GDI 15 Clapper AFF

Plan

1AC Plan
TEXT: The United States Supreme Court should curtail the domestic surveillance in the
United States by overruling Clapper v. Amnesty International on the 4 th Amendment
grounds.

Judicial Review Advantage

1AC Judicial Review Advantage

CONTENTION __ : Judicial Review
Clapper decision massively undermines the judicial authority---causes unfettered
executive power
Liz Clark Rinehart 14, J.D. Candidate, 2015, University of Maryland Francis King Carey School of Law,
CLAPPER v. AMNESTY INTERNATIONAL USA: ALLOWING THE FISA AMENDMENTS ACT OF 2008
TO TURN INCIDENTALLY INTO CERTAINLY MARYLAND LAW REVIEW [VOL. 73:1018, SSRN,
DOA: 7-1-15, y2k
In Amnesty International , the Supreme Court explained that the standing analysis is especially rigorous
when the Court must decide whether the executive or legislative branch has violated the Constitution.179
While not explicitly admitting that it was creating an exception for intelligence gathering activities, the Court stressed that it
ha[s] often found a lack of standing in cases in which the Judiciary has been requested to review actions of
the political branches in the fields of intelligence gathering and foreign affairs .180 To support this implied
deference to the executive , the Court cited the importance of separation of powers and limiting judicial
authority .181 The Courts deference is misplaced and ill-suited for the problems broad, indiscriminate surveillance
poses. The FISAs only check on the executive branch is the FISC system,182 which has shown itself unwilling to deny surveillance
applications, rejecting only eleven since 1979.183 At the same time, the number of applications has increased dramatically to more
than nine times the amount submitted in the first year.184 This imbalance is hardly a countervailing check on a

substantial executive power .185 In addition, the FISC has admitted it has inadequate resources and information to monitor
the immense power at stake and the
weakness of the current judicial check, the correct way to create a balanced separation of powers would
have been to expand the Supreme Courts authority through standing , or at least not to constrict it.
the activities of agencies once the application has been approved.186 Given

Scenario 1: Standing
A wave of environmental litigation cases is coming
Kirsten Nathanson, February 24, 2014 Environmental Litigation to Watch This Year,
http://www.law360.com/articles/511353/environmental-litigation-to-watch-this-year, ES)
Law360, New York (February 24, 2014, 1:06 PM ET) -- Plaintiff organizations continue to fight the energy and
hydrocarbon industries head-on, using arguments based on climate change theories, effects on wildlife,
and localized environmental impact. At the same time, they are litigating via indirect attacks against those
who supply and regulate the industries. In the coal industry, for example, well-funded plaintiffs are not only
taking coal-producing companies to court, they are also pursuing multiclaim litigation against proposed
coal export terminals, federal coal-leasing decisions, and even the transport of coal. In Alaska Community
Action on Toxics v. AES LLC, an action currently on appeal to the Ninth Circuit, a coal-loading terminal operator and the Alaska
Railroad fended off claims that coal dust and particles that made their way into the nearby bay violated the Clean Water Act, and in
Sierra Club v. BNSF, a suit pending in two federal courts in Washington state, the plaintiffs have sued a railroad to impose Clean
Water Act penalties because of the coal dust that falls off trains as they travel. There is also a growing number of cases

that aim to stop the development of industrial projects, especially those related to natural resource
extraction and energy generation. A common tactic: Rather than try to derail projects outright, delay them
for as long as possible using the National Environmental Policy Act. With this approach, the plaintiffs sue
the government agency providing the environmental analysis for the permit, questioning the process
behind the analysis rather than the actual findings. This results in delays and additional expense to the
regulatory piece of the project. If the courts rule that the agencys analysis didnt properly consider all the
right factors, the agency has to go back and do it all again. NEPA is not a new law, but it has traditionally
been used in a fairly localized way largely in not in my backyard efforts against highways, airports, and plants. Now
its being used on a broader scale and with a greater diversity of projects, even including wind and solar
projects. NEPA litigation has become very prolific. In the future, it is likely to play a role in the time it takes to build coalexporting facilities in the Northwest and in fighting the northern portion of the Keystone XL pipeline project, if and when that is
approved. Its reaching the point where companies planning major projects that involve federal permitting almost have to build
these delays into their schedules right from the start.

BUT- These environmental suits all fail due to the restrictive standing employed in the
Clapper decision
Wright 2012
(SEAN J. WRIGHT Attorney, Policy Division, Office of General Counsel, Federal Election Commission
Washington, District Of Columbia No Leg to Stand On: Clapper v. Amnesty International USA and the
Dawn of an Increasingly Strict Standing Doctrine, OHIO STATE LAW JOURNAL FURTHERMORE [Vol.
74 2012] http://moritzlaw.osu.edu/students/groups/oslj/files/2013/04/Furthermore.Wright.pdf ) BHSCW
Under the Roberts Court, Article III standing has become a threshold question21 that blocks public interest litigation.22 Clapper fits
the trend. But, the Courts broad language and reliance upon certainly impending harm to establish injury

in fact could herald an even stricter standard for all claims. The application of Clapper by the lower courts
is likely to be even more restrictivethrowing out civil rights and environmental suits on procedural
grounds.23 Clapper coincides with a number of recent cases that have narrowly viewed standing requirements. In Summers v.
Earth Island Institute, 24 the plaintiffs challenged a Forest Service regulation that exempted certain
timber sales from public comment and administrative appeal. There, the plaintiffs based standing upon
the regulations impact on their aesthetic enjoyment and recreational use of the forest. The Court, in a 54
decision, found this harm too remote and unlikely to occur.25 Specifically, while there was a chance this
harm would occur, it was hardly likely that plaintiffs wanderings will bring him to a parcel about to be
affected.26 In Daimler Chrysler Corp v. Cuno, 27 the Court found taxpayers challenging the constitutionality of a tax break
offered to car manufacturers lacked standing because their injury depended upon two additional actions occurring before being
harmed.28 The Clapper decision raises the already high bar for public interest plaintiffs. A straightforward

reading of Clapper means, in contexts like environmental litigation, that plaintiffs would need to
challenge discrete actions rather than overarching government regulations or policy statements .29 Clappers
reliance upon the stricter certainly impending standard means plaintiffs must show a more particularized injury to
sue. For example, since scientific disagreement on future harm based on exposure to environmental toxins
exists, it may be virtually impossible for a claimant to show with certainty that their exposure will lead to
imminent harm.30 This places environmental groups with limited resources at a strategic disadvantage.
This result can be replicated in most public interest-oriented litigation. For example, in City of Los Angeles v.
Lyons, 31 a plaintiff challenging the citywide use of a deadly chokehold could not establish standing to enjoin the policy because it
was unlikely he would be subjected to the chokehold again.32 But, hypothetical scenarios can be imagined.33 Under Clapper, these
scenarios would never reach a level of certainty. Without subjecting themselves to a potentially harmful policy, a plaintiffs claims
will be barred by the heightened Clapper standard. Additionally, there is merit to the belief that this case is really about ripeness34
rather than standing.35 This distinction has caused recent confusion; the parties in Summers believed ripeness would be dispositive
before the Court ruled on standing grounds.36 If plaintiffs must wait to challenge discrete actions to meet the certainly impending
standard, earlier challenges will not be ripe for review. The Court can clarify the standing-ripeness boundaries next term when it
reviews challenges to National Forest planning decisions.37 Simultaneously, this case may be a simple example of the Courts
hesitancy to weigh-in on national defense and security issues.38 Regardless, Clappers impact should influence not only how
plaintiffs determine what challenges to raise and how to plead their case, but also how defendants should respond to the suit. Now,
plaintiffs will be required to wait until actual injury has occurred.39 Primarily, this will force plaintiffs to focus on challenging
individual projects [or actions], rather than agency regulations or policy statements.40 In doing so, litigation will inevitably develop
around the scope of footnote 5. As Justice Breyers dissent insists, and the Courts language suggests, the degree of certainty required
is amorphous.41 Discerning when courts can rely upon a substantial risk rather than the certainly impending standard is unclear
at best. Ultimately, the Clapper decision presents itself as a continuation in the trend of heightened procedural

hoops for public interest plaintiffs seeking access to the federal court. Now, more than ever, the Roberts
Court seems disinterested in throw[ing] open the doors of the United States courts. 42
Overturning the precedent spurs citizen suits---thats key to effective environmental
protection
Bowman 8
(Margaret Bowman, Director, Environmental Program for Central and Eastern Europe THE ROLE OF
THE CITIZEN IN ENVIRONMENTAL ENFORCEMENT ROBERTS E. and DOBBINS J. Environmental
Law Institute - Washington DC., 2-15-8, http://www.inece.org/2ndvol1/roberts.htm)BHS-CW
2.3.2.1 "Citizen Suits" or "Enforcing Suits" One method of harnessing the energy and commitment of
citizens to effectuate public environmental protection goals is to authorize citizens to enforce
environmental laws and regulations. In the United States, most environmental statutes contain "citizen
suit" provisions enabling citizens to prosecute violators of the statutory regime. (39) Such citizen suit
provisions have their roots in over two hundred years of U.S. law. Since 1790, United States citizens have
been able in limited cases to sue to vindicate certain public rights -- those granted by statute to the
population as a whole. (40) These citizen suits have been used to enforce federal regulations in diverse
areas ranging from antitrust to consumer protection. (41) Citizen suit provisions are said to create

"private attorneys general," for they confer upon the individual the right to enforce public laws against
other citizens. Although the concept of a citizen suit is not new, the statutes permitting citizen
enforcement of environmental laws and regulations are unique. In most other areas where citizen suits
are permitted, a personal economic interest, such as an interest in correcting unfair competition or
preventing fraud, must coincide with the claimed public rights. In citizen suits brought under
environmental protection statutes, however, there is no such personal economic stake in the outcome. The
environmental statutes truly provide citizens with the authority to represent the interests of the public.
Environmental citizen suits, in their strongest form, might even be characterized as
permitting citizens to sue on behalf of the environment itself. The United States is almost
unique in this grant of power to the private citizen: Few other nations have extended such rights. (42) The
U.S. Clean Air Act (CAA), enacted in 1970, was the first federal environmental statute of the modern era
with a citizen suit provision. The CAA provision's underlying structure is the basis for citizen suit clauses
in almost every other major piece of federal environmental legislation. Today, citizens can bring suit
against private parties and government for violations of certain sections of statutes regulating air,
water, toxic waste, endangered species, mining, noise, the outer continental shelf, and
more. (43) Under many statutes, the remedies available to the citizen are equivalent to those granted to
the federal agency charged with administering the statute. (44) The basic citizen suit provision permits
any "person" (including an individual, organization, or corporation) to sue any other "person" (including
the United States) who is violating the requirements of the given Act. Before filing suit, a citizen must
notify state and federal agencies as well as the alleged violator that a lawsuit is impending. This notice
provision serves an important purpose, because the threat of a citizen suit often prompts the
violator to halt its violations, or at least to negotiate with the potential plaintiff . As long as
the violation continues and the state or federal government is not pursuing a "diligent enforcement"
action against the alleged violator in court, a lawsuit may be filed. Once the suit is filed, the government
has no power to dismiss it, and may affect the outcome only by intervening in the case. If the citizen
wins, the court may order the defendant to stop the violating activities. In certain
circumstances, the court costs and attorney fees associated with bringing the action may be awarded to
the plaintiff. Some statutes allow the plaintiff to ask the court to impose civil penalties upon the violator,
payable to the U.S. Treasury. (45)
US judiciary leads to environmental international modeling and exportation of court
precedents
Long, Assistant Professor of Law @ the Florida Coastal School of Law, 08 (Andrew, JD from
the Duke University School of Law in 2008; M.A. from the Duke University Nicholas School of the
Environment in 2008, International Consensus and U.S. Climate Change Litigation, William & Mary
Environmental Law and Policy Review, 33 Wm. & Mary Envtl. L. & Pol'y Rev. 177,
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1042&context=wmelpr, Fall 2008, DOA 0706-15, AX)
In a time of unfavorable global opinion toward the United States, explicit judicial involvement with international
norms will move the United States closer to the international community by acknowledging the relevance
of international environmental norms for our legal system. As in other contexts, explicit judicial internalization of
climate change norms would "build[ ] U.S. 'soft power,' [enhance] its moral authority, and strengthen[ ] U.S. capacity for global
leadership" 2 3 on climate change, and other global issues. More specifically, domestic judicial consideration of the

global climate regime would reaffirm that although the United States has rejected Kyoto, we take the
obligation to respect the global commons seriously by recognizing that obligation as a facet of the
domestic legal system. U.S. courts' overall failure to interact with the international climate regime , as in
other issue areas, has "serious consequences for their roles in international norm creation." 2" As judicial
understandings of climate change law converge, the early and consistent contributors to the transnational judicial dialogue will
likely play the strongest role in shaping the emerging international normative consensus.2"' As Justice L'Heureux- Dub6 of the
Canadian Supreme Court noted in an article describing the decline of the U.S. Supreme Court's global influence, "[diecisions which
look only inward ... have less relevance to those outside that jurisdiction." 6 Thus, if U.S. courts hope to participate in shaping the
normative position on climate change adopted by judiciaries throughout the world, explicit recognition of the relationship between
domestic and international law is vital. With climate change in particular, norm development through domestic
application should be an important aspect of global learning. The problem requires a global solution beyond the
scope of any prior multilateral environmental agreements. This provides a situation in which U.S. judicial reasoning in

applying aspects of climate regime thinking to concrete problems will fall into fertile international policy
soil. Accordingly, the recognition of international norms in domestic climate change litigation may play a
strengthening role in the perception of U.S. leadership, encourage U.S. development and exportation of effective

domestic climate strategies, and promote international agreements that will enhance consistency with such approaches. In short,

explicit judicial discussion of international climate change norms as harmonious with U.S. law can
enhance U.S. ability to regain a global leadership position on the issue and, thereby, more significantly
shape the future of the international climate regime.

Environmental collapse causes extinction

Marathe, Xynto communications advisor, 14 (Kaveri, Why our future depends on preserving
biodiversity, http://www.xynteo.com/articles/why-our-future-depends-on-preserving-biodiversity, 0721-14. DOA 07-01-15, AX)
Obviously a myriad of species adds to the colour, beauty and diversity of our world, which is worthy in and of itself. But furthermore,

an ecosystem can only thrive when the careful balance that supports it is maintained. Within this balance,
each species plays a critical role, controlling the populations of, or providing food for, other species within
the pyramid. When this balance is thrown off, not only are those ecosystems at risk of failure but also key
sources of food and compounds critical to developing new drugs and products are jeopardised for human
use. Scientific research in tropical places - and even in our proverbial backyards - has yielded hundreds of life-saving
medicines that have allowed humans to thrive, like penicillin and aspirin, and more than half of the
cancer drugs on the market. Without a richly biodiverse world, some of these medicines might never have
been discovered. As ecosystems collapse, we are exposed to other vulnerabilities such as increased
susceptibility to infectious diseases, food shortages and climate change. Deforestation, for example, aids
the spread of diseases like malaria and schistosomiasis, a parasitic intestinal infection, because humans
suddenly confront the animals that host these diseases when their habitats are lost. And, crucially,
biodiversity in crops and fish is essential to feeding our growing population. Overreliance on only a few
varieties of plants and animals leaves them vulnerable to drought or infection, and us vulnerable to food
scarcity. Furthermore, these plants rely on hundreds of other animal and bacteria species to thrive, like
pollinators, worms and birds. Insect pollination alone contributes an estimated 22 billion Euros to Europes agricultural
sector every year. As bees disappear, the nearly impossible task of pollinating all of our own crops will now fall to us. These
examples remind us how much we rely on our ecosystems to aid and protect us. As temperatures and water levels rise

and
weather patterns change, areas with reduced biodiversity will be less able to withstand these challenges
and maintain a healthy local environment. We see this in the form of desertification, coral bleaching and
eutrophication. Of special concern is the fact that where the most biodiverse environments exist, and where most biodiversity is
disappearing, is in our oceans only one per cent of which are protected. In essence, when we allow species some of
which go extinct before we have even discovered them to disappear, were losing resources that could
prove crucial to our own survival. We have lost our balance with nature and as our population continues to grow and
consume resources, we need to re-evaluate the systems we have in place that allow for indiscriminate growth at unchecked costs.

