rights
than the Constitution itself mandates. For example,in Katzenbach v. Morgan, 384 U.S. 641, the
Supreme Court held that Congress had authority to bar the states from
requiring literacy tests of persons who had attained a sixth grade education
in Puerto Rico, even though the Court had previously ruled in Lassiter v.
Northampton County Bd. of Elections, 360 U.S. 45, 53-54 (1959), that a
state's use of literacy tests does not deny equal protection. The Court
reasoned that Congress could prohibit such tests to protect against what
Congress found to be a denial of equal protection, the judiciary's more limited view of
equal protection notwithstanding. Morgan, 384 U.S. at 649, 652. The Court explained that
Section 5 does not "confine the legislative power . . . to the insignificant role of
abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional," id. at
648-649, but rather grants it broad power to "extend[]" the protections provided by the Constitution. Id. at
657.4There is thus no merit to the City's suggestion that Section 5 of the
Fourteenth Amendment empowers Congress only to enact legislation
redressing race discrimination. See Defendant's Supplemental Brief in Support of Summary
Judgment at 18. The Equal Protection Clause itself has never been so narrowly construed. The Equal
Protection Clause is "essentially a direction that all persons similarly situated should be treated alike." City
of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985), citing Plyler v. Doe, 457 U.S. 202, 216
(1982). Indeed, the Supreme Court, using various levels of scrutiny, has held that the Clause prohibits
discrimination on the basis of, inter alia, sex,5 national origin,6 alienage,7 disability,8 poverty,9
illegitimacy,10 length of residency,11 property ownership,12 and living in a household of unrelated
persons.13 Moreover, as the cases collected in footnote 4, supra, demonstrate, Congress
has
power under Section 5 of the Fourteenth Amendment to enact legislation
providing for broader rights than the Amendment itself secures directly

The Method
[ ] Despite Popular Belief, Congress can overrule court
decisions. Several empirical examples prove
Leon Friedman 2001 (a professor of constitutional law at the Hofstra
University School of Law. Overruling the Courts: “Will Congress use its
Power to Overturn the Supreme Courts Narrowing of Civil Rights Laws”
August 26 2001[http://www.prospect.org/cs/articles?
article=overruling_the_court]
One of the myths of our political system is that the Supreme Court has the
last word on the scope and meaning of federal law. But time and time again,
Congress has shown its dissatisfaction with Supreme Court interpretations of
laws it passes--by amending or re-enacting the legislation to clarify its
original intent and overrule a contrary Court construction. The Supreme Court
often insists that Congress cannot really "overrule" its decisions on what a
law means: The justices' interpretation has to be correct since the
Constitution gives final say to the highest court in the land. But Congress
certainly has the power to pass a new or revised law that "changes" or
"reverses" the meaning or scope of the law as interpreted by the Court, and
the legislative history of the new law usually states that it was intended to
"overrule" a specific Court decision.
Often the reversal is in highly technical areas, such as the statute of limitations in securities-fraud cases,
the jurisdiction of tribal courts on Indian reservations, or the power of state courts to order denaturalization
of citizens. But in the last 20 years, a main target of congressional "overruling" has been the Supreme
Court's decisions in the area of civil rights. In 1982, for example, Congress amended the
Voting Rights Act of 1965 to overrule a narrow Supreme Court holding in
Mobile v. Bolden, a 1980 decision that addressed whether intentional
discrimination must be shown before the act could be invoked. In 1988,
Congress overruled another Supreme Court decision (in the 1984 case Grove City
College v. Bell) by passing the Civil Rights Restoration Act, which broadened the coverage
of Title VI of the Civil Rights Act of 1964. The legislative history of that law specifically recited that "certain
aspects of recent decisions and opinions of the Supreme Court have unduly narrowed or cast doubt upon"
a number of federal civil rights statutes and that "legislative action is necessary to restore the prior
consistent and long-standing executive branch interpretations" of those laws.
[ ] Section 5 of the 14 amendment gives congress the

power to uphold equal protection using Morgan powers
NCD 2003(The National Council on Disability,national council for
disabled persons in Americia September 4, 2003 Tennessee v. Lane:
The Legal Issues and the Implications for People with Disabilities )
[http://www.ncd.gov/newsroom/publications/2003/legalissues.htm]
Section 5 of the Fourteenth Amendment grants Congress the power to

enforce the protections in Section 1 of the Fourteenth Amendment, namely
Equal Protection and Due Process. It may do so both by prescribing sanctions
for actual constitutional violations, and by prohibiting otherwise constitutional
conduct as a means to prevent unconstitutional behavior. Valid Section 5 legislation
can authorize private individuals to bring lawsuits against the states themselves, including suits that seek
damages.25 Congress cited Section 5 in enacting the ADA and expressly stated that the ADA was intended
to abrogate the states' sovereign immunity.26 Section 5 legislation is not limited to
prohibiting and remedying clearly unconstitutional conduct.27 Congress'
authority to remedy or prevent unconstitutional discrimination under Section

The Method Lab
5 includes the authority to proscribe some conduct that is not itself

unconstitutional.28 The Court has said that Congress may enact "reasonably
prophylactic legislation" when faced with "difficult and intractable problems, [which] often require
powerful remedies." However, the scope of Congress' authority under Section 5 has been 29 a
controversial and difficult issue, and the Court has had difficulty providing clear guidelines as to the extent
In Katzenbach v.
of Congress' power, particularly to bar conduct that is itself not unconstitutional.
Morgan,30 the Court upheld a federal ban on state literacy tests, even though the
Court had previously held that literacy tests did not violate the Fourteenth Amendment. One
interpretation of Katzenbach was that Congress could impose any
requirement on the states if it simply had a rational basis for concluding that
an obligation on the states could prevent a constitutional violation. That would
have signaled a very broad reading of Section 5, and one that could amount, in
practice, to allowing Congress to create new substantive constitutional rights.
However, later cases, such as Oregon v. Mitchell,31 adopted a narrower interpretation. The Court indicated
that it would determine whether there was a sufficiently close relationship between the constitutional
violations that were the basis of the statute and the remedies created by Congress.
[ ] The 5 section of the 14 amendment gives congress

power and ability to take a judicary role using Morgan powers
Evan H. Caminker May 2001 Professor of Law, University of Michigan
Law School; B.A., UCLA 1983; J.D., Yale 1986. "APPROPRIATE"
CONSTRAINTS pg 1127-1133
With the narrowing of Congress' Article I power to regulate interstate commerce and to authorize private
Section Five of the Fourteenth Amendment provides Congress
suits against states,
with an increasingly important alternative source of power to regulate and
police state conduct. However, in City of Boeme v. Flores and subsequent cases, the Supreme
Court has tightened the doctrinal test for prophylactic legislation based on Section Five. The Court has
Congress may enforce Fourteenth
clarified Section Five's legitimate ends by holding that
Amendment rights only as they are defined by the federal judiciary, and the Court
has constrained Section Five's permissible means by holding that Section Five measures must be
"congruent and proportional" to a legitimate end thus defined. This article argues that the means-ends test
for Section Five legislation should be the same as the conventional "rational relationship" test established
by McCulloch v. Maryland, not the "congruence and proportionality" test that the Court has recently
The textual language and the original meaning of the Fourteenth
adopted.
Amendment support this argument, while neither separation of powers nor
federalism principles persuasively justify the Court's contrary position. Finally,
this article speculates about the significance of Section Five's tightened means-ends scrutiny for other
Over the past decade, Congress' Section 5 power to
sources of congressional power.
enforce the provisions of the Fourteenth Amendment has taken center stage
in the unfolding drama of Our (New) Federalism.1 For the first time in seven decades, the Supreme Court
has begun to narrow the scope of Congress' power to regulate interstate commerce. While not long ago it
was plausible to describe Congress' Commerce Clause power as virtually plenary, the Court has twice now
invalidated statutes as exceeding the proper boundaries of this Article I authority. In United States v.
Lopez2 the Court invalidated the Gun-Free School Zones Act of 1990,3 and in United States v. Morrison4
the Court invalidated a provision of the Violence Against Women Act of 1994 that provided a federal civil
remedy for victims of gender-motivated violence.5 In both cases, the Court emphasized that the federal
statutes purported to regulate activities not economic in nature6 without any jurisdictional limitation
linking particular instances of such activity to interstate commerce,7 in a manner that would trench upon a
realm of "traditional state concern,"8 thereby obliterating the "distinction between what is truly national
and what is truly local."9 While it remains unclear just how significant a reduction in the scope of Congress'
Commerce Clause power these recent precedents portend, it surely places greater pressure on Section 5
as a potential alternative source of congressional power for at least some regulations threatened by this
Commerce Clause retrenchment.
[ ] Constitutional for congress to do the plan

The Method
New York Times January 16 2003(Linda Greenhouse; Staff Wrirter THE
SUPREME COURT: CHECKS AND BALANCES; Medical Leave Act Is
Debated in Major Federalism Case
http://www.nytimes.com/2003/01/16/us/supreme-court-checks-
balances-medical-leave-act-debated-major-federalism-case.html?
pagewanted=1]
Under the Supreme Court's precedents, Congress can remove the states' constitutional
shield against private damage suits only in one limited circumstance, by invoking its power under the 14th
Amendment's guarantees of equal protection and due process. Section 5 of the 14th
Amendment authorizes Congress to enforce those guarantees through
''appropriate legislation.'' The court's recent decisions have held that efforts
to permit suits against the states under federal laws against age
discrimination and disability discrimination were not ''appropriate.''

