FCC AFF - University of Michigan Debate Camp Wiki

March 13, 2018 | Author: Anonymous | Category: Social Science, Political Science, Government
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Circumvention There is a distinction between criminal and civil immigration enforcement – the plan can’t solve for criminal enforcement Seghetti, et al, 5 (Lisa M., also with Stephen R. Vina and Karma Ester, all three work for the Congressional Research Service, “Enforcing Immigration Law: The Role of State and Local Law Enforcement,” Oct 13 2005, p. summary)//ES Congress defined our nation’s immigration laws in the Immigration and Nationality Act (INA) (8 U.S.C. §§1101 et seq.), which contains both criminal and civil enforcement measures. Historically, the authority for state and local law enforcement officials to enforce immigration law has been construed to be limited to the criminal provisions of the INA; by contrast, the enforcement of the civil provisions, which includes apprehension and removal of deportable aliens, has strictly been viewed as a federal responsibility, with states playing an incidental supporting role. The legislative proposals that have been introduced, however, would appear to expand the role of state and local law enforcement agencies in the civil enforcement aspects of the INA. This potential expansion has provoked a variety of responses from lawmakers, scholars, interest groups, and law enforcement officials.

States can enforce the criminal provisions of the INA regardless of federal authority – meaning they can still arrest people that entered the country illegally – means the plan doesn’t solve Seghetti, et al, 5 (Lisa M., also with Stephen R. Vina and Karma Ester, all three work for the Congressional Research Service, “Enforcing Immigration Law: The Role of State and Local Law Enforcement,” Oct 13 2005, p. 7)//ES State enforcement of the criminal provisions of the INA is seen as being consistent with the state’s police power to make arrests for criminal acts and the expectation that states are expected to cooperate in the enforcement of federal criminal laws.19 Civil immigration law enforcement, on the other hand, has generally been viewed as strictly a federal responsibility: The civil provisions of the INA have been assumed to constitute a pervasive and preemptive regulatory scheme — leaving no room for a direct state or local role.20 The distinction between civil and criminal violations in the INA has been seen to suggest a bifurcated role for states and localities. For example, state and local law enforcement officers cannot arrest someone solely for illegal presence for the purpose of deporting them because it is a civil violation, but they can arrest someone for the criminal offense of entering the country illegally.21


Definitional Congress overseas the FCC. Cleland 15 (Scott, Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration, “Why the FCC Needs Congress”, 1/20/15, http://dailycaller.com/2015/01/20/why-the-fcc-needs-congress/, accessed 7/29/15)//RZ The FCC operationally needs Congress. Congress funds the FCC, and the FCC is seeking a very big increase in its 2015 budget. Congress investigates and oversees whether the FCC abides by legally required processes and procedures. Congress is the source of all the FCC’s current and future authority, and the FCC’s congressional authorizing committees are actively in the process of updating the Communications Act that created the FCC in 1934. The FCC also politically needs Congress.

AT: China Tech China tech. leadership is not inevitable – their extractive model stifles innovation and creativity – the Soviet Union proves. Acemoglu and Robinson 12 – Department of Economics MIT and Harvard (Daron, James, “World's next technology leader will be US, not China – if America can shape up”, 4/19/12, http://www.csmonitor.com/Commentary/Global-Viewpoint/2012/0419/World-snext-technology-leader-will-be-US-not-China-if-America-can-shape-up, accessed 7/25/15)//RZ CAMBRIDGE, MASS. — Voices of both those convinced that China will eclipse the United States as a global economic and military power and those who are confident of continued US leadership are getting louder. Much of this debate focuses on the size of the Chinese economy relative to the US economy or issues of military might. But what matters for global leadership is innovation, which is not only the key driver of per capita income growth but also ultimately the main determinant of military and diplomatic leadership. It was the US that proved after Pearl Harbor how a prosperous economy can rapidly increase its military power and preparedness when push comes to shove. So the right question to ask is not who will be the military leader of the next century, but who will be the technological leader. The answer must be: most probably the US – but only if it can clean up its act. The odds favor the US not only because it is technologically more advanced and innovative than China at the moment, with an income per capita more than six times that of China. They do so also because innovation ultimately depends on a country’s institutions. OPINION 3 reasons why China isn't overtaking the US Inclusive political institutions distribute political power equally in society and constrain how that power can be exercised. They tend to underpin inclusive economic institutions, which encourage innovation and investment and provide a level playing field so that the talents of a broad cross-section of society can be best deployed. Despite all of the challenges that they are facing, US institutions are broadly inclusive, and thus more conducive to innovation. Despite all of the resources that China is pouring into science and technology at the moment, its political institutions are extractive, and as such, unless overhauled and revolutionized soon, they will be an impediment to innovation. China may continue to grow in the near term, but this is growth under extractive institutions – mostly relying on politically connected businesses and technological transfer and catch-up. The next stage of economic growth – generating genuine innovation – will be much more difficult unless China's political institutions change to create an environment that rewards the challenging of established interests, technologies, firms, and authority. We have a historical precedent for this type of growth and how it runs out of steam: the Soviet Union. After the Bolsheviks took over the highly inefficient agricultural economy from the Tsarist regime and started to use the power of the state to move people and resources into industry, the Soviet Union grew at then-unparalleled rates, achieving an average annual growth rate of over 6 percent between 1928 and 1960.

Though there was much enthusiasm about Soviet growth – as there is now about China’s growth machine – it couldn’t and didn’t last. By the 1970s, the Soviets had produced almost all the growth that could be derived from moving people from agriculture into industry, and despite various incentives and bonuses, and even harsh punishments for failure, they could not generate innovation. The Soviet economy stagnated and then totally collapsed.

AT: ‘FCC Sucks’ Their evidence doesn’t assume FCC internal reform – it resolves all criticism. Taglang 15 (Kevin Taglang, leads the Benton Foundation’s work monitoring, analyzing and articulating the public interest stake in telecommunications legislation, regulation, and policymaking, “Does the FCC Need to be Reauthorized?”, 5/20/15, The Benton Foundation, https://www.benton.org/does-fcc-need-be-reauthorized, accessed 7/28/15)//RZ **Wheeler took office 11/4/2013 At the hearings this week, FCC Chairman Wheeler highlighted his efforts to improve FCC processes since he took office. In 2014, an internal FCC staff working group presented a Process Reform Report to the Commission as an important first step to becoming more agile and business-like in order to become more effective, efficient, and transparent. Guided by the report, the FCC been moving forward with changes to streamline how it functions so the agency is better able to serve the entities it regulates, as well as the American public. As an example, the Chairman noted his use of consent agendas at meetings to facilitate quick action on noncontroversial items that require a vote of the commissioners. The FCC has also made significant progress, he reported, toward all-electronic filing and distribution of documents. On March 19, the FCC announced the availability of an online-filing module for Petitions for Rulemaking that previously could be filed only on paper. In response to concerns about a backlog of undecided matters at the FCC, Wheeler noted that every Bureau and Office with responsibility for responding to requests from external petitioners and licensees has developed a backlog reduction plan. And in 2014, the FCC closed more than 1,500 dormant dockets. In early 2015, the FCC launched a new online Consumer Help Center, which will make the FCC more user-friendly, accessible, and transparent to consumers. The new tool replaces the FCC's previous complaint system with an easier-to-use, more consumer-friendly portal for filing and monitoring complaints. In addition to being easier to use for consumers, the information collected is to be integrated with the FCC's policymaking and enforcement processes. The FCC is forming a task force to review its internal procedures following criticism from Republicans, Chairman Wheeler announced on March 19. He will appoint one staff member from each of the five commissioners' offices to review and compare procedures of similar agencies. Chairman Wheeler said the task force will be led by his special counsel Diane Cornell, and it will determine whether more change is needed. Commissioner Michael O’Rielly said he welcomed the announcement and his staff will actively participate. “To be clear, the standard for the task force must be what is in the best interest of the American people and promotes a fair, open and efficient Commission process, not what other agencies happen to be doing. With this goal in mind, the Commission will surely be able to set a good government model other agencies can emulate. The task force should complement -not substitute for -- Congress’ effort to move process reform legislation.”

AT: Obama Controls (Net Neutrality) The president is legally incapable of coercing the FCC and net neutrality doesn’t prove. There is no evidence, they conflate correlation with causation, and cite republican opponents. [If anything congressional investigation immediately after proves accountability]. Shane 3/3 (Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law at Ohio State University's Moritz College of Law, “‘Undue Influence?' Congressional Attacks on FCC-White House Links”, 3/3/15, http://www.bna.com/undue-influence-congressional-n17179923581/, accessed 7/29/15)//RZ What is an Independent Agency? Any White House influence on the Open Internet proceeding would presumably be improper only in three circumstances: •  If the FCC's “independent agency” status somehow barred White House contact; •  If White House contacts (or the President's public statement) violated some procedural rule connected with the rulemaking proceeding; or •  If the White House presumed to command Chairman Wheeler or to pressure him into a decision based on legally irrelevant or impermissible factors. There is no report suggesting the White House sought to command Chairman Wheeler or to introduce legally irrelevant or impermissible considerations into the FCC rulemaking. Only the possible procedural objections remain. The FCC's independent agency status does not by itself make White House contacts improper. An independent regulatory agency is a body within the executive branch that Congress has so structured as to limit the President's direct policy control over the agency. Such agencies are typically (but not always) multi-headed, as is the FCC, with the stipulation that no more than a bare majority of members may represent a single political party. Members are also typically authorized to serve for terms longer than four years, so that no President, within a single term, would likely have an opportunity to appoint the entire agency. The most critical feature supporting agency independence, however, is a statutory limitation--explicit or implicit--on the President's authority to remove any agency member at will, as the President could, for example, with regard to any cabinet member. For independent agencies, presidents retain the authority to remove administrators who are corrupt or somehow abusing their office. But presidents don't have the authority to remove independent administrators over mere policy disagreements. Thus, for example, President Obama was entirely free to try to persuade the FCC to adopt his position on net neutrality. Had Chairman Wheeler chosen otherwise, however, President Obama could not have fired him. (At most, the Communications Act would permit the President to designate a different FCC member to be chairman.15)

Although some legal scholars (incorrectly, in my view) have tried to cast doubt on the constitutionality of independent agencies--precisely because of the limit on presidential control-presidents have typically been punctilious in managing their relations with such agencies. For example, every president since Ronald Reagan has required regulatory agencies that are not independent to clear significant proposed rules with the Office of Management and Budget before they are issued. Although these presidents have no doubt wanted the independent agencies to follow the same cost-benefit principles as OMB imposes on other agencies, they have been careful to express their preferences in the language of what independent agencies “ should” do, not “must” do.16 The only White House command to independent regulatory agencies is that they keep OMB informed of their rulemaking agenda and internal review processes. President Obama's statement on net neutrality similarly used the language of exhortation, not command. As for White House meetings to mobilize net neutrality supporters, it is difficult to believe that presidents and their aides do not routinely invite potential policy supporters to private White House meetings to share their views. Perhaps the most controversial instance in recent years involved then-Vice President Cheney's leadership of the so-called National Energy Policy Development Group, an interagency task force that met repeatedly with industry representatives having an interest in the Bush Administration's approach to energy policy. The Administration publicly (and properly) defended its consultations as within the president's constitutional prerogative to seek advice wherever he or she might choose. Public interest groups went all the way to the Supreme Court in a vain effort to get the White House to disclose the names of those private individuals who met with Mr. Cheney and other government officials.17 The net neutrality meetings that the Wall Street Journal called “unusual” and “secretive” may have been confidential; they probably were also standard. Ex Parte Comments The remaining hypothetical possibility is that some White House communication with the FCC may have violated rules against so-called ex parte contacts - that is, oral or written communications not on the public record with respect to a particular administrative proceeding. When the FCC or any other federal agency engages in administrative adjudication under the federal Administrative Procedure Act--for example, when the Social Security Administration reviews the denial of a social security disability claim--there are strict statutory limits on ex parte contacts with anyone involved in deciding the case. With regard to administrative rulemaking, however--the kind of proceeding that the FCC has been conducting with regard to net neutrality--there is no general statutory bar to ex parte communications related to the rulemaking. That does not entirely end the matter. The FCC, along with other agencies, has voluntarily adopted a set of procedural rules that do affect ex parte contacts in rulemaking. An informal rulemaking, in FCC terms, is called a “permit-but-disclose” proceeding. In any such proceeding, a person may engage with the FCC in an oral communication directed to the merits or outcome of the proceeding, but is supposed to file with the FCC a memorandum indicating who was present and, in general terms, what was said. Written ex parte communications are likewise permissible but must also be filed. It is possible, but by no means certain, that communications from White House staff might fall within these definitions; it would depend at least on whether the communications were “directed to the merits” of the proceeding.

No Sanctions Under FCC Ex Parte Rules A problem for the FCC's detractors, however, is that, even if there were a technical violation of the FCC's rules, there would almost certainly be no applicable sanction. The penalties section of the FCC's ex parte rules states: “A party who has violated or caused the violation of any provision of [the ex parte rules] may be subject to admonishment, monetary forfeiture, or to having his or her claim or interest in the proceeding dismissed, denied, disregarded, or otherwise adversely affected.”18 The White House, however, has no monetary stake or similar claim involved in the net neutrality rulemaking. The rules are intended primarily to ward off self-interested secret communications by special interests - not expressions of policy advocacy within the government itself. The leading D.C. Circuit case regarding ex parte political communications in the context of rulemaking is called Sierra Club v. Costle.19 Environmentalists and representatives of industry sued to challenge regulations issued by the Environmental Protection Agency (EPA) that required new coal-fired steam generators that produce electricity to control their emissions of sulfur dioxide and particulate matter into the air. (The environmentalists thought the rules were too lenient; the industry representatives, too stringent.) EPA, unlike the FCC, is not an independent regulatory agency. But the Clean Air Act, which gave EPA the relevant rulemaking authority, required EPA to compile a public record of comments received in connection with the rulemaking. Among other things, the Act provided: All documents which become available after the proposed rule has been published and which the Administrator determines are of central relevance to the rulemaking shall be placed in the docket as soon as possible after their availability.20 The Sierra Club objected that EPA had violated that requirement by not including in its “docket” any summary of certain meetings held after the close of the public comment period--meetings that included a session at the White House involving the President and selected staff.


AT: TSA Fails 95% of the time The public failure flows neg- current measures exist that effectively deter terrorism, but the report invites attacks that require security Jenkins 15— Senior advisor at the non-profit RAND corporation (Brian Michael, “TSA flunked its security test big time — Now what?,” The Hill, June 15, 2015, http://thehill.com/blogs/pundits-blog/homeland-security/244957-tsa-flunked-its-securitytest-big-time-now-what). WM The failure of Transportation Security Administration (TSA) agents to detect 67 out of 70 weapons or fake explosives smuggled through airport security checkpoints by the TSA's own inspectors renews questions about the agency's ability to protect the country's airlines. A failure rate of 95 percent also provides a new opportunity for attack by the TSA's many foes and rekindles the hostility many Americans have not just for the TSA, but for what they see as an increasingly intrusive and untrustworthy federal government. Without knowing more about the details of the undercover tests, it is hard to judge the precise nature of the apparent security breakdown, but in any context, a 95 percent failure rate — the repeated news story headline — is shockingly unacceptable. There is one slender ray of good news: Department of Homeland Security inspectors found the cracks in the system, not terrorists. However, this is far outweighed by the bad news: A highly publicized failure of this magnitude destroys the illusion of security, and yes, for those who criticize airport security as being merely for show, illusion is a useful component of security. Security checkpoints, here and abroad, have almost never caught terrorists; the screeners find enough weapons — over 2,000 in 2014 — to create an impression that they are on their game. And that deters terrorists. Whatever TSA's critics may think of airport security, terrorists seem to take it very seriously. Faced with an array of greater intelligence efforts — even the perception of increased security at the airport, the possible presence of air marshals on any flight, locked and armored cockpit doors, and passengers ready to take on anyone threatening the plane — they seem to have just about abandoned hijacking airplanes as a viable terrorism tactic. Over the long run, attempts to sabotage airliners also have declined, but terrorists have not stopped trying to smuggle explosives aboard airliners, and sometimes they have succeeded. In an attempt to foil security, they build small devices that can be concealed in ways that will make them undetectable to all but the most intrusive searches. To find the most artfully concealed explosive devices on the most dedicated suicide bombers would require a full-body search. This vulnerability is hard to close, but forcing terrorists to operate at this level of technical sophistication and commitment is still an achievement.