Scenario 2: Separation of Power

Standing in courts are key to guarantee judicial review and separation of power
Uniquely, Clappers standing is restrictive clarifying footnote added
Shinar 14
(Adam Shinar, Assistant Professor, Radzyner School of Law, Interdisciplinary Center, Herzliya. S.J.D. &
LL.M. Harvard Law School, LL.B. Hebrew University ENABLING RESISTANCE: HOW COURTS
FACILITATE DEPARTURES FROM THE LAW, AND WHY THIS MAY NOT BE A BAD THING,
LEGISLATION AND PUBLIC POLICY [Vol. 17:98 2014] http://www.nyujlpp.org/wpcontent/uploads/2015/03/Shinar-Enabling-Resistance-17nyujlpp990.pdf) BHS-CW
Although this criticism is important, it is not my focus here. Even assuming it is correct, we should not
overlook the true nature of standing. Any concept of standing must answer the question of how much
resistance can be tolerated within a legal system. While standing determines who may file a claim and
thus gain access to the courts, it also determines who and what will not be heard by the courts. When
there is no standing, the government can continue its conduct knowing that it will be
immune from judicial review. To demonstrate my claim, I will focus on the development of the
injury in fact requirement of the standing doctrine and how it applies to citizen and taxpayer suits. To
obtain standing the Court relies on a tripartite test. First, the plaintiff must demonstrate an injury in
fact, which needs to be concrete and particularized and actual or imminent.51 If the injury
complained of will take place in the future, the threatened injury must be certainly
impending.52 Other allegations of future injury, even if there is an objectively reasonable
likelihood that they will occur, are insufficient .53 Second, there needs to be a causal connection
between the injury and the conduct complained of.54 Third, it must be likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision.55 The demand that the plaintiff
demonstrate an injury in fact may seem straightforward, but the Court has yet to define what constitutes
an acceptable injury for standing purposes. Although the Court has held that a plaintiff must show an
injury that is real, rather than an abstract interest that the government obey the law,56 the scope of a real
injury is unclear, and is nowhere to be found in Article III.57 Clearly physical injuries would count, but
what about aesthetic58 or stigmatic59 injuries? Is being denied information an injury?60 What counts as
an injury is, then, inevitably a value-laden, non-neutral judgment.61 [53. Clapper v. Amnesty Intl USA,
133 S. Ct. 1138, 114655 (2013) (rejecting, on standing grounds, petition of non-U.S. persons concerned of
future surveillance under FISA amendments allowing government monitoring as long as the person is
reasonably believed to be located outside the United States).]
Separation of powers is key to legitimacy and heg
Knowles 09
(Robert Knowles, "American Hegemony and the Foreign Affairs Constitution" New York University Public
Law and Legal Theory Working Papers Paper 111. 2009 http://lsr.nellco.org/nyu_plltwp/111)BHS-CW
The legitimacy of American hegemony is strengthened and sustained by the democratic and accessible
nature of the U.S. government. The American constitutional separation of powers is an international
public good. The risk that it will hinder the ability of the U.S. to act swiftly, coherently or decisively in
foreign affairs is counter-balanced by the benefits it provides in permitting foreigners multiple points of
access to the government.349 Foreign nations and citizens lobby Congress and executive branch agencies
in the State, Treasury, Defense, and Commerce Departments, where foreign policy is made.350 They use
the media to broadcast their point of view in an effort to influence the opinion of decision-makers.351
Because the United States is a nation of immigrants, many American citizens have a specific interest in
the fates of particular countries and form ethnic lobbies for the purpose of affecting foreign policy.352
The courts, too, are accessible to foreign nations and non-citizens. The Alien Tort Statute is emerging as
an important vehicle for adjudicating tort claims among non-citizens in U.S. courts.353
Legitimacy of U.S. hegemonys key to global stability-prevents great power war

Fujimoto, US Army Lt. Colonel, 2012

(Kevin, Preserving U.S. National Security Interests Through a Liberal World Construct, 1-11,
http://www.strategicstudiesinstitute.army.mil/index.cfm/articles/Preserving-US-National-SecurityInterests-Liberal-World-Construct/2012/1/11)
The emergence of peer competitors, not terrorism, presents the greatest long-term threat to our national
security. Over the past decade, while the United States concentrated its geopolitical focus on fighting two land wars in Iraq and Afghanistan,
China has quietly begun implementing a strategy to emerge as the dominant imperial power within
Southeast Asia and the Indian Ocean. Within the next 2 decades, China will likely replace the United States as the Asia-Pacific regional

hegemonic power, if not replace us as the global superpower.1 Although China presents its rise as peaceful and non-hegemonic, its construction of naval
bases in neighboring countries and military expansion in the region contradict that argument. With

a credible threat to its leading

position in a unipolar global order , the United States should adopt a grand strategy of investment, building
legitimacy and capacity in the very institutions that will protect our interests in a liberal global construct of
the future when we are no longer the dominant imperial power . Similar to the Clinton era's grand strategy of
enlargement,2 investment supports a world order predicated upon a system of basic rules and principles ,
however, it differs in that the United States should concentrate on the institutions (i.e., United Nations, World Trade Organization, ASEAN, alliances,
etc.) that support a world order, as opposed to expanding democracy as a system of governance for other sovereign nations. Despite its claims of a
benevolent expansion, China is already executing a strategy of expansion similar to that of Imperial Japan's Manchukuo policy
during the 1930s.3 This three-part strategy involves: (i) (providing) significant investments in economic infrastructure for extracting natural
resources; (ii) (conducting) military interventions (to) protect economic interests; and, (iii) . . . (annexing) via installation of puppet governments.4
China has already solidified its control over neighboring North Korea and Burma, and has similarly begun more ambitious engagements in Africa and
Central Asia where it seeks to expand its frontier.5 Noted political scientist Samuel P. Huntington provides further analysis of the motives behind
China's imperial aspirations. He contends that China (has) historically conceived itself as encompassing a Sinic Zone'. . . (with) two goals: to become
the champion of Chinese culture . . . and to resume its historical position, which it lost in the nineteenth century, as the hegemonic power in East
Asia.6 Furthermore, China holds one quarter of the world's population, and rapid economic growth will increase its demand for natural resources from
outside its borders as its people seek a standard of living comparable to that of Western civilization. The

rise of peer competitors has

historically resulted in regional instability and one should compare the emergence of China to the rise of. . . Germany as the
dominant power in Europe in the late nineteenth century.7 Furthermore, the rise of another peer competitor on the level of the Soviet
Union of the Cold War ultimately threatens U.S. global influence , challenging its concepts of human rights, liberalism, and democracy; as
well as its ability to co-opt other nations to accept them.8 This decline in influence, while initially limited to the Asia-Pacific region,

threatens to result in significant conflict if it ultimately leads to a paradigm shift in the ideas and
principles that govern the existing world order . A grand strategy of investment to address the threat of China
requires investing in institutions, addressing ungoverned states, and building legitimacy through multilateralism. The
United States must build capacity in the existing institutions and alliances accepted globally as legitimate representative
bodies of the world's governments. For true legitimacy, the United States must support these institutions, not only when convenient, in order to avoid
the appearance of unilateralism, which would ultimately undermine the very organizations upon whom it will rely when it is no longer the global
hegemon. The United States must also address ungoverned states, not only as breeding grounds for terrorism, but as conflicts that threaten to spread
into regional instability, thereby drawing in superpowers with competing interests. Huntington proposes that the greatest source of conflict will come
from what he defines as one core nation's involvement in a conflict between another core nation and a minor state within its immediate sphere of
influence.9 For example, regional instability in South Asia10 threatens to involve combatants from the United States, India, China, and the surrounding
nations. Appropriately, the
the problem of weak

United States, as a global power, must apply all elements of its national power now to address
and failing states, which threaten to serve as the principal catalysts of future global

conflicts. 11 Admittedly, the application of American power in the internal affairs of a sovereign nation raises issues. Experts have posed the
question of whether the United States should act as the world's enforcer of stability, imposing its concepts of human rights on other states. In response
to this concern, The International Commission on Intervention and State Sovereignty authored a study titled, The Responsibility to Protect,12 calling
for revisions to the understanding of sovereignty within the United Nations (UN) charter. This commission places the responsibility to protect peoples
of sovereign nations on both the state itself and, more importantly, on the international community.13 If approved, this revision will establish a
precedent whereby the United States has not only the authority and responsibility to act within the internal affairs of a repressive government, but does
Any effort to legitimize and support a liberal world
construct requires the United States to adopt a multilateral doctrine which avoids the precepts of the
previous administratio n: preemptive war, democratization, and U.S. primacy of unilateralism,14 which have resulted in
the alienation of former allies worldwide. Pr edominantly Muslim nations, whose citizens had previously looked to the United States

so with global legitimacy if done under the auspices of a UN mandate.

as an example of representative governance, viewed the Iraq invasion as the seminal dividing action between the Western and the Islamic world.
Appropriately, any future American interventions into the internal affairs of another sovereign nation must first seek to establish consensus by gaining
the approval of a body representing global opinion, and must reject military unilateralism as a threat to that governing body's legitimacy. Despite the
long-standing U.S. tradition of a liberal foreign policy since the start of the Cold War, the famous liberal leviathan, John Ikenberry, argues that the
post-9/11 doctrine of national security strategy . . . has been based on . . . American global dominance, the preventative use of force, coalitions of the
willing, and the struggle between liberty and evil.15 American foreign policy has misguidedly focused on spreading democracy, as opposed to building
a liberal international order based on universally accepted principles that actually set the conditions for individual nation states to select their own
system of governance. Anne-Marie Slaughter, the former Dean of the Woodrow Wilson School of Public and International Affairs, argues that true
Wilsonian idealists support liberal democracy, but reject the possibility of democratizing peoples . . .16 and reject military primacy in favor of
supporting a rules-based system of order. Investment

in a liberal world order would also set the conditions for the United
States to garner support from noncommitted regional powers (i.e., Russia, India, Japan, etc.), or swing
civilizations, in countering China's increasing hegemonic influence .17 These states reside within close proximity to
the Indian Ocean, which will likely emerge as the geopolitical focus of the American foreign policy during the 21st century, and appropriately have
the ability to offset China's imperial dominance in the region.18 Critics of a liberal world construct argue that idealism is not
necessary, based on the assumption that nations that trade together will not go to war with each other.19 In response, foreign affairs columnist Thomas
L. Friedman rebukes their arguments, acknowledging the predicate of commercial interdependence as a factor only in the decision to go to war, and
argues that while

globalization is creating a new international order, differences between civilizations still

create friction that may overcome all other factors and lead to conflict .20 Detractors also warn that as China grows in
power, it will no longer observe the basic rules and principles of a liberal international order, which largely result from Western concepts of foreign
relations. Ikenberry addresses this risk, citing that China's leaders already recognize that they will gain more authority within the existing liberal order,
as opposed to contesting it. China's leaders want the protection and rights that come from the international order's . . . defense of sovereignty,21 from
which they have benefitted during their recent history of economic growth and international expansion. Even

if China executes a peaceful

rise and the United States overestimates a Sinic threat to its national security interest, the emergence of a new imperial power will
challenge American leadership in the Indian Ocean and Asia-Pacific region. That being said, it is more likely that China, as
evidenced by its military and economic expansion, will displace the United States as the regional hegemonic power. Recognizing this threat now, the
United States must prepare for the eventual transition and immediately begin building the legitimacy and
support of a system of rules that will protect its interests later when we are no longer the world's only
superpower.
The alternative is regional blocs and great power war

Zhang et al., Carnegie Endowment researcher, 2011

(Yuhan, Americas decline: A harbinger of conflict and rivalry, 1-22,
http://www.eastasiaforum.org/2011/01/22/americas-decline-a-harbinger-of-conflict-and-rivalry/)
This does not necessarily mean that the US is in systemic decline, but it encompasses a trend that appears to be negative and perhaps alarming.
Although the US still possesses incomparable military prowess and its economy remains the worlds largest, the once seemingly indomitable chasm that
separated America from anyone else is narrowing. Thus, the

global distribution of power is shifting, and the inevitable

result will be a world that is less peaceful, liberal and prosperous, burdened by a dearth of effective
conflict regulation. Over the past two decades, no other state has had the ability to seriously challenge the
US military. Under these circumstances, motivated by both opportunity and fear, many actors have

bandwagoned with US hegemony and accepted a subordinate role. Canada, most of Western Europe, India, Japan, South
Korea, Australia, Singapore and the Philippines have all joined the US, creating a status quo that has tended to mute great power conflicts.

However, as the hegemony that drew these powers together withers, so will the pulling power behind the
US alliance. The result will be an international order where power is more diffuse , American interests and influence
can be more readily challenged, and conflicts or wars may be harder to avoid. As history attests, power decline and
redistribution result in military confrontation. For example, in the late 19th century Americas emergence as a regional power saw it
launch its first overseas war of conquest towards Spain. By the turn of the 20th century, accompanying the increase in US power and waning of British
power, the American Navy had begun to challenge the notion that Britain rules the waves. Such a notion would eventually see the US attain the status
of sole guardians of the Western Hemispheres security to become the order-creating Leviathan shaping the international system with democracy and
rule of law. Defining this US-centred system are three key characteristics: enforcement of property rights, constraints on the actions of powerful
individuals and groups and some degree of equal opportunities for broad segments of society. As

a result of such political stability,

free markets, liberal trade and flexible financial mechanisms have appeared. And, with this, many
countries have sought opportunities to enter this system, proliferating stable and cooperative relations.

However, what will happen to these advances as Americas influence declines? Given that Americas authority, although sullied at times, has benefited
people across much of Latin America, Central and Eastern Europe, the Balkans, as well as parts of Africa and, quite extensively, Asia, the answer to this
question could affect global society in a profoundly detrimental way. Public

imagination and academia have anticipated that a

post-hegemonic world would return to the problems of the 1930s: regional blocs, trade conflicts and
strategic rivalry. Furthermore, multilateral institutions such as the IMF, the World Bank or the WTO
might give way to regional organisations. For example, Europe and East Asia would each step forward to
fill the vacuum left by Washingtons withering leadership to pursue their own visions of regional political and economic orders. Free markets
would become more politicised and, well, less free and major powers would compete for supremacy.
Additionally, such power plays have historically possessed a zero-sum element . In the late 1960s and 1970s, US
economic power declined relative to the rise of the Japanese and Western European economies, with the US dollar also becoming less attractive. And,
as American power eroded, so did international regimes (such as the Bretton Woods System in 1973). A world

without American
hegemony is one where great power wars re-emerge, the liberal international system is supplanted by an
authoritarian one, and trade protectionism devolves into restrictive, anti-globalisation barriers . This, at least,
is one possibility we can forecast in a future that will inevitably be devoid of unrivalled US primacy.