The Method Lab
[ ] Section 5 of the 14 amendment gives Congress

Legislative and judicial powers, means they can do the plan
Nicholas B. Katzenbach et. Al. 2003 (Professor of Law, Yale Law School
“Legislative constitutionalism and Section Five power: policentric
interpretation of the Family and Medical Leave Act." June 2003
accessed via general onefiles
[http://find.galegroup.com/itx/retrieve.do?contentSet=IAC-
Documents&resultListType=RESULT_LIST&qrySerId=Locale(en%2C
%2C)%3AFQE%3D(K0%2CNone%2C25)section+5+of+14+amendment
%24&sgHitCountType=None&inPS=true&sort=DateDescend&searchTy
pe=BasicSearchForm&tabID=T002&prodId=ITOF&searchId=R1&curren
tPosition=3&userGroupName=lom_umichanna&docId=A105916024&d
ocType=IAC]
Because Section 5 of the Fourteenth Amendment vests in Congress "power to

enforce, by appropriate legislation, the provisions of this article," (1) the
great rights contained in Section 1 of the Fourteenth Amendment are
enforced by both Congress and the Court. How to conceive of the relationship
between the legislative power established in Section 5 and the judicial power
authorized by Section 1 is one of the deep puzzles of American constitutional
law. This Article argues that Section 5 is a structural device that fosters the
democratic legitimacy of our constitutional order. It links the legal
interpretations of courts to the constitutional understandings of the American
people, as expressed through their chosen representatives. commitment to
rule-of-law values.
[ ] Congress is more of an in-depth and effective agent to

solve
Rebecca Goldberg 2007 (winter, Curriculum development, Harvard Law
School; Law Clerk to the Honorable Robert D. Sack of the United States
Court of Appeals for the Second Circuit, 2008-09 lexis)
During the Warren Court Era, the Court once again found itself, or perhaps placed itself, in the middle of
many important national dialogues. n19 The Warren Court evaluated many statutes, both state and
federal. Typically, it was federal legislation, such as the VRA, that was upheld, n20 while state legislation,
such as redistricting schemes that violated the principle of "one person, one vote," was struck down. n21
Writing in 1965, Archibald Cox examined this element of the Court's role in
promoting civil rights. n22 Cox fretted over the striking down of state laws,
noting that, on one hand, courts are not really equipped to deal with the type
of in-depth fact-finding that many of these cases required, but observing that,
on the other hand, to defer to state legislatures in many of the situations would be to put
the imprimatur of the Court on an unjust system. n23 He was much more comfortable with
the Court's decisions that upheld congressional legislation as being within the scope of
Congress's 14 § 5 powers. Having seen the Court take the lead on issues of
social change - Brown v. Board of Education n24 was mentioned repeatedly
n25 - Cox expressed hope that Katzenbach v. Morgan, n26 which had just
come down, upholding a portion of the VRA, would embolden Congress to
start taking more of a lead and thus take pressure off of the courts. n27 He

The Method
envisioned a "buffer zone" of scenarios that the courts themselves would not
rule unconstitutional, but that Congress could outlaw. n28 Thus, while Cox
was uneasy with the idea of the Court using the concept of equal protection
to strike down a state law that required all voters to be literate in English,
n29 he was clearly comfortable with the [*52] Court in Morgan upholding a
federal law that, in the name of equal protection, forced states to permit certain Spanish speakers to
vote regardless of their literacy in English. n30 What is crucial to our analysis here is that Cox did not view
this buffer zone as a usurpation by Congress of the Court's Marbury-given right n31 to define what the law
is; he simply saw it as a reflection of Congress's superior fact-finding capabilities, combined with the
doctrine of judicial deference to legislatures. n32

The Method Lab
AT: Perm Do Both

[ ] PERM FAILS: IT STILL USES THE COURTS WHICH MEANS
IT STILL LINKS TO OUR COURT DA. THAT MAKES THE NET
BENEFIT A DISAD TO THE PERM
[ ] The Courts fail on issues of civil rights—the congress

must act alone to solve
Leon Friedman 2001 (a professor of constitutional law at the Hofstra
University School of Law. Overruling the Courts: “Will Congress use its
Power to Overturn the Supreme Courts Narrowing of Civil Rights Laws”
August 26 2001[http://www.prospect.org/cs/articles?
article=overruling_the_court]
Given the current supreme Court's track record in civil rights cases, there can
be no doubt that congressional remediation is again necessary. In a series of
cases over the past two years, the Court has been giving narrow readings to
various federal civil rights laws. And once again, an attentive Congress can
and should overrule the Court's decisions if the legislators care about fairness
in the operation of government and in the workplace.
[ ] Turn Judical Review undermines human rights

Alec Walen 2007 (Institute for Philosophy and Public Policy, University
of Maryland. Judicial Review in Review
[http://icon.oxfordjournals.org/cgi/content/full/7/2/329]
Judicial review undermines political equality by treating citizens as subjects

who are dominated by the will and judgment of others. And it cannot offer the
compensatory benefit of helping to protect rights for two reasons. First, if the
majority is bent on disregarding the rights of certain minorities, "then the
likelihood is that the prejudice will be shared by a significant majority of the
elite [i.e. the judiciary] as well" (p. 257).9 Second, if there is reasonable
disagreement about how to handle a politically difficult issue, such as the
balance between security and civil liberties, then such a problem cannot be
resolved by a court. Some will feel vindicated by a court's decision, but others
will object that the court got it wrong.
[ ] Human rights solve nuclear war and extinction

Human rights Web 1994( Group theat promotes human rights
http://www.hrweb.org/intro.html)
Many also realized that advances in technology and changes in social

structures had rendered war a threat to the continued existence of the
human race. Large numbers of people in many countries lived under
the control of tyrants, having no recourse but war to relieve often
intolerable living conditions. Unless some way was found to relieve the

The Method
lot of these people, they could revolt and become the catalyst for
another wide-scale and possibly nuclear war. For perhaps the first
time, representatives from the majority of governments in the world
came to the conclusion that basic human rights must be protected, not
only for the sake of the individuals and countries involved, but to
preserve the human race.

The Method Lab
AT: Judicial Rollback

[ ] Justices Will not roll back congressional action regarding
morgan powers
Carter 1986 (Prof of Law, Yale, The Morgan "Power" and the Forced
Reconsideration of Constitutional Decisions, University of Chicago Law
Review, 53 U. Chi. L. Rev. 819-820 pg jstor)
[ http://www.jstor.org/stable/pdfplus/1599585.pdf]
.The Morgan power, I argue, is best understood as a tool that permits the
Congress to use its power to enact ordinary legislation to engage the Court in
a dialogue about our fundamental rights, thereby "forcing" the Justices to
take a fresh look at their own judgments. Congressional exercises of the
Morgan power thus play an important role in the moral evolution of society--
and are most effectively opposed on moral grounds. -
[ ] Courts will not strike down

Jeffery L. Yablon 1973 (From the Stanford Law Review Vol. 25, NO. 6
June 1973 Page 887) [http://www.jstor.org/stable/1227737]
A major force behind the judiciary's deferential posture is that the manner in
which questionsa reonsidered by a court s very differentf rom the method in
which legislative inquiries are conducted.15 Courts laborunder the tight and
logical principles dictated by the legalistic form of argument while
legislatures do not. Moreover, legislatures do not share the courts' concern
with the role of precedent.'6 Since the application of principle and precedent
rarely designatesp articular solutions but instead suggests a range of
reasonable alternatives,the legislative branch may legitimately draw
"arbitrary "lines that a court cannot.'7 Thus when courts are called upon to
striked own "arbitrary" legislative decisions, they feel compelled to defer to
legislative judgments which fall within the broad boundaries of reason-
ableness.

