presidential power da

7/27/2019 Presidential Power Da

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Planet Debate 2005-6Presidential Leadership DA

Copyright 2005 Harvard Debate, Inc. 1

Presidential Powers Disadvantage ...................................................................................... 2

1NC Presidential Powers Shell ....................................................................................... 2

Uniqueness Presidential Power Now........................................................................... 3

Uniqueness: Congressional Deference Now................................................................... 4Links: Congressional Foreign Affairs Involvement ....................................................... 5

Links: Restrictions on the Military By Congress or the Courts..................................... 7Links: Enemy Combatant Designation Review.............................................................. 8

Links: Immigrant Detention Review ............................................................................. 9Links: Law Enforcement............................................................................................... 10

Links: Interfering with the Executive ........................................................................... 11

Links: Prisoner Regulation ........................................................................................... 12Answers to: Presidential Tyranny................................................................................. 13

Impact Extensions......................................................................................................... 15

Answer to Impact Turns................................................................................................ 17

Affirmative Answers..................................................................................................... 18Affirmative Answers Tyranny Turn .......................................................................... 19

Impact Turn -- Bush Doctrine...................................................................................... 20

Prez power unilateralism/preemption ...................................................................... 22


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Presidential Powers Disadvantage

1NC Presidential Powers Shell

A. Uniqueness Bush has boosted his executive power

KANSAS CITY STAR, May 20, 2005, p.

http://www.kansascity.com/mld/kansascity/news/politics/11699096.htm, accessed 5/20/05.

This is but the latest example of Bush's drive to boost White House power vis-a-vis other institutional rivals. On issue

after issue, Bush has guarded presidential prerogatives and tested the limits of his office's clout. He asserted a ground-

breaking doctrine of authority as commander in chief by declaring his willingness to attack other nations first if he

thought them sufficiently threatening, sought to bypass the courts in dealing with terrorism suspects and proposed new

restrictions on public access to presidential papers.

B. Internal link: Presidential power is zero-sum with other branches

Philip Kurland, professor, University of Chicago, AMERICAN UNIVERSITY JOURNAL OF

INTERNATIONAL LAW & POLICY, 1993, p. 494.

It is true that the legislative power and the executive power have been like occupants of opposite ends of a

see-saw: as one rises, the other declines.

D. Impacts

1. Strong Presidency critical to U.S. leadership

Robert Hirschfield, political scientist, POWER & THE PRESIDENCY, 1976, p. 303.

The vast power of the office creates real danger we know, now more clearly than ever before, but the answer to theproblem of Presidential power is not an emasculated Presidency. The uncertainties of our time still demand anexecutive capable of leadership and action. There is no alternative to the strong Presidency as the keystone of

American government and the Western alliance.

2. U.S. Leadership Critical to Prevent a Nuclear WarZalmay Khalilzad, RAND Defense Analyst, THE WASHINGTON QUARTERLY, Spring 1995, p. 84

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 -- 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 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.


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Uniqueness Presidential Power Now

1. Bush has expanded his power farther than other presidents


http://www.kansascity.com/mld/kansascity/news/politics/11699096.htm, accessed 5/20/05

Presidential scholars say Bush already has gone beyond previous presidents in the use of his authority.

"This Bush White House has been extremely aggressive in expanding presidential power," said Allan

Lichtman, a presidential scholar at American University in Washington. "Previous presidents have used

presidential power, have used executive privilege, have used executive orders, but this president has really

sent it into the stratosphere." Lichtman and other scholars agree that Bush's assertion of power differs only

in degree from other recent presidents. Nearly everyone who sits in the Oval Office becomes frustrated at

some point with the Constitution's checks and balances, which were intended to limit executive authority.

3.The Administration pursues unfettered executive discretion

DAILY STAR, May 20, 2005, p.http://www.dailystar.com.lb/article.asp?edition_id=10&categ_id=2&article_id=15223, accessed 5/20/05.

The government emphasized the CSRT's "findings in favor of 38 detainees" as a sign of a constitutionally

fair system. The brief did not point out - or explain if it was pure coincidence - that all but six of these 38

cases had been decided after Judge Green's ruling. In any event, the appeal brief shows an administration inan unapologetic mood, in continuing pursuit of unfettered executive authority under the president's war

powers as commander in chief of the armed forces, and maintaining a disregard for international law and

standards.

4. The administration wants un-checked power

DAILY STAR, May 20, 2005, p.

http://www.dailystar.com.lb/article.asp?edition_id=10&categ_id=2&article_id=15223, accessed 5/20/05.

This is an administration that has sought unchecked power throughout the war on terror and shown a

chilling disregard for international law.

5. President power wont be checked in the status quo


http://www.kansascity.com/mld/kansascity/news/politics/11699096.htm, accessed 5/20/05

He's doing what every president would do, given a chance. In wartime, presidential powers will grow

simply because nobody else wants to get in the president's way," said Kenneth Mayer, a political scienceprofessor at the University of Wisconsin and author of a book about executive orders and presidentialpower. "When the opportunity has presented itself, he's pushed the envelope."


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Uniqueness: Congressional Deference Now

CONGRESS ACQUIESCES TO PRESIDENTIAL DOMINANCE IN FOREIGN

AFFAIRS NOW

Norman K. Swazo is Professor of Philosophy and Chair of the Department of Philosophy

& Humanities, University of Alaska, International Journal on World Peace, Dec 2004v21 i4 p21(42)

It is probably more salient given the way this struggle is characterized as a history of

Congressional "acquiescence" before a series of "precedents" legitimating the war-making authority of the President. Add to this the US refusal to ratify the Rome Treaty

establishing the International Criminal Court, President George W. Bush's decision to

withdraw from the ABM Treaty, the new national security policy committed to Americanprimacy and hegemony in an international security order of its design, the Bush doctrine

of preemptive strike that includes an unconditional right to use nuclear weapons in armedconflict, and Koh's question takes on added urgency today.