Heg without legitimacy causes violent transitionsvoluntary limits on power maintain

relative stability

Griffiths, Griffith IR professor, 2004

(Martin, Beyond The Bush Doctrine: American Hegemony And World Order, Australian Journal of
American Studies, www.anzasa.arts.usyd.edu.au/a.j.a.s/Articles/1_04/Griffiths.pdf )
In international relations, an established hegemony helps the cause of international peace in a number of
ways. First, a hegemon deters renewed military competition and provides general security through its
preponderant power. Second, a hegemon can, if it chooses, strengthen international norms of conduct .
Third, a hegemons economic power serves as the basis of a global lending system and free trade regime,
providing economic incentives for states to cooperate and forego wars for resources and markets . Such was
the nature of British hegemony in the nineteenth century, hence the term Pax Britannica. After the Second World War, the United States has performed

much of the peace between

democracies after World War Two can be explained by the fact that the political-military hegemony of the
United States has helped to create a security structure in Europe and the Pacific conducive to peaceful
interaction. Today, American hegemony is tolerated by many states in Europe and Asia, not because the
United States is particularly liked, but because of the perception that its absence might result in
aggression by aspiring regional hegemons. However, Chalmers Johnson has argued that this is a false perception promoted from
the roles that Britain once played, though with an even greater preponderance of power. Thus,

Washington to silence demands for its military withdrawal from Japan and South Korea.8 It is true that hegemonic stability theory can be classified as
belonging in the realist tradition because of its focus on the importance of power structures in international politics. The problem is that power alone
cannot explain why some states choose to follow or acquiesce to one hegemon while vigorously opposing and forming counter-alliances against another
hegemon. Thus

when international relations theorists employ the concept of hegemonic stability, they
supplement it with the concept of legitimacy.9 Legitimacy in international society refers simply to the
perceived justice of the international system. As in domestic politics, legitimacy is a notoriously difficult factor to
pin down and measure. Still, one cannot do away with the concept, since it is clear that all political orders
rely to some extent on consent in addition to coercion. Hegemony without legitimacy is insufficient to
deter violent challenges to the international order, and may provoke attempts to build counter-alliances
against the hegemon . Hegemonic authority which accepts the principle of the independence of states and
treats states with a relative degree of benevolence is more easily accepted . The legitimacy of American hegemony during
the cold war was facilitated by two important characteristics of the era. First, the communist threat (whether real or imaginary) disguised the tension
between the United States promotion of its own interests and its claim to make the world safe for capitalism.10 Second, American

hegemony

managed to combine economic liberalism between industrialised states with an institutional architecture
(the Bretton Woods system) that moderated the volatility of transaction flows across borders. It enabled
governments to provide social investments, safety nets and adjustment assistance at the domestic level .11
In the industrialised world, this grand bargain formed the basis of the longest and most equitable
economic expansion in human history, from the 1950s to the 1980s. And it provided the institutional
foundation for the newest wave of globalisation, which began not long thereafter and is far broader in
scope and deeper in reach than its nineteenth century antecedent. The system that the United States led the way in creating
after 1945 has fared well because the connecting and restraining aspects of democracy and institutions reduce the incentives for Western nations to
engage in strategic rivalry or balance against American hegemony. The strength of this order is attested to by the longevity of its institutions, alliances
and arrangements, based on their legitimacy in the eyes of the participants. Reacting against the closed autarchic regions that had contributed to the
world depression and split the globe into competing blocs before the war, the United States led the way in constructing a post-war order that was based

rules and institutions that were organised to

support domestic economic stability and social security .12 This order in turn was built around a basic
bargain: the hegemonic state obtains commitments from secondary states to participate in the
international order, and the hegemon in return places limits on the exercise of its power . The advantage for the
on economic openness, joint management of the Western political-economic order, and

weak state is that it does not fear domination or abandonment, reducing the incentive to balance against the hegemon, and the leading state does not
need to use its power to actively enforce order and compliance .

It is these restraints on both sides and the willingness to

participate in this mutual accord that explains the longevity of the system, even after the end of the cold
war. But as the founder and defender of this international order, the United States, far from being a
domineering hegemon, was a reluctant superpower.
Unfettered executive power causes nuclear war
Lambert, Ph.D, 2014
[Craig, March-April 2014, Harvard Magazine, Nuclear Weapons or Democracy,
http://harvardmagazine.com/2014/03/nuclear-weapons-or-democracy, 7/2/15 DOA, DL]
IN HER BOOK, Scarry asserts that the United States, a country formerly dependent on its population, its legislature, and its
executive acting in concert for any act of defense has now largely eliminated its population and its legislature from

the sphere of defense, and relies exclusively on its executive. Nuclear weapons are monarchic.
Along with other weapons of mass destruction, they are what Scarry calls out-of-ratio weapons: ones
that give a very small number of people the power to annihilate very large numbers of
people. An out-of-ratio weapon makes the presence of the population at the authorization end [of an
attack] a structural impossibility, she writes. New weapons inevitably change the nature of warfare, she
says, but out-of-ratio weapons have changed the nature of government. In a practical sense, the speed
and scale of an incoming nuclear attack make the notion of congressional authorization of war ridiculous; such arms are
fundamentally beyond democratic control. We had a choice: get rid of nuclear weapons or get
rid of Congress and the citizens, Scarry explains. We got rid of Congress and the
citizens. Since the bombings of Hiroshima and Nagasaki in 1945, American presidents have been well aware that
having a finger on the nuclear trigger gives them monstrous power that dwarfs the petty squabbles of
day-to-day political life. During the 1974 impeachment proceedings of Richard Nixon, he told the press,
I can go into my office and pick up the telephone, and in 25 minutes 70 million people will
be dead. The concentration of such outsized violent force in the hands of the American
president (and of the leaders of the other eight nuclear powers) has, Scarry argues, largely
undermined the three-part design of government that the framers of the Constitution
created to separate legislative, judicial, and executive power. Instead, Washington has
become like a three-handed poker game in which one player holds all the high cards and
billions of chips. In Article I, Section 8:11, the Constitution insists on a congressional declaration for war to take place, Scarry
says, yet, since the invention of atomic weapons, there has not been a formal congressional declaration of war. (The closest case
was Congresss conditional declaration for the Gulf War.) Thermonuclear Monarchy describes the five cases of declared war in
American history: the War of 1812, the Mexican War of 1846, the Spanish-American War, and the two World Wars. Scarry remarks
on how majestic Congress was in those cases. THE AWESOME POWER that nuclear weapons invest in
the executive branch essentially disables the legislative one, she writes. [O]nce Congress was

stripped of its responsibility for overseeing waras happened the moment atomic weapons were invented
it was, in effect, infantilized.Now, six decades later, book after book has appeared describing Congress as dysfunctional
or dead. Once Congress regains its authority over war, however, there is every reason to believe it will travel back along the reverse
path, reacquiring the stature, intelligence, eloquence, and commitment to the population it once had. Civic stature and military
stature are intimately linked. Scarry points to the passage of the Fifteenth Amendment, which enfranchised African-American men.

It came on the heels of the Civil War, in which 180,000 black soldiers fought; given this, blacks could hardly be denied the right to
vote. Similarly, the Twenty-Sixth Amendment, lowering the voting age from 21 to 18, was ratified after many teenaged soldiers had
fought and died in the Vietnam War. It is tempting to think that a country with monarchic arrangements in the realm of nuclear
war can maintain a more attractive form of government throughout the rest of its civil fabric, she writes. That would be a mistake.
A country is its arrangements for national defense. The Constitution and, more generally, the social contract, purposely make it
difficult to go to war. Scarrys book makes clear that the social contract arises from the need to prevent the injuries that people living
in groups so often cause one another. The solution involves putting brakes on the concentration of power. The only way you can
civilize force is to distribute it: give everyone a small share, she says, adding that the Second Amendments insistence on the
citizens right to bear arms underlines this principle. Urging that military powers be held within the social contract, John Locke
similarly warned, she notes, that anyone is in a much worse condition, who is exposed to the arbitrary power of one man, who has
the command of 100,000, than he that is exposed to the arbitrary power of 100,000 single men. Nuclear weapons eliminate

individual soldiers; they condense the injuring power that formerly depended on thousands of soldiers
into a single weapon, and place it at the disposal of a solitary leader. Actions that cause major injury, like going to
war, require collective decisionmakingwhich gives a great braking power, she says. You dont want to put impediments in the
way of the good things in lifethings like liberty, lovemaking, party-going, studying, helping others. The social contract puts
impediments in the way of one thing: injury. War surely causes more injury and death than any other action arising from human
intentions, and the Constitution (written in the wake of the Revolutionary War) puts a double brake on warfare. War must pass
through two gates to become a reality. One is Congress, with its responsibility (now shirked) to declare war. The second brake is the
general population. The mere fact that you required the citizens to fight meant that the citizenry could say yes or no, she explains.
A war doesnt get fought if the population doesnt want it fought. People like to say, Soldiers obeythey do what theyre told, she
continues. Its not true. Soldiers do what they are told, but they do it thoughtfullyand sometimes they dont. The War of 1812
ended when it did because the population, including soldiers and sailors, did not feel strong support for it. There were soldier strikes
all over England and Canada at the end of World War I; Winston Churchill wrote to Lloyd George saying he wanted to go into Russia
to support the Whites against the Reds, but the soldiers wont let me. A big reason the South lost the Civil War was that 250,000
soldiers deserted; every time Robert E. Lee looked over his shoulder, he saw a smaller army. Soldiers ratify a war. THE

SECRECY that cloaks nuclear policy and the technical aspects of nuclear armswhat happens in the
private huddles between a president and his advisers, for examplekeeps these policies insulated from
any genuine, searching critique, she believes. Even the weapons themselves remain sequestered in deepsea waters, high in the sky, or at remote land locations in Wyoming, Montana, or North Dakota, for
example. It can be difficult even to communicate with the military personnel trusted to oversee them. The
USS Rhode Island is one of 18 Ohio class submarines armed with nuclear ballistic or
guided missiles that patrol the worlds waters. Its armaments can destroy all human,
animal, and plant life on a continent. When deeply submerged, as in wartime or any moment of high political
tension, Scarry writes,it can o-n-l-y-r-e-c-e-i-v-e-t-i-n-y-a-m-o-u-n-t-s-o-f-i-n-f-o-r-m-a-t-i-o-n-v-e-r-y-v-e-r-y-s-l-o-w-l-y. In
fact, the first three letters of the hyphenated message would have taken fifteen minutes to arrive, and the submarine would have had
no way to confirm its receipt of the letters. The information gets conveyed, she explains, in Extremely Low Frequency (or ELF)
waves, giant radio waves each 2500 miles in length that can (unlike any other band of the electromagnetic spectrum) penetrate the
ocean depths. Until 2004, ELF waves were launched by a giant antenna in Michigan and Wisconsin that is eighteen acres in size.
(The Navy has not disclosed the successor to ELF.) The nuclear-armed submarine, then, is an obscenely powerful engine of
destruction and death that, at the most critical moments, seems all but incommunicado. Thermonuclear Monarchy builds on this:
to say nuclear weapons are ungovernable is to say that they are unreachable by the human will, the populations of the earth can
have no access to them. The membrane that separates us from their lethal corridors is one-directional: the weapons may suddenly
unzip the barrier, erupt into our world, eliminate us; but we cannot, standing on the other side, unzip the barrier, step into their
world, and eliminate them. She elaborates: People say, Once something is invented it cant be un-invented. What are we talking
about? These things weve invented can kill and destroy the whole earth, but we cant get rid of them? Of course we can. The Ohio

class submarines nicely epitomize the furtiveness of the nuclear world. Eight new ones were launched
between 1989 and 1997, during the years of the so-called peace dividend. Each of these subs carries
nuclear weapons with eight times the total blast power expended by all Allied and Axis
countries in World War II. The 14 Trident II SSBNs (ballistic-missile launching
submarines) have, among them, the firepower to kill all life on 14 continents. There are only
seven continents, Scarry dryly remarks. Even so, news reports did not cover the launching, christening, and commissioning of any
of these submarines, even in the states whose names they bore. The shroud of secrecy keeps the general citizenry ignorant of basic
facts about the nations nuclear arrangements. Most Americans do not realize that the country has a first-use policy. A 2004 poll
found that the majority estimated that the United States has 200 nuclear weapons; the actual current figure is 7,700. Meanwhile, 73
percent of Americans say they want the total elimination of nuclear weapons, as do similar proportions of Russians and Canadians.
The United States and Russia are now reducing their stockpiles of nuclear warheads in accordance with negotiated agreements. This
is a positive step, Scarry says, though she cautions that the reductions in forces may simply be a way to retire obsolete weapons to
make way for newer ones. (Twelve more Ohio class submarines are slated for construction between 2019 and 2035.) RECENT
SCIENTIFIC WORK on the nuclear winter (the hypothetical climate change following a nuclear exchange), Scarry reports,
indicates that any country launching a nuclear attack would be committing suiciderendering the weapons, in effect, unusable. An
exchange that exploded as little as 0.015 percent of the worlds nuclear arsenal say, between
lesser nuclear powers like India and Pakistancould leave 44 million dead immediatelyand one billion

more people likely to perish in the following month, given the effect on food supplies and
the disruption of agriculture. During the Cuban missile crisis, President John F. Kennedy stated that the United States
had no quarrel with the Cuban people or the Soviet people. But, Scarry says, These weapons are not designed for a

showdown of political leaders. They are going to massacre the citizens. No weapon ever invented has
remained unused. Does anyone think that in the next 100 years, one of these governments
that has them, wont use them? In a 2005 Foreign Policy essay, Apocalypse Soon, Robert McNamara bluntly
declared, U.S. nuclear weapons policy [is] immoral, illegal, militarily unnecessary and dreadfully
dangerous. Scarry agrees, and declares, Nuclear weapons have to be gotten rid of, worldwide. But this cannot be done if the
United States is just sitting there with this huge arsenal, which dwarfs what any other nation has. We worry about Iran and North
Korea and the huge existential threat if these countries get nuclear weapons. What is mysterious, though, is that we fail to see the
huge existential threat that we pose to the world with what is by far the most powerful nuclear arsenal anywhere. In 1995, 78
countries asked the International Court of Justice to declare nuclear arms illegal. In response, the U.S. Departments of Defense and
State jointly argued that using, and even making first use of, nuclear weapons does not violate any treaty regarding human rights or
the environment. Nor would the death of millions via a nuclear attack violate the 1948 UN convention on genocide; they asserted
that genocide applies only to the annihilation of national, ethnic, racial, or religious groups.