The Method
[ ] The Courts have started a trend of Upholding all
Congressional uses of Morgan Powers, this shadows all other
historical examples they present
Syracuse Law Review 2007 (Law research center @ Syracuse 57
Syracuse L. Rev. 187 BETWEEN SUPREMACY AND EXCLUSIVITY lexis)
In Katzenbach v. Morgan itself, the Court upheld, under Section 5, a provision of the Voting Rights Act of
1965 that banned the application of an English literacy test to students who had completed sixth grade in
Puerto Rico. n45 The Court had not yet ruled on this specific issue, but had already upheld North Carolina's
use of an English literacy test. n46 The Court now proclaimed, however, that Congress was entitled to
make its own judgment about the reach of equal protection and to prohibit the application of the English
literacy test on the theory that such a test rendered a large portion of the Puerto Rican community in New
York especially vulnerable to discrimination by local officials. n47 The validity of the congressional action
did not depend on the willingness of the Court to believe that it would have come to the same conclusion
about the meaning of equal protection. n48 Congress could prohibit conduct that the Court might not
have, provided, of course, that the Court could "perceive a basis" upon which Congress might think that
the prohibited action would amount to or lead to a denial of equal protection. n49 The scope of the
Katzenbach v. Morgan principle was immediately recognized, first by commentators n50 and then by
Congress itself when it enacted the Civil Rights Act of 1968, which prohibited racial [*196] discrimination
in private housing and certain race-based violence by private actors. n51 In 1970, the Court limited the
reach of Katzenbach v. Morgan when it denied Congress the power to extend the right to vote to 18 year
olds, n52 but it continued to operate as an important font of congressional authority for the next thirty
years - a period in which Congress resisted the Court's retrenchment on rights and crafted the legislative
program that made legality turn more on the social consequences of a practice or law than on the
motivation lying behind it. A turning point in the encounter between the Court and Congress came in 1997
in City of Boerne v. Flores. n53 In that case, the Court struck down RFRA as an inappropriate exercise of
the Section 5 power. n54 Although the enactment of RFRA could be understood to conform to the ratchet
theory of Katzenbach v. Morgan - after all, Congress was not diluting any right that the Court had declared,
but rather was adding to the rights that citizens enjoyed - the Court was of another opinion. It saw RFRA as
an affront to its claim of supremacy. n55 Arguably, the Court was led to this view because of an expansive
reading of Smith, the decision to which Congress was responding in RFRA. n56 The Court understood Smith
to define the bounds of the Free Exercise Clause and to declare that laws that are neutral and generally
applicable do not interfere with the free exercise of religion. n57 From that perspective, RFRA could not be
defended as a measure to protect the religious liberty guaranteed by Section 1 of the Fourteenth
Amendment and thus was beyond the powers of Congress under Section 5. n58 RFRA was an immediate
and direct response to the Court's decision in Smith, and Boerne may have been colored by that particular
dynamic, verging on confrontation, between the Court and the legislature. Soon, however, the assertion of
judicial authority that was the essence of Boerne spread more broadly and extended to situations more
similar to that of Katzenbach v. Morgan, in which there was no confrontation, but rather something closer
to a lacuna. Morrison was such a case, though the Court primarily treated VAWA as an exercise of the
Commerce Clause and only secondarily disposed of the Section 5 claim. n59 However, in two decisions
[*197] that soon followed - Kimel v. Florida Board of Regents and Board of Trustees of the University of
Alabama v. Garrett - the Court confronted Katzenbach v. Morgan more directly and, in effect, overruled it.
n60 Section 5 was emptied of the meaning that Katzenbach v. Morgan had given it. As before, Congress
had the power to provide remedies for well-established rights, but it no longer had the power to articulate
rights under Section 1 of the Fourteenth Amendment that the Court itself was not prepared to recognize.
n61 The space that Katzenbach v. Morgan had opened for an independent role for Congress in the
articulation of rights was now closed. In Kimel, the Court held that Congress could not make states liable
for damages when they discriminated against elderly employees. n62 In Garrett, the Court denied that
Congress had the power to make states liable for employment discrimination based on disability. n63 In
these two cases, Congress could not possibly be faulted for overruling a Court decision - a claim that might
seem plausible in the context of RFRA - but the Court nonetheless concluded that Congress had exceeded
the scope of its powers under Section 5. n64 In Kimel and Garrett, the Court accused Congress of altering
the substantial meaning of equal protection, but what it meant was that Congress had deemed certain
state practices a denial of equal protection in circumstances in which the Court itself was not prepared to
do so. n65 In 2003 in Nevada Department of Human Resources v. Hibbs, the
Court upheld the Family and Medical Leave Act as a proper exercise of the
Section 5 power. n66 This decision was a surprise to many. n67 The Court reasoned that
women were a protected group under Section 1, and that the leave
provisions were an appropriate measure to allow them to participate fully in
the economy and to do so on equal terms. n68 The next year, in Tennessee
v. Lane, the Court upheld the obligation of states to make reasonable
accommodation for the needs of the disabled in the context of guaranteeing

The Method Lab
access to courts. n69 [*198] In these two rulings, the Court did not revive
Katzenbach v. Morgan, but rather indicated that it agreed with the
congressional judgment about the rights declared and on that ground upheld
the statutes. n70 Thus, despite Hibbs and Lane, the shadow of Boerne,
Morrison, Kimel, and Garrett remains and puts into question any effort by
Congress to enhance rights. This shadow has only intensified the
disenchantment with the Court and, as a purely historical matter, explains
the ever-increasing popularity of legislative constitutionalism. It may also
account for the especially strident form that this movement has recently
taken - throwing out the good with the bad.

The Method
AT: Separation of Powers
[ ] Morgan powers do not only allow Congress to do the
plan, but separation of powers is still maintained even when
Morgan Powers are used
Nicholas B. Katzenbach et. Al. 2003 (Professor of Law, Yale Law School
“Legislative constitutionalism and Section Five power: policentric
interpretation of the Family and Medical Leave Act." June 2003
accessed via general onefiles
[http://find.galegroup.com/itx/retrieve.do?contentSet=IAC-
Documents&resultListType=RESULT_LIST&qrySerId=Locale(en%2C
%2C)%3AFQE%3D(K0%2CNone%2C25)section+5+of+14+amendment
%24&sgHitCountType=None&inPS=true&sort=DateDescend&searchTy
pe=BasicSearchForm&tabID=T002&prodId=ITOF&searchId=R1&curren
tPosition=3&userGroupName=lom_umichanna&docId=A105916024&d
ocType=IAC]
We therefore propose an account of Section 5 power that would enable it to perform this function. We call
this account the model of policentric constitutional interpretation. The policentric model holds that for
Section 5 power the Constitution should be regarded as having
purposes of
multiple interpreters, both political and legal. The model attributes equal
interpretive authority to Congress and to the Court. The model thus entails (1) that
Congress does not violate principles of separation of powers when it enacts
Section 5 legislation premised on an understanding of the Constitution that
differs from the Court's, and (2) that Congress's action does not bind the Court,
so that the Court remains free to invalidate Section 5 legislation that in the
Court's view violates a constitutional principle requiring judicial protection.
This account of Section 5 power combines a robust legislative
constitutionalism with a vigorous
[ ] Section 5 does not allow for constitutional violations to

occur, so no impact to the turn
Fordham Law Review 2005( Law office, CHOOSING BALANCE:
CONGRESSIONAL POWERS AND THE PARTIAL-BIRTH ABORTION BAN
ACT OF 2003 lexis)
Section Five grants Congress the authority to "enforce" the provisions of the
Fourteenth Amendment. n250 Congress may not legislate against private
individuals; it may only enact legislation in response to state laws. n251
Under City of Boerne, Section Five does not empower Congress to restrict
constitutional rights; Section Five is strictly limited to the enforcement of the
Fourteenth Amendment. Congress's power to enforce the Fourteenth
Amendment is "remedial," not "substantive." n252 Congress cannot enforce a
constitutional interpretation that differs from "the interpretation that the
Court itself would adopt." n253 Some scholars argue that courts should give
Congress leeway, and that the Supreme Court should not supervise
Congress's actions under Section Five. n254 Because Congressmen are
elected by a democratic process, there is a certain legitimacy to their actions

The Method Lab
that does not exist in the court system. n255 Moreover, proponents of giving
Congress flexibility rely on Justice Brennan's opinion in Katzenbach, n256
which indicated that "Congress might find a violation of the Equal Protection
Clause even where the Court has not." n257 Congress may be better
equipped than the courts in finding constitutional violations because of its
resources and confidence. n258 It might enact "complex and preventive
remedies" more elaborate than an action a court would take. n259
The Court gave Congress the power to act prophylactically: Congress may
ban permissible state conduct to prevent or remedy constitutional violations.
n260 Nonetheless, the Court must "distinguish between prophylactic legislation and legislation that seeks
to change the substantive meaning of the Constitution." n261 Thus, if Congress [*2016] acts
prophylactically, the legislation must have ""congruence and proportionality' to the constitutional violation
at issue." n262

The Method
AT: Can’t Solve Rights
[ ] Morgan powers give congress the power to create rights
Syracuse Law Review 2007 (Law research center @ Syracuse 57
Syracuse L. Rev. 187 BETWEEN SUPREMACY AND EXCLUSIVITY lexis)
An even more plausible source of authority for VAWA was Section 5 of

the Fourteenth Amendment, but the Court held that Congress had
exceeded the scope of that authority as well. n40 Section 5 gives
Congress the power to enforce the provisions of the Fourteenth
Amendment, which, of course, includes the guarantee of equal
protection. In 1966 in Katzenbach v. Morgan, n41 the Warren Court,
anxious to facilitate congressional participation in the Second
Reconstruction, gave new life [*195] and force to Section 5 and in
that context adumbrated what later became known as the "ratchet
theory." n42 One part of this theory proclaimed that Congress could
not dilute or undermine the Court's interpretation of a constitutional
provision - Congress could not, for example, limit Brown or interfere
with the exercise of any other constitutional right that the Court had
articulated in the process of interpreting a constitutional guarantee.
n43 The affirmative part of the theory acknowledged the power of
Congress to proclaim and protect rights even where the Court had not
done so. n44 Such measures could provide remedies to implement
rights that the Court had already articulated, but Congress was not
confined to this task. It could also create rights.