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Links: Congressional Foreign Affairs Involvement

1. Congressional foreign affairs involvement threatens unitary

Presidential powerJohn Yoo , Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice,

TESTIMONY, April 17, 2002, p. http://judiciary.senate.gov/testimony.cfm?id=225&wit_id=437, accessed5/20/05.

Under Article Ii, Section 1 Of The Constitution, The President Is The Locus Of The Entire ExecutivePower Of The United States And, Thus, In The Supreme Courts Words, The Sole Organ Of The Federal

Government In The Field Of International Relations. Under Article Ii, Section 2, He Is The Commander

In Chief Of The Armed Forces Of The United States. These Two Provisions Make Clear That The

President Has The Constitutional Authority To Introduce U.S. Armed Forces Into Hostilities When

Appropriate, With Or Without Specific Congressional Authorization.

2. Congressional interference with foreign policy threatens the powerof the executive

Lawrence Block, Department of Justice, HARVARD JOURNAL OF LAW & PUBLIC POLICY, Spring

1989, p. 326.

The idea of executive-congressional codetermination of United States foreign policy is constitutionally

deficient and flawed as a practical construct. Even worse, having imposed some degree of constitutionally

dubious restraint on the Executive, Congress has failed to assume responsibility for its actions.

3. Foreign affairs and military decision-making are the sole domainsof the President

Department of Justice, MEMORANDUM OF OPINION FOR THE DEPUTY COUNCIL TO THE

PRESIDENT, 2001, p. http://www.usdoj.gov/olc/warpowers925.htm, accessed 5/20/05.

In the relatively few occasions where it has addressed foreign affairs, the Supreme Court has agreed with

the executive branch's consistent interpretation. Conducting foreign affairs and protecting the nationalsecurity are, as the Supreme Court has observed, "'central' Presidential domains."Harlow v. Fitzgerald, 457

U.S. 800, 812 n.19 (1982). The President's constitutional primacy flows from both his unique position in

the constitutional structure, and from the specific grants of authority in Article II that make the President

both the Chief Executive of the Nation and the Commander in Chief.

Michael P. Van Alstine, Professor of Law, University of Maryland School of Law, CORNELL LAW

REVIEW, May 2004, p. 892.

Similarly, the Constitution grants to the President, incident to his general executive powers, expansiveauthority as the international representative of the United States. In addition to the power to make treaties,

Article II, Section 2, designates the President the Commander-in-Chief of the armed forces, and grants

him the authority both to appoint ambassadors (again with the advice and consent of the Senate) and to"receive Ambassadors and other public Ministers." Moreover, implicit in the President's "'vast share of

responsibility for the conduct of our foreign relations'" is the limited power to preempt state law through

so-called sole executive agreements, as the Supreme Court reaffirmed only last term.


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Links: Congressional Foreign Affairs Involvement

1. The president must be solely in charge of the implementation offoreign policy or factionalism will result

Stephen Calebresi, law professor, Northwestern, ALABAMA LAW REVIEW, 1995, pp. 88-9

At the same time, however, when it comes to foreign policy implementation, the risks reverse, and we mustbeware of regionally biased committee chairs trying to influence the implementation of a nationally

approved policy. Once Congress has effectively authorized the President to commit troops, and has passed

appropriations based on the premise that troops have been committed, one cannot have a politically

interested Senator Dole involved in telling the President how to deploy them. Nor can one have Senator

Helms picking all of our Central American ambassadors, Representative Boland running our foreign policytoward Nicaragua, or Senator Kerry determining what should be our policy toward renewal of relations

with Vietnam. Once the burdens of war and trade policy, and the taxation that goes with all of this, have

been allocated by Congress, the implementation of that policy must be left to the President. Otherwise the

Kerrys, Doles, Helms, and Bolands of the world will rapidly skew the foreign policy of the world's greatest

nation to fit their own, often regionally biased, political needs.


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Links: Restrictions on the Military By Congress or the Courts

1. Restrictions on the military abroad interfere with unitaryPresidential power



First, we examine the Constitution's text and structure. We conclude that the Constitution vests the

President with the plenary authority, as Commander in Chief and the sole organ of the Nation in its foreign

relations, to use military force abroad - especially in response to grave national emergencies created bysudden, unforeseen attacks on the people and territory of the United States

2. The decision to use military force is up to the executive

Department of Justice, MEMORANDUM OF OPINION FOR THE DEPUTY COUNCIL TO THEPRESIDENT, 2001, p. http://www.usdoj.gov/olc/warpowers925.htm, accessed 5/20/05.

There can be little doubt that the decision to deploy military force is "executive" in nature, and was

traditionally so regarded. It calls for action and energy in execution, rather than the deliberate formulationof rules to govern the conduct of private individuals. Moreover, the Framers understood it to be an attribute

of the executive. "The direction of war implies the direction of the common strength," wrote Alexander

Hamilton, "and the power of directing and employing the common strength forms a usual and essential part

in the definition of the executive authority." As a result, to the extent that the constitutional text does notexplicitly allocate the power to initiate military hostilities to a particular branch, the Vesting Clause

provides that it remain among the President's unenumerated powers.

3. Conducting military hostilities is the sole domain of the President



Conducting military hostilities is a central tool for the exercise of the President's plenary control over theconduct of foreign policy. There can be no doubt that the use of force protects the Nation's security and

helps it achieve its foreign policy goals. Construing the Constitution to grant such power to another branch

could prevent the President from exercising his core constitutional responsibilities in foreign affairs.