Uniqueness Executive Power High

The Executive branch flouted both the Judicial and the Legislative branch on torture issues

Quigley, Indiana University School of Law Professor, 2010

[Fran, Winter 2010, Cornell Journal of Law and Public Policy, TORTURE, IMPUNITY, AND THE NEED
FOR INDEPENDENT PROSECUTORIAL OVERSIGHT OF THE EXECUTIVE BRANCH, 20 Cornell J. L.
& Pub. Pol'y 271, Lexis, DL]
C. The Realities of Unchecked Executive Power Recent events have not supported this laissez-faire confidence in the
existing system of indirect Executive Branch oversight. When the Bush Administration sanctioned torture, Congress
did in fact attempt to control Executive Branch malfeasance by the same types of hearings n57 and media
advocacy, n58 which Carter, Calabresi, and Terrell claimed would be effective. n59 Led by the public advocacy of Senator
John McCain, a survivor [*283] of torture during his years of captivity during the Vietnam War, Congress enacted the
Detainee Treatment Act of 2005, n60 which expressly prohibited cruel, inhuman, or degrading treatment
of any person in U.S. custody. n61 Yet Congress did not appoint a special counsel, and the Executive Branch
remained free from accountability for criminal violations of the many pre-existing laws governing
prisoner treatment. n62 Furthermore, the Department of Justice diluted the impact of this new legislation
by redefining the Administration's existing torture activities to seemingly conform with the terms of the
new law. n63 The Judicial Branch attempted to intervene in Executive Branch torture practices as well. In
the 2006 case of Hamdan v. Rumsfeld, n64 the Supreme Court rejected President Bush's stated detainee
policy by holding that the Geneva Conventions' prohibition of mistreatment of war detainees applied to
al-Qaeda suspects. n65 Consistent with existing Court precedent, Hamdan held that intentional infliction of pain for
interrogation purposes "shocks the conscience" - the standard that the Senate [*284] adopted when ratifying the Convention Against
Torture n66 - and thus violates the Due Process Clause of the U.S. Constitution. n67 Again, Department of Justice lawyers

responded by simply changing definitions rather than the underlying objectionable activities, as they
produced new memoranda that argued that existing CIA activities complied on paper with the judicial
rulings. n68 Perhaps the most notorious example is the August 1, 2002 Memorandum from Jay S. Bybee, Assistant Attorney
General to White House Counsel Alberto Gonzales, which claimed that the "severe physical or mental pain or suffering" criminalized
under the U.S. statute implementing the Convention Against Torture n69 must rise to a level associated with "death, organ failure or
serious impairment of body functions" in order to constitute torture. n70 Several years later Harold Hongju Koh, then-Dean of Yale
Law School, told Congress that Bybee's opinion was "perhaps the most clearly erroneous legal opinion [he had] ever read." n71 The

Legislative and Judicial Branches having failed to control Executive Branch torture activities, the only
remaining hope was Justice Scalia's "political check" on executive powers . n72 But if Legislative and Judicial
Branch attempts to curb the Executive Branch torture crimes resulted in complete strike-outs, the political check was a sharp linedrive finding its way into the opponent's waiting glove - a more promising prospect that nevertheless resulted in nothing more than
the final out.

The Executive branch has too much power

Paulsen, Associate Professor of Law, University of Minnesota

Law School, 1994

[Michael Stokes, December 1994, Georgetown Law Journal, The Most Dangerous Branch: Executive
Power to Say What the Law Is, p. 219-221, Lexis, DL]
Alexander Hamilton, writing in The Federalist No. 78, referred to the judiciary as the "least dangerous" branch of government, a
phrase popularized in our times by Alexander Bickel's celebrated book, The Least Dangerous Branch. The judiciary would be
the department least dangerous "to the political rights of the constitution," n1 Hamilton wrote, because, in

a government where the executive, legislative, and judicial departments of government are separated from
each other, Hamilton noted, the judiciary "will be least in a capacity to annoy or injure" n2 the rights of the
people. That is because it has the least constitutional power: The executive not only dispenses the honors, but holds
the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and
rights of every citizen are to be regulated. The judiciary on the contrary has no influence over either the sword or the purse, no
direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have
neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of
its judgments. n3 If the judiciary is the least dangerous branch, then, by these same criteria, the executive is the most

dangerous branch. The executive possesses Force, Will, and "Judgment" -- the power to interpret the law.
The President has Force: He has the sole duty and prerogative to direct and control the manner in which
the laws are executed (the "executive power") n4 and the power to command the military forces of the

nation in case of war, insurrection, or emergency. n5 The President has Will: In the Hamiltonian sense of
that term, the President has power to make law; to determine the substance of rules "by which the duties
and rights of every citizen are to be [*220] regulated." He participates in the legislative process by making
recommendations and presenting messages to Congress, as well as by exercising the formidable negative
and agenda-shaping positive power of the veto. n6 In the modern administrative state, he has substantial
implicit and/or delegated legislative power to prescribe rules -- laws, really -- in the capacious interstices
of broad statutory directives. Perhaps most important of all, the President has, as a logical incident of his
textually specified powers, the ancillary power of Judgment: the formidable power to interpret the laws he
is charged with executing and (sometimes) that he has had a role in making. The power to interpret law -the power, in Marbury v. Madison's famous words, "to say what the law is" n7 -- is a superpower or, if you
prefer, a "meta-power," that effectively determines the construction and scope of all other governmental
powers and of individual rights. As Benjamin Hoadley, Bishop of Bangor, astutely observed in 1717, "Whoever hath an
absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents
and purposes, and not the person who first wrote or spoke them." n8 It has become fashionable in modern times, as
it was among some opponents of the Constitution's adoption, to point the finger ominously at the Supreme Court as the true
lawgiver: an unelected, unaccountable, elite cabal of life-tenured lawyers who enjoy complete power to run the nation by virtue of
their supreme power to interpret the Constitution, treaties, and laws of the nation. n9 Even as far back as 1962, well before judicial
activism reached full flower with the late Warren and early Burger courts, Bickel wrote that "[t]he least dangerous branch of the
American government is the most extraordinarily powerful court of law the world has ever known." n10 But the tendency to identify
the power to interpret law with judicial preeminence is, in the main, a modern one. Hamilton, in The Federalist [*221] No. 78,
vigorously denied Anti-Federalist charges that the Constitution established judicial supremacy. n11 He sought to assuage fears of a
powerful, elitist national judiciary by arguing that the courts were, in comparison to the other branches, weak and dependent.
Hamilton argued that the judges had merely judgment, not that they had all power of judgment or even "final" judgment. Moreover,
unlike the other branches, the judiciary had no concrete powers like purse and sword with which to carry their judgments into effect.
Rather, in a revealing and important clincher, Hamilton noted that the judiciary "must ultimately depend upon the aid of the
executive arm even for the efficacy of its judgments." n12

Uniqueness Environmental Litigation Coming

Environmental Ltitgations high right now
Chairman Rob Bishop, May 14, 2015, (Subcommittee Reviews Litigation Impediments for

Forest Health, http://naturalresources.house.gov/news/documentsingle.aspx?

DocumentID=398568 , ES)
WASHINGTON, D.C., May 14, 2015 - Today, the

House Natural Resources Subcommittee on Federal Lands held

an oversight hearing on the impact of litigation on forest management, the U.S. Forest Services response
to the growing challenge of litigation, and related impacts upon forest health. "There is no doubt that
litigation has had a profound impact on the Forest Service and subsequently the management and
mismanagement of our national forests. Millions of taxpayer dollars are spent on shuffling paper, over-analysis and

ensuring process is followed. We currently estimate planning and environmental analyses are roughly 60% of the costs of forest
management projects," stated Subcommittee Chairman Tom McClintock (CA-04). "The increased cost of paperwork does not
translate into greater benefits to the environment. In fact, its just the opposite. The greatest threat to many endangered species and
their habitat is catastrophic wildfire. Yet rather than thinning the forest to protect this habitat, were spending

millions upon millions on extraordinarily long, complicated, voluminous documents that impede our
ability to properly manage the forests for the benefit of all species." Former U.S. Forest Service Chief Dale
Bosworth stated in written testimony, While many environmental laws were originally passed for good reason at a time when more
checks and balances were needed, the situation has dramatically changed. Now communities are coming together at

unprecedented levels to find common ground and to address the increasing threats of insects, disease,
invasive species and wildfire. Unfortunately, the sheer multitude of laws, and their expansion by the courts have led to

processes almost unintelligible to reasonable people. All of us understand that significantly more restoration needs to occur through
aggressive active management. We do not have a fire problem on our nations forests, we have a land management problem, and it
needs to be addressed quickly, Bosworth reiterated during the hearing (click here to watch). Given the high threat of

litigation and the limited resources to make and review the necessary management planning decisions,
the result is truly Analysis Paralysis! The cost of litigation , as well as time and effort required of USFS
staff to address litigation, is a significant burden , stated Dave Schulz, Commissioner, Madison County, Montana, in his
testimony. The consequences are a domino effect that results in forest management coming to a standstill. I think there are
environmental consequences to any action we take, and if were not cautious and careful and cooperative toothat can cause harm,
Schulz reiterated during the hearing (click here to watch). At the same time, theres an environmental consequence to

doing nothing, and thats what Im concerned about.

Environment Litigations are rising via NEPA
Sandra A. Snodgrass, 15, (National Environmental Policy Act Practice,
http://www.hollandhart.com/national-environmental-policy-act-practice/ ES)
Holland & Hart is one of the premier environmental law firms in the country, and a key ingredient of our extensive environmental
support for clients is the depth and breadth of our National Environmental Policy Act (NEPA) practice. Our attorneys assist

clients with cutting-edge NEPA issues, including analyses of potential impacts of climate change in NEPA
reviews, cumulative impact analyses, application of NEPA to new renewable energy projects and
technologies, and strategic consideration of the environmental impacts of oil and gas, coal, and other
traditional energy projects. In particular, Holland & Hart helps clients set and follow successful NEPA compliance strategies
from the earliest stage of project planning to the final stage of litigation. We have broad NEPA administrative and
litigation experience. This includes successfully defending NEPA challenges to oil and gas, mining,
renewable energy, pipeline, transmission, water, highway construction, communication, and other
projects. We work with a variety of NEPA clients including Fortune 500 companies, government contractors, state and local
governments, Indian tribes, and individual landowners.

Internal Links Clapper K2 Environmental Suits

The clapper standard of certainly impending provides the opportunity to harm future
standings in various policy areas uncertainty increases probability
Harvard Law Review 2013
(Harvard Law Review, Standing Challenges to Government Surveillance Clapper v. Amnesty
International USA, Vol 127 Harvard Law Review, NOV 20, 2013, http://harvardlawreview.org/wpcontent/uploads/pdfs/vol127_clapper_v_amnesty_international_USA.pdf) BHS-CW
The Clapper majority does not make clear whether the certainly impending standard applies to all future
litigants of any kind, or only to those challenging governmental action in intelligence or foreign affairs. Though applying
certainly impending across the board may clarify prior precedent regarding when a risk of future harm
is sufficient to show standing, it would leave a lack of clarity regarding when a particular plaintiff has
pleaded sufficient facts to demonstrate a particular level of ri sk. Moreover, applying certainly impending
broadly would be a bludgeon that would exclude numerous litigants the Court has allowed under its prior
jurisprudence. Since the standard is, in any case, unnecessary given the standing doctrines two undergirding
separation of powers principles, it can and should be applied narrowly. Language in Clapper leaves the scope of future
applicability of certainly impending unclear. On one hand, the Court decreed that it ha[d] repeatedly reiterated that threatened
injury must be certainly impending,58 and held that the objectively reasonable likelihood standard is inconsistent with [the
Courts] requirement that threatened injury must be certainly impending.59 That said, the Court admitted it has not

uniformly require[d] plaintiffs to demonstrate that it is literally certain that the harms they identify will
come about, and that the Clapper plaintiffs would fall short of even a less strict stan-dard.60 Finally,
the Court suggested that its standing inquiry has been especially rigorous when reaching the merits of . . .
an action taken by one of the other two branches of the Federal Government ,61 particularly in cases challenging
decisions of the political branches in the fields of intelligence gathering and foreign affairs.62 Such dicta suggest that certainly
impending may only apply to litigants challenging governmental decisions in foreign affairs or intelligence. Given the

imprecision of the risk of future harm jurisprudence prior to Clapper, a clearer, blanket rule like
certainly impending could arguably improve doctrinal coherence. Without a precise doctrinal
foundation, courts can reasonably disagree about what amount of risk of future harm is sufficient to show
injury-in-fact. Indeed, the circuit courts have used divergent language to describe their standards: the D.C. Circuit has required
substantial probability of injury,63 the Seventh Circuit has allowed a small probability of injury,64 and the Second Circuit in
Clapper required an objectively reasonable likelihood of injury.65 These differing standards are partly a product of

the Supreme Courts oscillation between stricter and more relaxed standards66 oscillation that one
scholar has called troublingly imprecise.67
Laundry list of court cases support our claims
McDowell 2014
(Amanda McDowell, Lawyer, THE IMPACT OF CLAPPER V. AMNESTY INTERNATIONAL USA ON THE
DOCTRINE OF FEAR-BASED STANDING, GEORGIA LAW REVIEW [Vol. 49:247 2014]
http://georgialawreview.org/wp-content/uploads/2015/02/Download-PDF-V49-I1-5-McDowell.pdf)
BHS-CW
2. Cases that Distinguished Clapper. While the Second Circuit stringently applied Clappers certainly
impending test in Hedges, it distinguished Clapper in its decision in Natural Resources Defense Council
(NRDC) v. United States Food & Drug Administration. 96 There, the Second Circuit granted the plaintiff
standing to challenge the FDAs decision not to regulate triclosana chemical used in over-the-counter
soapeven though there was scientific uncertainty as to triclosans harmfulness to humans.97 The
Second Circuit explained that the plaintiffs threat of future injury was not speculative, as in Clapper,
because the plaintiff presented a particularized showing of an increased risk of ovarian cancer.98 One
commentator suggests that the Second Circuits opinion in NRDC illustrates a way in which lower courts
might seek to distinguish Clapper in environmental health and safety cases by emphasizing the actual
harms posed by chemicals or actions that the government [fails] to regulate.99 Notwithstanding its
potential influence, the NRDC decision may be susceptible to reversal if the Supreme Court were to grant
certiorari, because the plaintiffs in the case did not present any scientific studies that proved triclosans
harmfulness to humans.100 In Klayman v. Obama, subscribers to certain telecommunication and internet
services brought actions against the Government to challenge the constitutionality of the National
Security Agencys (NSA) Bulk Telephony Metadata Program, which authorized certain intelligencegathering practices relating to the NSAs collection of phone record metadata of U.S. citizens.101 The