The Method Lab
Internal Net Benefit

[ ] Judical Review undermines human rights
Alec Walen 2007 (Institute for Philosophy and Public Policy, University
of Maryland. Judicial Review in Review
[http://icon.oxfordjournals.org/cgi/content/full/7/2/329]
Judicial review undermines political equality by treating citizens as subjects

who are dominated by the will and judgment of others. And it cannot offer the
compensatory benefit of helping to protect rights for two reasons. First, if the majority is bent
on disregarding the rights of certain minorities, "then the likelihood is that
the prejudice will be shared by a significant majority of the elite [i.e. the
judiciary] as well" (p. 257).9 Second, if there is reasonable disagreement
about how to handle a politically difficult issue, such as the balance between
security and civil liberties, then such a problem cannot be resolved by a
court. Some will feel vindicated by a court's decision, but others will object
that the court got it wrong.
[ ] Human rights solve nuclear war and extinction

Human rights Web 1994( Group theat promotes human rights
http://www.hrweb.org/intro.html)
Many also realized that advances in technology and changes in social
structures had rendered war a threat to the continued existence of the
human race. Large numbers of people in many countries lived under
the control of tyrants, having no recourse but war to relieve often
intolerable living conditions. Unless some way was found to relieve the
lot of these people, they could revolt and become the catalyst for
another wide-scale and possibly nuclear war. For perhaps the first
time, representatives from the majority of governments in the world
came to the conclusion that basic human rights must be protected, not
only for the sake of the individuals and countries involved, but to
preserve the human race.

The Method
Hate Crimes Module
[ ] Long debates on immigration laws have sparked an
increase in Hate Crimes
Washington Post, June 17 2009 (Spencer S. Hsu, Immigration Debate
Tied to Rise in Hate Crimes, Accessed June 23 2009,
http://www.washingtonpost.com/wp-
dyn/content/article/2009/06/16/AR2009061603518.html)
U.S. civil rights leaders said yesterday that an increase in hate crimes
committed in recent years against Hispanics and people perceived to be
immigrants "correlates closely" to the nation's increasingly contentious
debate over immigration. Hate crimes targeting Hispanic Americans rose 40
percent from 2003 to 2007, the most recent year for which FBI statistics are
available, from 426 to 595 incidents, marking the fourth consecutive year of
increases. The Leadership Conference on Civil Rights Education Fund
issued a report that faulted anti-immigrant rhetoric in the media and
mobilization of extremist groups on the Internet. The conference said
that some groups advocating for tighter immigration laws have
invoked "the dehumanizing, racist stereotypes and bigotry of hate
groups." "Reasonable people will disagree . . . but the tone of discourse
over comprehensive immigration reform needs to be changed, needs to be
civil and sane," said Michael Lieberman, Washington counsel for the
Anti-Defamation League.
[ ] Hate Crimes inherently inflict greater damage to both

the individual and society
Chief Justice Rehnquist, Wisconsin Supreme Court, June 11 1993 (Chief
Justice Rehnquist; Wisconsin, Petitioner v. Todd Mitchell, on writ of
certiorari to the Supreme Court of Wisconsin;
http://www.law.cornell.edu/supct/html/92-515.ZO.html, Accessed June
26 2009)
Moreover, the Wisconsin statute singles out for enhancement bias inspired
conduct because this conduct is thought to inflict greater individual and
societal harm. For example, according to the State and its amici, bias
motivated crimes are more likely to provoke retaliatory crimes, inflict distinct
emotional harms on their victims, and incite community unrest. See, e. g.,
Brief for Petitioner 24-27; Brief for United States as Amicus Curiae 13-
15;Brief for Lawyers' Committee for Civil Rights Under Law as Amicus
Curiae 18-22; Brief for the American Civil Liberties Union as Amicus
Curiae 17-19; Brief for the Anti Defamation League et al. as Amici
Curiae 9-10; Brief for Congressman Charles E. Schumer et al. as Amici
Curiae 8-9. The State's desire to redress these perceived harms
provides an adequate explanation for its penalty enhancement
provision over and above mere disagreement with offenders' beliefs or

The Method Lab
biases. As Blackstone said long ago, "it is but reasonable that among
crimes of different natures those should be most severely punished,
which are the most destructive of the public safety and happiness." 4
W. Blackstone, Commentaries *16.

The Method
Hate Crimes Extensions
[ ] New Hate Crime Legislation is not going to be passed by
the Senate; the courts are the only other option
US Commission of Civil Rights; June 16 2009 (US Commission of Civil
Rights; Senate Hate Crimes;
http://www.usccr.gov/correspd/SenateHateCrimes06-16-09.pdf;
Accessed June 28 2009)
Dear Mr. President and Distinguished Senators: We write today to urge

you to vote against the proposed Matthew Shepard Hate Crimes Prevention
Act. (S. 909) (“MSHCPA”). We believe that Matthew Shepard Hate Crimes
Prevention Act (MSHCPA) will do little good and a great deal of harm. It’s
most important effect will be to allow federal authorities to re-
prosecute a broad category of defendants who have already been
acquitted by state juries – as in the Rodney King and Crown Heights
cases more than a decade ago. Due to the exception for prosecutions
by “dual sovereigns,” such double prosecutions are technically not
violations of the Double Jeopardy Clause of the U.S. Constitution. But
they are very much a violation of the spirit that drove the framers of
the Bill of Rights, who never dreamed that federal criminal jurisdiction
would be expanded to the point where an astonishing proportion of
crimes are now both state and federal offenses. We regard the broad
federalization of crime as a menace to civil liberties. There is no better
place to draw the line on that process than with a bill that purports to
protect civil rights. The decision to send this letter was arrived at in an
opening meeting of the United States Commission on Civil Rights on
May 15, 2009. The vote was 5 to 2 with one member abstaining. All of
the signatures to this letter voted in favor of the motion, except for
Vice Chair Thernstrom, who abstained. She has since had the
opportunity to review the letter and approve its contents.
Commissioners Melendez and Yaki voted against the motion.
[ ] Hate groups have been increasing in recent years

People’s Weekly World, June 17 2009 (Pepe Lozano; New study calls for
action on rising hate crimes;
http://www.pww.org/article/articleview/16040/; Accessed June 28 2009)
Acts of violence committed against individuals because of their race, religion,

ethnicity, national origin, gender, gender identity, or sexual orientation
remains a serious problem, says the report. Nearly 20 years after the 1990
enactment of the Hate Crime Statistics Act, the number of hate crimes
reported has consistently ranged around 7,500 or more annually, which is
about one crime every hour of every day. The number of hate groups
operating in the U.S. continued to rise in 2008 and has grown by 54 percent
since 2000. Some extremist groups are exploiting the economic crisis,

The Method Lab
spreading propaganda that blames minorities and immigrants for the

subprime mortgage meltdown. The report highlights as a major concern
the increasing number, in the past four years, of hate crimes committed
against Hispanics and those perceived to be immigrants.

The Method
[ ] Hate Crimes result in greater harm to the victim
Susan E. Martin, MD and writer for the Justice Quarterly, September
1996 (Susan E. Martin; Investigating Hate Crimes: Case Characteristics
and Law Enforcement Responses;
http://www.heinonline.org.proxy.lib.umich.edu/HOL/Page?
handle=hein.journals/jquart13&id=1&size=2&collection=journals&inde
x=journals/jquart; Accessed June 27 2009)
Levin and McDevitt (1993) suggest that hate crimes differ from other
types of reported offenses in several ways. They are more likely than other
offenses to involve personal violence, to evoke excessive brutality, and to
result in greater injury to the victim. Often they appear to be senseless or
irrational crimes perpetrated randomly on total strangers, in contrast
to the high proportion of other offenses against acquaintances and
intimates. Hate crimes also tend to be perpetrated by multiple offenders,
whereas most violent crimes are perpetrated by individuals acting alone.