5. Control of the military is the sole domain of the President



The position we take here has long represented the view of the executive branch and of the Department of

Justice. Attorney General (later Justice) Robert Jackson formulated the classic statement of the executive

branch's understanding of the President's military powers in 1941: Article II, section 2, of the Constitutionprovides that the President "shall be Commander in Chief of the Army and Navy of the United States." By

virtue of this constitutional office he has supreme command over the land and naval forces of the country

and may order them to perform such military duties as, in his opinion, are necessary or appropriate for the

defense of the United States.


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Links: Enemy Combatant Designation Review

1. Challenging enemy combatant designations challenge Presidentialauthority

American Center for Law & Justice, ACLJ ASKS THE SUPREME COURT, 2004, p.

http://www.aclj.org/News/Read.aspx?ID=187, accessed 5/20/05.

In asking the high court to uphold the decision of the U.S. Court of Appeals for the Fourth Circuit, the

ACLJ brief concludes: Hamdis detention is pursuant to the Presidents well-established authority to

detain an enemy combatant during wartime. Further, the brief asserts that under the Constitutions

allocation of war powers, neither Petitioners status as enemy combatant, nor the fact of his detention aresubject to judicial scrutiny. As the Fourth Circuit explained, Hamdis status as a citizen, as important as

that is, cannot displace our constitutional order or the place of the courts within the Framers scheme. To

use Justice Goldbergs oft-quoted phrase, the Constitution is not a suicide pact.


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Links: Immigrant Detention Review

1. Immigrant detention is within the sole control of the executive

Nathan A. Canestaro, Central Intelligence Agency, Office of Iraq Analysis, 2003-04, COLUMBIA

JOURNAL OF TRANSNATIONAL LAW, 2004, p. 113-4

Furthermore, the Hamdi court emphatically stated that the executive power to detain enemy combatants

was within the President's constitutional war -making authority. Accordingly, these holdings suggestthat, at least during a declared conflict, executive authority to detain non-resident aliens who are enemy

combatants remains basically intact


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Links: Law Enforcement

1. Law enforcement should fall exclusively under the president

Stephen Calebresi, law professor, Northwestern, ALABAMA LAW REVIEW, 1995, pp. 91-2

The truth of the matter is that decisions as to national law enforcement and implementation often require

the making of policy choices with nationally disproportionate implications. The only officers who can be

trusted to make such choices are the President and his subordinates. Citizens bring lawsuits, and regionally

biased inferior federal courts hearing those lawsuits cannot bring the same national perspective to bear onthe policy choices that are at issue. That is why the Constitution is right to impose the duty of faithful

execution of the laws on the President and not on the citizenry and the courts. This is not to deny that

Congress has (and should have) some power to create new individuated private rights related totraditionally recognized rights. Certainly, it should. But, that power should not extend to a power to

transfer, wholesale, the enforcement of "unindividuated injuries" to random citizens and judges who deem

themselves to be "guardians of the public weal." The problems of unrepresentativeness and of regional biasare simply too great in such cases to justify anything other than presidential law enforcement. The core

principle behind the Lujan decision is thus a normatively appealing one for a large geographically

heterogeneous federation.


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Links: Interfering with the Executive

1. Interfering with Executive branch/agency decision-makingthreatens presidential power

Frank Cross, Director, Center for Legal and Regulator Studies, HOUSTON LAW REVIEW, 1990, p. 613.

A second pillar of the unitary executive is found in the constitutional directive that the President take Care

that the Laws be faithfully executed. While a debate continues over whether the framers intended thisclause to be empowering or limiting to the President, it clearly contemplates Presidential authority over the

entire executive branch. Otherwise, how could the President so take Care? Indeed, the Take Care

clause plainly enshrines the concept of Presidential accountability for all executive action.


Consideration of all sections of Article II indicates that the president has substantive policy authority over

other executive officials. Admittedly, the scope of this authority is not set forth in clear terms. However,

the structure of the article provides a general grant of executive power, with very few express restrictions

on the exercise of this power. Such a broad authorization, even though defined vaguely, is a sources ofconsiderable presidential power. This textual format implies that presidential power may expand to fill theneeds of executing laws of the day. In short, the text of the Constitution supports the exercise of significant

presidential power over executive agencies.


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Links: Prisoner Regulation

1. Congress doesnt have authority to regulate prisoner treatment

John Yoo, Professor of Law, University of California at Berkeley School of Law, UNIVERSITY OF

NOTRE DAME LAW REVIEW, July 2004, p. 1204.

Congress never asserted that it possessed any constitutional authority to regulate prisoner treatment, nor

did it challenge the President's Commander in Chief and Executive powers in this area. Rather, Congressmerely sought to encourage the President to take a more aggressive approach toward Britain.

2. Control of prisoners rests with the President and the military

John Yoo, Professor of Law, University of California at Berkeley School of Law, UNIVERSITY OF

NOTRE DAME LAW REVIEW, July 2004, p. 1220.

Practice since the Founding shows that the political branches have recognized that the President's

Commander in Chief and Chief Executive powers constitute an affirmative grant of authority to the

President to "dispose of the liberty" of prisoners of war. Control over prisoners has been considered theprerogative of army commanders in chief throughout American

3. Loss of executive power will snowball

Stephen Calebresi, law professor, Northwestern, ALABAMA LAW REVIEW, 1995, pp. 65-6.