Don’t use the test as an accurate evaluation- it was faulty and created an image of TSA ineffectiveness that’s simply not true Jenkins 15— Senior advisor at the non-profit RAND corporation(Brian Michael, “TSA flunked its security test big time — Now what?,” The Hill, June 15, 2015, http://thehill.com/blogs/pundits-blog/homeland-security/244957-tsa-flunked-its-securitytest-big-time-now-what). WM The inspectors who foiled the security measures were described as "auditors," not a "red team." The term "auditors" conjures up guys in green eyeshades, mild-mannered men and women as opposed to special forces teams with James Bond gadgets. The investigators were, in fact, experienced inspectors with an insider's knowledge of airport security. The tests were conducted covertly, and they appeared as ordinary passengers. Their boss, the inspector general, who heralds from the Department of Justice, has been tough on TSA's performance. One may safely presume that the inspectors were determined to succeed. That makes them a pretty good red team. The inspectors had additional advantages. There is no indication that they used names that were on the no-fly list. If they did, and they were undiscovered, there is an intelligence problem in addition to a screening problem. There is a lesson here, though: TSA claims that its security is "intelligence-driven," which is good, but it cannot become intelligence-dependent. Not every would-be hijacker or saboteur may be on some list — airport screening is still needed. We also don't know if the inspectors deliberately used counterfeit identification documents. The inspectors would also be able to more easily thwart any behavioral detection efforts. A terrorist, knowing that he or she faces imprisonment for life if apprehended, the prospect of a shootout, or certain death, seems likely to be under greater stress than an inspector who, if discovered, will show his real credentials and walk away. Airline security is multilayered, meaning that failure of any single component will not be fatal to the entire system. In this case, inspectors had the benefit of a free pass to the checkpoint.


Inherency 287g has been renewed since their evidence was written Numbers 14, news agency regarding immigration policy, (NumbersUSA, 10/22/14, L.A. COUNTY RENEWS 287(G) PROGRAM, https://www.numbersusa.com/news/la-countyrenews-287g-program)//kap The Los Angeles County Board of Supervisors voted

to renew its 287(g) program, a federal-state partnership that enables local police to send imprisoned illegal aliens to the Immigration and Customs Enforcement (ICE) bureau for deportation. Supervisors Gloria Molina, Michael Antonovich and Don Knabe voted to retain the program while Mark Ridley-Thomas and Zev Yaroslavsky abstained. L.A. County has used 287(g) since 2005. It basically deputizes local police to engage in immigration enforcement efforts. The so-called jail model LA County uses trains police to screen convicts’ immigration status so that they can be deported upon release. The program is a predecessor of Secure Communities, which automatically forwards the fingerprints of arrestees to ICE for checking. It is considered to be more effective than Secure Communities in getting criminal aliens off the streets because screening identifies those missed in a database check. "(I)n-person screenings, like

the ones conducted by local law

enforcement personnel under the 287(g) program, are of value," said ICE spokeswoman Virginia Kice. "In these face to face encounters, we'll potentially identify individuals who are an enforcement priority for ICE...who might have gone undetected because their fingerprints weren't in DHS' database." Identifying criminal aliens also helps the county financially. Local governments that jail criminal foreign nationals get some federal reimbursement under the State Criminal Alien Assistance (SCAAP) program, although funding has been reduced over time. LA County now gets only about 10 cents back for every dollar it spends for SCAAP-eligible foreign inmates. “[287(g)]

helps us maintain better records for the purpose of reimbursement from the federal government," said Anna Pembedjian, a staffperson for County Supervisor Michael Antonovich. “When these individuals are arrested and serving time in our jails, we have no alternative but to provide them with the housing, the mental health care, the medical care, food and security, which costs the county taxpayers millions of dollars every year. It is imperative for the county to recover the money from the federal government, otherwise it forces cuts in other vital services.” But 287(g)’s enforcement potential is only realized if criminal foreign nationals identified for deportation are actually deported. The Washington Times reports that the number of criminal foreign nationals deported under the program nationwide dropped from 45,308 in 2009 to 11,767 in 2013. In 2008, Frederick County, Maryland started using a different type of 287(g) program (task force model) that allows local police to forward arrestees, as opposed to inmates, to ICE for deportation. Frederick County Sheriff Chuck Jenkins told The Washington Times that ICE released 25 of the 98 illegal aliens his deputies arrested and forwarded for deportation this year. By comparison, ICE only released two of the 100 illegal aliens the county sent them in 2008, the last year of the Bush Administration. “Right now there’s lack of enforcement of immigration laws,” Jenkins said. “But if

we run [287(g)] the

right way, we can do what we can to try to enforce them and get these criminals off our streets…Everyone against this program just doesn’t want any kind of immigration enforcement at all. With the border crisis, every county in the nation is going to be a border county. It’s going to be chaos. Every county needs to enforce the laws of this nation, and that’s what we’re doing with this program.” 25 percent of those Jenkins detained this year committed serious felonies, a 14 percent increase over last year.

287g isn’t the only ICE program—other programs need to be curtailed as well Numbers 15, news agency regarding immigration policy, (NumbersUSA, 5/27/15, L.A. COUNTY ENDS 287(G) PROGRAM BUT CONTINUES WORK WITH ICE, https://www.numbersusa.com/news/la-county-ends-287g-program-will-continue-workice)//kap The Los Angeles County Board of Supervisors voted Tuesday to terminate the 287(g) Memorandum of Understanding that

allowed ICE Agents to expedite the deportation of felonious illegal aliens from within county jails. However the Board authorized the County Sheriff to negotiate with ICE regarding when ICE agents can enter county jails and interview criminals who are suspected illegal aliens. Since

its adoption in 2005, the 287(g) federal-state

partnership program has removed many illegal aliens from LA County jails who are convicted of felonies. This has saved the county millions of dollars and ensured the criminals would be deported rather than released on the streets. The Memorandum

of Understanding (MOU) between the county and ICE enabled Agents placed directly in jails to interview newly convicted criminals and determine whether they were illegally present. The interview process is important because it uncovers details that cannot be ascertained from criminal background checks. Now it will be up to the county sheriff to determine which criminals ICE should interview. That contact will occur under the federal Priority Enforcement Program, which the Obama Administration created last fall as it sought to phase out the more effective 287(g) and Secure Communities programs. The motion to terminate the MOU was offered Supervisors Hilda Solis and Mark Ridley-Thomas and supported by Supervisor Sheila Kuehl. Supervisors Michael Antonovich and Don Knabe cast the dissenting votes. The Board had just renewed the MOU last fall with support former supervisor Gloria Molina but the balance shifted when Keuhl replaced her. Over 100 people gave testimony before the Board’s vote, including Jamiel Shaw, Sr. In 2008, his teenage son was murdered just steps from their home by illegal aliens. He said, "My

son would’ve been alive today [if immigration laws were enforced]…We don’t want to hear about the sob stories of illegal aliens here working and doing the right thing because that’s not true. Ask people like me, whose family members are in the ground while illegal aliens get privilege for the American dream.

Other federal immigration programs are other names for ICE and reify status quo trust gaps San Roman 7/15, writer at OC Weekly, (Gabriel, 7/15/15, Immigrant Activists Give a Stern 'PEP' Talk to Santa Ana City Council Over New ICE Program, OC Weekly, http://blogs.ocweekly.com/navelgazing/2015/07/santa_ana_pepcomm_ociyu_raiz.php)//kap

"Hey, hey, ho, ho, PEP-Comm has got to go!" Immigrant organizations kicked off a press conference in SanTana yesterday with chants calling on the city council to denounce a new federal deportation program. The Department of Homeland Security (DHS) rolled out the "Priority Enforcement Program" (known as "PEP-Comm") in place of its disgraced "Secure Communities" predecessor last November. Activists with Orange County Immigrant Youth United (OCIYU) and RAIZ say there's no significant difference between the two in calling on city leaders to reject the re-branding. "The new PEP program maintains the engine of S-Comm," OCIYU's Hairo Cortes said in Spanish at the press conference. "Programs like this don't bring security to the community." Activists argued that PEP still strikes fear into the heart of immigrants just as S-Comm did before DHS Secretary Jeh Johnson announced its end in a memo. The press conference took place outside the Immigration and Customs Enforcement (ICE) field office in Santa Ana. A white DHS vehicle parked conspicuously near the assembled activists beating Spanish-language media to the coveted space. Uniformed in a DHS vest, an agent walked around the press conference, said "What's up" to activists and snapped a photo of this reporter before chatting with a colleague in another van whose lights uselessly shone. Undeterred by DHS making its presence known, activist groups noted they sent a joint letter to the SanTana city council on Monday. "PEP-Comm will continue to erode community trust in local police because all fingerprints taken by local law enforcement will be transmitted to DHS for an immigration background check," it reads. "Any detentions in response to ICE hold requests under PEP-Comm will continue to expose local law enforcement to legal liability." Activists held that PEP-Comm is S-Comm by another name save for one minor, technical difference. Instead of issuing legally controversial ICE detainer requests. PEP-Comm opts for "notifications" instead where local law enforcement can notify immigration authorities of when an undocumented person will be released from custody. ICE, then, could ostensibly park a van and lie in wait for them. Not all detainer requests are abolished, critics argue. The letter sent to SanTana city council further charges that they can continue under PEP for immigrants under a vague "special circumstances" exemption. "What is clear is that by continuing to put responsibility for immigration enforcement on local law enforcement agencies, PEP-Comm is plagued by the same failings of S-Comm," the letter reads. The previous case of Samuel Sixtos,

an undocumented man turned over by Santa Ana Police to the Orange County Sheriff's Department last year, was cited as an example of how local collaboration with ICE can wrongly lead to deportation proceedings despite TRUST Act protections. (Sixtos is now free from a private detention facility in Adelanto). "We can't trust the police when they are asking us where we are born," RAIZ's Alexis Nava Teodoro said in Spanish at the press conference. The activist mentioned afterward that a meeting with councilman David Benavides is reportedly in the works in response to the letter demanding Santa Ana adopt a "no ICE notification" policy. "We want the city to take a leadership on a national level."

State sovereignty

Warming State sovereignty is key to solve warming—risks extinction Rayfuse and Crawford 11, contributors to a Legal Studies Paper at the University of Sydney Law School, (Rosemary and Emily, September 2011, Climate Change, Sovereignty and Statehood, University of Sydney Law School, https://www.ilsa.org/jessup/jessup13/Climate%20Change,%20Sovereignty%20and%20Stateho od.pdf)//kap Climate change presents a unique threat to the territorial integrity of states , indeed, to the very notion of statehood itself. As the Intergovernmental Panel on Climate Change has noted, climate change will affect the physical territory of states in a number of ways, such as the loss of viable eco-systems due to desertification, increased soil salinity, flooding of coastal and low-lying regions or loss of reliable access to land due to increased severe weather events such as hurricanes. 2 Coastal states, in particular those with low-lying coastal areas, will also be affected by permanent loss of land through shoreline erosion caused by extreme weather events and sea-level rise. 3 Moreover, it has been recognised that by rendering some inhabited land incapable of sustaining human habitation, climate change will also result in the forced migration of some or all of a population from their lands.4 At the extreme end of the scale, climate change induced territorial degradation coupled with climate change induced migration may threaten the very existence of some states. 5 1 This chapter emanated, in part, from work undertaken, in my capacity as research associate, for Professor Jane McAdam, under her Australian Research Council Discovery Grant ‘Weathering Uncertainty: Climate Change “Refugees” and International Law’. In particular, it has been suggested that by the end of this century a number of low-lying small island states such as Tuvalu, Kiribati, the Marshall Islands and the Maldives, may be rendered totally uninhabitable due to sea level rise.6 This

begs the question as to the continued statehood of these entities. In light of these sometimes dire predictions, this chapter examines the challenges posed by climate change to the international law on statehood. It does so in the context of analysis of the legal construction of statehood, how the law regulates the dissolution of states, and whether the law is adequately positioned to deal with the threat to statehood and sovereignty posed by climate change. 10.2

Statehood and Sovereignty Fundamental to the contemporary international legal system is the concept of the state. States are both the subject and primary object of international law. States possess ultimate rights of participation in both the creation of international law and in the construction and operation of the international legal system.7 The hallmark of the modern state is described by the terminology of sovereignty which, among other things, means the right to exercise supreme, independent authority or jurisdiction over a piece of territory. There are limitations on this territorial sovereignty9 ; however, for the most part,

a sovereign state has considerable discretionary latitude regarding the conduct of affairs within its territory .10 Sovereignty and the ability to exercise jurisdiction over people and events also extends, in varying degrees, to a states’ maritime zones. International law relating to entitlement to maritime zones is set out in the 1982 Law of the Sea Convention (LOSC). 11 All coastal states are entitled to certain maritime zones - internal waters, a territorial sea, an exclusive economic zone, a continental shelf and, where the geomorphological conditions exist, an extended continental shelf. Within each of these zones states exercise varying degrees of sovereignty. Internal waters are wholly under the jurisdiction and sovereignty of a state and may be equated, for present purposes, to a piece of territory.12 Within the territorial sea, a coastal state exercises complete sovereignty, subject only to a right of innocent passage for foreign ships.13 In the exclusive economic zone a coastal state enjoys sovereign rights for the exploration and exploitation of living and non-living natural resources of the water column,14 while on the continental shelf the state enjoys sovereign rights for the exploration and exploitation of the natural resources of the seabed and subsoil.15 Beyond the areas under the national jurisdiction of states lie the ‘global commons’. Here, the high seas water column is subject to an open access regime of equal right of user, while the deep seabed, known as ‘the Area’, 16 9 The international law regarding human rights, the conduct of hostilities and diplomatic, consular and head-of-state immunities, all serve as limits on the acts of states within their own territory: “[a] body of substantive rules ranging from human rights issues to control over the use of military force… have limited the freedom of law action by States in detail… sovereignty is no longer absolute.” C. Schreuer, ‘The Waning of the Sovereign State: Towards a New Paradigm for International Law?’, 4 EJIL (1993) 447-471. is governed by the International Seabed Authority (ISBA).17 Within the global commons states exercise exclusive jurisdiction over their vessels and their nationals.18

State sovereignty is key to international cooperation over climate change Rayfuse and Crawford 11, contributors to a Legal Studies Paper at the University of Sydney Law School, (Rosemary and Emily, September 2011, Climate Change, Sovereignty and Statehood, University of Sydney Law School, https://www.ilsa.org/jessup/jessup13/Climate%20Change,%20Sovereignty%20and%20Stateho od.pdf)//kap Can states still ‘exist’ separate from their territory? The decision in the Island of Palmas arbitration, would seem to answer in the negative: Although municipal law, thanks to its complete judicial system, is able to recognize abstract rights of property as existing apart from any material display of them, it has none the less limited their effect by the principles of prescription and the protection of possession. International

law, the structure of which is not based on any super-State organisation, cannot be presumed to reduce a right such as territorial sovereignty, with which almost all international relations are bound up, to the category of an abstract right, without concrete manifestations.36 However, despite such a seemingly definitive position, state practice would suggest otherwise. There is precedent for the endurance of the state in a somewhat abstract form in the guise of the ‘government in exile’. If the government of a state has been forcibly displaced from its territory through belligerent occupation, the government in question is considered to remain the legitimate government and state, and thus retains its international personality, even though it does not have possession or jurisdictional control over either its population or its territory.

Under international law, such exile must be accepted by the international community; that is, there should be no general acknowledgement of a change of circumstances. The government in exile must retain its accreditation with other governments and continue its representations in international organisations.37 Historically, governments

in exile have legitimately adopted treaties, entered into contracts and maintained diplomatic relations during their exile. 38 While some of the literature suggests that a government in exile must receive the unequivocal support of the international community,39 practice

has demonstrated that this need not be the case. For example, the UN Secretary-General, to sign a number of multi-lateral

in his capacity as depository, allowed the Cambodian governments-in-exile40

treaties, including the International Covenant on Civil and Political Rights41 and on Economic, Social and Cultural Rights,42 despite protests from states who chose instead to recognise the Government of the People’s Republic of Kampuchea as the only entity to be considered as the government of Cambodia.43

Environment State sovereignty is key to enforcement of environmental regulations—regulations are key ALEC 13, American Legislative Exchange Council, (1/28/13, State Sovereignty for Air Quality and Visibility Act, http://www.alec.org/model-legislation/state-sovereignty-for-air-quality-andvisibility-act/)//kap Section 1. {Statement of Purpose}

As part of the State of {state}’s ongoing development and implementation of a long-term strategy in connection with visibility and air quality related values within class I areas, the Department________ shall evaluate the extent to which the activities of the federal government are directly adversely impacting visibility and air quality related values within class I areas and make a determination whether such entities have taken or are taking all reasonable steps necessary to remedy that impact. At any time, the Department________ may make, and a federal land manager shall respond to, reasonable requests for information necessary for the Department to perform such regulation. Section 2. For the purpose of addressing regional haze and visibility impairment in {state}’s mandatory class I federal areas; (A) the federal land manager of each such area shall develop a plan for evaluating visibility in that area by visual observation or other appropriate monitoring technique approved by the federal Environmental Protection Agency and shall submit such plan for approval to the division for incorporation by the commission as part of the state implementation plan. (B) Such submittal and compliance by the federal land managers shall be done in a manner and at a time so as to meet all present or future federal requirements for the protection of visibility in any mandatory class I federal area. (C) Such plan

shall only be approved by the commission if the expense of implementing such a plan is borne by the federal government. Section 3. {Emission inventory} (A) In addition to the plan submitted by each federal land manager pursuant to Section 2, the responsible federal land management agency shall provide an emission inventory to the commission of all federal land management activities in {state} or other states that result in the emission of criteria pollutants, including surrogates or precursors for such pollutants, that affect any mandatory class I federal area in {state} by reducing visibility in such an area. Such emission inventory shall be submitted to the commission no later than {effective date}, and no less frequently than every five years thereafter. (B) The commission shall exempt from the inventory any sources or categories of sources that it determines to be of minor significance. Section 4. The

commission shall adopt rules to fully implement the general assembly’s intention to exercise state powers to the maximum extent allowed under Section 118 of the federal act in requiring each federal land management agency with any presence in the state of {state} to develop and submit to the division an inventory of emissions from lands, wherever situated, which could have any effect on visibility within mandatory class I federal areas located in {state}. The commission and the division shall use the information from these emission inventories: (A) To

develop control strategies for reducing emissions within the state of {state} as a primary component of the visibility long-term strategies for inclusion in the state implementation plan; (B) In any environmental impact statement or environmental assessment required to be performed under the federal “National Environmental Policy Act of 1969,” 42 U.S.C. secs. 4323 to 4347; and (C) To

exercise all powers and processes that exist to seek reduction in emissions outside the state of {state} that reduce visibility in the { State } mandatory class I federal areas. Section 5. {Funding} The cost of preparing and submitting inventories pursuant to Section 3 shall be borne by the federal government.