The Method Lab
[ ] The trauma of a Hate Crime is hard to overcome

The unique character of bias crimes also suggests several

rationales for responding differently to them than to other crimes. First,
victims of bias crimes apparently find it more difficult to come to terms with
their victimization, which is based on who they are, than do victims of
comparable crimes without the bias element (Ehrlich, Larcom, and Weiss
1990). Second, hate crimes appear to be particularly harmful to
communities; they raise levels of fear and increase responses such as
vigilantism, anger, and intergroup tensions. Third, the expression of bias has
a meaning separate from the offense and can produce negative effects that
are analytically separate from the seriousness of the associated offense.
[ ] Hate Crimes harm entire groups; not just the direct

victim
Although the harm caused by the expression of bias is not

completely independent of the harm caused by the crime itself (e.g.,
financial loss), the expression of bias has a meaning of its own that can
produce negative effects not only on the victim but also on members of the
victimized group, regardless of the seriousness of the associated crime. The
hostility generated by the Howard Beach incident was highly visible;
similar negative effects may be generated by a series of harassment
incidents involving racial slurs or anti-Semitic graffiti, which are less serious
criminal offenses and are less highly publicized.

The Method
Gun Control Module
[ ] Inaction on gun regulations endangers National Park
visitors because of their inherent isolation from security
The Courier Journal, June 15 2009 (James Bruggers, Parks brace for
possible end of gun ban, Accessed June 23 2009, http://www.courier-
journal.com/article/20090615/NEWS01/906160304/Parks+brace+for+p
ossible+end+of+gun+ban)
Mammoth Cave National Park has long banned guns from its underground
treasures, saying that keeps the public and employees safe. "Once you get
inside a cave tour, there are not a lot of exits — you can be two miles from an
exit, and half a mile from a phone," said supervisory park ranger Brad McDougal. But
legislation passed by Congress in April, and signed by President Barack Obama, is intended to
open national park, as well as federal wildlife refuges, to people carrying
loaded guns, making "it clear that the Second Amendment rights of an
individual should not be infringed." It remains unclear, however, how far the new
law will extend gun rights in national parks and federal wildlife refuges. At
Mammoth Cave National Park, for example, it's not certain whether the new law means guns will be
allowed inside the park's cave — known for its gypsum lined passages, narrow canyons, large rooms, and
dripstone formations — or in the park's visitor center and staff offices, or whether they'll only be allowed in
campgrounds, or on roads, trails and in the backcountry of the 82-square-mile natural and historical
preserve 75 miles south of Louisville. That's because federal
attorneys are still sorting
through legal issues, including how the new law can work with an existing
general ban on guns in federal facilities. At Mammoth Cave park, officials have deemed the
cave, park offices and the visitor center to be a "federal facility," but not campgrounds and trails,
McDougal said. So, "We are waiting for guidance from Washington" he said.
[ ] Decreased gun regulations leads to violence because it

gives the means to be violent
The Courier Journal, June 15 2009 (James Bruggers, Parks brace for
possible end of gun ban, Accessed June 23 2009, http://www.courier-
journal.com/article/20090615/NEWS01/906160304/Parks+brace+for+p
ossible+end+of+gun+ban)
Bryan Faehner, an associate director of the National Parks Conservation Association, a parks advocacy
group, said he believes having people in national parks with loaded guns will only
lead to accidental shootings of people and more poaching of wildlife. Faehner
cited examples of incidences in California when visitors illegally shot guns in
crowded campgrounds in misguided efforts to protect themselves against
bears. While no individuals were hurt, he said, there are much more effective means to
keep bears out of people's tents, including proper management of food. "We
shouldn't be telling the public to lock and load going in," he said. Opposition to the new law has also come
from seven National Park Service directors under Republican and well as Democratic administrations,
dating to 1964. "Informing visitors as they enter a park that their guns must be
unloaded and stowed away puts them on notice that they are entering a
special place where wildlife are protected and the environment is respected
for the visitor's enjoyment and the enjoyment of others," they wrote in a joint
statement last year. "Failure to comply with this minimal requirement can be a
signal to rangers that something is wrong."

The Method Lab

The Method
Congress > Courts
[ ] The courts inherently gain a great deal of their power
from Congress
Joint Committee on the Organization of Congress, December ’93 (JCOC,
Final Report, Accessed June 23 2009,
http://www.rules.house.gov/archives/jcoc2ay.htm)
Since Congress has much of the responsibility to flesh out the entities of
``judicial power,'' Congress appears to have substantial power to control and
bend the courts to its will. To a great degree, however, this power has proved to be illusory.
What Congress has done is to create a Federal judiciary with powers known perhaps nowhere else in the
world. Its efforts to use these powers to alter the decisions of the courts and to divest the courts of their
Congress has
independence have been episodic and only sporadically successful.1 However,
utilized many of these basic powers to influence the Supreme Court and the
lower Federal courts. The Constitution is silent on the number of associate justices, so Congress in
the 1789 Judiciary Act provided for a Supreme Court of a chief justice and five associate justices. The
number was gradually increased until it reached a total of ten in 1863, but with Andrew Johnson's
accession to the Presidency, the number was reduced to seven, so that Johnson could not fill any
vacancies that might occur. After he left office, Congress increased the number to nine where it has since
remained.2 Although it ultimately was not enacted by Congress, President Roosevelt's ``Court-packing
plan'' to enlarge the membership of the Court by one justice for each justice over age 75 has been cited as
the underlying reason for the Court's changed course in the late 1930s, the ``switch in time that saved
nine.''3 On another occasion, Congress used its authority to determine the time and place of sessions of
the Court in order to postpone for 14 months a Court session to forestall a constitutional attack on the
repeal of the Judiciary Act of 1801.4
[ ] Congress has explicit powers for overriding the courts

and have done so in the past
Political action does not take place in a vacuum. Any congressional

enactment or effort to enact that has an adverse impact on the courts is
usually directed to altering or reversing a decision of the Federal courts, not
necessarily a Supreme Court case,6 although, of course, Supreme Court cases are typically the most
noteworthy. Constitutional decisions by the courts limiting legislative powers
are reversible, strictly speaking, only through amending the Constitution, a difficult and time-
consuming process. Yet, that result has been achieved in the eleventh
amendment,7 the first sentence of 1 of the fourteenth amendment,8 the
sixteenth amendment,9 the nineteenth amendment,10 and the twenty-sixth
amendment.11 However, the usual result of efforts to overturn constitutional decisions by amending
the Constitution has been failure. One need only think of recent movements, such as the drive to amend
the Constitution to authorize legislation that would penalize desecration of the United States flag, in
response to Texas v. Johnson, 491 U.S. 397 (1989), and United States v. Eichman, 496 U.S. 310 (1990).12
Earlier initiatives dealt with school prayer, legislative apportionment, and abortion. Only sustained and
energetic work in Congress and in the States, complemented with vigorous public support, is capable of
changing the Constitution.
[ ] Congress can better enact constitutional laws


The Method Lab
A reference was made above to ``[c]onstitutional decisions by the courts limiting legislative powers'' that
would need an amendment to the Constitution to overturn. The distinction was made that in many cases
the courts will hold that the Constitution does not require some protection of rights or does not deny the
States some power. Assuming that Congress has legislative jurisdiction to act -- and
in these days of expansive interpretation of the commerce clause, 5 fourteenth amendment and 2
fifteenth amendment powers, combined perhaps with the taxing and spending authority -- Congress
may through ordinary legislation counter many of these constitutional
interpretations and enact laws of a constitutional nature. For example, in
Katzenbach v. Morgan, 384 U.S. 641 (1966), the Court upheld a congressional enactment that barred the
application of English literacy requirements to certain classes of voters, despite an earlier holding that
nondiscriminatory English literacy qualifications did not violate the equal protection clause. Congress,
through its authorization to enforce the fourteenth and fifteenth
amendments, ``brought a specially informed legislative competence'' to its
appraisal of the effect of state legislation on rights secured by the
Reconstruction amendments, to which the Court would defer. The career of
this principle has been varied, and it is a highly controversial doctrine, but yet
the Court continues to recognize the existence of some power in Congress to
define constitutionality.13