United States District Court for the District of Columbia held that the plaintiffs demonstrated a sufficient
threat of future surveillance and had standing to challenge the metadata collection procedures.102 The
court explained that unlike the Clapper plaintiffs, who could only speculate about future surveillance,
the Klayman plaintiffs could point to strong evidence that . . . their telephony metadata ha[d] been
collected for the last seven years and . . . [would] continue to be collected barring judicial or legislative
intervention.103 The Ninth Circuit in Libertarian Party of Los Angeles County v. Bowen held that the
plaintiffs had standing to seek a preenforcement challenge to certain provisions in the California Elections
Code.104 The court found that the plaintiffs established a credible threat of future enforcement based
solely on guidelines posted on the defendants website, which framed the requirements of the statute in
absolute terms.105 The Ninth Circuit noted that the Clapper decision did not change its analysis, because
the plaintiffs fear of law enforcement was well-founded and [did] not involve a highly attenuated chain
of possibilities.
Clapper international is key to overturn environmental lawsuits
Wright 13, Sean J. (L aw Student) No Leg to Stand On: Clapper v. Amnesty
http://moritzlaw.osu.edu/students/groups/oslj/files/2013/04/Furthermore.Wright.pdf MWB
Under the Roberts Court, Article III standing has become a threshold question21 that blocks public
interest litigation.22 Clapper fits the trend. But, the Courts broad language and reliance upon certainly impending harm to
establish injury in fact could herald an even stricter standard for all claims . The application of Clapper by the lower
courts is likely to be even more restrictivethrowing out civil rights and environmental suits on
procedural grounds.23 Clapper coincides with a number of recent cases that have narrowly viewed standing requirements. In
Summers v. Earth Island Institute, 24 the plaintiffs challenged a Forest Service regulation that exempted certain timber sales from
public comment and administrative appeal. There, the plaintiffs based standing upon the regulations impact on their aesthetic
enjoyment and recreational use of the forest. The Court, in a 54 decision, found this harm too remote and unlikely to occur.25
Specifically, while there was a chance this harm would occur, it was hardly likely that plaintiffs wanderings will bring him to a
parcel about to be affected.26 In Daimler Chrysler Corp v. Cuno, 27 the Court found taxpayers challenging the constitutionality of a
tax break offered to car manufacturers lacked standing because their injury depended upon two additional actions occurring before
being harmed.28 The Clapper decision raises the already high bar for public interest plaintiffs. A straightforward reading of Clapper
means, in contexts like environmental litigation, that plaintiffs would need to challenge discrete actions rather than overarching
government regulations or policy statements.29 Clappers reliance upon the stricter certainly impending standard

means plaintiffs must show a more particularized injury to sue. For example, since scientific
disagreement on future harm based on exposure to environmental toxins exists, it may be virtually
impossible for a claimant to show with certainty that their exposure will lead to imminent harm .30 This
places environmental groups with limited resources at a strategic disadvantage.
Standing precedent in Clapper undermines environmental suits---specifically allows coal
mining in Blair Mountain Battlefield.
Jeremy P. Jacobs 13 is E&E Reporter, "SUPREME COURT: Wiretap ruling could haunt environmental
lawsuits," 5-20-2013, No Publication, http://www.eenews.net/stories/1059981453, DOA: 7-1-2015, y2k
A Supreme Court ruling on the government's international wiretapping operations could impinge on efforts
by advocacy groups to file lawsuits under environmental laws , according to some experts in environmental
law . In a 5-4 decision in February, the court held in Clapper v. Amnesty International that groups of journalists, labor officials and
human rights advocates could not challenge 2008 laws that allowed government surveillance of communications by those suspected
of engaging in terrorist activities. Conservative justices reversed a lower court ruling and said the challengers lacked

standing -- meaning they failed to show they were harmed by the law -- because they couldn't prove their
communications had in fact been tapped. That reasoning could create problems for environmentalists , for
whom standing can be a problem since they typically argue that a government or industry action -- the
issuance of federal permits for a mining project , for example -- will result in future air and water pollution.
Richard Lazarus of Harvard Law School said the ruling could bolster those who want to repel such
challenges . "There is language here that will embolden the government to argue against standing ," Lazarus
said. "It will embolden industry and it will embolden some judges ." Writing for the majority on 2008 amendments to
the Foreign Intelligence Surveillance Act, Justice Samuel Alito rejected the groups' arguments that there was an "objectively
reasonable likelihood" that their communications would be intercepted. Further, he noted that the law requires the government to
take several administrative steps before issuing the wiretaps. Consequently, he wrote, the groups' arguments rest "on a speculative
chain of possibilities that does not establish that their potential injury is certainly impending or is fairly traceable" to the law. Legal

experts said the words "certainly impending" are new to standing precedent and are especially problematic

for environmental groups

bringing lawsuits. The ruling "underlies a shift to a stricter standing doctrine with links to the

causal chain viewed with skepticism," said Amanda Leiter of American University's Washington College of Law. Simply put,

it is

hard for environmentalists to prove what is "certainly impending" after an agency action. Moreover, Alito's
focus on the "speculative chain of possibilities" could also pose new hurdles, said Justin Pidot of the Sturm College of Law at the
University of Denver. Pidot, a former litigator in the Justice Department's Environment and Natural Resources Division, proposed a
hypothetical in which an oil company applies for and receives a lease and permit to operate on federal land from the Bureau of Land
Management. Environmentalists sue BLM, alleging that the drilling will harm them in a variety of ways, ranging from the
destruction of hiking trails to negative impacts on waterways. The rub under Alito's reasoning, Pidot said, is that the
environmentalists are actually injured by what the mining company may do in the future and not by BLM issuing the permits. "All of
those injuries flow from the drilling activity itself, not from the granting of the permit," Pidot said. "But if you're seeking the permit,
you are actually going to engage in the permitted activities. "That hasn't been something that has troubled courts in the past," he
continued. "But the language of 'certainly impending' injury is the kind that a lower court judge hostile to
environmental plaintiffs could seize on to kick it out of court." That aspect of the ruling could have an
immediate impact on a case now at the U.S. Court of Appeals for the District of Columbia Circuit . The
Sierra Club is appealing a district court's finding that the group lacks standing to challenge the N ational
P ark S ervice's removal of West Virginia's Blair Mountain Battlefield from the agency's National Register of Historic
Places. The historic designation would have prevented mining at Blair Mountain , the site of a bloody fight in 1921
between striking coal miners and a militia, but when coal companies voiced objections, NPS delisted the battlefield without going
through a public comment period. A district court judge dismissed the case on a similar rationale as the

Supreme Court used in Clapper , concluding it was speculative that coal mining would actually occur at
Blair Mountain. Pidot had thought Sierra Club might win on appeal since it appears likely that mining will eventually take place
on the battlefield. But the Clapper decision, he said, would give the D.C. Circuit an easy way to uphold the lower
court ruling.
Clapper ruling affects environmental litigations- empirics prove
Eric Biber, March 1, 2013, (Did the Supreme Court just shut the courthouse door on environmental
plaintiffs?, http://legal-planet.org/2013/03/01/did-the-supreme-court-just-shut-the-courthouse-dooron-environmental-plaintiffs/ ES)
Its not an environmental law case, but the Supreme Courts decision in Clapper v. Amnesty International has a lot
of environmental law folks talking. Clapper was a lawsuit that sought to challenge the constitutionality of a provision of the
Foreign Intelligence Surveillance Act (FISA) that allowed the government to monitor a range of communications by foreign citizens
outside of the United States. The plaintiffs in Clapper were US citizens who argued that FISA surveillance might result in monitoring
of their communications with foreign citizens and that as a result of the fear of that surveillance, they were having to take expensive
steps (like foreign travel) to communicate securely with foreign citizens. Why is Clapper relevant for environmental law? Because
the Court dismissed the lawsuit on the basis of standing (i.e., a plaintiffs ability to raise a claim in court), and some

analysts are concerned that the sweeping language of the majority opinion in Clapper might herald much
more restrictive standing doctrine in the federal courts in general, keeping plaintiffs in environmental
cases out of court as well.

While I agree that there is some language in Clapper that is broad and might be applied in ways that could fundamentally change standing doctrine in environmental law, Im cautiously optimistic that
this will not be the case. Analysis below the jump. First, lets begin with why the Court tossed the lawsuit in Clapper (heres a good brief overview of the case). Standing doctrine requires plaintiffs to establish that they have suffered some sort of injury-in-fact and
that this injury was caused by the actions of the defendant that are being challenged in the lawsuit. While the Court agreed that unconstitutional interception of the plaintiffs communications would be an injury that could support standing, the majority concluded
that the plaintiffs could not show that any threat of government interception of their communications was certainly impending, and therefore there wasnt sufficient injury-in-fact. Moreover, the Court concluded that the plaintiffs couldnt show that any
interception would be the result of the challenged FISA provision, as opposed to some other provision of FISA that might authorize government interception of communications. Heres the key reasoning of the majority: Respondents argument rests on their highly
speculative fear that: (1) the Government will decide to target the communications of non-U. S. persons with whom they communicate; (2) in doing so, the Government will choose to invoke its authority under 1881a [the challenged FISA provision] rather than
utilizing another method of surveillance; (3) the Article III judges who serve on the Foreign Intelligence Surveillance Court [which reviews FISA surveillance] will conclude that the Governments proposed surveillance procedures satisfy 1881as many
safeguards and are consistent with the Fourth Amendment; (4) the Government will succeed in intercepting the communications of respondents contacts; and (5) respondents will be parties to the particular communications that the Government intercepts. [p.

The concern that Ive seen some environmental lawyers and law professors express is that the
Court is establishing a higher standard of certainty (certainly impending) that plaintiffs must show in
order for their injury to justify judicial intervention. In the context of environmental law, that kind of
certainty can be difficult to show. For example, imagine a plaintiff who has been exposed to a carcinogenic
chemical. Most of the time, this will result in an elevated risk of cancer (say, from 1 in 1 million to 1 in
10,000), but not a certainty of cancer. One could imagine framing that injury as not certainly impending
because theres no guarantee of cancer.
11 of the opinion]

Moreover, in many circumstances we have a great deal of uncertainty about whether certain human actions will cause harm. For instance, theres lots of debate still
about whether a range of chemicals (e.g., bisphenol A) actually cause cancer. If we took the certainly impending standard on its face, then plaintiffs would have to establish with certainty (almost impossible for so many environmental harms) that the exposure has
caused an increased risk. Finally, there may be a lot of circumstances where the government has granted a permit for private activity to occur, but there is no guarantee (yet) that the private action will in fact occur. For instance, the government might issue a permit

These concerns are

not fanciful. In one case, the DC Circuit initially concluded that environmental plaintiffs did not have
standing to challenge EPAs decision to not tighten regulations of methyl bromide, a chemical that
depletes the ozone (NRDC v. EPA, 440 F.3d 476). Even though the plaintiffs could show that the higher
levels of methyl bromide would result in an increase in cancer deaths in the United States (an increase of
lifetime risk of about 1 in 200,000), the court concluded that this increased risk could not support
standing, since the risk for any one individual plaintiff was so tiny. (This conclusion was reversed on
rehearing by the DC Circuit, see 464 F.3d 1.) Clapper is in fact very similar to another recent Supreme
for a developer to fill in wetlands; but its always possible that before the developer breaks ground, they might lose financing or run into other problems that will keep them from actually doing the development.

Court case that concluded that environmental plaintiffs did not have standing: Summers v. Earth Island
Institute. And its that similarity that I think gives a clue about how one can limit the scope of the
language in Clapper. The plaintiffs in Summers sought to challenge Forest Service regulations that they
argued improperly restricted public notice and comment for certain forest development activities. The
Court concluded that the plaintiffs in Summers did not have standing because they had not identified a
specific development project that would cause them injury

(e.g., by diminishing their aesthetic enjoyment of the forest) and that had also gone through the process established by
the challenged regulations. The plaintiffs in Summers (and the dissent, per Justice Breyer) objected that given the sheer number of projects that did proceed under the regulations, and the regular and continuous use of the National Forests by the plaintiffs, it did not
make sense to deny standing in the case, since it was inevitable (or at least highly likely) that at some point one of the plaintiffs would suffer injury from the regulations. The plaintiffs standing argument in Summers is, in fact, very similar to the plaintiffs argument
in Clapper. The plaintiffs argued that given their regular and consistent communications with individuals that have previously been subject to US government surveillance, it was inevitable (or at least highly likely) that at some point their communications would be
subject to surveillance pursuant to Section 1881a of FISA. As with Summers, the Courts response (quoted above) is that until and unless the plaintiffs can point to a specific piece of communications that they can show was subject to government surveillance
pursuant to 1881a, there is no standing to sue. (Of course, a major difference between Summers and this case is that in Summers, plaintiffs likely would be able to meet that standard at some point in time by waiting for the right project, while in Clapper because the
surveillance is secret, it is going to be very difficult, perhaps impossible, for plaintiffs to ever meet the Courts standing requirements.) So one can read Clapper as standing for the same proposition as Summers: If youre challenging a general government program,

Note that read this way,

Clappers main impact on environmental law cases will be to force plaintiffs to focus on challenging
individual projects, rather than agency regulations or policy statements (or at least, when making those
challenges to regulations or policy statements, plaintiffs will have to allege and show with specificity how
an application of those regulations or policy statements are affecting them without an intermediate
government action or step taking place). As such, this standing rule may put environmental groups with
limited resources at a strategic disadvantage, but I dont think it will absolutely foreclose many challenges.
you need to be able to show with specificity that a particular application of that program will injure your interests. You cant rely on probabilities that the program will likely cause you harm in the future.

Internal Links Law Suits K2 Environment

Citizen involvement in environmental litigation key to solvency normal bureaucratic
structures fail in implementation
Bowman No Date
(Margaret Bowman, Director, Environmental Program for Central and Eastern Europe THE ROLE OF
THE CITIZEN IN ENVIRONMENTAL ENFORCEMENT ROBERTS E. and DOBBINS J. Environmental
Law Institute - Washington DC., No Date, http://www.inece.org/2ndvol1/roberts.htm)BHS-CW
Citizens are one of a nation's greatest resources for enforcing environmental laws and regulations . They
know the country's land and natural attributes more intimately than a government ever will. Their
number makes them more pervasive than the largest government agency. And because citizens work, play,
and travel in the environment, each has a personal stake in its beauty, health, and permanence. (1)
Citizens are omnipresent, motivated, and uniquely interested in environmental quality. A bird-watcher
walking in the woods sees chemical waste flowing through a stream, traces the source to a neighboring
factory, and alerts government agencies to the factory's violation of its emissions discharge permit. A local
citizen group in a small town near a coal mine suggests to a state mining agency practical ways, based on
the citizens' own observations of the mine in operation, of making environmental standards for mines
easier to administer and enforce. A city resident notices that municipal buses are emitting noxious fumes,
sues the bus company, and wins a court order requiring the company to place pollution control devices in
the bus exhaust systems. These are just a few examples of the many and varied influences citizens can
have on the process of environmental enforcement. Drawing on the resources of citizens can enrich and
strengthen the environmental enforcement process in several ways. First, citizen participation in
environmental enforcement taps the direct, immediate connection between individuals and their
environment. Citizens are uniquely knowledgeable about their own communities. Their day-to-day
observations give them access to information about environmental conditions that the government could
never obtain. Involving citizens in environmental enforcement encourages productive use of this
information. The intimate connection between individuals and their own communities also enables
citizens to concentrate on localized environmental problems. A federal or even a state government agency
might not consider such "small-scale" threats to the environment serio us enough to justify action on the
national or regional levels. But correcting these harms can be vital to the survival of a
particular town or rural area. Citizen participation in environmental enforcement thus broadens
access to enforcement resources. Second, the injection of varied, non-institutional perspectives and
information sources into the enforcement process may improve the quality of enforcement decisions. For
example, the views of individual users of a national park on how a ban on logging in the park should be
implemented may well differ from those of a timber company that wants to restrict logging by its
competitors. Both are likely to be different from the position of the government enforcement agency
which lacks the funds to investigate and prosecute violations. Allowing and encouraging the hikers and
loggers to affect the outcome, by, for example, participating in government enforcement actions or suing
on their own to implement the ban, may increase compliance, deter violations, and contribute to a more
realistic and responsive environmental enforcement strategy. The dynamic between citizens and the
government agencies officially charged with enforcing environmental laws adds to the potential effect of
citizen participation in this area. In the context of environmental enforcement, citizens and government
are presumed to share a goal -- that of maximizing compliance for the good of all. This presumption of a
common interest is reflected in the dual meaning of the adjective "public," when used in conjunction with
the operation of a democratic system of government. In this context, "public" refers both to the citizenry
at large -- which engages in "public participation" -- and to the government -- which formulates and
implements "public policy." Yet tension sometimes arises between these two "public" entities. The
government may fear that citizen involvement in environmental enforcement will disrupt its own
enforcement efforts and will reduce its flexibility to tailor enforcement decisions to particular
circumstances. (2) Government enforcers may also believe that if enforcement actions in the courts are
mounted on a piecemeal basis, rather than as part of a coordinated strategy, poor judicial precedents may
be set that could hinder further enforcement efforts. (3) Consequently, government agencies sometimes
decline to support, or may even resist, private enforcement initiatives. Citizens, on the other hand, often
suspect government agencies of not properly fulfilling their enforcement responsibilities . Citizens may

view government employees as overly susceptible to the influence of the business interests they regulate.
(4) Or they may attribute government inaction to bureaucratic inertia. Either way, agency enforcers often
are seen as overlooking or impeding environmental protection goals. (5) This tension between
government and citizens can result in improved environmental enforcement. The government's desire to
prevent citizen action it views as disruptive can encourage agencies to take their own regulatory or
enforcement steps. The public's suspicion that government may not vigorously implement certain laws
may prompt the legislature to grant citizens a statutory right to bring a lawsuit to require the government
to perform its assigned regulatory duties. And in instances when the government insists on inaction,
citizen participation can replace government enforcement. Not only may compliance be achieved, but the
government can be forced to account publicly for its own inaction. (6) When the interests of the
government and the citizens are similar -- as is often the case -individuals can fill gaps in government
enforcement caused by resource constraints. (7) The sheer size of the citizenry, for example, enables
individual citizens to monitor compliance throughout the nation and identify violations an understaffed
investigative agency might miss. An enlightened government agency can also use citizen volunteers to
implement a comprehensive enforcement strategy. This could both help the government meet its
enforcement objectives and avoid the potential conflicts that may result from piecemeal enforcement
efforts.
Clapper precedent will distress future environmental litigations
Devin Mcdougall, March 12, 2013, (Recent Supreme Court Decision May Affect Environmental
Standing, http://www.sprlaw.com/recent-supreme-court-decision-may-affect-environmental-standing/
ES)
A recent decision by the United States Supreme Court has raised questions about the scope of plaintiffs
standing to bring suit in federal court, a critical issue for environmental litigants.
Federal courts have long recognized that certain types of

environmental harms can form the basis of standing under Article III of the United States Constitution, which requires plaintiffs to establish an actual or imminent injury that is fairly traceable to the challenged conduct and likely to be redressed by a favorable
decision. In one of the earliest federal rulings on environmental standing, Scenic Hudson Preservation Conference v. Federal Power Commission, the Second Circuit held that those who by their activities and conduct have exhibited a special interest in the