Court legitimacy Police credibility is key to court legitimacy Newspaper 12, political databased regarding courts and congressional actions, (7/24/12, Courts Wrestle With Police Officer Credibility, http://www.thenewspaper.com/news/38/3850.asp)//kap When a court judges whether a motorist is guilty of a traffic offense, the evidence frequently rests on the word of a police officer against that of the accused driver. In such cases, the edge is automatically given to law enforcement, even if there is reason to believe officers may twist or fabricate the facts. The US District Court for the District of Columbia on Friday confronted the question in evaluating an October 21, 2011 traffic stop in Washington. Officer Kenneth Thompkins stopped Maurice Williams in the 6300 block of Georgia Avenue NW, claiming he had seen Williams enter his white Chevrolet Traverse and drive away without wearing a seatbelt. Thompkins had been following Williams, who insists not only that he was wearing a seatbelt, but that there also was good reason to believe that Thompkins would not have been able to see whether he was wearing one from his position. Under court precedent, an officer's subjective motivation for stopping someone is irrelevant. What

matters is whether he can articulate a reason to suspect a crime, no matter how minor, was being committed. According to Judge Beryl A. Howell, Williams testified "convincingly" that he was wearing a seatbelt. "The court finds defendant Maurice Williams' testimony on this issue credible," Judge Howell wrote. "Nevertheless, the officer was unswerving in his affirmation that, through the back tinted window of the car, he could see that the defendant did not fasten his seatbelt." Both witnesses were found to be equally credible, but the edge was given to the policeman because the courts allow him to be wrong. "Crediting defendant Maurice Williams' testimony as true, the hearing established no explanation for Officer Thompkins' otherwise mistaken factual assessment that the defendant was not wearing his seatbelt, other than the possibility that the tinted back window, combined with the lack of color differentiation between the seatbelt and the defendant's shirt, made it appear as if the seatbelt were unfastened," Howell ruled. "As in Whren, even if Officer Thompkins were mistaken about the seatbelt being unfastened, it was objectively reasonable, even if mistaken, for him to believe a traffic violation had occurred and, therefore, the stop of Maurice Williams' vehicle was valid under the Fourth Amendment." It may take a dashboard video camera to establish what actually happened during a traffic stop. In a July 11 ruling, the Iowa Court of Appeals overturned Blake M. Wilkerson's conviction for driving under the influence of marijuana after determining that Ringgold County Sheriff's Deputy Arends lied about the traffic stop he conducted on January 11, 2011. At a hearing, Arends testified that he saw Wilkerson's truck "weave within its own lane" and cross the center divider. According to the three-judge panel, the only violation seen in the video was Wilkerson's Fourth Amendment right not to be seized without probable cause. "From our de novo review of the patrol car's recording, it is apparent the recording does not show repeated weaving between boundary lines or sustained, inappropriate crossing of the center line while climbing the hill immediately prior to the stop," Chief Judge Larry J. Eisenhauer wrote. "Rather, based on the position of the always-visible taillights, Wilkerson's driving is smooth, nondescript, and unremarkable."

AT: Counterplans

States CP Federal immigration policy makes state and local immigration enforcement ineffective and wrecks trust with the communities—the plan is the key federal action that solves the trust gaps and restores credibility in the states Biehl 7/15, staff writer at The Hill, (Richard, 7/15/15, Communities are safer when law enforcement roles are clear, The Hill, http://thehill.com/blogs/congress-blog/homelandsecurity/247880-communities-are-safer-when-law-enforcement-roles-are)//kap The circumstances surrounding the tragic murder of Kathryn Steinle in San Francisco last week have reignited the debate about “sanctuary cities” and the role of local police in enforcing immigration laws. The suspect in the killing, Juan Francisco LopezSanchez, had seven previous immigration-related and drug-related felony convictions and had already been deported on five occasions. Following

Steinle’s senseless murder, many have rightfully sought to examine how the system failed . The Steinle murder is a clarion call to resolve the important but different roles assigned to local police and officials of U.S. Immigration and Customs Enforcement [ICE] in keeping our communities and country safe. At the heart of this debate is an important question — whether local police should carry out immigration policing functions or federal authorities should take the lead in carrying out these functions. Relying on state and local law enforcement to carry out federal immigration enforcement responsibilities is highly problematic. Having state and local law enforcement take on the work of federal immigration officials undermines community policing and is counterproductive . When state and local law enforcement are entangled in these functions, immigrant communities view them with increased suspicion. More often than not, these immigrant groups are then reluctant to report crimes committed against them or their neighbors, fearing that such reports will result in deportation after their immigration status — or the immigration status of friends and family members — is revealed. This fear has true costs, allowing dangerous criminals and criminal organizations to prey on immigrant communities, as well as the community at large. As a Chief of Police, my number one priority is to ensure community safety and security. Accordingly, in order to serve the greater community, all members of a community must feel free to call for police services without fear of undue repercussions. This improves community policing and safety for everyone. The Dayton Police Department has adopted three key policy revisions since 2008 to support community policing and better serve growing immigrant communities, including (1) refining our enforcement strategies that involve federal immigration personnel, (2) setting out department-wide guidelines for interacting with immigrant witnesses and victims, and (3) publicizing existing federal laws that offer protection to cooperative victims and witnesses. These changes have allowed the Department to focus on what is important, both in terms of building community partnerships and prioritizing and focusing enforcement resources. They also have produced concrete results, coinciding with significant reductions in crime in Dayton. Sanctuary policies and practices are not designed to harbor criminals. On the contrary, they exist to support community policing, ensuring that the community at large — including immigrant communities — trusts state and local law enforcement and feels secure

state and local law enforcement should carefully tailor policies to ensure that community policing is not undermined . What everyone wants is a safe community. Police presence within an entire community is crucial to create a feeling of safety and trust for all residents and members of that community. Asking the immigration status of a victim or a witness in the course of an investigation not only detracts from the investigation, it is detrimental to relations with members of our community. We must balance investigative approaches that will encourage (and not discourage) public cooperation with investigations. The absence of effective, cogent action by Congress to address this issue has left state and local governments with the challenge of sorting this issue out on their own. Instead of considering how to punish these “sanctuary cities,” Congress should be working to reform our broken immigration system. in reporting criminal conduct. Cooperation with federal immigration enforcement officials still can exist, but

There needs to be a sharp distinction between federal ICE policy and state and local policy—key to restoring trust and effectiveness Lansdowne 7/25, career police officer and contributor to The Sacramento Bee, (William, 7/25/15, Keep clear, separate roles for local law enforcement and ICE, The Sacramento Bee, http://www.sacbee.com/opinion/op-ed/soapbox/article28641010.html)//kap The tragic killing of Kathryn Steinle by an undocumented immigrant in San Francisco has drawn national attention to the relationship between local police and immigration enforcement. In my four decades in uniform and 20 years as police chief, I saw again and again politicians’ temptation to respond to a singular, heart-wrenching incident with sweeping policy change . In my experience, this always does more harm than good. In response to Steinle’s senseless death, some have called for an end to policies that limit local agencies’ entanglement with federal immigration enforcement, blaming San Francisco for this tragedy. In the wake of a devastating incident like this, it is difficult, yet important, to take a step back to examine why it is that so many law enforcement officers believe it is critical to maintain clear and separate roles for local law enforcement and federal Immigration and Customs Enforcement. Carrying out our respective roles, we keep our communities and country safe. Helping to advance the technique of community-oriented policing is one of my proudest accomplishments in my decades of law enforcement service. Having officers

meet regularly and frequently with the community members they are sworn to protect and serve is the foundational element of this proven technique. Requiring those same officers to inquire about the immigration status of a victim , witness or even a suspect dismantles the trust we are working to build and undermines our ability to investigate and prevent crime . When police officers and sheriff’s deputies are tasked with carrying out federal immigration enforcement, immigrant families – many of whom are of mixed status, with some members legal and some undocumented – understandably become fearful of any encounter with law enforcement . This has the ill effect of making routine law enforcement duties much more difficult and in some cases impossible. A study by the University of Illinois at Chicago

44 percent of Latinos surveyed said they would be less likely to contact police officers if they were the victims of a crime because they feared any interaction with police might lead officers to ask about their immigration status or that of family members. Sound policing requires trust between law enforcers and the members of the public, so that community members share information that helps prevent crimes from occurring and so that victims and witnesses come forward to help police solve crimes. For years, we saw the negative consequences when cities and found that

counties were forced to bear the costs of complying with federal immigration policies. We learned the hard way that wedding local law enforcement agencies’ work to the federal government’s deportation tactics breeds deep-seated mistrust in the police. To date, more than 320 localities throughout the country, including 50 in California, have stopped holding individuals beyond their ordinary release merely on the basis of an ICE detainer request. Instead, sheriffs and police departments have adopted due process protections to operate within the law, reduce the risk of deterring innocent crime victims and witnesses from coming forward, and restore community trust. In the tragic killing of Steinle, all ICE would have had to do is present San Francisco with a judicial order authorizing detention, and local authorities could legally have kept Lopez-Sanchez in custody. Instead of using Steinle’s tragic death as a vehicle to tear down smart policing policies across our state, our members of Congress should use this moment as an opportunity to ask law enforcement officials why they have worked so hard to establish trust and cooperation with immigrant communities.

Visas CP Federal immigration policy is a prerequisite to state-sponsored visas—CP doesn’t change this federal policy—it’s an alt cause too massive to overcome Fuller and Rust 14, contributors at the Cato Institute, (Brandon and Sean, 4/23/14, StateBased Visas: A Federalist Approach to Reforming U.S. Immigration Policy, Cato Institute, http://object.cato.org/sites/cato.org/files/pubs/pdf/pa748_web.pdf)//kap U.S. immigration policy currently prevents many productive foreign workers and entrepreneurs from contributing to the American economy. To help move American immigration policy in a more open direction, policymakers should consider including principles of federalism as part of immigration reform. By allowing states a greater say in managing immigration, the United States can reap economic benefits by allowing state experimentation with different levels of immigration. State-based visas would be temporary work visas that allow the visa holder to live and work anywhere within the sponsoring state. Law-abiding visa holders would be eligible for renewal and free to apply for permanent residency during their stay in the United States. Under the work permit, the migrant worker would be unable to work for an employer outside of the state, but if the migrant becomes a permanent resident, he or she would be able to travel freely around the United States. Although overseen by the federal government, the program would allow state governments to work with local governments and employers to tailor a state-based immigration strategy to meet their local economic demands. Successful

regional visa programs in Canada and Australia have aided economic and population growth in formerly depressed regions. American policymakers could apply lessons learned in those countries when creating a similar program in the United States. Based on the experiences of Canada and Australia with their regional visa programs, we outline many of the options that are open to American policymakers for designing and implementing a state-based visa program

Topicality “Its” means belonging to a certain thing Merriam-Webster Dictionary No Date, (http://www.merriamwebster.com/dictionary/its)//kap its adjective \ˈits, əts\ : relating to or belonging to a certain thing, animal, etc. : made or done by a certain thing, animal, etc.

“their” is the plural form of “its” Merriam-Webster Dictionary No Date, (http://www.merriamwebster.com/dictionary/their)//kap their adjective \thər, ˈther\ : relating to or belonging to certain people, animals, or things : made or done by certain people, animals, or things

Executive Constitutionalism Extend ____________ ev -- The Aff restores executive constitutionalism—key to offset judicial monopoly and is key to a functioning democracy Pillard ‘05 – Former Deputy Assistant Attorney General in the DOJ (February, Cornelia T., Michigan Law Review, 103.4, “The Unfulfilled Promise of the Constitution in Executive Hands”, 103 Mich. L. Rev. 676-758, http://scholarship.law.georgetown.edu/facpub/189/)

The executive, in my view, has failed fully to meet the challenges of interpreting and applying the Constitution on its own. My focus here is on questions of individual rights that evade judicial review. As the Office of Legal Counsel's "torture memos" illustrate, there are substantial risks associated with executive decisionmaking on fundamental questions of executive power and individual rights.' My basic analysis is also relevant to the executive's approach to federalism and separation of powers, but the principal focus here is on how the executive understands and fulfills its constitutional obligations with respect to individuals.2 This Article builds on two bodies of literature that, thus far, have not significantly engaged one another: writings about executive-branch legal processes, and about the Department of Justice's Solicitor General ("SG") and Office of Legal Counsel ("OLC") in particular (the institutional literature), and a recent round of theoretical scholarship about extrajudicial constitutionalism (the theoretical literature). The institutional literature typically projects confidence that the SG and OLC provide the highest quality legal advice and representation to the executive, and that they scrupulously

protect the

Constitution against executive officials distorting the law to advance personal, partisan, or institutionally parochial agendas. These writings routinely point to the special character and traditions of those offices in representing not only the president and the executive branch, but also the United States and its people. The descriptions seem at first blush to support the enthusiasm of the extrajudicial constitutionalists, inasmuch as they highlight offices within the executive branch dedicated to high-quality constitutional analysis. Meanwhile, the theoretical literature

on extrajudicial constitutionalism suggests that the political branches have the capacity to effectuate the Constitution in ways quite distinct from the familiar, judicial version, and that, in part because of that distinctiveness, extrajudicial constitutionalism provides a normatively attractive supplement to or substitute for judicial doctrines. Scholars have pinned on the political branches hopes for a more democratic, less crabbed and formalistic constitutionalism, and one that reflects the political branches' distinctive capacities. Larry Sager, for example, sees the gap between the Constitution's normative commands and their judicial enforcement as enabling "robust participation by popular political institutions in the constitutional project of identifying and implementing the elements of political justice."3 Robin West identifies congressional constitutionalism as potentially enabling the "the democratization - long overdue - of the Constitution itself," and as

law involve profound issues of national cannot be resolved merely by judicial decree," and that, therefore, "a legitimate and vibrant system of constitutional law requires institutional structures that will ground it in the constitutional culture of the nation."5 Larry Kramer unearths an American historical tradition of popular constitutionalism that embraces "the democratic pedigree and superior evaluative capacities of the political branches" and that is resistant to the notion that the Constitution is mere ordinary law, formalistic and legalized to such an extent that only courts can be trusted with it.6 Bruce Peabody believes "a deeper consensus" could result from promising a less legalistic approach Robert Post and Reva Siegel contend that "[q]uestions of constitutional identity that

greater engagement by nonjudicial actors in constitutional interpretation Mark Tushnet champions a "populist constitutional law," wrested from the courts' unduly formalistic reliance on text, structure and history, and interpreted instead in light of "all-things-considered, more practical judgment."' As Christopher Eisgruber has explained, "[e]xperience and responsibility are invaluable teachers in the art of governance, and there may be times when Congress or the

Executive, by virtue of their connection to the people or their knowledge of what government can do, have the best

insight into how the Constitution balances competing principles."9 Certain features stand out as normatively attractive to proponents of politicalbranch constitutionalism. As applied to the executive, the theoretical literature highlights the importance of democratic responsiveness and distinctive

to investigate facts and take positive action) in shaping a constitutionalism that differs substantially from what the courts devise. Also central for those theorists, although often implicit, is a commitment to constitutional - as distinct from merely political - guidance for decisions left to political actors. The Constitution in the executive's hands could be a counterweight both to a monopoly over constitutional meaning in the hands of judicial elites that is stunted by the courts' limited practical capacities, and to a politics of raw competition among self-promoting interests divorced from the public-regarding underpinning our fundamental law provides. Viewed in this way, institutional capacities (e.g., the executive's ability

executive constitutionalism holds untapped potential as a more democratically engaged and institutionally versatile way of keeping the American polity true to its best self. Functioning domestic democracy prevents multiple causes of extinction Diamond ‘95 (Larry Diamond, senior fellow at the Hoover Institution, December 1995, Promoting Democracy in the 1990s, http://wwics.si.edu/subsites/ccpdc/pubs/di/1.htm)

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 and more stable climates for investment. They are more environmentally responsible 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.