The Method
Congress > Courts (Immigration)
[ ] Congress is better suited to pass immigration reforms
because the American people want Congressional action
Will Somerville, a senior policy analyst at the Migration Policy Institute
in Washington DC, June 23 2009(Will Somerville, Can Obama fix
immigration? Accessed June 23 2009,
http://www.guardian.co.uk/commentisfree/cifamerica/2009/jun/22/oba
ma-immigration-reform-summit)
The second reason for legislative movement is opportunism. Obama is popular and
has large reserves of political capital. But it is less about where we are in the presidential cycle and more
about the public mood. Four
out of five Americans express deep concern over
immigration, but they also share a desire for action. When asked who is to
blame, the public let employers and immigrants off the hook and blame
government and Congress by a two-to-one margin. The public are anxious
about immigration, especially illegal immigration, but they want the problem
solved.
[ ] Congress has empirically overturned the courts on

issues of immigration
Ariel Meyerstein, Ph.D., Jurisprudence and Social Policy Program,
University of California, Berkeley; December 2007 (Ariel Meyerstein,
J.D., Boalt Hall School of Law, University of California, Berkeley; Ph.D.,
Jurisprudence and Social Policy Program, University of California,
Berkeley; B.A., Columbia University.; The Law and Lawyers as Enemy
Combatants; Accessed June 24 2009)
As in the criminal context, judicial review has always played a special role as guarantor of individual rights
Over the last decade, however, the government has
in the realm of immigration law.
repeatedly attempted to restrict the access of immigrants to the courts
through various jurisdiction-stripping clauses, to streamline the process of
review, and to enact provisions that constrain the discretion of judges. In 1996,
Congress passed, and the President signed, both the AEDPA and the Illegal Immigration Reform and
Immigrant Responsibility Act [*325] (IIRIRA). n123 The anti-immigration clauses of the AEDPA and the
IIRIRA were aimed at restricting judicial review of final orders of deportation for permanent legal residents
convicted of certain enumerated criminal offenses, including minor crimes. n124 Similar to the efforts
discussed below with regard to the enemy combatants, AEDPA and IIRIRA collectively place the entire
deportation process under the control of the executive branch. The
Acts effectively exclude all
opportunities for judicial participation in some cases and limit the scope of
review in others. n125 These changes are profound given the judiciary's historically important role in
immigration matters. n126

The Method Lab
[ ] Congress is better suited than the courts because the

courts are inconsistent when it comes to immigration
Feinstein also borrowed from, and further reinforced, other cultural tropes concerning the litigation
explosion and the rising costs of litigation. She presented the Senate with "facts" stating that "[t]here are
estimates that dozens of existing alien tort suits claim damages collectively in excess of $ 200 billion
dollars." n148 Feinstein then editorialized, "[t]hat's an extraordinary sum that rightly concerns the U.S.
business community, particularly given numerous inconsistent federal courts verdicts handed down in the
the law is unruly and
past two decades." n149 In other words, this is a substantial threat, and
prone to excess and irrational behavior. Therefore, the current law needs to
be reigned in and controlled through reform. Feinstein reinforces this threat
by presenting the ATS in its current formulation the way Justice Berger and
the corporate propaganda machine portrayed the proliferation of rights and
legal remedies a few decades ago. Her legislation "deters private plaintiffs
from filing sweeping and specious claims simply because a corporation has a
U.S. legal nexus and deep pockets." n150 In defending the need for a requirement of specific
intent, Feinstein argued that "[i]n my view, we need to deter legal fishing expeditions,
whereby plaintiffs come to the bar with flinty facts backing weak charges."
n151 Here Feinstein taps into what Galanter, Haltom, and McCann have shown to be popular
cultural beliefs about conniving claimants and predator lawyers: the
zealousness with which American [*330] lawyers tempt potential clients into
suing for baseless claims is nothing more than greedy opportunists going
after large corporate defendants' deep pockets. n152
[ ] Courts treat immigrant cases disrespectfully

Margaret Graham Tebo, lawyer and senior writer for the American BAR
Association Journal, November 2006 (Margaret Graham Tebo, Asylum
Ordeals, Accessed June 25 2009,
collection=journals&handle=hein.journals/abaj92&type=Image&id=85
2 *issue 11, page 36*)
IF WORDS WERE SPONTANEOUSIN CONIBLSTIIBLE, A RECENT immigration opinion issued by the
3rd U.S. Circuit Court of Appeals at Philadelphia might have incinerated half of the City of Brotherly Love.
exemplifies the 'severe wound ... inflicted' when not a
"The case now before us
modicum of courtesy, of respect or of any pretense of fairness is extended to
a petitioner and the case he so valiantly attempted to present. Yet once
again, under the 'bullying' nature of the immigration judge's questioning, a
petitioner was ground to bits." Chain v. Attorney General of the United States, 445 E3d 683.
And that's just the second paragraph of Judge Maryanne Trump Barry's April 28 opinion. Indeed, the judge
opens with a quote from a separate case about dignity as the hallmark of the American justice system.
Nor was it the first time the circuit court had taken the particular immigration judge, Donald V. Ferlise, to
task, as the opinion quickly pointed out. The court also noted that on Jan. 9, the same day that it heard
oral arguments in Chain, U.S. Attorney General Alberto Gonzales announced a review of immigration
courts and issued a memorandum to immigration judges, who are employees of the Department of Justice.
The memorandum condemned immigration judges who "fail to treat aliens

The Method
appearing before them with appropriate respect and consideration" and
pointed out that, "to the aliens who stand before you, you are the face of the
American justice system. Nor is the 3rd Circuit alone in its frustration with
the way immigration judges treat immigrants in asylum proceedings. Other
circuit courts have also questioned the skills and temperament of some
immigration judges whose asylum cases are increasingly appealed. The result
has been a log-jam in the federal circuits, as immigration appeals back up.
(See "Asylum Logjam," October 2005 ABA Journal,page 18.) Many of the appeals are
remanded for new hearings based on a lack of due process in the original
proceedings. And many of the opinions feature scoldings as sharp as Judge Barry's.

The Method Lab
Congress > Courts (Enforcement)

[ ] Congress’s greater enforcement capabilities allows
them to hold people to higher standards
Whatever may be the scope of the Morgan power, there can be no doubt that when
Congress acts under its power to regulate commerce or enforce its taxing and spending power,
perhaps adding on its Morgan power, it may impose on the States and on local
governments substantively higher constitutional standards than the courts
would. It is in this context, for instance, that Congress is now considering the so-called freedom of
choice bills, S. 25 and H.R. 25, to apply to the States the standards of Roe v. Wade, 410 U.S. 113 (1973),
as they existed prior to more recent Supreme Court decisions. Another congressional initiative, the bills to
restore the interpretation of the free exercise of religion clause to its meaning prior to Oregon Employment
Division v. Smith, 494 U.S. 872 (1990), (see S. 578 and H.R. 1308), probably depends on Morgan as well as
the commerce clause. 14 Congress also may simply persist in enacting somewhat
different measures in order to probe the courts' willingness to stand against
what may be the popular will. An example of this is the 1930s and Depression legislation. The
Supreme Court had restrictively interpreted the meaning of the commerce clause, allowing Congress only
to reach interstate movement, but faced with continued legislating, with President Roosevelt's ``Court-
packing plan,'' and with severe economic distress, the Court, in a series of cases, gave in and permitted
Congress to regulate not only every step in the course across state lines but also activities that occur only
within one State but `àffect'' interstate commerce.15
[ ] The American people prefer Congressional enforcement

over the courts
It is significant to note that the IIRIRA's name harkens back to the moralizing arguments by social
conservatives from the litigation and tort reform debates. Social conservatives blamed
conniving claimants and the litigation explosion for eviscerating both the
moral fabric of the nation and the longstanding commitment of Americans to
individual responsibility. Their argument was that people had stopped taking
responsibility for their own actions and instead preferred to "pass the buck"
by suing someone else rather than face their guilt. n127 Here too, harsh deportation
procedures against an unwanted population are presented as necessary. The IIRIRA puts forth the moral
argument that if a legal, permanent resident has committed a crime, then the resident has abused his or
her privileges and the kind hospitality of the United States. Therefore, a legal, permanent resident must
assume individual responsibility for illegal actions. As will be seen with the DTA, the scope of the IIRIRA
taps into a persistent trope that warns against both overextending the resources of the U.S. legal system
and, more importantly, not being taken advantage of by forces that seek to undermine our society. The
argument behind the latter warning is [*326] that providing undeserved support makes us vulnerable. In
truth, however, providing such support is merely providing equal protection under the law.