I began this section by saying that I would show why it is at least as important that there be a unitary presidency as that there be a

strong presidency. I think the groundwork has now been laid for defending that claim. Any deviation from the principle of unitariness

in the executive structure immediately opens up a crack into which the state and local pressures described above will tend to insinuate

themselves. The minute some portion of the executive is cut free from the President and the national electoral constituency which heand he alone represents, it tends to become swallowed up by the state and local political pressures that drive the congressional

committees and subcommittees. Deviations from executive unitariness thus necessarily hold the risk that different regional concerns

will attach themselves to the disassociated interest, especially if it somehow seems important to their region. Thus, an "independent"

Defense Department would likely be a target of opportunity for members of Congress from a state with a lot of defense spending orwith voters who care strongly about the military. An "independent" Federal Reserve Board will be a target for members of Congresswho represent large financial interests, and so on. Any deviation, however slight, from the Framers' organizing principle of executive

unitariness will be filled by regional, anti-national concerns

4. Each deviation further unravels executive power


Again, this illustrates what necessarily happens once we depart from executive unitariness as an organizing principle. Differing

regional and local interests insinuate themselves into the breach. I am quite confident that if we had a three-headed executive council,

both parties would run slates for the council with geographically diverse sets of candidates. The less unitary the structure, the more

diverse the slates would become. Every deviation from the principle of executive unitariness will necessarily undermine the nationalmajority electoral coalition. In some circumstances that might not be bad; I would not want (for reasons I will explain later) to have all

435 members of Congress elected at-large by a national majority. But, I do want, as our Constitution contemplates, the President andchief law executor to be elected that way. When the unitariness of the office is threatened in any way, so too are the interests in

impartial law execution of the national electoral majority for which the President speaks.


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Answers to: Presidential Tyranny

1. Congressional control/power is unconstitutional

Eugene Rostow, law professor, Yale, AMERICAN JOURNAL OF INTERNATIONAL LAW, 1989, p.

747.

It is impossible to exaggerate the practical effects of the new doctrine that the three branches of theAmerican Government are not equal, but that Congress is primus inter pares. It would stand on its head

one of the most important principles of policy that have hitherto governed the construction of the

Constitution by the Supreme Court, by Presidents and by Congress. That principle is sometimescompressed into a legal formula, first stated by Hamilton, and supported thereafter by Jefferson, Marshall

and many others, as well as by the pattern of usage. If a power is executive in nature, Hamilton said --

that is, if it is neither legislative nor judicial -- whether it happens to be mentioned in the text of the

Constitution or not, it is presidential in character, unless it is excluded by the constitutional text. If apower is executive in this sense, presidential supremacy is the rule and congressional authority the

exception, and exceptions are to be narrowly construed.

2. Benefits of a unitary presidency outweigh the risks of tyranny


The fear of an overly powerful President cannot justify rejection of a unitary executive. Congress and the

Supreme Court possess authority to check excesses or abuses of Presidential power. Indeed, the growth ofexecutive power may spur the competing branches to improve their checking powers. Moreover, the

executive power presents little threat in the domestic arena, where legislative and judicial powers are

concentrated.

3. Turn: Congressional tyranny

Phillip Barber, lawyer, IDAHO LAW REVIEW, 1990/1, p. 162-3.

Madison pointed out that the legislatures authority is, by is nature, less amenable to control or even to

precise limits that the powers of the other two branches.

4. Turn: Alienating the President triggers autocracy

Donald Robins, Director of American Studies, Smith College, SEPARATION OF POWERS? DOES IT

STILL WORK?, p. 5-6.

Under present arrangements, when the president and the Congress are politically estranged, presidents are

sorely tempted to govern autocratically.


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Answers to: Presidential Tyranny

5. A strong unitary executive is critical to the separation of powers


A final argument from The Federalist, which implicitly supports the idea of a unitary executive, is that such

an executive is necessary to maintain the delicately calibrated system of checks and balances which the

Constitution contemplates. In his four papers, from The Federalist No. 47 to The Federalist No. 51, James

Madison forcefully defended the normative desirability of a system of constitutionally separated and shared

powers. In doing so, he argued against a rigidly pure separation of powers, prefering instead someintermixing of powers to permit the creation of "checks and balances." The goal, of course, is to ensure that

"ambition [will] be made to counteract ambition." 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 separateelectoral channels for each of the three departments back to the ultimate "fountain of authority, the people

...." Second, it is necessary to guarantee that "those who administer each department," will have "the

necessary constitutional means and personal motives, to resist encroachments." Thus, the personal interestsof the occupants of the various offices must be linked to the defense of the constitutional powers of those

offices and "the provision for defence must in this, as in all other cases, be made commensurate to the

danger of attack." 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 authority, necessarily, predominates." Madison explained that "the remedy for

this inconveniency is, to divide the legislature into different branches; and to render them by differentmodes of election, and different principles of action, as little connected with each other as the nature of

their common functions, and their common dependence on the society, will admit." But just as key to

Madison as the weakening of the legislature was the concomitant strengthening of the executive. Thus, hestated 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." Madison defended this in

Federalist No. 51 by arguing in favor of giving the President a qualified veto, i.e., a veto that Congress canoverride.

6. Unitary executive power is modeled world-wide

Stephen Calebresi, law professor, Northwestern, ALABAMA LAW REVIEW, 1995, p. 24-7.

One of the many brilliant features of the American Constitution of 1787 lies in its artful solution to the age-old problem of executive power. No other constitution of which I am aware, before or since, has handled

this delicate matter with so much common sense and good judgment. By creating one national executive

officer, indirectly elected by the people, for a renewable fixed term of four years, the Framers swept the

hereditary and plural executive forms into the ash bin of history. The powerful, unitary office of President,which they created, has since captured the imagination of many people in this country n4 and around the

world. Countries as disparate as France, Russia, Brazil, Argentina, and Nigeria have all been inspired to

adopt presidential forms of government at least in part because of the American experience. The Americansystem of presidential government has thus been adopted by monarchies, parliamentary regimes, and

communist dictatorships. It is striking that presidential government has become (along with judicial review)one of the United States' best-selling, and least remunerative, exports. While many distinguished scholars

question whether the export of presidentialism has always been a happy development, there can be nodoubt but that American style presidential government enjoys enormous and growing popularity. Many

political scientists may favor parliamentary government, but the recent global trend is toward

presidentialism and separation of powers


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Impact Extensions

NEW SECURITY THREATS REQUIRE FAST, NON-DEBATED

PRESIDENTIAL USE OF FORCE

John Yoo, Professor of Law, University of California at Berkeley School of LawStanford Law Review,