Ext – Exec action key Executive checks solve executive constitutionalism Pillard ‘05 – Former Deputy Assistant Attorney General in the DOJ (February, Cornelia T., Michigan Law Review, 103.4, “The Unfulfilled Promise of the Constitution in Executive Hands”, 103 Mich. L. Rev. 676-758, http://scholarship.law.georgetown.edu/facpub/189/)

Discussion of political-branch constitutional interpretation today, however, generally rejects such effacement of identifiably constitutional thinking in the political branches, and instead, assumes a role for some constitutional brand of reasoning from principles toward ideals.69 Executive

branch constitutional decisions may turn on a mix of practical,

prudential, political, policy-based, discretionary judgment and principled, justice-oriented, lawlike norms.7 " That mix may vary depending on the type of question, but in any event, given the distinctly constitutional elements of such decisions, it remains important to identify in concrete terms whether and how the executive self-reflectively works to effectuate the Constitution. Political-branch constitutionalism manifests itself, not only in opinions on constitutional questions, but also in the kinds of legal products the political branches more typically produce: legislation, regulations, and the diverse array of discrete activities of executive officials doing their jobs. The Fourteenth Amendment's enforcement clause expressly casts the Congress (with presidential cooperation) in a constitutional enforcement role.7 " Regulations

and executive orders can express the executive's constitutional vision.72 Historical patterns of executive practice, apart from any formal codification or written justification, may also provide a gloss on "abstract analysis."73 At least where interbranch checks and balances are concerned, familiar modes of constitutional analysis can be informed by "deeply embedded traditional ways of conducting government," or "systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never before questioned."74 Where do the constitutional interpretations that guide those practices come from? And what constitutional vision informs the huge mass of executive conduct that is not itself constitutionally inspired, but that nonetheless has constitutional implications?

Ext key to democracy Judicial exclusivity destroys democracy Lipkin 06


Does any institution exercising such enormous unchecked power and authority comport with republican self-government? If the answer is no, what is the remedy? This Article first explains why such unchecked power and authority are incompatible with republican democracy. In a nutshell, republican democracy is a form of self-government where complex deliberation is designed to articulate the community's real interests or what the community reflectively judges its real interests to be. Republican democracy rejects both direct and representative majoritarian democracy. 2 Instead, it embraces the [*1056] distinction between the community's reflective judgment and the everyday attitudes of the populace. 3 Republican democracy fortifies this distinction by constructing deliberative governmental filters to transform the

Judicial review may be one of these filters by providing a chance for the lawmaking community to express second-thoughts - or critical reflection - concerning legislation and other governmental conduct. 4 Ultimately, however, republican democracy is committed to the proposition that the electorate - after refining its judgment deliberatively through its representatives and other institutional procedures - is the final arbiter of constitutional meaning. Republican democracy founders when any governmental branch has final unchecked authority and uses it to short-circuit this process. In the American republic, no other political institution has anything like the judiciary's unchecked authority to invalidate or sustain 5 federal and state legislation simply because the Court views such legislation to [*1057] be unconstitutional. 6 This power - known as judicial supremacy - is essentially a failure of accountability, 7 not, as many jurists and electorate's raw, unrefined, and possibly transient beliefs into the reflective judgment of the community .

commentators contend, a countermajoritarian difficulty. 8 Even if a super-majority or a mere plurality were required to pass ordinary legislation, the problem of judicial supremacy would persist - not because it is countermajoritarian - but rather because no constitutional actor can effectively check the Court when it chooses to speak. 9 This point requires emphasis. Accountability need not be majoritarian to its core. Even in such undemocratic governments as monarchies, aristocracies, or theocracies, a failure of accountability may exist when the institution primarily designated to create law is checked by another institution whose role as authoritative reviewer has been garnered informally. In other words, even when the primary designated decision-maker is unaccountable to the people, the problem of accountability is present if a formally undesignated decision-maker can overturn or significantly modify the primary designated decision maker's decisions even if only on special occasions. Hence, one salient form of unaccountability is unchecked

Defending the practice of judicial supremacy requires too great a tolerance for almost complete unaccountability in deciding constitutional meaning. 11 This creates a republic where the [*1058] constitutional choices of the people are often blocked or come to a virtual dead-end. Such a dead-end republic can, of course, survive; ours has for over 200 years. But it prevents citizens nevertheless from engaging in the joint enterprise of integrating and reconstructing their reflective judgments into a conception of the common good as the only authentic fount of sovereign authority over the society's future. 12 Rather than offering an internal remedy of judicial self-regulation - requiring judges to adopt judicial restraint 13 or to adhere to the "correct" judicial methodology - I offer power by an undesignated decision maker. 10

instead an external solution to be imposed on judges through a congressional override of Supreme Court decisions. My suggested remedy does not eliminate judicial review, but rather augments this important constitutional practice by fashioning an institutional safety net that permits the best reflective judgment of the people to prevail over the best reflective judgment of the courts. 14 Article V makes it clear that the Constitution is committed [*1059] to the proposition that the best reflective judgment of the electorate should prevail over other constitutional actors. 15 However, while recognizing the promise of the electorate's ultimate role in constitutional change, Article V fails to fulfill this promise. 16 This Article proposes a congressional override as a more effective way for the electorate to fulfill its role as the ultimate constitutional arbiter. The idea of a congressional override has a grand legacy. 17 But it is not the only possible solution to the problem of judicial supremacy. Among the more prominent solutions are: councils of revision; impeaching Justices; recalling Justices; electing Justices; a periodic re-appointment procedure; referenda; random and temporary selection of appellate judges to serve as Justices on the Court; formal term limits or informal incentives such as attractive retirement packages; and most recently and controversially, congressional standing to challenge any attempt to strike down a congressional statute. Each of these remedies warrants examination, and each has costs and benefits. However, a congressional override of Supreme Court decisions as the solution to the [*1060] problem of judicial supremacy has the advantage of resting the authority for constitutional decision-making in the governmental body representative of the electorate and one that can be held accountable by it. 18

AT: Courts can do it alone The Exeuctive is needed to solve constitutionalism – Judicial alone fails Pillard ‘05 – Former Deputy Assistant Attorney General in the DOJ (February, Cornelia T., Michigan Law Review, 103.4, “The Unfulfilled Promise of the Constitution in Executive Hands”, 103 Mich. L. Rev. 676-758, http://scholarship.law.georgetown.edu/facpub/189/)

Because the relative institutional capacities of each branch play a significant role in the distinct contributions each can make to constitutional effectuation, it

is important to develop within the executive a more nuanced understanding of the branches' relative institutional capacities. The challenge is to break the executive habit of simply looking to the courts and largely ignoring rights the court does not enforce, rather than appreciating and speaking from within its own institutional context about effectuating constitutional rights. Larry Sager,217 Christopher Eisgruber,"8 David Barron219 and others have already highlighted the general importance of institutional capacity. Executive-branch constitutionalism should build on those insights by identifying what exactly the executive's abilities are and how they might bear on constitutional decisions in various contexts. In defending Congress's power to enforce constitutional rights under Section 5 of the Fourteenth Amendment, observers have pointed to its fact-finding abilities, its capacity to tax and spend, and its ability to fashion broad, affirmative, prospective mandates in contrast to the narrower, retrospective, and largely negative remedial powers of the courts. The executive's and Congress's capacities differ from the courts' in some common ways. Both political

branches have agenda-setting and fact-finding powers. The executive, however, has an arguably unique ability to estimate national security and public-safety risks, and to make certain decisions in a discretionary manner (rather than by announcing general rules) and thereby to match responses more closely to relevant circumstances. The executive also has the capacity to be flexible and innovate, to marshal affirmative resources, and to prioritize, lead, and set an example for other political officials, both in the other branches and in the states. Officials thinking about the Constitution from the vantage point of the executive branch should reflect on when and why their branch might have different insights on constitutional rights from those of the courts. They should also focus on why and how the executive's powers and duties regarding constitutional rights are distinctive. More explicit understandings of the institutional underpinnings of deference, and of the executive's institutional strengths, could help to map out more clearly the constitutional ground the Court often cedes to the executive. 220 If, as several scholars contend, there is more to be said in favor of extrajudicial constitutionalism than is typically thought, an intensified focus on relative institutional capabilities is an important aspect not only of claiming the political branches' role, but fulfilling it.

Only we solve—courts fail because of justiciability doctrines and practical constraints—the executive has to act independently to set a precedent—this is a case turn Pillard 2005 – JD from Harvard, Faculty Director of Supreme Court Institute at Georgetown University Law Center, former Deputy Assistant Attorney General in the DOJ (February, Cornelia T., Michigan Law Review, 103.4, “The Unfulfilled Promise of the Constitution in Executive Hands”, 103 Mich. L. Rev. 676-758, http://scholarship.law.georgetown.edu/facpub/189/)

The constitutional

obligations of government suggest a duty of constitutional self-policing by the political branches. The size of that task depends on where one stands along the spectrum between judicial supremacy and

departmentalism. Because

departmentalism holds that the political branches have as much authority as the courts to interpret the Constitution, it places in congressional and executive hands complete responsibility to decide constitutional questions for themselves, guided by judicial precedent only for its persuasive value. As the following subsections point out, however, executive constitutional interpretation is ubiquitous even under a strongly judicial-supremacist view because of limits on what the courts can or will decide. A. Space for Executive Constitutionalism Under Judicial Supremacy

Even under a robust judicial supremacism, the executive admittedly has significant space and responsibility to interpret and apply the Constitution. Room for executive branch constitutionalism occurs in part because of the acute practical and legal limitations on the courts' ability and willingness to decide many constitutional issues that confront the executive branch. As James Bradley Thayer famously put it, "much which is harmful and unconstitutional may take effect without any capacity in the courts to prevent it, since their whole power is a judicial one."24 First, it hardly needs to be repeated that the

Constitution itself leaves large openings for interpretation. Many are broadly and generally worded, and cues from history are often ambiguous.' Supreme Court precedent, however binding we take it to be, frequently fails to provide crisp answers to the next concrete case.26 Where a novel issue arises, there is both an obligation and an opportunity for the executive to arrive at a view of the matter and act accordingly in advance of a court's opportunity to decide it. Even clearly established judicial precedent permits doubt when the Court itself seems uncommitted to it.27 Second, the executive is the most frequent and influential Supreme Court litigant. Even when the Supreme Court is poised to decide an issue, the constitutional views voiced by the executive can shape the Court's view. The potential for important constitutional provisions

dynamic interplay between the executive's and the Court's constitutionalism underscores the importance of the executive's own considered views. Third, even

where private parties can get courts to respond to their constitutional harms, they may face interstitial deprivations. Individuals suffer injury in the time lag between constitutional harm and relevant judicial response. There is inevitable delay between execution of a new practice, policy, program, or other executive action, and the courts' ability to decide its constitutionality (assuming someone brings an appropriate case). An executive that has adequate mechanisms of constitutional self-scrutiny would, however, avoid the unconstitutional conduct or check it more promptly than a court. Similarly, even where courts invalidate challenged government action, limits on their remedial capacities may make them unable fully to cure constitutional harms.28 The only remedies available from courts for race-based conviction in violation of equal protection, for example, are release, expungement of the conviction, and money damages; no post hoc remedy can restore the years of lost freedom to a person wrongfully convicted. Privacy, once violated, cannot be retroactively restored. Similarly, any shame or anxiety visited on a government employee unconstitutionally fired in retaliation for her public expression, and any period of exclusion from the job, even if it can be eased or mitigated, cannot be undone by a court award of reinstatement and back pay or other monetary compensation.29 Thus, the

delay in judicial review and the pervasive inadequacy of remedies - especially, but not exclusively, when harm is "irreparable,"3 - also focuses responsibility on the executive to engage constitutional issues and strive to avoid constitutional violations in the first place. Fourth, when the

courts apply procedural or institutional doctrines that avoid decision on the merits of a constitutional question, implies that someone else, i.e., people elsewhere in the government, must make the decisive constitutional calls.3 " The political question doctrine is a classic example of such judicial avoidance: a decision not to invalidate government action on political question grounds "is of course very different from a decision that specific congressional action does not violate the Constitution,"32 because it leaves open the possibility that the political branches might themselves find a violation. Similarly, other justiciability doctrines, such as standing, ripeness, and mootness,33 as well as immunity defenses that avoid decisions on their nondecision

the merits,34 mean that many instances of unconstitutional conduct will evade definitive constitutional consideration by the Court, leaving only the political branches to avoid or redress them." Courts are also unlikely to review challenges to the exercise of exclusively executive powers, like the powers to pardon,36 veto,37 make appointments,38 and receive ambassadors,39 nor are they likely to review most congressional-executive power struggles.' Even under judicial supremacy, constitutional obligations regarding the exercise of those powers are in the executive's hands .

Democracy Impact Extension Democracies won’t go to war with each other – public constraint means accountability and slow mobilization Rosato 3 – Assistant Professor of Political Science at the University of Notre Dame (Sebastian, "The Flawed Logic of Democratic Peace Theory" The American Political Science Review, Vol. 97, Iss. 4; pp. 585-603) According to the institutional logic, democratic institutions and processes make leaders accountable to a wide range of social groups that may, in a variety of circumstances, oppose war. Accountability

derives from the fact that political elites want to remain in office, that there are opposition parties ready to capitalize on unpopular policies, and that there are regular opportunities for democratic publics to remove elites who have not acted in their best interests. Moreover, several features of democracies, such as freedom of speech and open political processes, make it fairly easy for voters to rate a government's performance. In short, monitoring and sanctioning democratic leaders is a relatively straightforward matter (e.g., Lake 1992, 25-26; Owen 1997, 41-43; Russett 1993, 38-40). Because they are conscious of their accountability, democratic leaders will only engage in large-scale violence if there is broad popular support for their actions. This support is essential both because they may be removed from office for engaging in an unpopular war and because society as a whole, or subsets of it, can be expected to oppose costly or losing wars. There are several social groups that may need to be mobilized to support a war including the general public, those groups that benefit from an open international economy, opposition political parties, and liberal opinion leaders. The idea that publics generally oppose wars because of the costs they impose can be traced back to Kant's Perpetual Peace and continues to inform democratic peace theorists today (Doyle 1997, 24-25; Russett 1993, 38-39). Another established intellectual tradition argues that economic interdependence creates interest groups that are opposed to war because it imposes costs by disrupting international trade and investment (Doyle 1997, 26-27). Still other scholars have argued that opposition parties can choose to support a government if it is carrying out a popular policy or to oppose it for initiating domestically unpopular policies (Schultz 1998, 831-32). Finally, Owen has focused on the role of liberal opinion leaders in foreign policy decisions. These elites oppose violence against states they consider to be liberal and can expect the general public to share their views in times of crisis (Owen 1997,19,37-39,45-47; see also Mintz and Geva 1993). In short, domestic

groups may oppose war because it is costly, because they can gain politically from doing so, or simply because they deem it morally unacceptable. Five causal mechanisms, and therefore five variants of the institutional logic, flow from elite accountability and the need to mobilize social groups for war. Each outlines a different path to peace between democracies. Two of them claim that democracies will often be unwilling to resort to force in an international crisis. According

to the public constraint mechanism, this reluctance arises because leaders respond to the general public's aversion to war. The group constraint mechanism is similar; democratic leaders carry out the wishes of antiwar groups. In a crisis involving two democracies, then, the leaders of both states are constrained from engaging in large-scale violence, perceive their counterparts to be similarly constrained, and will be inclined to come to an agreement short of war (e.g., Bueno de Mesquita and Lalman 1992,155-58; Russett 1993, 38-40).4 Two other causal mechanisms focus on the claim that democracies are slow to use force. The

slow mobilization mechanism holds that democracies cannot mobilize quickly because persuading the public and potential antiwar groups to support military action is a long and complex process. The surprise attack mechanism shares this insight but also notes that mobilization takes place in the public domain, thereby precluding the possibility of a surprise attack by a democracy. In

purely democratic crises, then, both sides will have the time to come to a mutually acceptable agreement and be able to negotiate in good faith without fearing attack (e.g., Russett 1993, 38-10). Finally, the information mechanism suggests that democracies provide information that can avert wars. Because democratic elites are accountable to their citizens and can expect opposition parties to oppose unpopular policies, they will be cautious about deciding to escalate a crisis or commit the country to war. Indeed, they

will only select themselves into conflicts if they place a high value on the outcome of those conflicts, if they expect escalation to be popular at home, if there is a good chance that they will emerge victorious, and if they are prepared to fight hard. This sends a clear signal to other parties: If a democracy escalates or stands firm, it is highly resolved. In democratic crises, then, both states will have good information about the resolve of the other party, will be unlikely to misrepresent their own resolve, and will therefore be able to reach a negotiated solution rather than incur the risks and costs associated with the use of force (Bueno de Mesquita et al. 1999, 802-03; Schultz 1998, 840-41; see also Reiter and Stam 1998 and Fearon 1994).