The Method
[ ] The Court’s own hesitation to make firm decisions
justifies Congress to take up the responsibility
What is fascinating about this instance of the jaundiced view is that the rhetoric is wielded by a
Democratic politician, demonstrating the absolute prevalence of this discourse in our society. In
advocating for her legislation, Feinstein pointed to a Washington Post editorial on Alvarez-Machain, which
expressed concerns that deciding the grounds for lawsuits in the United States for
is "surely a legislative question, not one for the
human rights abuses abroad
freewheeling discretion of judges." n145 To this Feinstein added, "[t]he Court's
hesitation to legislate from the bench shifts the responsibility to this body . . . ."
n146 Feinstein's rhetoric should not be seen solely in terms of separation of powers; it partakes in, and
thereby reinforces, folklore positioned against "an intrusive activist judiciary" and all that has been shown
above to go along with it. n147
[ ] The Supreme Court has little power to enforce their

decisions with those who disagree with the decision
Jeffery J. Mondak, 1990 (Jeffery J. Mondak, PERCEIVED LEGITIMACY OF
SUPREME COURT DECISIONS: THREE FUNCTIONS OF SOURCE
CREDIBILITY,
http://www.springerlink.com.proxy.lib.umich.edu/content/k3w2627602
056325/fulltext.pdf, Accessed June 27 2009)
American political institutions function most capably when the public

perceives their actions as legitimate. The importance of such support is not
identical for all branches of government, however. Due to its lack of
tangible means of enforcement, public approval of the Supreme Court is
particularly vital (Casey, 1974; Berkson, 1978). The Supreme Court does
benefit from considerable abstract mass approval, though no consensus
exists as to the precise level of diffuse support enjoyed by the Court. Some
analysts suggest that the Court maintains a high level of authority (e.g.,
Petrick, 1968; Berkson, 1978), but others argue that the public holds only
moderate support for this institution (e.g., Tanenhaus and Murphy, 1981).
Further, the origins of the Court's approval are unclear, though the strength
of the Constitution as a symbol (Baas, 1979, 1980) may foster a mythical
view of the Court (Casey, 1974). Since approval of the Supreme Court shifts
in response to changes in policy, though (Caldeira, 1986), symbol and myth
may provide a weak foundation for the Court's institutional legitimacy. If the
Supreme Court's public support is only moderately strong, or if it rests on an
unstable base, then that approval may have little purchase. Diffuse support
is not valuable unless it fosters acceptance of the Court's controversial
rulings (Johnson and Canon, 1984). We have again reached a point where
consensus is lacking. Dahl (1957) argues that the Supreme
Court possesses "some bases of power of its own, the most important of which is the unique legitimacy
attributed to its interpretations of the Constitution (p. 292)." Similarly, Choper (1980) suggests that the
Court's public approval serves as a political capital that can be used to generate policy legitimacy. Critics

The Method Lab
of this view have responded forcefully, though, with claims such as that of Adamany (1973), that "none
who bottom their arguments on the Court's legitimacy-conferring capacity offer the slightest empirical
basis for its reality (p. 807)."

The Method
Aff Trades Off With Gun Regulation
[ ] Gun regulations have been making a push into the
supreme court
Christian Science Monitor, June 20 2009 (Patrik Jonsson, Cities’ gun
regulations begin to topple, Accessed June 23 2009,
http://www.csmonitor.com/2009/0620/p02s02-usgn.html)
Polls show that most Americans believe in the Second Amendment, but most also want stronger gun laws.
The percentage of Americans who support an assault-weapons ban, however,
has slid several percentage points in the past few years. In 2007, gun groups
spent nearly $2 million to lobby Congress; pro-gun control groups spent
$60,000.
[ ] Paradoxical similarities between civil and gun rights

puts pressure on the Court
Christian Science Monitor, June 20 2009 (Patrik Jonsson, Cities’ gun
regulations begin to topple, Accessed June 23 2009,
http://www.csmonitor.com/2009/0620/p02s02-usgn.html)
Mr. Vizzard characterizes the gun rights movement as a long-term,

deliberate, and scholarly based march akin to that of the civil rights
movement. But the pro-gun legal effort, he notes, is moving counter to
trends that show Americans becoming increasingly distant from their pioneer
roots, with gun-rights stalwarts primarily consisting of middle-age and older
white men. That paradox puts more focus on the makeup of courts, including
the US Supreme Court.

The Method Lab
Aff Trades Off With Immigration Reform

[ ] Administration currently planning to push through
immigration reforms
Willl Somerville, a senior policy analyst at the Migration Policy Institute
in Washington DC, June 23 2009(Will Somerville, Can Obama fix
immigration? Accessed June 23 2009,
http://www.guardian.co.uk/commentisfree/cifamerica/2009/jun/22/oba
ma-immigration-reform-summit)
In the end, though, the most compelling reason reform can succeed lies in
the personality and huge ambition of the current White House. For many, and
seemingly for the Obama team, immigration reform has become the civil
rights issue for the 21st century. This is the prize that makes reform more
likely than not, and sooner rather than later.

The Method
Supreme Court
[ ] The supreme court is currently flooded with cases
Los Angeles Times, June 18 2009 (David G. Savage, Supreme Court
wraps up term with key cases, Accessed June 23 2009,
http://www.latimes.com/news/nationworld/nation/la-na-court-memo18-
2009jun18,0,655541.story)
The Supreme Court is heading into the final two weeks of its term and, as
usual, the justices have left some of the hardest decisions for last. Among
the cases to be decided are ones involving politically charged movies, strip-
searches of students, and the rights of prisoners who say DNA will prove their
innocence. But the two cases likely to get the most attention concern civil
rights and the proper role of race in the law. Conservative justices have favored removing
race as a factor in the law, even if it means repealing part of the historic Voting Rights Act. Liberals say
protections against discrimination must be preserved in law to ensure fair elections and equality in the
workplace. The outcome in these cases, like so many others, probably depends on Justice Anthony M.
In all, 14 cases remain to be decided, with the next round of decisions
Kennedy.
expected today.
[ ] The Supreme Court hears less than one percent of cases

petitioned to them
Arushi Shama, JD Candidate, April 22 2009 (George Mason School of
Law, Supreme Court Justice Alito Visits Mason Law,
http://www.law.gmu.edu/news/2009/alito, Accessed June 25 2009)
The Justice began his talk by discussing the Supreme Court routine throughout the year. He explained
that a substantial amount of time each year is spent going through thousands
of petitions for writ of certiorari. The Supreme Court hears less than one
percent of the cases that are petitioned to the court. Justice Alito also
explained that the court has twenty-six conferences during the year during
which Justices meet and vote on cases that they thought should be heard by
the court. Students asked Justice Alito what specific things the Court looked for in selecting cases to
hear. The Justice responded that the Court mainly looked for conflicts between the Circuits, conflicts
between state law and decisions of the Supreme Court, or cases that had crucial issues that the Court felt
needed immediate attention. Justice Alito went on to describe duties of the law clerks, the routine that
ensued once Justices were assigned to write an opinion for a pending case, and the procedure that led up
to the hearing of oral arguments.
[ ] The Supreme Court only accepts about one percent of

the cases presented to it
Robert Barnes, Supreme Court reporter for the Washington Post, June
10 2009 (Robert Barnes; Post Politics: Supreme Court, DADT,
Sotomayor, More; http://www.washingtonpost.com/wp-
dyn/content/discussion/2009/06/09/DI2009060901303.html; Accessed
June 26 2009)
You're asking about the court's decision not to review a lower court's ruling
that threw out a challenge to the military's "don't ask, don't tell" policy on gay service members. Here's
the thing: the court accepts just about 1 percent of the cases presented to it.

The Method Lab
To those of us who cover the court, it was pretty clear it would not accept this one. The Obama
administration didn't want it to, even some of the challengers didn't want it to and it seems likely that the
president is going to do something on this on his own. Further, there was no disagreement yet among the
lower courts. Such "circuit splits" are most often what the court looks for in deciding whether to accept a
case. Now, there could be such a split before long; the 9th Circuit has decided to let such a challenge go
forward. That would seem a more likely case for the court to take, should the policy not be changed in the
meantime.

The Method
[ ] Chief Justice Roberts plans to scale back civil rights laws
Los Angeles Times, June 18 2009 (David G. Savage, Supreme Court
wraps up term with key cases, Accessed June 23 2009,
http://www.latimes.com/news/nationworld/nation/la-na-court-memo18-
2009jun18,0,655541.story)
Now in his fourth term, Chief Justice John G. Roberts Jr. has moved to scale
back the civil rights laws that give special protection to minorities. If he has a
majority to pull back on voting rights and job discrimination, it will provide a
powerful end to the court term -- and an opening salvo in the Senate's confirmation battle over
Sotomayor.

The Method Lab
Court of Appeals
[ ] The purpose of the court of appeals is to ease the
workload of the Supreme Court
The Justice System Journal, 1988 (Sue Davis and Donald R. Songer, The
Changing Role of the United States Court of Appeals, Accessed June 25
2009, http://www.heinonline.org.proxy.lib.umich.edu/HOL/Page?
handle=hein.journals/jusj13&id=325&type=text&collection=journals)
The United States courts of appeals are approaching their one hundredth birthday.1
Created to alleviate the workload of the Supreme Court and to increase the
power of the federal courts to apply the national law, the intermediate appellate
judiciary has become a major political institution that functions not only as a norm enforcer
but also as a creator of public policy. Despite their importance, the courts of appeals were
the "courts nobody knows"2 until J. Woodford Howard provided his comprehensive study of three circuits
(1981). Howard studied the business and behavior of the second, fifth, and D.C. circuits during the fiscal
years 1965-67 in order to describe the functions of the appellate courts in the federal system and their
relations with other courts.3
[ ] The Courts of Appeals have a significant impact on

public policy
Donald R. Songer et. al, 2000 (Donald R. Songer, Reginald S. Sheehan,
Susan B. Haire, Continuity and Change on the United States Courts of
Appeals, http://books.google.com/books?
hl=en&lr=&id=ffbK03GFBfsC&oi=fnd&pg=PR11&dq=purpose+of+the
+US+circuit+of+appeals&ots=8kdOA8Sg_c&sig=OBOoKurXDfImjfXlgj
UOXGBp9ZQ, Accessed June 25 2009)
Consideration of the nature of the cases heard by the US Courts of Appeals

suggests the potential for substantial impact on the formation and
implementation of public policy. Substantial number of cases directly deal
with questions of public law, especially those dealing with the enforcement of
criminal law, the treatment and rights of prisoners, civil rights issues
including claims of race, sex, and age discrimination, the distribution of
government benefits, taxation, and government regulation of economic
activity. More than 70 percent of all the cases directly involve some level of
government, most frequently the national government. While some of these
cases appear to represent little more than the routine affirmance of the
denial by the district court of some benefit or claim of a procedural
irregularity in an individual case with no clear significance to anyone other
than the aggrieved party, many result in opinions that spend pages
explaining the meaning of statutory (or, less frequently, constitutional) rules
in terms that on their face appear to shape the meaning of the law for the
broader public.
[ ] The Court of Appeals is the final arena for many issues

because of a lack of Supreme Court influence
Donald R. Songer et. al, 2000 (Donald R. Songer, Reginald S. Sheehan,
Susan B. Haire, Continuity and Change on the United States Courts of