Dec 2004 v57 i3 p793(31)

The world after September 11, 2001, however, is very different from the world of 1993. It is no longer clear

that the United States must seek to reduce the amount of warfare, and it certainly is no longer clear that theconstitutional system ought to be fixed so as to make it difficult to use force. It is no longer clear that the

default state for American national security is peace. Rather than disappearing from the world, the threat of

war may well be increasing. Threats now come from at least three primary sources: the easy availability ofthe knowledge and technology to create weapons of mass destruction, the emergence of rogue nations, and

the rise of international terrorism of the kind practiced by the al Qaeda terrorist organization. Because of

these developments, the optimal level of war for the United States may no longer be zero, but may actually

be dramatically higher than in the 1990s. In particular, the emergence of direct threats to the United States

of a kind more difficult to detect and prevent may demand that the United States undertake preemptivemilitary action to prevent these threats from coming to fruition. Further, it seems that the costs of inaction,

for example, allowing the vetoes of multiple decisionmakers to block warmaking, could entail much higher

costs than Ely had envisioned. At the time of the writing of War and Responsibility, the costs to American

national security of refraining from the use of force in a Haiti or Kosovo would have appeared negligible.The September 11, 2001, terrorist attacks, however, demonstrate that the costs of inaction in a world of

terrorist organizations, rogue nations, and more easily available WMD are extremely high--the possibility

of a direct attack on the United States and the deaths of thousands of civilians. First, the al Qaeda terroristnetwork and similar organizations pose a threat that, to be successfully defeated, very well may require a

resort to warfare on a more consistent and frequent basis than in the past. To be sure, terrorism has existed

in places such as the Middle East and Europe for many decades. What makes the terrorism of September 11

different, however, is that it demonstrates that those using this tactic can cause a level of destruction that

once rested only in the hands of nation-states. At the same time, terrorist attacks are more difficult to detect

and prevent due to the unconventional nature of their operations. Al Qaeda terrorists, for example, blendinto civilian populations, use the channels of open societies to transport personnel, material, and money,

and then target civilians with the object of causing massive casualties. Terrorist groups like al Qaeda seekto acquire WMD, are less likely to be reluctant to use them, and--since they have no population or territory

to defend--may be immune to traditional concepts of deterrence. Normal methods of diplomacy and

detection of an enemy's preparations for attack, which help address the threats posed by hostile nations, areof little use against terrorists who seek to attack civilian targets by surprise. Terrorism of this kind may

require that the United States use preemptive force well before a terrorist attack might materialize.

Temporal imminence finds little application here because, as September 11 showed, terrorist attacks can

occur without warning because their unconventional nature allows their preparation to be concealed within

the normal activities of civilian life. Terrorists have no territory or regular armed forces from which todetect signs of an impending attack. Yet, they can inflict a magnitude of destruction that would have once

only been achievable by a nation-state using conventional arms. The prospect of terrorists in possession of

WMD only multiplies the possible magnitude of harm. To defend itself from such an enemy, the UnitedStates might need to use force earlier and more often than was the norm during a time when nation-statesgenerated the primary threats to American national security. It might also need to use force in many

different geographic locations in response to the stateless terrorist organization's dispersal of its own assets.

Thus, for example, the United States is currently fighting terrorists in places such as Afghanistan, Yemen,Iraq, and the Philippines not because of hostility toward their governments, but because al Qaeda has

hidden part of its operations there. In addition to the dispersed, camouflaged nature of such terrorist

groups, a second characteristic may render the use of force more necessary than in previous conflicts.

Because al Qaeda is not a nation, and has no territory or population, it may well be more difficult to defeat

than a nation-state. A1 Qaeda is similar to a traditional nation-state enemy in the resources it can command


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and the damage it can inflict, and it also uses military force to achieve political, rather than personal or

financial, ends. But, al Qaeda is different from the nation-state enemy in the sense that the traditional

means of engaging in, let alone ending, a conflict do not seem to apply. Capture of a city or control over a

population will not end the conflict with al Qaeda. It is not clear whether al Qaeda could sign a peace

treaty, and even if leaders such as Osama bin Laden were caught and sought to enter into an agreementending hostilities, it is unclear whether they could enforce it on their dispersed cells and operatives. A1

Qaeda's decentralized network structure likely could require a longer conflict than would be required

against a nation-state, because there is no clear way to prevail aside from defeating the organization indetail. Second, rogue nations pose perhaps even more dangerous challenges. The Bush administration

defines "rogue nations" as regimes that brutalize their citizens and exploit natural resources for the personal

gains of their rulers, that threaten their neighbors and disregard international law, that seek to develop orpossess WMD, that sponsor terrorism, and that "reject basic human values and hate the United States and

everything for which it stands." Both the Clinton and Bush administrations seemed to agree that nations

such as Iran, Iraq, Libya, and North Korea fell into this category. Putting the political rhetoric to one side,

these nations share certain characteristics such as the development of WMD, repression of their civilian

populations, and isolation from the international political and economic systems. But, it appears as thoughthere is something more entering the categorical structure of the definition, or this definition seemingly

would have included the Soviet Union during the cold war. Rogue nations seem to pose a special threat to

American national security interests not just because they seek to acquire and threaten the use of WMD, butbecause they seem to be willing to take more risks in their foreign policy. Such nations might irrationally

threaten to deploy or even use WMD, and they also may engage in the spread of WMD technology to othernations or perhaps to terrorist groups. Before the proliferation of WMD and missile technology, rogue

nations could not have posed a direct threat to the United States. Now, however, they can, at much higherlevels and magnitudes than in the past. Witness, for example, the looming threat of North Korean

intercontinental ballistic missiles tipped with nuclear warheads, capable of reaching the west coast of the