Democratic peace has been verified universally – democratic initiators either avoid wars or win them Reiter & Stam 9 – Chair of the Department of Political Science at Emory University & Professor of Political Science at the University of Michigan (Dan & Alexander, "Another Skirmish in the Battle over Democracies and War" International Security, Volume 34, Number 2, Fall 2009, pp. 194-204, Project MUSE)

In previous articles and in our 2002 book Democracies at War, we argued that democracies are particularly likely to win their wars.

Democratic political institutions provide incentives for elected leaders to launch only short, winnable, low-cost wars, so they may avoid domestic political threats to their hold on power. Democracies tend to win the wars they initiate because democratic leaders generally “select” themselves into winnable wars, and they are more likely to win when they are targeted because their armies fight with better initiative and leadership. Analyzing all interstate wars from 1816 to 1987, we found strong empirical support for our theory.1 Other scholarship has produced findings supportive of our theory. Elsewhere, two different formal game-theoretic models produced the hypothesis that democracies are especially likely to win the wars they initiate.2 The

empirical results generated to test these and related hypotheses have withstood challenges to data selection and research design.3 Using data sets and research designs different from ours, other scholars have uncovered empirical patterns consistent with our theory that democracies are especially likely to win the crises they initiate,4 that wars and crises are shorter when democracies and democratic initiators are involved, and that democracies become increasingly likely to initiate wars as their likelihood of victory increases.5 H.E. Goemans’s recent empirical work exploring the relationship among conflict outcome, regime type, and the postwar fate of leaders confirms our theory, noting that his main result “now offers empirical support for some of these theories [of international conflict] (Bueno de Mesquita et al. 1999, 2003; Reiter and Stam 2002).”6 And, the

long-established democratic peace has been explained using our theoretical assumption that variations in domestic political institutions create variations in conflict behavior.7 Even the research designs of our critics, trivially adjusted, generate supportive results for our theory.8 Lastly, in recent work, we have extended the data set forward to 2001 and confirmed our earlier results. Notably,

in the 1988–2001 period, democratic initiators won five interstate wars, and

tied or lost none.9

Diversity of studies prove – democratic peace theory is fact Harrison 10 – Professor of International and Area Studies, Professor of Political Science, Assistant Dean of the College of Arts & Sciences at Washington University in St. Louis (Ewan, “The democratic peace research program and system-level analysis” Journal of Peace Research, 47(2) 155-165, Sage Publications)

Ray defines the hard core of the democratic peace research program in terms of dyadic theory. However, Lakatos (1970: 132) required that a research program should not be collapsed into any specific theory. Instead, it encompasses a series of theories sharing generic features. Adapting from Owen (2004: 610–11), the hard core of the democratic peace research program may be restated as follows: HC: International

outcomes involving liberal democracies are identifiably different from those not involving liberal democracies. This axiom is non-falsifiable because it is deliberately formulated at a level of abstraction that transcends any specific relationship between democracy and patterns of behavior in world politics. It does not say which outcomes are causally affected, nor at what level of interaction democracy is a variable. This

formulation remains compatible with different theories that operate at different levels of analysis but which collectively constitute a research program. At the same time, proposition HC retains the distinctive notion that the features of democracies explain aspects of international relations. This new definition of the core has implications for the specification of the negative heuristic. Ray’s

discussion of the negative heuristic is brief because his definition of the core rules out the possibility that there may be democratic peace theories which do not operate at the dyadic level. His definition excludes hypotheses such as those derived from realist or institutionalist theory which are incompatible with proposition HC. Nevertheless, it also rules out non-dyadic democratic peace formulations. Chernoff (2004), for

example, includes monadic theories as part of the

democratic peace research program. Monadic theories have been less successful in terms of their ability to generate a positive heuristic, even if their contributions can be underestimated (MacMillan, 2003). Yet the function of the negative heuristic is not to ensure that theories are empirically corroborated, but to ensure that theories within a research program are logically consistent. There is therefore no reason why democratic peace theories that operate at different levels of analysis should not co-exist within the same research program. This feature of the negative heuristic makes it possible to view research programs in terms of a series of theories that develop cumulative insights.


No Link to Politics Executive orders cost ZERO political capital – No consensus building needed Howell and Pevehouse ‘07 (William G. Howell - Sydney Stein Professor in American Politics in the Harris School And Jon C. Pevehouse - associate professor at the University of Chicago's Irving B. Harris School of Public Policy, Princeton University Press, “While Dangers Gather: Congressional Checks on Presidential War Powers”, 2007, Pg. 8) The second feature of unilateral powers that deserves attention is that when

the president acts, he acts alone. Of course, he relies on numerous advisors to formulate the policy, to devise ways of protecting it against congressional or judicial encroachment, and to oversee its implantation. But to issue the actual policy, as either an executive order or memorandum or any other kind of directive, the president need not rally majorities, compromise with adversaries or wait for some interest group to bring a case to court. The president, instead, can strike out on his own, placing on others the onus of coordinating an effective response. Doing so, the modern president is in a unique position to lead, break through the stasis that pervades the federal government, and impose his will in more and more areas of governance.

Rulemaking streamlines the process and avoids cumbersome debates and publicity Levin, Professor at Wash , 95 Ronald M. Levin, * Professor of Law, Washington University. ¶ The George Washington Law Review¶ November 1995¶ 64 Geo. Wash. L. Rev. 1¶ LENGTH: 18498 words¶ ARTICLE: Direct Final Rulemaking [*2] The purpose of the direct final rulemaking technique is to streamline the rulemaking process in situations in which a rule is considered so noncontroversial that the most minimal procedures should be adequate. It is intended to enable the agency to avoid two rounds of deliberation on the rule--once at the proposal stage and once at the final promulgation stage. To date, direct final rulemaking has been little publicized and therefore little used, but the climate is right for a considerable expansion in its use. In an era in which the rulemaking process has been criticized as too cumbersome, n2 and in which most agencies face the prospect of living under more severe resource constraints than they have experienced in the past, administrators have strong reasons to take note of the efficiencies that direct final rulemaking offers.In fact, this technique has already received favorable attention from influential voices in the executive branch. It was highlighted in Improving Regulatory Systems, one of the reports accompanying the National Performance Review or "reinventing government" effort led by Vice President Al Gore. n3 The authors of that report urged each regulatory agency to consider making use of direct final rulemaking during the coming year. n4 The Administrative Conference of the United States ("ACUS"), in its 1993 recommendation on "Improving the Environment for Agency Rulemaking," n5 also urged agencies to consider the possible advantages of direct final rulemaking. n6 The present study builds on those pronouncements and other words of praise, n7 by outlining a legal and practical framework within which direct final rulemaking can flourish.

Executive Self – Regulation solves politics Link Turn – Executive Self-restraint generates polcap and shields blame Sales ‘12 – Assistant Professor of Law, George Mason University School of Law (7/3, Nathan Alexander, Journal of National Security Law & Policy, 6.227, “Self-Restraint and National Security”)

My use of this analytical framework is not intended to deny the validity ¶ of other possible explanations for self-restraint. For instance, Eric Posner

and Adrian Vermeule argue that Presidents have an incentive to engage in ¶ “self binding,” because it will enhance their credibility and “generate ¶ support from the public and other members of the government.”45 Elizabeth ¶ Magill likewise argues that bureaucrats sometimes find it advantageous to ¶ “self-regulate” – i.e., “limit their options when no source of authority ¶ requires them to do so” – as a means of controlling subordinates, inducing ¶ reliance by outside parties, and entrenching today’s policy choices.46 Still ¶ more accounts emerge if we widen the analytical lens beyond public choice ¶ principles. One might ¶

explain self-restraints by consulting theories of ¶ bounded rationality – the notion that imperfect information, cognitive ¶ failures, and other factors prevent bureaucratic players from accurately ¶ measuring the expected costs and benefits of a given action.47 Or one might ¶ look to new institutionalism – the notion that bureaucratic outputs are ¶ determined in large part by organizations’ cultures, histories, and ¶ structures.48 And, of course, there are the public interest explanations: ¶ Officials

might embrace a particular restraint because they believe in good ¶ faith that it represents sound public policy. The public interest framework ¶ may actually complement, not contradict, this article’s public choice story. ¶ One of the reasons

they calculate that doing so will position them to achieve desirable ¶ policy outcomes . In any event, the point of this article is to generate ¶ hypotheses that can account for the occasional tendency of national security ¶ figures to restrain themselves. Other officials might build their bureaucratic empires is ¶ because

frameworks are likely to yield equally ¶ plausible alternative hypotheses.

Link Turn – we link comparatively less to politics – Agency action is only noticed after-the – fact, while the cp would be public based on the anouncement Metzger ‘09 – Professor of Law, Columbia Law School (Gillian E., Emory Law Journal, 59.2, “THE INTERDEPENDENT RELATIONSHIP BETWEEN INTERNAL AND EXTERNAL SEPARATION OF POWERS”, http://www.law.emory.edu/fileadmin/journals/elj/59/59.2/Metzger.pdf)

Several bases exist for thinking that internal separation of powers mechanisms

may have a comparative advantage. First, internal mechanisms operate ex ante, at the time when the Executive Branch is formulating and implementing policy, rather than ex post. As a result, they avoid the delay in application that can hamper both judicial and congressional oversight.76 Second, internal mechanisms often operate continuously, rather than being limited to issues that generate congressional attention or arise in the form of a justiciable challenge.77 Third, internal mechanisms operate not just at the points at which policy proposals originate and are implemented but also at higher managerial levels, thus addressing policy and administration in both a granular and systemic fashion. In addition, policy recommendations generated through internal checks may face less resistance than those offered externally because the latter frequently arise after executive officials have already decided upon a policy course and are more likely to take an adversarial form.78 Internal mechanisms may also gain credibility with Executive Branch officials to the extent they are perceived as contributing to more fully informed and expertise-based decisionmaking.79


Circumvention Plan gets circumvented – rename agency and redistribute roles – how ICE was formed US Legal, 7 (US Legal Law Digest, “United States U.S. Immigration and Naturalization”, June 3 2007, http://lawdigest.uslegal.com/immigration/u.s.-immigration-andnaturalization/7262/#ReorganizationAfterSeptember112001) KW Over the years, INS was repeatedly criticized for its seemingly unmanageable bureaucracy. Border Patrol agents and INS investigators developed reputations of being undertrained and overworked. People applying for immigration benefits often encountered backlogs that stretched for years. Many suggestions were made for reorganization, but the terrorist attacks of 2001 finally precipitated major change. In the wake of September 11, INS was criticized for its failure to prevent the terrorists from entering the country. Calls for change became more strident after the revelation that several of the hijackers had received visas to come to the U.S. to attend flighttraining schools. On November 19, 2002, President George W. Bush signed legislation that established the Department of Homeland Security, a cabinet-level department. DHS encompassed 22 agencies and 190,000 employees. Along with INS, the Coast Guard and the Customs Service came under DHS jurisdiction on March 1, 2003. Under the auspices of DHS, the U.S. Citizenship and Immigration Services (USCIS) has assumed the responsibility for administering benefits, including oversight over: Immigrant and nonimmigrant admission to the country Work authorization and other permits Naturalization of qualified applicants for U.S. citizenship Asylum and refugee processing Immigration enforcement now comes within the purview of the Directorate of Border and Transportation Security. Duties are further divided between the Bureau of Immigration and Customs Enforcement (ICE), and the Bureau of Customs and Border Protection (CBP). ICE is responsible for the enforcement of immigration laws within the U.S. CBP is responsible for inspections of people coming to the country, and for patrolling the border. Enforcement responsibilities for ICE and CBP include: Preventing aliens from entering the country unlawfully Detection and removal of aliens who are living in the U.S. unlawfully Preventing terrorists and other criminal aliens from entering or residing in the U.S.

ICE formed when another agency was dismantled – same thing could happen to ICE Hollingsworth, 14 (Gabrielle, LegalMatch Legal Writer and Attorney at Law, “INS Reorganization”, 4/16/14, http://www.legalmatch.com/law-library/article/insreorganization.html) KW What Was the INS? “INS” is an acronym for the Immigration and Naturalization Service, a U.S. agency that was dismantled in 2003. The law that formed the INS was the Immigration and Naturalization Act (INA). As a response to the 9/11 attacks on the World Trade Center, the Patriot Act made major changes to the INA in 2001. The feeling existed that the INS no longer met the needs of a society under threat of terrorism. What Replaced the INS? Among the changes included creating the Student and Exchange Visitor Information System (SEVIS), a computerized system to keep track of foreign students living in the US. Other changes included the 2002 Homeland Security Act and the 2002 Enhanced Border Security and Visa Entry Reform Act. These amendments mandated, for reasons of national security, that a number of federal agencies be created, renamed, and reorganized. On March 1, 2003, the Immigration and Naturalization Service (INS) was dismantled and reorganized into the Department of Homeland Security (DHS). Within the DHS there are three new agencies: the U.S. Citizenship and Immigration Services (USCIS), the U.S. Immigration and Customs Enforcement (ICE), and the U.S. Customs and Border Protection (CBP). The USCIS absorbed the former INS office administration and immigration services. ICE, the main enforcement arm of the DHS, absorbed the former U.S. Customs investigators, the Federal Protective Service, and the Federal Air Marshal Service. And CBP absorbed the former INS and Customs Inspectors, the Department of Agriculture, and the Border Patrol. As a result of these changes, the U.S. immigration agencies are now more “enforcementoriented,” meaning that they aim to help increase the security of the U.S., while protecting U.S. citizens from terrorism within their borders.

Even small changes to names causes them to be considered new agencies MCALEENAN and RAGSDALE 14 (KEVIN K. MCALEENAN Acting Deputy Commissioner U.S. Customs and Border Protection Department of Homeland Security and DANIEL H. RAGSDALE Deputy Director U.S. Immigration and Customs Enforcement Department of Homeland Security. “Authorizing Customs and Border Protection and Immigration and Customs Enforcement.” April 8, 2014 http://www.ice.gov/doclib/news/library/speeches/140408ragsdale.pdf) KW With the creation of DHS, the enforcement and service functions of INS and the U.S. Customs Service were absorbed into the Directorate of Border and Transportation Security, including U.S. Customs, Bureau of Border Security, and Bureau of Citizenship and Immigration Services. In 2003, President George W. Bush submitted a reorganization plan for DHS, renaming the

Bureau of Border Security the Bureau of Immigration and Customs Enforcement and the Customs Service the Bureau of Customs and Border Protection. In 2007, DHS changed the name of the Bureau of Customs and Border Protection to U.S. Customs and Border Protection and the Bureau of Immigration and Customs Enforcement to U.S. Immigration and Customs Enforcement.


politics links

dea: empirics- hemp DEA activities cause backlash in Congress- response to hemp policy interference proves WCL News 14 (the West Coast Leaf, news agency dedicated to issues in the marijuana industry, “DEA’s Efforts to Block Hemp Draw Federal Ire,” http://theleafonline.com/c/business/2014/06/deas-efforts-block-hemp-draw-federal-ire/, June 30, 2014, silbs) The federal DEA (Drug Enforcement Administration) caught some backlash from its interference in hemp activities that had recently been legalized by Congress when Congress slapped back three times in one day. After the renegade agency tried to undercut the intent of the US Farm Bill passed in February 2014, Representative Suzanne Bonamici introduced House Amendment 745 to HR 4660 on May 30, 2014. Her amendment to prohibit the use of funds to prevent a State from implementing its own State laws that authorize the use, distribution, possession, or cultivation of industrial hemp, as defined in section 7606 of the Agricultural Act of 2014 (Public Law 113-79), was 237 – 170 in favor of the amendment. Also on May 30, 2014, Representative Thomas Massie introduced House Amendment 754 to HR 4660, to prohibit the use of funds in contravention of section 7606 (“Legitimacy of Industrial Hemp Research”) of the Agricultural Act of 2014 (Public Law No. 113-79) by the Department of Justice or the DEA. The vote was 246 – 162 in favor of the amendment. In yet another rebuff to the narcotics agency, and again on the same day, May 30, during a debate regarding a Justice Department funding bill, Rep. Dana Rohrabacher (R-CA)offered an amendment intended to block DEA raids on medical marijuana dispensaries that passed by a surprisingly wide margin of 219-189.

dea: senate backlash The Senate has a tumultuous relationship with the DEA Ross 7/20 (Lee, reporter, Congressional Fellow/Press Secretary at the American Political Science Association, “Key lawmaker demands answers from DEA following Fox News report,” http://www.foxnews.com/politics/2015/07/20/key-lawmaker-demands-answers-from-deafollowing-fox-news-report/?intcmp=ob_article_sidebar_video&intcmp=obinsite, July 20, 2015, silbs) A key lawmaker is demanding answers from the Drug Enforcement Administration about alleged improper conduct that was first reported by Fox News on Thursday and may be tied to the resignations of two high-level officials. A letter from Senate