Although it has been well

established that environmental harms, and not just economic harms, can serve as the basis for a federal
lawsuit, courts have struggled to define which types of environmental harms may give rise to standing. In
particular, courts have questioned what level of risk, and over what time scale, rises to the level of a
cognizable environmental injury. In a recent 5-4 decision, the Supreme Court held that a coalition of
lawyers, human rights activists and journalists lacked standing to challenge government surveillance
activities because the threatened harm posed by potential surveillance was, in the view of the majority, too
remote. Clapper v. Amnesty International, 2013 WL 673253 (U.S. February 26, 2013). In Clapper, the
plaintiffs sought to challenge the constitutionality of 1881a of the Foreign Intelligence Surveillance Act
(FISA), which authorizes federal interception of certain communications between parties located in the
United States and parties outside the United States. The Second Circuit found that the plaintiffs had
established standing by demonstrating an objectively reasonable likelihood that they would eventually
be subjected to the surveillance that they claimed was unconstitutional. Amnesty Intl USA v. Clapper, 638
F.3d 118, 134 (2d Cir. 2011). The Supreme Court overturned this decision, holding that the plaintiffs
needed to demonstrate that their future injuries were certainly impending. Many environmental issues
involve long-term risk of harm that may not materialize immediately, most notably, but not exclusively, in
connection with climate change. In Massachusetts v. EPA, the Supreme Court confronted the question of
whether claims by the State of Massachusetts that it would lose parts of its coast due to gradual sea-level
rise resulting from climate change were too speculative or too far in the future to establish standing. 549
U.S. 497, 521 (2007). The Court found, in a 5-4 decision, that this injury could serve as a basis for
standing, concluding that Massachusetts had already been harmed by the loss of coastal land and [t]he
risk of catastrophic harm, though remote, is nevertheless real. Id. at 526.
aesthetic, conservational, and recreational aspects of a site have Article III standing, even in the absence of a personal economic interest at stake. 354 F.2d 608, 615-616 (1965).

The court also indicated that its finding of Article III standing was informed by a

special solicitude derived from Massachusetts status as a sovereign and by the fact that Massachusetts sought, in the case, to exercise a procedural right granted by the Clean Air Act. Id. at 520. Yet the Court did not clarify the precise role that these
considerations played in its analysis. In an opinion four years later, an evenly divided Supreme Court upheld the standing of the State of Connecticut to seek injunctive relief for harms caused by climate change, citing Massachusetts v. EPA. American Electric Power

The Supreme Courts recent decision in Clapper may signal a turn towards a higher
threshold for standing predicated on claims of risk. While the certainly impending definition of actual
or imminent harm has been cited in prior Supreme Court cases, applied strictly it could greatly limit
standing based upon claims of future injury. As the Clapper dissent argued, [t]he future is inherently
uncertain yet federal courts frequently entertain actions for injunctions and for declaratory relief aimed
at preventing future activities that are reasonably likely or highly likely, but not absolutely certain, to take
v. Connecticut, 131 S.Ct. 2527, 2535 (2011).

place. Some commentators have suggested that the Supreme Courts decision in Clapper may have been
motivated by deference towards the executive branch in matters of national security, and that its
precedent may have little effect on litigation in other areas. As the majority opinion observed, [W]e have
often found a lack of standing in cases in which the Judiciary has been requested to review actions of the
political branches in the fields of intelligence gathering and foreign affairs. It remains to be seen if and
how plaintiffs, defendants, and the courts will address Clapper in future environmental cases.

Internal Links Standing K2 Judicial Review

Lowering standing requirements expands judicial power
Fisher, Scholar in Residence at the Constitution Project, 88 (Louis, Constitutional Dialogues:
Interpretation as Political Process, pg 99, 1988, DOA 07-03-15, AX)
The issue of standing is far more than a mere technical aspect of the judicial process. The doctrine of
standing determines who may challenge government policies and, to some extent, what types of policies may be
challenged. Arguments over standing reflect different conceptions of the role of the federal courts in the political system. Dissenting
in Warth v. Seldin (1975), Justice William O. Douglas observed that standing has become a barrier to access to
the federal courts. Douglas insisted that the American dream teaches that if one reaches high enough and
persis there is a forum where justice is dispensed. He concluded that the technical barriers should be
lowered so that the courts could serve that ancient need. A sharply contrasting position is offered by Justice Lewis
Powell, concurring in the United States v. Richardson (1975): Relaxation of standing requirements is directly related
to the expansion of judicial power. It seems to me that allowing unrestricted taxpayer or citizen standing would significantly
alter the allocation of power at the national level, with a shift away from a democratic form of government.

Impacts Environment Collapse

Environmental collapse is coming and leads to extinctionaction now key to solve
Carlisi, The Huffington Post journalist, 15 (Joseph, Environmental Collapse and Mass
Extinction... in Dollars?, The Huffington Post, http://www.huffingtonpost.com/josephcarlisi/environmental-collapse-and-mass-extinction-in-dollars_b_7208760.html, 05-05-15, DOA 07-0115, AX)
'Our oceans are the planet's natural capital, a factory producing an incredible array of goods and services that we all want and need,'
Brad Ack, senior vice president for oceans at WWF, explained in a press release. 'But every day we are
degrading, over-consuming, and polluting this productive asset to a point of ever diminishing returns. '
Wow. The oceans depicted as a factory producing an incredible array of goods and services that we all want and need -- a productive
asset. Were the authors of this report so incorporated into the unfeeling, calculating mindset that prevails in contemporary society or
were they just putting their argument in terms that they felt would sell their message, i.e. dollars? The human impact on the
overall earth environment is bringing the cycle of life, as we know it, to a close. Commodifying living nature and
presenting it as an economic entity whose primary value is estimated by its utility in fulfilling ever increasing demands set by human
consumption and profit taking, seems, well, antithetical to the possibility of moving human awareness and consequent activity to a
more balanced state. If consumption and profit are the only parameters of value that we can bring to the equation, then the game is
probably over. We have, through a history of relentless destruction, set a rather large wheel in motion. The

primary engine turning that wheel is human activity guided by mistaken and distorted views and beliefs
concerning man and his relationship to nature. The human caused unbalance that is threatening all life on
this planet is not the result of technical mistakes. It stems from behavior based on fictional beliefs -- beliefs that place
man above and consequently outside of nature. Until these underlying, prevailing views are abandoned and discarded, nothing can
change. The machinery of extinction that we face right now is the behavior of the human majority. No more. No less.

Environmental degradation hurts human health and the economy

Conserve Energy Future, no date (What is Environmental Degradation?, http://www.conserveenergy-future.com/causes-and-effects-of-environmental-degradation.php, DOA 07-01-15, AX)
Effects of Environmental Degradation 1. Impact on Human Health: Human health might be at the receiving
end as a result of the environmental degradation. Areas exposed to toxic air pollutants can cause
respiratory problems like pneumonia and asthma. Millions of people are known to have died of due to
indirect effects of air pollution. 2. Loss of Biodiversity: Biodiversity is important for maintaining balance of the ecosystem in
the form of combating pollution, restoring nutrients, protecting water sources and stabilizing climate. Deforestation, global
warming, overpopulation and pollution are few of the major causes for loss of biodiversity. 3. Ozone Layer Depletion: Ozone layer is
responsible for protecting earth from harmful ultraviolet rays. The presence of chlorofluorocarbons, hydro chlorofluorocarbons in
the atmosphere is causing the ozone layer to deplete. As it will deplete, it will emit harmful radiations back to the earth. 4. Loss for
Tourism Industry: The deterioration of environment can be a huge setback for tourism industry that rely on
tourists for their daily livelihood. Environmental damage in the form of loss of green cover, loss of biodiversity, huge
landfills, increased air and water pollution can be a big turn off for most of the tourists. 5. Economic Impact: The huge cost that

a country may have to borne due to environmental degradation can have big economic impact in terms of
restoration of green cover, cleaning up of landfills and protection of endangered species. The economic
impact can also be in terms of loss of tourism industry.
Habitat destruction leads to extinctiondisease
Palmer, Earthwire environmental writer, 15 (Brian, Habitat Destruction Is Exposing Us to a
Dangerous New Form of Malaria, Pacific Standard Magazine, http://www.psmag.com/health-andbehavior/habitat-destruction-is-exposing-us-to-a-dangerous-new-form-of-malaria, 06-10-15, DOA 07-0115, AX)
If youre not a doctor, you probably think of malaria as a single disease. Thats not quite right. There are several parasites
that cause what we call malarialike Plasmodium falciparum, Plasmodium vivax, Plasmodium ovale, and Plasmodium
malariaeand each brings a slightly different form of the disease. Now, in a northeastern corner of Malaysia, doctors
are concerned about the rapid expansion of yet another malaria-inducing parasite named Plasmodium knowlesi. Incidence of the
parasite increased tenfold between 2004 and 2011, and many public-health researchers are worried things are going to get worse.

An important difference between P. knowlesi and most other human malaria parasites is that it also
infects other primates. Although the widespread falciparum parasite, for example, is thought to have derived from a gorilla

disease and many related strains are still found in apes, the human parasite no longer infects other species. Knowlesi, in contrast,
can infect both humans and monkeys, and it remains a common infection in macaques. The rapid expansion of knowlesi infections
in recent years is most likely a result of humans pushing deeper and deeper into the jungle that used to buffer us from the disease.
In past decades, the occasional knowlesi infection has almost always occurred in people working deep in the jungle. The first
confirmed human case came in 1965, when an American soldier surveying the Malaysian jungle came home with the cyclical fevers

characteristic of malaria. The doctors then inoculated the blood of some rhesus macaques, which were already known to carry the
disease, with the patients infection. When the monkeys died, the physicians knew they were dealing with knowlesi. (Medical
research was, and in many ways remains, exceedingly cruel to other creatures.) The ability of knowlesi to pass between monkeys,
mosquitoes, and humans makes it a major public-health issue as well as an environmental one. The rapid expansion of

knowlesi infections in recent years is most likely a result of humans pushing deeper and deeper into the
jungle that used to buffer us from the disease. In short, habitat destruction isnt just killing wildlifeits
killing us. Diseases with animal vectors are difficult to combat. Consider Ebola, the terrifying disease du jour. With
no warning, it occasionally transfers between an animal (possibly a fruit bat) and a human. Once this so-called spillover
event occurs, the virus can spread rapidly within human communities. Alarm bells ring worldwide, and doctors
swarm to the site of the outbreak. All that response work, however, is the equivalent of cutting the head off of a hydra. Ebola is
still lurking in the jungles of Africa, waiting to strike again. As long as we keep living in proximity to
whatever animal is carrying the disease, theres very little we can do to stop more outbreaks.

Impacts Environment Collapse Soil Add-on

A strong nation is key to environmental laws, such as soil protection
Wyatt, legislative attorney, 08 (Alexandra M., JD from the Duke University School of Law in 2008;
M.A. from the Duke University Nicholas School of the Environment in 2008, The Dirt on International
Environmental Law Regarding Soils: Is the Existing Regime Adequate?, Duke Environmental Law &
Policy Forum, 19 Duke Envtl. L. & Pol'y F. 165, http://www.bdlaw.com/assets/attachments/371.pdf, Fall
2008, DOA 07-06-15, AX)
The declining status of Earth's soils and their functions imply that the need for some international action on soil is
only growing, yet action can take many forms. Proponents of soil protection could consider a new binding soil
convention, a new non-binding soil declaration or code of conduct, a soil-focused protocol to an existing treaty, an internationallybacked science and policy panel of experts, and myriad other potential improvements to the current international
environmental law regime regarding soils. This note does not delve in detail into what such types of instruments or actions
might look like or what particular legal, economic, or other elements they might or should include, because the range of possibilities
is quite expansive. However, before examining the prospects for future international actions in light of these broad
categories, it is useful to note a few of the many interrelated considerations bearing on all of them. These considerations
include the relative costs of any given strategy, and the degree to which the strategy can overcome problems
relating to soil's low visibility and high complexity. New international law frameworks, in general, necessitate
significant costs, in terms of money, time, attention, and even political capital, to draft and maintain. Revisions to existing
regimes, too, take a substantial amount of collective will to negotiate and adopt. However, costs differ depending on the
degree of change, the locus of change (e.g., within or among institutions), the kinds of issues tackled, the number of stakeholders,
the degree to which the interests of stakeholders conflict, the levels of binding obligations on countries, the degree of scientific
uncertainty that must be overcome, and innumerable other factors.

Soil degradation triggers extinctionan integrated global judiciary can solve

Wyatt, legislative attorney, 08 (Alexandra M., JD from the Duke University School of Law in 2008;
M.A. from the Duke University Nicholas School of the Environment in 2008, The Dirt on International
Environmental Law Regarding Soils: Is the Existing Regime Adequate?, Duke Environmental Law &
Policy Forum, 19 Duke Envtl. L. & Pol'y F. 165, http://www.bdlaw.com/assets/attachments/371.pdf, Fall
2008, DOA 07-06-15, AX)
Soil, "the living skin of Earth" and a foundation for all terrestrial life, does not tend to get the respect or
attention it deserves. Rich soil is glorious stuff, packed with life and recycled lives past; it is the complex interface between
rock and sky, the "critical zone" of our planet where nature's dynamic systems are regulated and renewed. Yet
the world's soil is being stripped, poisoned, suffocated, and abused more than ever before - even though
humans need quality soil more than ever before, too. Population pressures, economic pressures, and global
and local changes now drive massive soil transformation and degradation. Soil can take centuries to re-form once
lost or degraded, meaning that many soil changes today are largely irreversible on human time-scales. The impacts of soil
problems are felt not only locally, but also globally: food and water insecurity, biodiversity loss, climate change,
and the economic, political, and humanitarian consequences of all of these and more. Many international
environmental law instruments, both global and regional, binding and non-binding, touch on the protection of soil
and its functions to some degree. These instruments have the potential to accomplish much, especially with fuller
implementation than at present. However, soil would be better protected if it could be addressed more
comprehensively, with its functions not only better singled out for recognition, but also more fully tied together, highlighting soil
law and policy as a focal topic unto itself.