United States, and the large expenditure of funds to construct a rudimentary missile defense system capable

of countering them. As with terrorism, the threat posed by rogue nations may again require the United

States to use force earlier and more often than it would like. Rogue nations may very well be immune topressure short of force designed to stop their quest for WMD or their threat to the United States. Rogue

nations, for example, have isolated themselves from the international system, are less integrated into the

international political economy, and repress their own populations. These facts make them less susceptibleto diplomatic or other means of resolving disputes short of force, such as economic sanctions. Lack of

concern for their own civilian populations renders the dictatorships that often govern rogue nations more

resistant to deterrence. North Korea, for example, appears to have continued its development of nuclearweapons despite years of diplomatic measures designed to change its course. Meanwhile, internationalinspectors today are having trouble dealing with what appears to be Iran's clandestine nuclear weapons

program. The United States has employed economic sanctions against both countries for decades. Suppose

the United States were confronted with a North Korea armed with nuclear weapons and intercontinental

ballistic missiles and could only deploy a missile defense shield whose effectiveness was questionable.Given North Korea's bellicose threats against the United States and its refusal of diplomatic efforts, the

United States might resort to force to prevent deployment of the nuclear missiles. Third, the nature of

warfare against such unconventional enemies may well be different from the set-piece battlefield matchesbetween nation-states. Gathering intelligence, from both electronic and human sources, about the future

plans of terrorist groups may be the only way to prevent September 11-style attacks from occurring again.

Covert action by the Central Intelligence Agency or unconventional measures by special forces may prove

to be the most effective tool for acting on that intelligence. Similarly, the least dangerous means for

preventing rogue nations from acquiring WMD may depend on secret intelligence gathering and covertaction, rather than open military intervention. A public revelation of the means of gathering intelligence, or

the discussion of the nature of covert actions taken to forestall the threat by terrorist organizations or rogue

nations, could render the use of force ineffectual or sources of information useless. Suppose, for example,

that American intelligence agencies detected through intercepted phone calls that a terrorist group had builtheadquarters and training facilities in Yemen. A public discussion in Congress about a resolution to use

force against Yemeni territory and how Yemen was identified could tip off the group, allowing terrorists todisperse and to prevent further interception of their communications.


17/23



Answer to Impact Turns

A STRONGER, MORE POWERFUL CAN USE FASTER AND SMALLERPREEMPTIVE FORCE

John Yoo, Professor of Law, University of California at Berkeley School of Law

Stanford Law Review, Dec 2004 v57 i3 p793(31)

These developments in the international system may demand that the United States havethe ability to use force earlier and more quickly than in the past. Use of force under

international law, to be consistent with the United Nations Charter, must be justified by

self-defense against an imminent attack (in those cases when not authorized by the

Security Council). Elsewhere, I argue that the rise of WMD proliferation, rogue states,and terrorism ought to lead to a reformulation of self-defense away from temporal

imminence and toward a calculation of expected harm of an attack. If we understand the

use of force as a function of the magnitude of possible harm from an attack adjusted bythe probability of such an attack, the United States might need to use force in situations

when an attack is not temporally imminent, but nonetheless threatens massive casualtiesand remains probable. In order to forestall a WMD attack, or to take advantage of awindow of opportunity to strike at a terrorist cell, the executive branch needs the

flexibility to act quickly, possibly in situations where congressional consent cannot be

obtained in time to act on the intelligence. By acting earlier, perhaps before WMD

components have been fully assembled or before an al Qaeda operative has left for theUnited States, the executive branch might also be able to engage in a more limited, more

precisely targeted, use of force.


18/23



Affirmative Answers

1. The president does not possess full control of foreign affairs

Saikrishna Prakash, Professor of Law, University of San Diego, CORNELL LAW REVIEW, July 2004, p.

1100.

Thus, despite having "the executive Power," the President cannot claim independent authority in those

areas. Third, although Congress has no general power over foreign affairs, it has two textual sources of

foreign affairs power: powers specifically given to it, such as declaring war and regulating commerce, andauthority to carry into execution the powers of the federal government. The latter is a derivative power,

exercisable in conjunction with the President, to give effect to the President's executive power over

foreign affairs. Finally, the President's residual power over foreign affairs does not extend to matters not

part of the traditional executive power. Accordingly, the President lacks lawmaking o appropriationspower in foreign affairs

2. Turn: strong presidential power causes war

HASTINGS INTERNATIONAL AND COMPARATIVE LAW REVIEW, Winter 2004, pp. 247-8.

Diplomatic and other executive powers of the President, while falling short of declaring or waging war,

can have a substantial likelihood of leading to war. One commentator has referred to the "ability of thePresident simply by his day-to-day conduct of our foreign relations to create situations from which escape

except by the route of war is difficult or impossible." For example, President Wilson decided to rely onhis own legal authority in ordering American merchant vessels to be equipped with guns, over the

objections of Congress, and said later that he knew his action was "practically certain" to draw the United

States into war. President Franklin Roosevelt took various actions, without congressional

authorization, that were said to have pushed the nation toward World War II. On September 3, 1940, hemade the famous "Fifty Destroyer Deal," a controversial exchange of fifty aging destroyers for a lease of

British bases in the Western Atlantic. In April 1941, he sent troops to occupy Greenland, a Danishpossession since 1814, under an agreement with the Danish Minister in Washington - Denmark itself

having been invaded by Germany on April 9, 1940. Two months later he took the strategic country of

Iceland under American protection at that country's request; he authorized the occupation of Dutch

Guinea, and issued his famous "shoot-on-sight" order to the Navy.