Judiciary Committee Chairman Chuck Grassley, R- Iowa, raises "important questions" about actions taken by DEA investigators looking into claims of retaliation and harassment made by Darek and Lisa Kitlinski, a married couple, who each work at the agency. Grassley wants Acting Administrator Chuck Rosenberg to reveal whether a DEA-issued smartphone was used to conduct covert surveillance on the employees. It it was, the senator wants to know under what legal authority. The letter, which calls for a response by month's end, also questions whether senior lawyer Letitia Pinkney and Deputy Administrator Thomas Harrigan resigned because of improprieties tied to the Kitlinski investigation. Darek Kitlinski's initial claim against the agency was based on his inability to secure an internal transfer. Kitlinski says his status as a Coast Guard reservist brought hostility from superiors and was the source of friction over the transfer. More

than a dozen senior DEA officers have filed lawsuits alleging retaliation, reprisals and career derailments because of their military service. Collectively they suggest the law enforcement agency on front lines of America's drug war is inhospitable to men and women who also serve in the reserves. Last fall, after leaving a secure DEA garage, Darek says he noticed a red blinking light coming from under the hood of his SUV. He reached in and pulled out a still functioning Blackberry bearing a DEA identification sticker. The device allegedly traces back to the DEA's top Human Resources officer. Skilled hackers can access smartphone externally to monitor its movements and even eavesdrop on conversations.

dea: emprics- cartel scandal Congress backlashes against DEA activities- fast and furious scandal proves Newman 11 (Alex, CEO at Liberty Sentinel Media, journalist, “Congress Probes DEA Drug Money Laundering Scheme,” http://www.thenewamerican.com/usnews/congress/item/2383congress-probes-dea-drug-money-laundering-scheme, The New American, December 9, 2011, silbs) As the “Fast and Furious” gun-trafficking scandal continues to grow, Congress is now investigating a Drug Enforcement Administration (DEA) program that was laundering money for Mexican cartels. Meanwhile, multiple cartel leaders and reports continue to suggest that the federal government is deeply involved in the narcotics and arms trades. According to an article in the New York Times that first revealed the DEA money-laundering scheme to the public, U.S. drug agents supervised by the Justice Department likely laundered hundreds of millions in illegal profits — maybe more. The DEA and other agencies also helped send the illicit cash back across the border to Mexico in operations “orchestrated to get around sovereignty restrictions,” the Times reported in the article, headlined "U.S. Agents Launder Mexican Profits of Drug Cartels." “The high-risk activities raise delicate questions about the agency’s effectiveness in bringing down drug kingpins, underscore diplomatic concerns about Mexican sovereignty, and blur the line between surveillance and facilitating crime,” the article stated, noting that the agency often allows cartels to continue operating for years before taking any action. And the program does not appear to be disrupting the criminal organizations. One former DEA official was quoted by the paper as saying that if the program failed to show results, "the D.E.A. could wind up being the largest money launderer in the business, and that money results in violence and deaths." And the program has failed to show results, according to analysts. Activists and members

of Congress were already deeply suspicious of Attorney General Eric Holder and the Obama administration’s Department of Justice over a program that put thousands of weapons into the hands of cartels — some of the guns were eventually linked to murders of U.S. law enforcement officers — as well as subsequent efforts to cover up the scandal using lies. So when news of federal money laundering broke, lawmakers immediately demanded answers.

Congress reacts to DEA action, ties failings to the Obama administration, and doesn’t trust them to carry out programs effectively Newman 11 (Alex, CEO at Liberty Sentinel Media, journalist, “Congress Probes DEA Drug Money Laundering Scheme,” http://www.thenewamerican.com/usnews/congress/item/2383congress-probes-dea-drug-money-laundering-scheme, The New American, December 9, 2011, silbs) “It also appears as though these American agents, posing as smugglers, assisted Mexican drug cartels in their illicit and deadly drug trade,” Rep. Darrell Issa (R-Calif.), chairman of the House Oversight and Government Reform Committee investigating Fast and Furious, wrote in a letter to Holder citing the Times article. “These allegations, if true, raise further unsettling questions about a Department of Justice component engaging in a high-risk strategy with scant evidence of success.” Issa repeated the concern expressed in the Times article that the DEA operations point to serious issues in the agency’s effectiveness in actually catching drug bosses. There are other problems, too, including worries about sovereignty and the blurring of the line between “surveillance” and actually helping criminals. “The

law limits the conduct alleged in this story," Rep. Issa noted. “The existence of such a program again calls your leadership into question.... The consequences have been disastrous. It is almost unfathomable to contemplate the degree to which the United States Government has made itself an accomplice to the Mexican drug trade.” The Justice Department responded with a letter saying similar tactics have been used since the 1980s, but that it could not discuss specifics. Like the Bureau of Alcohol, Tobacco, Firearms, and Explosives (still known as ATF), the

DEA also promptly responded to the

accusations by claiming the operations were aimed at fighting crime, not assisting it. And anonymous “sources” were deployed by the federal drug agency to defend the scheme, saying a comparison with Fast and Furious was off the mark. In a statement, the agency also defended its operations, saying the money laundering was aimed at tracking drug profits rather than aiding criminals. "The DEA has well-established mechanisms for coordinating and approving activities associated with the fight against money laundering," it claimed. "As a result of this cooperation, DEA has seized illicit transnational criminal organization money all around the world through our partnership with law enforcement." The federal agency also said it had been working closely with Mexico’s notoriously corrupt government for years. "As part of that collaboration, DEA works with Mexican authorities to gather and use information about these criminal organizations to counter the threats they pose to both of our countries," it alleged in the statement, claiming the cooperation was based on “mutual trust” and respect for each government’s jurisdiction. But

lawmakers were not thoroughly convinced by administration denials, noting that and the Justice Department have admittedly been lying about the Fast and Furious scandal for almost a year. "The first answer you get from this Justice Department doesn't have a high Holder, Obama,

credibility," Rep. Issa said this week.

circumvention other programs will fill in and guarantee circumvention- NLPRD proves Tate 14 (Kristin, multi-media reporter, “Obama’s DHS Activating National License Plate Tracking Database,” Truth in Media, http://truthinmedia.com/obamas-dhs-activating-nationallicense-plate-tracking-database/#ixzz2tKNxPEvI, February 14, 2014, silbs) President Obama’s Department of Homeland Security (DHS) is quietly activating a national license plate tracking system. It will be shared with law enforcement and allow officials to track citizens’ vehicles “from a variety of sources nationwide.” The new system, called the “National License Plate Recognition Database,” is outlined in a PDF on the Federal Business Opportunities website. The system will allow authorities to “to determine where and when the vehicle has traveled” by tracking “vehicle license plate numbers that pass through cameras or are voluntarily entered into the system from a variety of sources.” Using their smartphones, DHS officials will be able to take photos of any license plate in the country and upload it to the database. They will then receive an instant alert if that plate is on the “hot list” containing “target vehicles.” The

intended purpose of the new system is to catch illegal immigrants and terrorists, but it is likely that the vast majority of targeted individuals will be American citizens. To many who are concerned about the scope and growth of government power, the system is reminiscent of George Orwell’s 1984 — especially since in recent years, the DHS has branded “liberty lovers” as possible terrorists.

Economy Impact


AT: Royal Royal votes neg two pages later—decline disincentivizes costly power balancing Royal 10—their author (Jedediah, “Economic Integration, Economic Signaling and the Problem of Economic Crises”, Economics of War and Peace: Economic, Legal and Political Perspectives pg 217, dml) There is, however, another trend at play. Economic

crises tend to fragment regimes and divide polities. A decrease in cohesion at the political leadership level and at the electorate level reduces the ability of the state to coalesce a sufficiently strong political base required to undertake costly balancing measures such as economic costly signals. Schweller (2006) builds on earlier studies (sec, e.g., Christensen, 1996; Snyder, 2000) that link political fragmentation with decisions not to balance against rising threats or to balance only in minimal and ineffective ways to demonstrate a tendency for states to 'underbalance'. Where political and social cohesion is strong, states are more likely to balance against rising threats in effective and costly ways. However, 'unstable and fragmented regimes that rule over divided polities will be significantly constrained in their ability to adapt to systemic incentives; they will be least likely to enact bold and costly policies even when their nation's survival is at stake and they are needed most' (Schweller, 2006, p. 130).

Counterplan Answers

AT: Military Readiness CP

Nato Bad

--can’t solve heg U.S. needs to pull back its security commitments to NATO in order to retain it’s hegemony Layne, 10 (Christopher, Professor and Robert M. Gates Chair in National Security at Texas A&M’s George H.W. Bush School of Government & Public Service (May 1, 2010, “Graceful Decline: The End of Pax Americana”)//MBB

The United States will be compelled to overhaul its strategy dramatically, and rather than having this adjustment forced upon it suddenly by a major crisis, the U.S. should get ahead of the curve by shifting its position in a gradual, orderly fashion. A new American global posture would involve strategic retrenchment, burden-shifting, and abandonment of the so-called “global

the U.S. will need to pull back from its current security commitments to NATO, Japan, and South Korea. This is not isolationism. The United States undertook the defense of these regions under conditions very different from those prevailing today. In the late 1940s, all were threatened by the Soviet Union—in the case of South Korea and Japan, by China counterinsurgency” being waged in Afghanistan and Iraq. As a first step,

as well—and were too weak to defend themselves. The U.S. did the right thing by extending its security umbrella and “drawing a line

They were meant as a temporary shield to enable Western Europe, Japan, and South Korea to build up their own economic and military strength and assume responsibility for defending themselves. There are in the sand” to contain the Soviet Union. But these commitments were never intended to be permanent.

several explanations for why the U.S. did not follow through with this policy. Fundamentally, during the Pax Americana there was no need. As the U.S. declines, however, it will be compelled to return to its original intent. If we remember that an eventual pullback was the goal of U.S. policy, strategic retrenchment in the early 21st century looks less like a radical break than a fulfillment of strategic goals adopted in the late 1940s. Burden-shifting—not burden-sharing—is the obvious corollary of strategic retrenchment. American policy should seek to compel our allies to assume responsibility for their own security and take the lead role in providing security in their regions. To implement this strategic devolution, the U.S. should disengage gradually from its current commitments in order to give an adequate transition period for its allies to step up to the plate. It should facilitate this transition by providing advanced weapons and military technology to friendly states in Europe and Asia. With respect to Islamic terrorism, we need to keep our priorities straight. Terrorism is not the most pressing national-security threat facing the United States. Great powers can be defeated only by other great powers—not by nonstate terrorists or by minor powers. The

U.S. needs to be careful not to pay more attention to Islamic terrorists than to emerging great powers. Here the Obama administration and Defense Secretary Robert M. Gates are getting it wrong.

NATO is useless: US has not used since the collapse of the Soviet Union Slocombe 10, Walter B. June 2010 “Towards A New NATO Strategic Concept A View from the United States”, PERSPECTIVE http://library.fes.de/pdf-files/id/ipa/07299.pdf)//MBB

With the implosion of the Soviet Union ending its domination of Central Europe and the direct military threat to the European allies the question naturally arose for the US – as for other allies – whether NATO still had a purpose. Some in the US argued that with the Soviet threat gone and Europe increasingly focused on internal integration, the right course for America was to resume its historical distance from Europe’s problems. This view was held not only by those who favored a return to a form of isolationism, but also by the proponents of a highly interventionist US approach to international security, who saw the chief, if not the only, challenges to American interests arising in the Middle East and, to a lesser extent, Asia, rather than Europe and wished to be free of European constraints on US action. The early 1990s represented the high-water mark, at least in the US, of the view that NATO’s time had passed: the US and many European nations hoped that the conflict in the Balkans could best be handled by the Europeans and NATO as an institution stood aside from the US-led international coalition that reversed Saddam Hussein’s invasion of Kuwait. In the event, however, the dominant view in the US came to be that NATO could and should be a keystone of US security policy both for Europe (exemplified by its central role in implementing the settlement in Bosnia and defeating Serbian ethnic cleansing in Kosovo), and as a means to address chal-lenges arising outside NATO’s established geographic

radius. Accordingly, the US, far from pulling back from NATO, has continued to regard NATO as a central element of its international security policy. It has been a strong advocate of relatively rapid membership for former Warsaw Pact countries, of a direct military role for NATO in »out of area« operations (like those in Af-ghanistan), of non-member European states (and in-deed of »values partners« like Australia) joining in NATO operations and activities through the Partnership for Peace, and of expanding

US reliance on NATO has certainly not been undeviat-ing. Most egregiously, the US declined to make its initial military response in Afghanistan a NATO project despite the allies’ immediate invocation of the Article V guarantee following the September 11 attacks – but still sought later to make success in Afghanistan a touchstone of NATO’s viability. Nor has it been wholly successful. »Out of area« inter-ventions remain controversial. NATO took no part in the 2003 invasion of Iraq, and only the most minimal role in the NATO’s missions to include new threats like terrorism, cyberwar, energy security, and nuclear proliferation.

subsequent stabilization efforts. US hopes that a growing European Union security structure would be closely integrated with NATO – complementary rather than competitive – have only partially been fulfilled. European defense budgets have continued to decline, and the gaps between US and European military capa-bilities have grown.

--hurts Russia relations Russia is only concerned with the U.S. system; NATO only has the power to hurt U.S.-Russian relations Suslov, 10 Deputy Director for Research at the Council on Foreign and Defense Policy (5/18/10, Dmitry V., “U.S.- Russia Relations After the New START Treaty,” http://en.rian.ru/valdai_op/20100518/159060786.html)//MBB Another reason why this positive stage in bilateral relations could end is the lack of tangible progress on most other issues on the agenda. Signing the New START treaty will be of no assistance here. In fact, it has caused further complications, e.g. in the case of the U.S. missile defense shield.
 Disagreements over missile defense have not been resolved, and by signing the New START treaty in its current version, Russia has lost its leverage to demand an international regime to regulate U.S. actions for the foreseeable future. The U.S. will have free reign when it comes to missile defense. Russia

has been invited to participate in the non-existent NATO missile defense system, but this is meant to appease Russia, not to allay its main concern over the U.S. missile defense shield. The U.S. and NATO shields will be two different systems, and Russia is only concerned about the U.S. system -- which is off-limits -not the non-existent NATO system.