The Method
Appeals, http://books.google.com/books?
hl=en&lr=&id=ffbK03GFBfsC&oi=fnd&pg=PR11&dq=purpose+of+the
+US+circuit+of+appeals&ots=8kdOA8Sg_c&sig=OBOoKurXDfImjfXlgj
UOXGBp9ZQ, Accessed June 25 2009)
The US Courts of Appeals are important policymakers not only because they hear
issues that have important political consequences, but because in the resolution of those
issues they are the final forum for the resolution of the most disputes over
the meaning of federal law. In theory, all decisions of the courts of appeals
are reviewable by the Supreme Court. If the High Court actually did review a
large percentage of their decisions then the role of the courts of appeals in
policy making would be slight. But a basic condition of our judicial system is
that the Supreme Court exerts very little direct supervision over any of the
lower courts.

The Method Lab
AT: Congress Overturns Courts

[ ] Congress infrequently overturns the courts because it
consumes their political capital
Jamie L. Carson and Kirk A. Randazzo, both are Ph.D. candidates in
Political Science at Michigan State University, July 2001 (Jamie L.
Carson and Kirk A. Randazzo, Emerging Multi-Institutional Analyses:
Congress and the Courts,
http://www.apsanet.org/~lss/Newsletter/Jan02/carson.html, Accessed
June 26 2009)
when members are expected to cast a vote involving a potential

However,
override of the Supreme Court, electoral pressures exert a greater influence.
The relative degree of "safeness" in a legislative district may influence the
representative's sensitivity to electoral pressures. Individuals winning the
previous election by a wide margin will possess more political capital to
spend on potentially controversial decisions, unlike their electorally vulnerable colleagues,
who must maintain a closer connection with their reelection constituency. The latter may wish to respond
to the Court; however, they cannot risk alienating their district and are therefore constrained from
exercising their personal preferences. Moreover, Carson and Randazzo (2001) demonstrate that this
pattern is more pronounced in the House than the Senate, particularly among
freshmen members elected by wide margins who otherwise would not vote to
overturn the Court.
[ ] Supreme Court decisions have significant input from the

executive branch
Michael J. Bailey and Forrest Maltzman, professor of American
Government at Georgetown University and a professor of Political
Science at George Washington University, 2005 (Michael J. Bailey and
Forrest Maltzman, Inter-branch Communication: When Does the Court
Solicit Executive Branch Views?;
http://home.gwu.edu/~forrest/fmcvsg.pdf; Accessed June 28 2009)
Conventional wisdom holds that in the American constitutional system the branches try to avoid
constraints imposed by the other branches. Still, Supreme Court justices routinely vote
to
ask the executive branch’s solicitor general for his opinion on cases to which the
United States is not a party. Why would members of one branch solicit the views of another branch?
Scholars typically explain such interactions as the function of the justices’
respect for the legal expertise proffered by the administration’s solicitor
general. Using newly available data from the papers of Justice Harry Blackman, we demonstrate instead
that political and institutional, as well as legal, forces help to account for the Court’s requests for input
from the executive branch. The results, we argue, suggest that the justices are well aware of
both the legal and strategic value of information culled from the executive
branch.

The Method
AT: Hate Crimes Bad
[ ] The definition of a “Hate Crime” is too broad to draw
accurate conclusions
US Commission of Civil Rights; June 16 2009 (US Commission of Civil
Rights; Senate Hate Crimes;
http://www.usccr.gov/correspd/SenateHateCrimes06-16-09.pdf;
Accessed June 28 2009)
We believe that Matthew Shepard Hate Crimes Prevention Act (MSHCPA) will do little good and a great deal
of harm. It’s most important effect will be to allow federal authorities to re-prosecute a broad category of
defendants who have already been acquitted by state juries – as in the Rodney King and Crown Heights
cases more than a decade ago. Due to the exception for prosecutions by “dual sovereigns,” such double
prosecutions are technically not violations of the Double Jeopardy Clause of the U.S. Constitution. But they
are very much a violation of the spirit that drove the framers of the Bill of Rights, who never dreamed that
federal criminal jurisdiction would be expanded to the point where an astonishing proportion of crimes are
now both state and federal offenses. We regard the broad federalization of crime as a menace to civil
liberties. There is no better place to draw the line on that process than with a bill that purports to protect
While the title of MSHCPA suggests that it will apply only to “hate
civil rights.
crimes,” the actual criminal prohibitions contained in it do not require that the
defendant be inspired by hatred or ill will in order to convict. It is sufficient if
he acts “because of” someone’s actual or perceived race, color, religion,
national origin, gender, sexual orientation, gender identity, or disability.
Consider: Rapists are seldom indifferent to the gender of their victims. They
are virtually always chosen “because of” their gender. A robber might only
steal from women or the disabled because, in general, they are less able to
defend themselves. Literally, they are chosen “because of” their gender or
disability.

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MNDI 2009 Tanay, Grant, Donald, Cory

“The hot tub is too hot!” 1

***Morgan Powers CP***......................................................................89

“The hot tub is too hot!” 2

“The hot tub is too hot!” 3

“The hot tub is too hot!” 4

Congress Avoids/Solves Pres Powers

Over the course of many successive administrations, the presidency has

“The hot tub is too hot!” 5

“The hot tub is too hot!” 6

“The hot tub is too hot!” 7

“The hot tub is too hot!” 8

[ ] The Congress checks the Presidential authority creating

Recent Congressional changes has brought into view a number of different

[ ] Congress checks the power of executive agencies

Congress also has the power to review the performance of executive

“The hot tub is too hot!” 9

“The hot tub is too hot!” 10

The capacity of people to secure meaningful access to the courts is also

“The hot tub is too hot!” 11

Solvency Nursing Homes

Private accreditation for nursing homes has always been controversial.

“The hot tub is too hot!” 12

[ ] Congress has more regulations on healthcare and solves

Another problem with government delegation of the standard setting function

“The hot tub is too hot!” 13

“The hot tub is too hot!” 14

Supporters of government involvement in health care point to the fact that

[ ] Congressional management in healthcare is far superior

“The hot tub is too hot!” 15

[ ] Governmental agencies are more efficient than private

Some differences are matters of degree. Government agencies' outputs are

“The hot tub is too hot!” 16

Congressional Approach Solves Better

[ ] The State maintains control and stability through

“The hot tub is too hot!” 17

understudied strategies by which states undertake critical ‘institutional work’

“The hot tub is too hot!” 18

“The hot tub is too hot!” 19

“The hot tub is too hot!” 20

Congress authorized the Department of Veterans Affairs (VA), through the

“The hot tub is too hot!” 21

U.S. broadband connections are slow, expensive and not available to

[ ] The Congress can promote universal internet access to

Passed unanimously in the Senate on Thursday, the Broadband Data

“The hot tub is too hot!” 22

Congress Can Overturn Court Decisions

“The hot tub is too hot!” 23

The Founding Fathers believed congressional tyranny was more to be feared

“The hot tub is too hot!” 24

[ ] Supreme Court refused to strike down a congressional

By an 8-to-1 vote, the Justices refused to strike down the pre-clearance

In 1966, the Supreme Court, in an 8-to-1 vote, upheld an earlier, less

“The hot tub is too hot!” 25

“The hot tub is too hot!” 26

the State Secrets Protection Act of 2008 [1], which was

“The hot tub is too hot!” 27

[ ] Pres power low - Obama vows to decrease the amount

“The hot tub is too hot!” 28

Pres Powers Brink Now

It is customary, when making a plea on behalf of Congress, to give the

[ ] The time to act is now: unchecked presidential authority

the checks and balances of American government have

“The hot tub is too hot!” 29

Morgan Powers CP......................................................................89