3. Turn: congressional action is needed to check runaway executivepower

NORTH CAROLINA JOURNAL OF INTERNATIONAL LAW & COMMERCIAL REGULATION, Summer 2004, p. 710-11.

In the context of the War on Terrorism being waged on both international and domestic fronts, the dangers inherent in the abdicationof one branch's institutional powers are illuminated. If government truly is "the greatest of all reflections of human nature," it onlymakes sense that the Executive has seized the opportunity presented by the War on Terrorism to shore up its institutional power. It

also makes sense that Congress would acquiesce to some degree, given the broad political support for a wartime president. But the fact

remains that Congress is the primary and most effective check on executive power in times of war. In The Federalist No. 48, Madison

saw fit to remind his contemporaries that "an elective despotism was not the government we fought for." Today it is Congress's duty tocheck the President's power, and ensure that such a form of government does not take hold.


19/23



Affirmative Answers Tyranny Turn

HUGE RISK OF PRESIDENTIAL DICTATORSHIP

John n Dean, a FindLaw columnist, is a former Counsel to the President of the United States,

PRESIDENTIAL POWERS IN TIMES OF EMERGENCY, 2002, p.http://writ.news.findlaw.com/dean/20020607.html, accessed 5/20/04.

"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. We are fighting a waragainst terrorism, with no end in sight. It is a war, I believe, that will inevitably escalate. Indeed, it is a war

that could force the nation to live under martial law - for indefinite periods


20/23



Impact Turn -- Bush Doctrine

PRESIDENTIAL POWER TRANSLATES INTO THE BUSH DOCTRINE OF

AGGRESSIVE UNILATERALISM

Charles Pugsley Fincher, October 26, 2003,http://www.thadeusandweez.com/cam03/10.26.03..html

The United States Congress has gone missing. Before the rise of the "imperial presidency," Congress participatedin America's foreign policy. Congress now leaves Americans without representative democracy in that crucial area.Historian Arthur Schlesinger, Jr. coined the phrase "imperial presidency" in his 1973 book The ImperialPresidency. "America's rise to global dominance and Cold War leadership, Schlesinger explained, had dangerouslyconcentrated power in the presidency, transforming the Framers' energetic but constitutionally constrained chief

executive into a sort of elected emperor with virtually unchecked authority in the international arena," writes GeneHealy in his essay "Arrogance of Power Reborn: The Imperial Presidency and Foreign Policy in the ClintonYears." Some date the imperial presidency as far back as Franklin Roosevelt. Others say it was most expressed byRichard Nixon. Regardless, George W. Bush has taken up the baton with his unilateral approach to foreign policy

and the wrong-headed Bush Doctrine of preventive war. Last Tuesday, Sen. Chuck Hagel (R.-Neb) said in aspeech before the Gallup Organization World Conference in Omaha, "[w]hen the security of this nation is

threatened, Congress and the American people give the president great latitude. We probably have given thispresident more flexibility, more latitude, more range, unquestioned, than any president since Franklin Roosevelt --probably too much. The Congress, in my opinion, really abrogated much of its responsibility." (This quote is froman Associated Press report appearing in the Washington Post on October 21.) Hagel is a senior member to the

Foreign Relations Committee. The Constitution has given Congress five foreign policy powers: 1) Congress hasthe power to declare war; 2) to ratify treaties; 3) to pass legislation of international scope; 4) to control spending onforeign policy; and 5) to regulate commerce with foreign nations. (Source: Nuclearfiles.org). The fault for thecreation of the "imperial presidency" lies with a cowardly Congress. Its members have been all too willing to cede

responsibility to the president for fear of blame by voters on serious issues -- e.g., giving Bush the authority toattack Iraq without requiring a declaration of war or of oversight. In doing so, Congress removes representativedemocracy from our foreign policy. However, that is exactly why members of Congress are elected in the first

place -- to represent the American people.

THE IMPACT IS HEGIan Williams, The end of isolationism, September 18, 2003, http://opendemocracy.net/debates/article-3-98-1498.jsp,accessed 11/5/03

We do not live in a multipolar world. The quick and relatively painless walkover in Iraq this year could indeedhave been seen as manifest proof of American unilateral destiny. But the colossus is now walking the globe withoutstretched palm, asking for financial and military handouts from developing countries and asking help from the

very United Nations it had allegedly rendered irrelevant and outmoded at the beginning of the year. The US hasbeen a military and economic superpower but a diplomatic pinhead for some time now; never more so than underthis administration, whose practice has been almost the reverse of Theodore Roosevelts maxim of speak softlyand carry a big stick. Above all, President Bushs bold economic experiment of running a massive deficit, a war,

an occupation and giving his friends tax cuts at the same time, is coming unstuck. The dollar has declined andforeigners - led by the Chinese government - who now buy 46% of US Treasury bonds, are the lifeline for thedeficit and the dollar alike. It remains to be seen how prepared they will be to carry on financing a countryexplicitly bent on keeping them under its yoke. How to lose friends and not influence people In the aftermath of 11

September 2001, the United States commanded an immense degree of sympathy and support. It took a little less

than a year to lose it all. The US has alienated many natural allies, and even its most consistent one, Britain, makesembarrassed excuses in private about trying to bridge the gap between the US and reality. In the context of

pervasive American supremacism, one has to admire the more honest conservative critics of American foreignpolicy. For example, Charles Pea is quite right in his assessment of the Bush doctrine: This strange fruit ofWilsonian idealism and neo-conservative ambition is triply misconceived: it will guarantee damaging over-extension of resources, fuel bitter resentment of the United States, and abandon homeland security to the chimera

of global control. It is not empire that the US needs, but modesty.