Perm Perm solves best—oversight redundancy decreases group think and politicization while creating a race to the top. O'Connell 06. (Anne, George Johnson Professor of Law at the University of California, Berkeley. “The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World,” Berkeley Law Scholarship Repository. 1-1-2006. http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2716&context=facpubs)//CB

Redundancy has several benefits for achieving an operational goal. First, redundancy may combat "group think." Psychologists have found that "group polarization" increases "if members have a sense of shared identity" and decreases "if members have a degree of flexibility in their views and groups consist of an equal number of people with opposing views.""' Redundant

institutional design may increase diversity in view- points if workers identify primarily with their own agency. This could prevent members of the intelligence community from forming a shared identity across agencies, and thereby decrease the risk of "group think.""' 2 This psychological research suggests, for example, that if all members of the intelligence community perceive themselves to be clones of the DNI, deliberation among those members likely will lead to an outcome that is more extreme than the DNI's position because deliberation will not contain any opposing viewpoints.¶ Second, redundancy

may prevent “capture” of agencies or overseers particular interest groups, decreasing politicization of intelligence. 113 If interest groups have objectives that differ from the goal of maximizing national security, capture of agencies or overseers decreases national security effectiveness. One interest group generally will find it more difficult to capture several agencies than a single agency; to wield power over multiple agencies, interest groups may have to work together, which is a costly enterprise for the groups. 114¶ Third, if redundancy produces competition, 115 it may yield better outcomes than coordination. 116 This is, of course, a fundamental insight of economics: prefer competition produces more socially optimal results than monopolies. Specifically, competitive structures may prevent “pernicious” collusion, particularly when the organizations are similar. 117 Competition may encourage redundant entities to work harder and more creatively, generating a race to the top in performance; competition may also motivate one entity to correct mistakes made by another entity. 118 For example, if multiple intelligence agencies were tasked with finding Osama bin Laden, the competition to find him might motivate each agency to achieve more than it would if it were the only agency working to achieve that objective.'19 In addition, such competition may "make it easier for the organization[s] to adapt to a changing environment."'20 Alternatively, redundancy may allow for needed cooperation, as certain tasks may require multiple, overlapping entities.' 2'¶ Fourth,

redundancy may increase reliability by decreasing the chances of the system failing entirely in certain respects. 2 2 Take the classic example of a belt and suspenders for holding up a man's pants. Each accessory independently, with some probability, keeps the pants from falling down. A belt can unlatch or suspenders can snap, however. Together, on average, the accessories should prevent an embarrassing moment more often than either used on its own. For example, if the belt works effectively 90% of the time, and the suspenders work effectively 75% of the time, these two devices together should work as well as a system that is effective 97.5% of the time.2 3 The same reasoning applies to the (far harder) task of finding bin Laden. The more dependent the structures are on each other, the smaller the improvement in reliability; in other words, completely inde- pendent but redundant structures yield the greatest increase in reliability. 2 4¶ This reasoning can be applied to administrative agencies: according

to bureaucratic redundancy theory, multiple agencies delegated the same task are more likely to complete the task than a single agency. 125 Examples of such redundant arrangements abound in our governmental system. For example, the federal and state courts are redundant, in that both have jurisdic- tion over certain claims. 26 The classic example for the administrative state is that each military service employs its own "air force," though any one air force could protect troops on the ground.127 Although each air force has been tailored to its service's needs, each likely could be reconfigured to provide much of the same protection as any other. Other agency examples exist. The Federal Trade Commission, an independent regulatory commis- sion, and the Antitrust Division of the United States Department of Justice, a cabinet department, both have authority to enforce antitrust laws.12' The Department of Interior's Bureau of Reclamation and the Army Corps of Engineers both have authority over federal water policy.129

Perm do both – the counterplan can’t solve any perception internal links on its own – GAO has historical precedent of ineptitude Kushing 14 – reporter for Techdirt (Tim, “The GAO's Office In The NSA Is Collecting Dust Because Congress Hasn't Asked For A Report In Years” https://www.techdirt.com/articles/20140107/07182325785/gaos-office-nsa-is-collecting-dustbecause-congress-hasnt-asked-report-years.shtml)//GK Steven Aftergood at Secrecy News points out there's another

layer of oversight that's gone unutilized for years as well. Years ago, the Government Accountability Office, the investigative arm of Congress, conducted routine audits and investigations of the National Security Agency, such that the two agencies were in “nearly continuous contact” with one another. In the post-Snowden era, GAO could perform that oversight function once again. “NSA

advises that the GAO maintains a team permanently in residence at NSA, resulting in nearly continuous contact between the two organizations,” according to a 1994 CIA memorandum for the Director of Central Intelligence. Why haven't we read any damning reports from the GAO about the NSA's abuses over the past several years? Well, apparently it's because no one wants to know. At a 2008 Senate hearing, Sen. Daniel Akaka asked the GAO about its relationship with NSA. “I understand that GAO even had an office at the NSA,” Sen. Akaka noted. “We

still actually do have space at the NSA,” replied David M. Walker, then-Comptroller General, the head of the GAO. “ We just don’t use it . And the reason we don’t use it is we are not getting any requests [from Congress ]. So I do not want to have people sitting out there twiddling their thumbs.” There's that oversight at work again. Idle for "years" by 2008 and no signs that anything has occurred since then. The GAO maintains an office (currently unstaffed) within the NSA but because if no one's asking any questions, it's not providing any answers. If there's something the GAO does well, it's track down internal issues and problematic behavior. Unfortunately, it's limited to recommending courses of action rather than mandating any serious changes, meaning its follow-up reports are generally filled with descriptions of how these audited entities failed to pursue the recommendations and (often) performed considerably worse during the interim. On the other hand, the GAO's reports do at least make it clear to the American public exactly what's wrong with nearly everything the government spends its money on. It's very limited accountability that does nothing to change the underlying agency ethos, but at least it prevents them from pretending these problems don't exist. Being in-house should naturally raise concerns about the GAO's objectivity. Unfortunately, considering the nature of the agency's intelligence work, there's probably no way around that. But the first step in renewing this layer of oversight is to remind Congress of its existence. It has the power to order a GAO investigation, but until it does, the office will continue to gather dust and the NSA's internal problems will worsen -- or at least go unnoticed by Congress. Aftergood points out that James Clapper has ordered the agency to be responsive to GAO inquiries, apparently in the eventuality that it ever gets back to the business of asking questions. In Intelligence Community Directive 114, issued in 2011 following years of stagnation in GAO oversight of intelligence, DNI James Clapper instructed U.S. intelligence agencies to be responsive to GAO, at least within certain boundaries. “It is IC policy to cooperate with the Comptroller General, through the GAO, to the fullest extent possible, and to provide timely responses to requests for information,” the DNI wrote. Of course, Clapper's definition of "responsive" probably differs greatly from the normally-accepted usage of the word. Having Clapper condone cooperation with an agency that exists to find flaws and misconduct is a bit underwhelming. The NSA's top men have been less than cooperative in the many hearings since the Snowden leaks began, most often recycling old talking points and insisting on discussing it in the context of one program (Section 215) when everyone else is clearly focused on another area. Still, whatever

the GAO finds (that somehow doesn't get blotted out with provide more useful information for its Congressional overseers. This certainly shouldn't be used in place of more independent oversight committees, but it should prove to be a valuable addition. The real question Congress needs to answer is why it has ignored this

black ink) will

option for so many years.

GAO Expertise Fails The GAO has no expertise in data analysis and targeting surveillance GAO No Date (“About GAO” http://www.gao.gov/about/index.html)//GK The U.S. Government Accountability Office (GAO) is an independent, nonpartisan agency that works for Congress. Often called the "congressional watchdog," GAO investigates how the federal government spends taxpayer dollars. The head of GAO, the Comptroller General of the United States, is appointed to a 15-year term by the President from a slate of candidates Congress proposes. Gene L. Dodaro became the eighth Comptroller General of the United States and head of the U.S. Government Accountability Office (GAO) on December 22, 2010, when he was confirmed by the United States Senate. He was nominated by President Obama in September of 2010 from a list of candidates selected by a bipartisan, bicameral congressional commission. He had been serving as Acting Comptroller General since March of 2008. Full Biography More on the CG Selection Process Our Mission is to support the Congress in meeting its constitutional responsibilities and to help improve the performance and ensure the accountability of the federal government for the benefit of the American people. We provide Congress with timely information that is objective, fact-based, nonpartisan, nonideological, fair, and balanced. Our Core Values of accountability, integrity, and reliability are reflected in all of the work we do. We operate under strict professional standards of review and referencing; all facts and analyses in our work are thoroughly checked for accuracy. In addition, our

audit policies are consistent with the Fundamental Auditing Principles (Level 3) of the International Standards of Supreme Audit Institutions.

The GAO has been reduced to a congressional lapdog – it lacks the political teeth to get reforms across Washington Examiner 11 (“Congress wants to turn GAO watchdog into a lapdog” http://www.washingtonexaminer.com/article/120416)//GK Has somebody dumped gallons of hallucinogens into the drinking water on Capitol Hill? How else can we explain why Congress is slashing the operational budget of its most effective weapon against wasteful federal spending? That weapon, of course, is the Government Accountability Office, the green-eyeshade agency that for decades has been the bane of every wasteful bureaucrat in Washington. Sen. Tom Coburn, R-Okla., is also mystified, pointing out in a report he made public yesterday that: "Just this year, GAO

identified hundreds of billions of dollars of duplicative and overlapping programs that, if addressed by Congress, could both save money and improve services for taxpayers. For every $1 spent on GAO, the agency provides $90 in savings recommendations. Yet, instead of adopting these good government reforms, the Senate Appropriations Committee has responded by proposing dramatic budget cuts to the GAO budget." Did you catch that ratio of potential savings identified by GAO to the cost of running GAO? If every government agency could provide $90 in real economic value for every $1 in operational costs, this nation would have a $15 trillion surplus rather than a

the cuts are not being proposed just by the Democratcontrolled Senate Appropriations Committee, and they're not a one-time thing . As Coburn points out in his report, the Republican-controlled House Appropriations Committee has proposed a 6.4 percent reduction, only a little less than the 7.6 percent sought by the Senate panel. And the effort to cut GAO has been going on for two decades: GAO's work force has been reduced by 40 percent -- or more than 2,000 positions -$15 trillion debt. What's even more shocking is that

since 1992, and during the same period, the agency's budget has been reduced 13 percent (in inflation-adjusted dollars). So

Democrats and Republicans in Congress have been colluding for decades in this obvious effort to reduce Washington's best watchdog to a congressional lapdog.



Terror Talks/ Death K The expulsion of death forms the nucleus of modern politics. Unable to come to terms with the symbolic reversibility of death, the system reduces life to mere industrial prolongation, encoding the conditions of possibility for all exclusion. Robinson ‘12 (Andrew, Political Theorist, Activist Based in the UK and research fellow affiliated to the Centre for the Study of Social and Global Justice (CSSGJ), University of Nottingham, “Jean Baudrillard: The Rise of Capitalism & the Exclusion of Death”, March 30,http://ceasefiremagazine.co.uk/in-theorybaudrillard-2/) Symbolic exchange – or rather, its suppression – plays a central role in the emergence of capitalism. Baudrillard sees a change happening over time. Regimes

based on symbolic exchange (differences are exchangeable and related) are replaced by regimes based on equivalence (everything is, or means, the same). Ceremony gives way to spectacle, immanence to transcendence. Baudrillard’s view of capitalism is derived from Marx’s analysis of value. Baudrillard accepts Marx’s view that capitalism is based on a general equivalent. Money is the general equivalent because it can be exchanged for any commodity. In turn, it expresses the value of abstract labour time. Abstract labour-time is itself an effect of the regimenting of processes of life, so that different kinds of labour can be compared. Capitalism is derived from the autonomisation or separation of economics from the rest of life. It turns economics into the ‘reality-principle’. It is a kind of sorcery, connected in some way to the disavowed symbolic level. It subtly shifts the social world from an exchange of death with the Other to an eternal return of the Same. Capitalism functions by reducing everything to a regime based on value and the production of value. To be accepted by capital, something must contribute value. This creates an immense regime of social exchange. However, this social exchange has little in common with symbolic exchange. It ultimately depends on the mark of value itself being unexchangeable. Capital

must be endlessly accumulated. States must not collapse. Capitalism thus introduces the irreversible into social life, by means of accumulation. According to Baudrillard, capitalism rests on an obsession with the abolition of death. Capitalism tries to abolish death through accumulation. It tries to ward off ambivalence (associated with death) through value (associated with life). But this is bound to fail. General equivalence – the basis of capitalism – is itself the ever-presence of death. The more the system runs from death, the more it places everyone in solitude, facing their own death. Life itself is fundamentally ambivalent. The attempt to abolish death through fixed value is itself deathly. Accumulation also spreads to other fields. The idea of progress, and linear time, comes from the accumulation of time, and of stockpiles of the past. The idea of truth comes from the accumulation of scientific knowledge. Biology rests on the separation of living and non-living. According to Baudrillard, such accumulations are now in crisis. For instance, the accumulation of the past is undermined, because historical objects now have to be concealed to be preserved – otherwise they will be destroyed by excessive consumption. Value is produced from the residue or remainder of an incomplete symbolic exchange. The repressed, market value, and sign-value all come from this remainder. To destroy the remainder would be to destroy value. Capitalist exchange is always based on negotiation, even when it is violent. The symbolic order does not know this kind of equivalential exchange or calculation. And capitalist extraction is always one-way. It amounts to a non-reversible aggression in which one act (of dominating or killing) cannot be returned by the other. It is also this regime which produces scarcity – Baudrillard here endorses Sahlins’ argument. Capitalism produces the Freudian “death drive”, which is actually an effect of the capitalist culture of death. For

Baudrillard, the limit to both Marx and Freud is that they fail to theorise the separation of the domains they study – the economy and the unconscious. It is the separation which grounds their functioning, which therefore only occurs under the regime of the

code. Baudrillard also criticises theories of desire, including those of Deleuze, Foucault, Freud and Lacan. He believes desire comes into existence based on repression. It is an effect of the denial of the symbolic. Liberated energies always leave a new remainder; they do not escape the basis of the unconscious in the remainder. Baudrillard argues that indigenous groups do not claim to live naturally or by their desires – they simply claim to live in societies. This social life is an effect of the symbolic. Baudrillard therefore criticises the view that human liberation can come about through the liberation of desire. He thinks that such a liberation will keep certain elements of the repression of desire active. Baudrillard argues that the processes which operate collectively in indigenous groups are repressed into the unconscious in metropolitan societies. This leads to the autonomy of the psyche as a separate sphere. It is only after this repression has occurred that a politics of desire becomes conceivable. He professes broad agreement with the Deleuzian project of unbinding energies from fixed categories and encouraging flows and intensities. However, he is concerned that capitalism can recuperate such releases of energy, disconnecting them so they can eventually reconnect to it. Unbinding

and drifting are not fatal to capitalism, because capitalism itself unbinds things, and re-binds things which are unbound. What is fatal to it is, rather, reversibility. Capitalism continues to be haunted by the forces it has repressed. Separation does not destroy the remainder. Quite the opposite. The remainder continues to exist, and gains power from its repression. This turns the double or shadow into something unquiet, vampiric, and threatening. It becomes an image of the forgotten dead. Anything which reminds us of the repressed aspects excluded from the subject is experienced as uncanny and threatening. It

becomes the ‘obscene’, which is present in excess over the ‘scene’ of what is imagined. This is different from theories of lack, such as the Lacanian Real. Baudrillard’s remainder is an excess rather than a lack. It is the carrier of the force of symbolic exchange. Modern culture dreams of radical difference. The reason for this is that it exterminated radical difference by simulating it. The energy of production, the unconscious, and signification all in fact come from the repressed remainder. Our culture is dead from having broken the pact with monstrosity, with radical difference. The West continues to perpetrate genocide on indigenous groups. But for Baudrillard, it did the same thing to itself first – destroying its own indigenous logics of symbolic exchange. Indigenous groups have also increasingly lost the symbolic dimension, as modern forms of life have been imported or imposed. This according to Baudrillard produces chronic confusion and instability. Gift-exchange is radically subversive of the system. This is not because it is rebellious. Baudrillard thinks the system can survive defections or exodus. It is because it counterposes a different ‘principle of sociality’ to that of the dominant system. According

to Baudrillard, the mediations of capitalism exist so that nobody has the opportunity to offer a symbolic challenge or an irreversible gift. They exist to keep the symbolic at bay. The affective charge of death remains present among the oppressed, but not with the ‘properly symbolic rhythm’ of immediate retaliation. The Church and State also exist based on the elimination of symbolic exchange. Baudrillard is highly critical of Christianity for what he takes to be a cult of suffering, solitude and death. He sees the Church as central to the destruction of earlier forms of community based on symbolic exchange. Baudrillard

seems to think that earlier forms of the state and capitalism retained some degree of symbolic exchange, but in an alienated, partially repressed form. For instance, the imaginary of the ‘social contract’ was based on the idea of a sacrifice – this time of liberty for the common good. In psychoanalysis, symbolic exchange is displaced onto the relationship to the master-signifier. I haven’t seen Baudrillard say it directly, but the impression he gives is that this is a distorted, authoritarian imitation of the original symbolic exchange. Nonetheless, it retains some of its intensity and energy. Art, theatre and language have worked to maintain a minimum of ceremonial power. It is the reason older orders did not suffer the particular malaise of the present. It is easy to read certain passages in Baudrillard as if he is bemoaning the loss of these kinds of strong significations. This is initially how I read Baudrillard’s work. But on closer inspection, this seems to be a misreading. Baudrillard

is nostalgic for repression only to the extent that the repressed continued to carry symbolic force as a referential. He is nostalgic for the return of symbolic exchange, as an aspect of diffuse, autonomous, dis-alienated social groups. Death Death plays a central role in Baudrillard’s theory, and is closely related to symbolic exchange. According to Baudrillard, what we have lost above all in the transition to alienated society is the ability to engage in exchanges with death. Death should not be seen here in purely literal terms. Baudrillard specifies early on that he does not mean an event affecting a body, but rather, a form which destroys the determinacy of the subject and of value – which returns things to a state of indeterminacy. Baudrillard certainly discusses actual deaths, risk-taking, suicide and so on. But he also sees death figuratively, in relation to the decomposition of existing relations, the “death” of the self-image or ego, the interchangeability of processes of life across different categories. For instance, eroticism or sexuality is related to death, because it leads to fusion and communication between bodies. Sexual reproduction carries shades of death because one generation replaces another. Baudrillard’s concept of death is thus quite

similar to Bakhtin’s concept of the grotesque. Death

refers to metamorphosis, reversibility, unexpected mutations, social change, subjective transformation, as well as physical death. According to Baudrillard, indigenous groups see death as social, not natural or biological. They see it as an effect of an adversarial will, which they must absorb. And they mark it with feasting and rituals. This is a way of preventing death from becoming an event which does not signify. Such a non-signifying event is absolute disorder from the standpoint of symbolic exchange. For

Baudrillard, the west’s idea of a biological, material death is actually an idealist illusion, ignoring the sociality of death. Poststructuralists generally maintain that the problems of the present are rooted in the splitting of life into binary oppositions. For Baudrillard, the division between life and death is the original, founding opposition on which the others are founded. After this first split, a whole series of others have been created, confining particular groups – the “mad”, prisoners, children, the old, sexual minorities, women and so on – to particular segregated situations. The definition of the ‘normal human’ has been narrowed over time. Today, nearly everyone belongs to one or another marked or deviant category. The original exclusion was of the dead – it is defined as abnormal to be dead. “You livies hate us deadies”. This first split and exclusion forms the basis, or archetype, for all the other splits and exclusions – along lines of gender, disability, species, class, and so on. This discrimination against the dead brings into being the modern experience of death. Baudrillard suggests that death as we know it does not exist outside of this separation between living and dead.