Impacts Executive Power Bad Nuclear Use

Excessive executive power causes nuclear use
Garcia, J.D., Georgetown University Law Center, 2003
[Michael J., Summer 2003, The Georgetown Journal of Law and Public Policy, A Necessary Response:
The Lack of Domestic and International Constraints Upon a U.S. Nuclear Response to a Terrorist Attack,
p. 519 531, Lexis, DL]
III. THE LACK OF DOMESTIC CONSTRAINTS ON EXECUTIVE AUTHORITY OVER NUCLEAR WEAPONS Although international law offers little, if any legal (as opposed to

he U.S. system
relies upon "checks and balances" to ensure that no branch of government can become overly powerful--a
system that is particularly critical in times of war. The Framers recognized the need for executive control
over warfare; the nature of warfare requires quick and uniform decision making and is far better served by
the executive than by a large, deliberative legislature. n24 However, the Framers believed that the President should not be given unchecked authority to declare and
political), constraints upon U.S. policymakers' decisions regarding the use of force, domestic law provides definitive limits upon such actions. T

make war; they feared that absolute power of the executive in war matters might lead presidents to use war on behalf of personal objectives such as revenge, military glory, or

Although the President would

have the power as Commander in Chief of the nation's armed forces to conduct armed hostilities in the
manner he deemed appropriate, n26 the power to declare war and fund the military was granted to
Congress. n27 Additionally, the power of impeachment provided Congress with another potential [*520]
means of limiting the President's control over warfare. n28 Yet, despite these checks, the Executive Branch's
control of nuclear weapons remains unconstrained. Congress's cutting military funds or attempting to
impeach the President after a nuclear weapon has been launched does nothing to rectify the damage that
has already been done. Furthermore, longstanding executive practices n29 suggest that a President might
not wait for a congressional declaration to authorize a nuclear attack, especially if it is in response to an
attack on the United States. Because of the legitimate possibility that the United States will be subject to
additional terrorist attacks, possibly more destructive than those of September 11, the dangers of
unfettered executive authority over nuclear weapons loom particularly large. A. CONGRESSIONAL-PRESIDENTIAL WAR
personal or partisan aggrandizement. n25 Therefore, the Framers placed two critical war powers in the hands of Congress.

POWERS RELATIONS War powers are shared between the executive and legislative branches. The Constitution prescribes that, although the President is Commander in Chief
of the U.S. military, n30 Congress is vested with the power "to declare war." n31 In blunt and formalistic terms, this means that Congress theoretically initiates U.S. participation
in a conflict, but the President is responsible for fighting it. Congress's control of presidential war-fighting power once hostilities are initiated comes from its power to control
military appropriations, n32 allowing it to limit or outright prevent the United States from conducting hostilities, or through its power of impeachment. n33 In practice,

The Framers indisputably wanted the President to have the military

power to defend the nation against sudden attack without first seeking congressional approval. n34 The question
however, the division of war powers has not been clear.

over whether the President needs congressional approval to conduct military operations when the United States is not the original initiator of hostilities remains a subject of
debate for legal scholars. Indeed, this debate has been ongoing since the nation's birth. Those who believe in the primacy of [*521] congressional war power authority hold that
the President is permitted to take only defensive military action without approval of Congress, with the legislative branch responsible for authorizing any subsequent, nondefensive U.S. military measures. Those favoring broad presidential war powers authority argue that Congress's power to declare war is only necessary for the instigation of
unprovoked military aggression by the United States, and the President does not need congressional authority to engage in either defensive or offensive military action against

when a foreign nation declares,

or openly and avowedly makes war upon the United States, then they are by the very fact already at war,
and any declaration on the part of Congress is nugatory; it is at least unnecessary." n35 However, this debate over the
those adversaries who had already conducted acts of war against the United States. As Alexander Hamilton wrote in 1801, "

meaning of Congress's power to declare war largely has remained an academic one. When U.S. interests have been attacked, Congress has been quick to authorize the President
to initiate hostilities against the aggressor. n36 Congress has said that these authorizations are in accordance with its war powers, while the executive branch has traditionally
viewed them as a welcome--but constitutionally irrelevant--showing of congressional support behind the President's war powers. n37 The United States has been engaged in
conflicts with foreign powers more than two hundred times in its history, but has only issued formal declarations of war in five conflicts: in the War of 1812 against England, n38
the war against Mexico in 1846, n39 the Spanish-American War of 1898, n40 World War I, n41 and World War II. n42 In the great majority of U.S. conflicts, the executive had

When congressional approval

has been given for the initiation of hostilities, it has typically been through an action that is something less
than a declaration of [*522] total war. From the earliest times, it has been recognized that Congress can approve an "imperfect war," that is, an authorization
not received initial approval from Congress before committing U.S. forces, if approval was ever given or even requested. n43

for the executive branch to commit hostilities "acting under special authority and [going] no farther than to the extent of their commission." n44 In some cases, Congress has

The Vietnam conflict provides the most notable

example: following two apparent attacks on American ships by North Vietnam, n45 Congress passed the
Tonkin Gulf Resolution n46 at President Lyndon Johnson's behest. The Resolution authorized "the
President, as Commander in Chief, to take all necessary measures to repel any armed attack against the
forces of the United States and to prevent further aggression." n47 The Tonkin Gulf Resolution represented
an enormous granting of discretionary power to the President in handling the Vietnam conflict. The use of
the term "all necessary measures" allowed the President to commit as much force as he deemed
appropriate to attain the ambiguous goal of deterring future aggression. This discretion enabled the
Johnson Administration and the subsequent Nixon Administration to continue escalating the U.S.
commitment against North Vietnamese aggression to the point that over a half million American troops
were stationed in South Vietnam and American bombing spilled over into missions in neighboring Laos
and Cambodia. n48 As public sentiment turned against the Vietnam conflict, Congress futilely attempted to
approved the initiation of "imperfect wars" that have differed little from declared, total wars.

scale back the President's statutory authority to take military action in Southeast Asia. Congress's main
constitutional method for constraining presidential war-fighting ability--limiting military
appropriations--mainly failed until the passage of the Cooper-Church Amendment in 1973, prohibiting
any further appropriation of military funds directly or indirectly intended to support U.S. combat
activities in Vietnam. n49 Frustration at the excesses of executive discretion in interpreting the Tonkin Gulf Resolution propelled Congress to pass the War Powers
Resolution in 1973 over a presidential veto, in an effort to curb presidential war-making (and war-fighting, according to its critics) ability. n50 For the stated purpose of fulfilling
"the intent of the framers of the Constitution . . . and [insuring that] the collective judgment of both Congress and the President" applied to the introduction of U.S. armed forces
into hostilities, n51 the War Powers Resolution permits [*523] the President to introduce the United States into situations where hostilities will likely arise "pursuant [only] to
(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency by attack upon the United States, its territories or possessions, or its armed forces." n52
The President is required to report to Congress "in every possible instance" before the initiation of hostilities, n53 must continue giving periodic reports to Congress throughout
the engagement of hostilities, n54 and has a maximum of ninety days to act, absent congressional approval, before terminating military action. n55 But despite this effort to curb
executive war powers, presidents have continued to ignore congressional authorization requirements whenever they deem the requirements infringe upon the Executive's

THE
LIKELY LACK OF LEGAL RESTRAINT ON THE PRESIDENT'S DECISION TO USE NUCLEAR
WEAPONS TO COMBAT TERRORISM In light of the historical interaction between Congress and the President with regard to use-of-force issues,
the President would likely face few domestic legal restraints by Congress or the courts if he decided to use
nuclear weapons in the face of a substantial terrorist attack. If the United States were attacked and the
President wished to use nuclear force, Congress would have few means by which to pose an effective
challenge to the President's decision, and might be unlikely to do so for political reasons as well. The lack
of adequate checks on the presidential decision to use nuclear weapons in response to a terrorist attack
can be illustrated by examining a hypothetical situation. Suppose that a terrorist organization were to
succeed in secretly releasing 100 kilograms of aerosolized anthrax spores upwind from Washington, D.C.,
an action that the U.S. Congressional Office of Technology Assessment has estimated would cause the
deaths of between 100,000 and 3 million people, with lethality possibly exceeding that of a hydrogen
bomb. n58 [*524] Further, suppose that U.S. intelligence subsequently determines that the anthrax was
supplied by a rogue state that is targeted by U.S. nuclear weapons. U.S. nuclear policy permits a nuclear
response to a biological attack. n59 The President, who fortunately receives treatment early enough to
survive the attack along with most members of Congress, decides to retaliate with a nuclear attack on the
rogue nation's capital, both to eliminate that country's leadership and to send a message to potential
terrorists that they will pay a heavy price if they attack the United States. As will be discussed below, the President
would likely have the legal authority for this nuclear attack regardless of whether Congress had declared
war on the rogue state, issued a joint resolution permitting the President's use of force, remained silent on
the matter even while the President took action, or passed a resolution specifically denying the President's
ability to use nuclear weapons against the enemy state. 1. Presidential Authority to Use Nuclear Weapons Following a Declaration of War
inherent commander in chief powers, n56 and it remains unclear whether the Resolution would even be enforceable given its dubious constitutionality. n57 B.

The President's strongest legal authority for launching a nuclear weapon would coincide with a congressional declaration of war against either the state that supplied the
terrorists or against terrorism in general. A declaration of war by the United States would certainly be conceivable in a situation such as our hypothetical, given the enormous
potential for loss of life. A declaration of war would allow the President to engage in a total war against the enemy without requiring any subsequent authorization by Congress,
thereby allowing him to use nuclear weapons if he deemed them appropriate. n60 Just as President Truman did not need to consult with Congress prior to dropping the atomic
bomb upon Hiroshima and Nagasaki, because Congress had already declared war against the Axis Powers during World War II, a president would likewise have absolute
discretion to use nuclear weapons in response to a terrorist attack in the event of a congressional declaration of "total war" against the nuclear target. Even in the case of a nonstate-sponsored terrorist attack of a smaller magnitude than the aerosolized anthrax example, Congress might still choose to issue a declaration of war. For example, following
the September 11 attacks, Congress decided to pass a joint resolution allowing the use of U.S. military force against entities responsible for the terrorist attacks, rather than issue
a declaration of war against terrorism in general. The underlying reason for [*525] Congress providing the President with only limited war powers authority was to ensure that
he could not engage in an unending conflict with an enemy that was more of an ideological entity than an actual person or organization. n61 The advent of future terrorist
attacks, however, might compel Congress to pass a war declaration enabling the President to fight terrorism to the fullest and engage in preemptive action to stop any and all
future terrorist threats. 2. Presidential Nuclear Authority with Statutory Authorization to Conduct Hostilities If Congress responded to another terrorist attack by passing a joint
resolution permitting the President to use military force, nuclear weapons could be used. But, whereas a declaration of war allows the President full authority to engage in
whatever military action he deems necessary, a congressional joint resolution permitting the use of force would only allow him to conduct military action against statutorilyspecified persons and objects until such time as Congress rescinded its statutory authorization. n62 But even with mere statutory authorization, the President likely could use
nuclear weapons in the event of a terrorist attack. Although Congress has the power to authorize the President to engage in an "imperfect war," wherein he can direct military
efforts only at particular persons, Congress cannot statutorily limit the methods by which the President chooses to fight that more limited war without violating his
constitutional authority as Commander in Chief. n63 If Congress did not agree with the President's war-fighting conduct, it could always rescind the statutory authorization

given the President's ability to launch a nuclear weapon at the press of a

button, any congressional efforts to rescind statutory authority would likely be too little, too late, to
prevent a nuclear launch. Furthermore, the joint resolutions passed by Congress in recent history have placed few limitations upon whom the Executive can
allowing him to conduct military operations. But,

target in U.S. war-fighting efforts. The unintended effects of granting the President broad, statutory, war-fighting authority during the Vietnam conflict has not deterred
Congress from continuing to provide the President with broad statutory authorization to conduct military hostilities. Following the Iraqi invasion of Kuwait in 1990, for example,
Congress passed a joint resolution authorizing the United States to use military force against Iraq. n64 The only limit provided by the congressional authorization was that the
military action be in accordance with U.N. Security Council Resolution 678. n65 This was hardly a limitation on presidential war-fighting discretion, however, because the

September 11 may have signaled a

new era in which U.S. military hostilities are more frequently directed at non-state entities, and there is
no reason to believe that Congress will be any more cautious in its statutory authorization of U.S.
hostilities. Following the terrorist attacks, Congress provided the President with the authorization to use
all necessary and appropriate force against those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or
harbored such organizations or persons, in order to prevent any future acts of international terrorism
against the United States by such nations, organizations or persons. n67 This language allows for broad
presidential discretion in the conduct of military hostilities. The President may conduct military hostilities
Resolution permitted all U.N. member [*526] states to use "all necessary means" to remove Iraq from Kuwait. n66

in any country that "aided" the terrorist attacks of September 11, or merely is inhabited by an organization
or person that aided in the attacks. n68 The only apparent limitation is that the force must be "necessary
and appropriate"--a limit that is both constitutionally unenforceable given the President's inherent power
as Commander in Chief, and as the executive-legislative conflict over the military actions in Vietnam
suggested, open to wide differences in interpretation. The increasing willingness of Congress to defer to
executive decisions regarding the method and need for military hostilities is further exemplified by
Congress's recent authorization of military force against Iraq. n69 One day after the first anniversary of the
September 11 attacks, President George W. Bush delivered a speech to the U.N. linking Iraq to the war on
terrorism, and suggesting that absent action by the U.N., Iraq would provide terrorist organizations with
WMD. n70 Despite the lack of any meaningful evidence that Iraq was planning to commence military
hostilities against the United States or support terrorist activities against it, Congress passed a resolution
authorizing the President to "use the Armed Forces of the United States as he determines to be necessary
and appropriate in order to . . . defend the national security of the United States against the continuing
threat posed by Iraq . . . ." n71 Although the resolution did encourage the President to exhaust diplomatic efforts before [*527] initiating hostilities against Iraq,
n72 it nevertheless provided the President with full authority to decide if and when to engage Iraq militarily by
whatever means he deemed necessary. As the most recent military authorizations following the terrorist
attacks of September 11 seem to indicate, it is unlikely that Congress will abandon in the foreseeable
future its long-standing practice of granting the Executive broad authority to engage in military action.
Given a terrorist attack of sufficient magnitude for the Executive to believe that a nuclear response is
necessary and appropriate, there is little reason to believe that Congress would be able or willing to
provide statutory authorization for the Executive to commence U.S. hostilities in a manner that would
prevent presidential discretion to use nuclear weapons. 3. Presidential Authority to Use Nuclear Weapons in Response to an Attack on the
United States Absent Statutory Authorization In the face of a significant terrorist attack, the President might not wait for
congressional authorization to respond with a nuclear weapon. Presidents have long held that
congressional authorization is only necessary when the United States is initiating a war; if the United
States is already under attack, however, a war already exists in fact and the President needs no additional
congressional authorization to respond militarily. n73 Some presidents have gone so far as to argue that congressional authorization is
unnecessary in certain instances in which the United States has not been attacked, such as when enforcing a U.N. Security Council resolution. n74 In signing the
joint resolution permitting the use of force in response to September 11, President Bush indicated that
while he welcomed congressional support for the war effort, he also believed that it was unnecessary given
the Executive's inherent power to respond to attacks against the United States. n75 Although the Supreme Court has not
heard a case specifically regarding the Executive's sustained use of force against an enemy absent congressional authorization, it has stated that the President at least has the
right to use force to prevent and respond to a sudden attack by enemy forces. n76 In The Prize Cases, the Court made clear that the President did not need to wait for
congressional approval to blockade enemy ports during the initial stages of what became the [*528] Civil War. n77 In an opinion that also implicitly suggested that the President