21/23



Impact Turn: Bush Doctrine

AND WAR WITH CHINA

Dan Plesch, senior research fellow at the Royal United Services Institute, 9/13/2002, The

Guardian

This is as self-contradictory as the first, and insidiously racist. Sustained by such principles,the architects of President Bush's policy hope to see it applied to Iran, North Korea and, ultimately,

China. For those Republicans who pride themselves on having destroyed the Soviet Union and unified

Germany, their duty now is to achieve the same success over Beijing's nuclear-armed communistdictatorship, which oppresses the Tibetans, runs its economy from a prison gulag and represses

religious freedom. Friends look at me as if I have lost the plot when I say this. But John Bolton, Richard

Perle, Condoleezza Rice, Frank Gaffney and Paul Wolfowitz have no problem with a pre-emptive

political-military strategy towards an emerging China. Ambassador David Smith, who contributed to

the influential National Institute for Public Policy report on nuclear strategy, explained that "the US hasnever accepted a deterrent relationship based on mutual assured destruction with China" and will act to

prevent China gaining such a capability.

THAT GOES NUCLEARChalmers Johnson, author of Blowback, The Nation, May 14, 2001China is another matter. No sane figure in the Pentagon wants a war with China, and all serious USmilitarists know that Chinas minuscule nuclear capacity is not offensive but a deterrent against the

overwhelming US power arrayed against it (twenty archaic Chinese warheads versus more than

7,000 US warheads). Taiwan, whose status constitutes the still incomplete last act of the Chinese

civil war, remains the most dangerous place on earth. Much as the 1914 assassination of the

Austrian crown prince in Sarajevo led to a war that no wanted, a misstep in Taiwan by any sidecould bring the United States and China into a conflict that neither wants. Such a war would

bankrupt the United States, deeply divide Japan and probably end in a Chinese victory, given that

China is the worlds most populous country and would be defending itself against a foreign

aggressor. More seriously, it could easily escalate into a nuclear holocaust. However, given thenationalistic challenge to Chinas sovereignty of any Taiwanese attempt to declare its independence

formally, forward-deployed US forces on Chinas borders have virtually no deterrent effect.


22/23



Prez power unilateralism/preemptionPRESIDENTIAL POWER CAUSES UNILATERALISM

David Gergen, US News and World Report, February 25, 2002After terrorists struck on September 11, the world united behind the president's leadership. Now,

however, as Bush threatens to knock off other regimes in dangerous countries like Iraq, Iran, andNorth Koreaand Secretary of State Colin Powell makes clear that the United States is prepared toact alone in Iraq, nations in Europe and elsewhere are sharply questioning the White House. Still

aggrieved by earlier administration decisions on the environment and missile defense, they are

asking: Do our opinions no longer count? If we oppose a war on Iraq, will the United States wageone anyway? James Madison came up with checks and balances in the U.S. Constitution, but do any

exist in the international arena? Has the U.S. president become king of the world? Americans need

to ponder the same question. In the past, a muscular exercise of presidential power has usually

served the nation well. Historian David Herbert Donald points out that in the Civil War, it wasLincoln who often exceeded his constitutional boundaries to save the Union while Jefferson Davis

resolutely stayed within the letter of a similar Confederate constitutionand lost. Should we take a

similar view toward the unilateral exercise of world power by the United States today? A strong

case can certainly be made. If we wait for European friends to agree upon tough policies, we couldbe waiting for Godot. As the sole superpower, does the United States not have a responsibility to

take preventive action against terrorist regimes? Yet there is also a powerful case to be made thatunless we try hard to act in concert with others, we will drive our friends into the arms of ourenemies. Already there are signs that our public stances are causing deep alienation among high-

ranking Saudis. If we unilaterally attack countries in their neighborhood, will they continue to ship

us cheap oil? Or consider the CIA, now vitally dependent upon spies from other governments to

provide firsthand intelligence on terrorists. Do we want that information flow to dry up? There are

no formal restraints upon the exercise of presidential power overseas, but does prudence not suggestself-restraint? That unilateralism ought to be seen as a policy of last resort, not of first?

CONGRESS WONT GO TO WAR IF ITS IN CONTROL ONLY A STRONG

EXECUTIVE WILL START A CONFLICT

William Banks and Jeffrey Straussman, The New American Interventionism: Essays

from Political Science Quarterly, Demetrios James Caraley (ed.), 1999,http://www.ciaonet.org/book/caraley/ch02.html

Another reason for presidential hegemony, however, has nothing to do with crises in a fast-moving

world. Since Trumans move to deploy a massive force to Korea, Congress has demonstrated that itprefers not to take the risk of authorizing or forbidding risky national security ventures. If the

president leads, Congress may remain silent and permit the president to act for the nation. Or,

members may either applaud or chastise the president, short of making legislation, depending on

how the operation pans out.


23/23


Prez power unilateralism/preemptionTURN: ACQUISENCE TO PRESIDENTIAL AUTHORITY ENABLES THE

PRESIDENT TO ENGAGE IN PREEMPTIVE WARS

Norman K. Swazo is Professor of Philosophy and Chair of the Department of Philosophy& Humanities, University of Alaska, International Journal on World Peace, Dec 2004

v21 i4 p21(42)

Byrd's remarks are consonant with remarks delivered on 03 October 2002, during Senate

debate on Senate Joint Resolution 46 authorizing the President's use of force against Iraq.

Presenting a minority position, Byrd argued that the resolution before the Senate was "aproduct of presidential hubris," the resolution redefining "the nature of defense" and

reinterpreting "the Constitution to suit the will of the Executive Branch:" "It would give

the President blanket authority to launch a unilateral preemptive attack on a sovereignnation that is perceived to be a threat to the United States. This is an unprecedented and

unfounded interpretation of the President's authority under the Constitution, not tomention the fact that it stands the charter of the United Nations on its head." Here

Senator Byrd raises the question of the authority of the President vis-a-vis bothconstitutional law and international law (United States v. Curtis Wright notwithstanding.

presidential power da

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