The modern view of death is constructed on the model of the machine and the function. A machine either functions or it does not. The human body is treated as a machine which similarly, either functions or does not. For Baudrillard, this misunderstands the nature of life and death. The modern view of death is also necessitated by the rise of subjectivity. The subject needs a beginning and an end, so as to be reducible to the story it tells. This requires an idea of death as an end. It is counterposed to the immortality of social institutions. In relation to individuals, ideas of religious immortality is simply an ideological cover for the real exclusion of the dead. But institutions try to remain truly immortal. Modern

systems, especially bureaucracies, no longer know how to die – or how to do anything but keep reproducing themselves. The internalisation of the idea of the subject or the soul alienates us from our bodies, voices and so on. It creates a split, as Stirner would say, between the category of ‘man’ and the ‘un-man’, the real self irreducible to such categories. It also individualises people, by destroying their actual connections to others. The symbolic haunts the code as the threat of its own death. The society of the code works constantly to ward off the danger of irruptions of the symbolic. The mortal body is actually an effect of the split introduced by the foreclosure of death. The split never actually stops exchanges across the categories. In the case of death, we still ‘exchange’ with the dead through our own deaths and our anxiety about death. We no longer have living, mortal relationships with objects either. They are reduced to the instrumental. It is as if we have a transparent veil between us. Symbolic exchange is based on a game, with game-like rules. When this disappears, laws and the state are invented to take their place. It is the process of excluding, marking, or barring which allows concentrated or transcendental power to come into existence. Through

splits, people turn the other into their ‘imaginary’. For instance, westerners invest the “Third World” with racist fantasies and revolutionary aspirations; the “Third World” invests the west with aspirational fantasies of development. In separation, the other exists only as an imaginary object. Yet the resultant purity is illusory. For Baudrillard, any such marking or barring of the other brings the other to the core of society. “We all” become dead, or mad, or prisoners, and so on, through their exclusion. The goal of ‘survival’ is fundamental to the birth of power. Social control emerges when the union of the living and the dead is shattered, and the dead become prohibited. The social repression of death grounds the repressive socialisation of life. People are compelled to survive so as to become useful. For Baudrillard, capitalism’s original relationship to death has historically been concealed by the system of production, and its ends. It only becomes fully visible now this system is collapsing, and production is reduced to operation. In

modern societies, death is made invisible, denied, and placed outside society. For example, elderly people are excluded from society. People no longer expect their own death. As a result, it becomes unintelligible. It keeps returning as ‘nature which will not abide by objective laws’. It can no longer be absorbed through ritual. Western society is arranged so death is never done by someone else, but always attributable to ‘nature’. This creates a bureaucratic, judicial regime of death, of which the concentration camp is the

ultimate symbol. The

system now commands that we must not die – at least not in any old way. We may only die if law and medicine allow it. Hence for instance the spread of health and safety regulations. On the other hand, murder and violence are legalised, provided they can be re-converted into economic value. Baudrillard sees this as a regressive redistribution of death. It is wrested from the circuit of social exchanges and vested in centralised agencies. For Baudrillard, there is not a social improvement here. People are effectively being killed, or left to die, by a process which never treats them as having value. On

the other hand, even when capitalism becomes permissive, inclusive and tolerant, it still creates an underlying anxiety about being reduced to the status of an object or a marionette. This appears as a constant fear of being manipulated. The slave remains within the master’s dialectic for as long as ‘his’ life or death serves the reproduction of domination.


Suruveillance = non public information Metadata is surveillance – expert consensus. Schneir 14 (Bruce, Chief Technology Officer of Resilient Systems, a fellow at Harvard's Berkman Center, and a board member of EFF., “Metadata = Surveillance”, 3/13/14, https://www.schneier.com/blog/archives/2014/03/metadata_survei.html, accessed 7/28/15)//RZ Ever since reporters began publishing stories about NSA activities, based on documents provided by Edward Snowden, we've been repeatedly assured by government officials that it's "only metadata." This might fool the average person, but it shouldn't fool those of us in the security field. Metadata equals surveillance data, and collecting metadata on people means putting them under surveillance. An easy thought experiment demonstrates this. Imagine that you hired a private detective to eavesdrop on a subject. That detective would plant a bug in that subject's home, office, and car. He would eavesdrop on his computer. He would listen in on that subject's conversations, both face to face and remotely, and you would get a report on what was said in those conversations. (This is what President Obama repeatedly reassures us isn't happening with our phone calls. But am I the only one who finds it suspicious that he always uses very specific words? "The NSA is not listening in on your phone calls." This leaves open the possibility that the NSA is recording, transcribing, and analyzing your phone calls -- and very occasionally reading them. This is far more likely to be true, and something a pedantically minded president could claim he wasn't lying about.) Now imagine that you asked that same private detective to put a subject under constant surveillance. You would get a different report, one that included things like where he went, what he did, who he spoke to -- and for how long -- who he wrote to, what he read, and what he purchased. This is all metadata, data we know the NSA is collecting. So when the president says that it's only metadata, what you should really hear is that we're all under constant and ubiquitous surveillance.

No Brightline between metadata and content. Kayyali 14 (Nadia, a member of EFF’s activism team, “In Klayman v. Obama, EFF Explains Why Metadata Matters and the Third-Party Doctrine Doesn't”, 11/3/14, https://www.eff.org/deeplinks/2014/11/klayman-v-obama-eff-explains-why-metadata-mattersand-third-party-doctrine-doesnt, accessed 7/28/15)//RZ The argument that the bulk collection of private information from millions of Americans is no big deal because it’s “just metadata” is a tired one. It’s been disproven by research—and it doesn't stand up to common sense. First, there’s no bright line. What is deemed “metadata” is often murky (such as subject lines and URLs) and context dependent—and not clearly distinguishable from content, which everyone agrees is protected by the Fourth Amendment.

Third Party Doctrine shouldn’t apply to surveillance debate – it is outdated in the legal age Talai, 14 - Andrew B., J.D., University of California, Berkeley, School of Law (“Drones and Jones: The Fourth Amendment and Police Discretion in the Digital Age,” June 2014, California Law Review, 102 Calif. L. Rev. 729, Lexis,//BR/) Justice Sotomayor's concurrence, on the other hand, began

by embracing the trespass approach as a "longstanding protection ... inherent in items of property that people possess or control." n209 But like Justice Alito, she was troubled by "electronic or other novel modes of surveillance that do not depend upon physical invasion." n210 Justice Sotomayor's approach went a step further than Alito's, considering several factors discussed in Part I: (1) the wealth of detail collected over intimate matters, n211 (2) exceedingly resource-efficient collection of data by law enforcement, n212 (3) the specter of governmental [*760] abuse, n213 and (4) the chilling effects on citizens' autonomy by pervasive surveillance. n214 While Justice

Sotomayor's concurrence also treated the mosaic theory as a special application of the Katz test - assessing society's expectations in the digital age - it was different in two respects. First, Justice Sotomayor embraced a democratic rationale (that is, abuse of discretion and chilling effects) for the Fourth Amendment. n215 Second, she recognized that democratic concerns arise "in cases involving even short-term monitoring." n216 Ultimately, her solution was to grapple with the public thoroughfare doctrine and third-party doctrines, n217 finding that in their present state, these are "ill suited to the digital age." n218 While the exact contours of the mosaic theory are far from clear, the Jones plurality "suggests that a majority of the Court is ready to embrace some form of the D.C. Circuit's mosaic theory." n219


States CP States – not the federal government – are the crucial agents of national security policy Howard ‘4 [Peter. Prof Intl Service at American. “The Growing Role of States in US Foreign Policy: The Case of the State Partnership Program” International Studies Perspectives, Vol 5 N2, 2004. Ebsco] Analyses of foreign policy that rely solely on a decision-making perspective miss the important role that states are playing in U.S. foreign and national security policy. While most of the primary decisions are still made by the president, his administration, and Congress, states are gaining an everincreasing role in implementing those decisions. The SPP is but one example. Guard units are also taking a greater role in peacekeeping activities in the Balkans, and may do so in a postwar Iraq. The intense focus on homeland security is yet another policy area where states will implement most policy decisions. The guard has already been active in domestic security operations, flying combat air patrols and providing airport security, and several studies and senators have advocated an even larger role for the guard in homeland security (Miller, 2002). Emergency response and law enforcement are still state and local responsibilities, and these areas are the new front lines in homeland security and the war on terrorism. The states, which perform these duties, have a vital say in how they will be done. As independent and entrepreneurial implementers, the states are carving out a larger role in shaping the environment in which federal decision makers act. Policy decisions are important, but many of those decisions lack meaning unless they create content and action. In the long run, policy implementation—the practice of what states and countries do with each other—produces the substance that give rules and identities their meaning. It is this meaning that ultimately forms the environment to which future decision makers respond. It is here that the federal government's monopoly in international affairs begins to erode and is here that states are finding an ever-growing role in U.S. foreign policy. .


( ) States are international agents – their actions send a sufficient signal Robinson ‘7 [Nick. Yale Law School, J.D. 2006. Currently Fox Fellow at Jawaharlal Nehru University, “Citizens Not Subjects: U.S. Foreign Relations Law and the Decentralization of Foreign Policy” The Akron Law Review, 2007. ln//GBS-JV]

And yet, state and local governments today have become deeply enmeshed in international affairs as globalization has decentralized foreign relations. On the one hand, localities have become more autonomous international actors than they ever were or could have been before. In pursuing interests with international implications, they tread in a sphere traditionally monopolized by the federal government . On the other hand, the

internationalization of many formerly domestic issues means that an increasing number of traditional state and local government actions now have foreign policy implications.The emergence of localities as actors in American foreign policy creates new possibilities for creating more participatory and democratic international relations. It also merely reflects a world where increased interconnectivity across borders and the global regulation of markets and values has collapsed local and international concerns. This article will argue that U.S. foreign relations law has failed to address this new reality. The

Supreme Court has largely clung either explicitly or implicitly to a jurisprudence that holds that the country should speak [*649] with "one voice" in foreign relations. Such a position is not only naive, but it also weakens American democracy. With globalization's commingling of

the local and the international, a strong judicial bias towards federalizing issues with a bearing on foreign relations will lead to a hollowing out of the decision-making power of localities. States and municipalities will risk becoming largely units of administrative governance.

( ) Uniform action generates the signal Chi ‘90 [Keon. Dir of the Council of State Governments, Prof PoliSci @ Georgetown. “Resurgence of Multistate Regionalism” July 90. www.csg.org//GBS-JV]

States gain several advantages when taking a regional approach as compared to working alone. First, a regional approach allows state officials to pool their expertise and experience. Second, a regional approach raises policy issues more effectively and, as a result, has a greater impact. Third, such an approach helps states better deal with crisis situations by sharing resources and facilities. Fourth, a regional approach can exert more influence and enhance state visibility in Washington and overseas. And, fifth, it is cost effective.

( ) State governments are representative of the USFG Robinson ‘7 [Nick. Yale Law School, J.D. 2006. Currently Fox Fellow at Jawaharlal Nehru University, “Citizens Not Subjects: U.S. Foreign Relations Law and the Decentralization of Foreign Policy” The Akron Law Review, 2007. ln//GBS-JV]

State and local governments are arguably seen as representing the U.S. government abroad in a more official capacity than U.S. non-state actors. The governments of these localities are democratically elected and so it is more likely that they will be seen as acting on behalf of the American people. Additionally, the federal government generally has a greater ability to control the actions of these localities than non-state actors. Therefore, there is a greater chance that nonintervention by the federal government to stop offensive activity will be seen as federal endorsement of such activity.Such logic though should caution against court intervention in these cases rather than encourage it. If localities' actions damage U.S. foreign policy interests, the federal government can easily preempt the state or local policies in question. Further, with the world's increased interconnectedness, it is more likely that if a foreign government takes offense to a locality's policy it can discriminate between the policy of the locality and the policy of the federal government. n155

( ) States are perceived as agents of the government – solve relations Blasé ‘3 [Julie. PhD Student in Govt @ Texas. “Has Globalization Changed US Federalism? The Increasing Role of US States in Foreign Affairs: Texas-Mexico Relations” Texas Dissertations, 2003. http://www.lib.utexas.edu/etd/d/2003/blasejm039/blasejm039.pdf //GBS-JV]

Although what the states and cities are doing may not rise to the level of federal law, many of these policy initiatives are in harmony with domestic policy goals. Collectively, it

can be argued, they serve to shape the foreign relations of the nation as a whole. Ivo

Duchacek sees no difference in relations conducted by federal actors and by subnational actors. “If by diplomatic negotiation we mean processes by which governments relate their conflicting interest to the common ones, there is, conceptually, no real difference between the goals of paradiplomacy and traditional diplomacy: the aim is to negotiate and implement an agreement based on conditional mutuality.”45 Brian Hocking objects to treating the foreign relations of subnational governments as if they were something distinct from the federal level. Hocking studies what happens in federal systems when foreign policy issues become local concerns. He sets his approach apart from the complex interdependence crowd, such as Duchacek, saying that ideas such as “paradiplomacy” places subnational activities outside of traditional diplomatic patterns. Hocking sees non-central governments

as integrated into a dense web of diplomatic interactions, in which they serve more as “allies and agents” in pursuit of national objectives rather than as flies in the ointment. “The nature of contemporary public policy with its dual domestic- international features, creates a mutual dependency between the levels of government and an interest in devising cooperative mechanisms and strategies to promote the interests of each level.”46 Rather than separating the activities of non-central governments from those of central governments, Hocking’s goal is to “locate” subnational governments in the traditional diplomatic and foreign policy processes initiated and carried through by the federal government.


PC key Obama pc key – prevents override Jackson 7/29/15 – USA Today reporter (David, Obama works overtime to sell Iran deal, USA Today, http://www.usatoday.com/story/news/nation/2015/07/29/obama-iran-nuclearhouse-democrats/30830857/)//JJ hard for congressional opponents to derail the Iran nuclear agreement, but President Obama mounting an aggressive campaign for it anyway. From the golf course to White House receptions to private briefings behind closed doors, Obama and other backers of the deal are busy making the case that it will deny Iran the ability to make nuclear weapons and remove the prospect of military confrontation with Tehran. In making its case, the Obama administration is facing a Republican-run Congress where leaders say the inspections system outlined in WASHINGTON — It's going to be and aides are

the agreement is leaky, and will give Iran room to cheat. While congressional Republicans have the numbers to force through a "resolution of disapproval" of the agreement,

Obama would veto it — forcing opponents to round up a two-thirds vote to actually defeat the deal. "I'm confident that we can prevail ," Treasury Secretary Jack Lew told reporters Wednesday. "But I think the burden is also on us to make the case." Obama himself is taking an active role , from phone calls to personal appeals. Earlier this month, he played a round of golf with a unique set of partners, three House Democrats who will be voting on the Iran agreement. Late Wednesday, Obama hosted a "working reception" in the White House for House Democrats to "discuss his legislative priorities, including the Iran agreement," according to his schedule. Obama disputes the idea that all this amounts to "lobbying." The president said this week that he and high-profile aides such as Lew, Secretary of State John Kerry and Energy Secretary Ernest Moniz are simply presenting the facts of an agreement that they say would shut down potential pathways to Iranian nuclear weapons. "It accomplishes our goal, which is making sure Iran does not have a nuclear weapon," Obama told reporters during his recent trip to Africa. "In fact, it accomplishes that goal better than any alternative that has been suggested." Under the agreement, the United States and allies will reduce economic sanctions on Iran as it gives up the means to make nuclear weapons. Critics say sanctions elimination will provide Iran millions with which to finance terrorism targeting Israel. Sen. John McCain, R-Ariz., chairman of the Senate Armed Services Committee, said during a hearing Wednesday that "the Iran agreement not only paves Iran's path to a nuclear capability ... it will further Iran's emergence as a dominant military power in

administration's selling efforts also target Popular opinion . According to a CNN/ORC poll this week, 52% of respondents said Congress should reject the Iran deal, while 44% said lawmakers should approve it. Most congressional Republicans have indicated opposition to the agreement. Some Democrats have expressed skepticism, and they are the focus of the Obama administration's sales efforts. Republican majorities — currently 246-188 in House and 54 of 100 senators — can push through a resolution of disapproval. An Obama veto would require the critics to muster a two-thirds override vote — an impossible task if Democrats stick together, the primary goal of agreement supporters. the Middle East." A 60-day time limit for congressional review of the deal expires in late September. The another audience:

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