the
President's authority as Commander in Chief was sufficient to respond to a sudden attack on the United
States, stating that in such a circumstance, "the president is not only authorized but bound to resist force
by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special
legislative authority. . . . It is none the less a war, although the declaration of it be 'unilateral.'" n78 Even when
Congress attempted to limit presidential war authority with the War Powers Resolution some hundred years later, it recognized that the President did not need
to wait for congressional authorization to use military force in response to "a national emergency created
by attack upon the United States, its territories or possessions, or its armed forces." n79 Equally important to the Court's
holding in The Prize Cases was its recognition that in the face of a sudden attack, the Executive alone "must determine what
degree of force the crisis demands," and the judicial and legislative branches must respect the institutional
competency of the President to make such a decision. n80 However, some have argued that the President's power to repel sudden attacks
would not need congressional authorization for conducting a sustained offensive against an enemy that had already attacked the United States, the Court held that

only justifies defensive action, and that any subsequent, offensive military action directed at enemy territory can only occur with congressional authorization. n81 For example, if
a foreign country attempted a ground invasion of the United States, the President could repel the sudden attack through a completely defensive military posture. A decision to
attack the foreign invader on its own territory, however, would be an additional offensive measure unnecessary for the purpose of repelling the attack and would require prior
congressional approval. The evolving nature of warfare, however, makes distinguishing between defensive and offensive military actions much more difficult. The era in which a
direct ground assault on the United States was possible has long ended. In the modern day, the United States is much more likely to be attacked from afar, either by long-range
missiles or through systematic terrorist attacks. In such situations, the only means of defense might be to attack the enemy's command-and-control structure. During the Cold
War, for example, the President would have been able to launch nuclear weapons at the Soviet Union--an "offensive" military action--in the face of a Soviet nuclear attack

International terrorism of the kind employed

by al-Qaeda is similarly impossible to repel without eliminating its command-and-control structure. The
terrorist attacks of September 11 were not intended to be the last on American soil, but rather the
beginning of a systematic terror campaign against the United States. n82 Unlike the soldiers in a regular, invading army,
because such a response would have also been genuinely necessary as a defensive measure. [*529]

international terrorists operate covertly and might only be detected after it is too late to stop them, as was the sad case on September 11. Sometimes they are "sleeper agents"
who go about their everyday existence until they are woken by terrorist leaders with instructions to carry out their mission. n83 The only realistic way to prevent these agents
from accomplishing their mission is to destroy the command-and-control system that funds and instructs these agents. Further increasing the likelihood that an executive
response to a sudden terrorist attack would go unchallenged is the political fallout that would occur in the Legislative and Judicial Branches for opposing the President's war-

In times of national emergency, there is often a rally-around-the-flag effect that typically centers
on support for the Executive, and this sentiment is likely to be heightened in a situation in which U.S.
fighting efforts.

civilians have been directly targeted in the attack. n84 For example, in the weeks following September 11,
President Bush's approval rating with the American public skyrocketed to ninety percent, despite his not
yet having taken any military action in response to the attacks. n85 During this period, there was virtually
no mainstream political opposition to President Bush's policies. The Congress's joint resolution granting
broad military authority to the President received only one dissenting vote, with a number of members of
Congress voting for the resolution for politically expedient reasons. n86 In a period of heightened national tension, the courts are
also unlikely to get involved in the legal debate over executive decisions in matters of war. Certain questions of governance are inherently "political questions," which courts are
unwilling to hear. As Justice Brennan wrote in Baker v. Carr, the landmark modern decision on the political question doctrine, the resolution of certain foreign relations issues
turns upon standards "that defy judicial application, or uniquely demand single-voiced statement of the government's views." n87 Defining the extent of the President's ability to
repel a sudden attack, and applying it to the particular circumstances of a given threat seems to be such a circumstance. The Judiciary lacks the requisite experience and
information to assess [*530] the military force necessary to repel a systematic terrorist attack, which would give courts good reason to refuse to define the scope of presidential
power as Commander in Chief. This is particularly true when challenges to presidential authority come at a time of national crisis, when a court ruling could undermine efforts
to protect national security. 4. Presidential Discretion to Use Nuclear Weapons in Response to an Attack in the Face of Express Congressional Disapproval Although express
congressional disapproval of the President's use of nuclear weapons seems to be the strongest case against the permissibility of presidential action, it fails under the same

. Although Congress can limit

the persons, places, or objects the Executive can target whenever statutory authority is needed for military
conduct, n88 it cannot inhibit the President's ability to carry out functions he has the constitutional power
to perform. n89 Congressional disapproval of the manner in which the President chooses to carry out
hostilities is legally irrelevant to his ability to conduct hostilities . The Executive Branch, not Congress, is
vested with the power to conduct hostilities. If Congress does not support the manner in which the President uses military force when he is
arguments that enable the President to use nuclear weapons absent congressional authorization or with only statutory authority

authorized to conduct military hostilities, its disapproval can be enforced through either impeaching the President or cutting military funds, thereby denying the President the

Thus, explicit congressional disapproval of presidential war-fighting

methods does not determine the legality of the President's use of force. If congressional authorization is
necessary for U.S. hostilities to be initiated, Congress can limit the President's ability to use force either by
denying him the authorization to conduct military operations or by providing only limited war-fighting
authorization to combat certain persons or organizations, but it cannot limit the President's power to
actually conduct military operations against enemies he is permitted to target. If the President has the
authority to combat terrorism as a result of either a congressional declaration of war, a statutory
authorization of military activity, or a sudden attack that the President has the inherent right to repel,
Congress cannot limit presidential discretion to use nuclear weapons.
resources necessary to continue military activities. n90

Impacts Executive Power Bad Nuclear Use Russia

Obama is building up US first strike capabilities, specifically targeted at Russia, rendering
conventional theories such as MAD obsolete
Osgood and Douglas, Military Correspondents for the Langley Research Center, 2013
[Carl and Rachel, March 15, Executive Intelligence Review, U.S. Moves Toward Nuclear First Strike
Capability, http://www.larouchepub.com/other/2013/4011nuke_first_strike.html, 7/3/15 DOA, DL]
On March 1, the Strategic Studies Quarterly, a journal published by the U.S. Air Force's Air University, published an article
admitting what both Lyndon LaRouche and EIR, and the Russians, have long been warning against: that U.S. strategic policy

under the Obama Administration is seeking to create the capability to launch a first strike against Russia
and/or China, without fear of nuclear retaliation, and that this is making nuclear war more, not less,
likely. While the two authors, Keir A. Leiber, associate professor at the Edmund A. Walsh School of Foreign Service at Georgetown
University, and Daryl G. Press, an associate professor of government at Dartmouth University, have been warning against this
danger since at least 2006, this is the first time one of their articles has appeared in a U.S. military publication,
tacit admission, perhaps, that their argument has merit, and must be considered. The Strategic Studies
article comes on the heels of a report from Moscow , by the Izborsk Club, an association of high-level Russian
intellectuals who characterize themselves as "patriotic and anti-liberal," warning of the same danger of an emerging

"counterforce" threat to Russia's strategic deterrent, and laying out the steps that Russia must take,
militarily, to defend against it. Since Barack Obama ascended to the office of the Presidency, he has
expanded the Bush-Cheney policy of strategic confrontation with Russia , most notably, with respect to
Iran and Syria. In Syria, the U.S. policy is one of regime change, a policy strongly opposed by Russia. At
the same time, the U.S. has been ringing Russia with missile defenses, including land-based sites in
Poland and Romania, and moving forward with a plan to forward-base four Aegis missile defense
destroyers in Rota, Spain. On May 3, 2012, then-Chief of the Russian Armed Forces General Staff Gen. Nikolai Makarov
declared that further advances in the deployment of a BMD system by the United States and NATO in Europe would so greatly
threaten Russia's security, as to necessitate a pre-emptive attack on such installations: The outbreak of military hostilities
between the U.S.A. and Russia would mean nuclear war. "Considering the destabilizing nature of the BMDS," Makarov
told an audience including U.S. officials, "specifically the creation of the illusion of being able to inflict a disarming first strike
without retaliation, a decision on the pre-emptive use of available offensive weapons will be taken during the period of an escalating
situation" (emphasis added). What Makarov was pointing out is that ostensibly defensive systems can be used in offensive

warfarein this case, to enable the West to launch a pre-emptive first strike without fear of a retaliatory
response. Just two weeks later, at a conference in Virginia, former U.S. Vice Chairman of the Joint Chiefs of Staff Gen. James
Cartwright acknowledged that "there's the potential that you could, in fact, generate a scenario where, in a bolt
from the blue, we launch a pre-emptive attack and then use missile defense to weed out" Russia's remaining missiles
launched in response. "We're going to have to think our way out of this," he said. "We're going to have to figure out how we're going
to do this." If the alleged threat from Iran, which is used to justify the missile defense deployment in Europe, is so great, then why
not cooperate with Russia on missile defense? Indeed, Russia has been proposing such cooperation since 2007, when then-President
Vladimir Putin traveled to Kennebunkport, Maine, to propose to then-President George W. Bush, cooperation with the U.S. and
NATO on missile defense. Bush never accepted the proposal, and neither has Obama. If the U.S.-NATO European system is not
aimed at Russia, then the U.S. ought to be able to provide guarantees that that's the case, as Russia has been demanding, but this is
dismissed by the U.S. and NATO as "unnecessary." The Russians have repeatedly warned that the U.S.-NATO plan upsets the
strategic balance and increases the risk of war, and have acted accordingly, even as they have made numerous proposals that would
avoid such a confrontation. The U.S. refusal to acknowledge Russian concerns, in concert with its regime-change policies in Syria
and Iran, is setting the stage for that confrontation. U.S. Seeks Strategic Primacy In their March 1 article, "The New Era of
Nuclear Weapons, Deterrence, and Conflict," Leiber and Press posit that, number one, " technological innovation has

dramatically improved the ability of states to launch 'counterforce' attacksthat is, military strikes aimed
at disarming an adversary by destroying its nuclear weapons." Number two, they argue, is that "in the coming
decades, deterring the use of nuclear weapons during conventional wars will be much harder than most analysts believe." The basis
of the authors' first argument is that: "Very accurate delivery systems, new reconnaissance technologies, and the

downsizing of arsenals from Cold War levels have made both conventional and nuclear counterforce
strikes against nuclear arsenals much more feasible than ever before." During the Cold War, they note,
neither the U.S. nor the Soviet Union could launch a disarming first strike against the other because each
side had so many weapons deliverable by different modes, that an attempted counterforce strike could not
prevent a retaliatory reply. This is no longer the case. The reduction of nuclear arsenals on both sides
means there are now fewer targets to hit, especially on the Russian side. In 2006, Leiber and Press modeled a
hypothetical U.S. first strike against Russia. " The same models that were used during the Cold War to demonstrate

the inescapability of stalematethe condition of 'mutual assured destruction,' or MADnow suggested

that even the large Russian arsenal could be destroyed in a disarming strike." Their point was to
demonstrate that the Cold War axioms of mutual and assured destruction and deterrence no longer
apply . But the authors go further to argue that the U.S. is knowingly pursuing a strategy of strategic primacy
against potential adversaries, "meaning that Washington seeks the ability to defeat enemy nuclear forces
(as well as other WMD) but that U.S. nuclear weapons are but one dimension of that effort. In fact, the
effort to neutralize adversary strategic forcesthat is, achieve strategic primacyspans nearly every realm
of warfare: for example, ballistic missile defense, antisubmarine warfare, intelligence, surveillance-andreconnaissance systems, offensive cyber warfare, conventional precision strike, and long-range precision
strike, in addition to nuclear strike capabilities." Rather than pointing out the obviousthat the U.S. is building
a first-strike capability against any potential adversary, including Russia and China they ask, instead: "How is
deterrence likely to work when nuclear use does not automatically imply suicide and mass slaughter?" Their second point is equally
disturbing. If the United States gets involved in a conflict with a power that has nuclear weapons, the risk that those weapons will be
used is actually increasing. They dispense with the counter-argument that no one in his right mind would

launch nuclear war against the United States. In peacetime, this is certainly true, but if you are already
being attacked by the United States, then regime survival may depend on what they call escalatory
coercion. "Leaders of weaker statesthose unlikely to prevail on the conventional battlefieldface lifeand-death pressures to compel a stalemate," they write. "And nuclear weapons provide a better means of
coercive escalation than virtually any other." This is not so far-fetched. In fact, this was NATO's strategy
during much of the Cold War. It is Pakistan's strategy against India, and is used as a hedge by Israel,
should its conventional forces ever face catastrophic defeat. "Those who were weak during the Cold War
are now strong, and another set of militarily weak countriessuch as North Korea, Iran, Pakistan, and
even China and Russianow clutch or seek nuclear weapons to defend themselves from overwhelming
military might, just as NATO once did," they write. U.S. and Russian Strategic Nuclear Forces In Russia, the strategic
intention, and Russia's weaknesses in the face of it, are very well understood. Russia's nuclear forces collapsed quickly after the end
of the Cold War. As of Sept. 1, 2012, at the time of the last data exchange between the U.S. and Russia under the new START treaty,
Russia had 1,499 warheads on 491 delivery vehicles, putting it already below the treaty limitation of 1,550 warheads. The U.S., on the
other hand, declared 1,722 warheads on 806 delivery vehicles. Most of the Russian warheads, 1,092 of them, in fact, are
concentrated in its ICBM force of 334 missiles of various types, all silo-based except for 36 road-mobile systems. The most
important element of the U.S. strategic force is the Ohio-class ballistic-missile-armed submarines, 14 of which are in service, and at
least 4 of which are reportedly on deterrent patrol at any one time, capable of carrying up to 8 warheads per missile, of either the
100-kt W76 model or the 475-kt W88 model. According to data provided by the Navy, in response to an EIR Freedom of Information
Act request, U.S. Trident submarines conducted 38 patrols in 2009; 33 in 2010; and 28 in 2011, in both the Atlantic and Pacific
Oceans. To this, must be added Britain's nuclear ballistic-missile submarine force of 4 Vanguard-class submarines, 1 of which is on
patrol at all times, carrying 48 warheads. The Russian ballistic-missile submarine force, which consist of 11 vessels, is not known to
be maintaining a continuous at-sea posture, but Russia has been making efforts to upgrade it with the addition of the Borey-class of
missile-launching submarines, the first of which was accepted into service in January, out of a total of 8 that are planned. The
Izborsk Report In late January, the Izborsk Club, Russia's new policy-shaping group, released a report entitled "Defense Reform as
an Integral Part of a Security Conception for the Russian Federation: a Systemic and Dynamic Evaluation." The sections of the 85page report dealing with a potential thermonuclear global showdown demonstrate that leading Russian circles are well
aware of the developments discussed in the latest Leiber-Press article, regarding U.S. attempts to develop a

"counterforce" capabilityto be able to take out Russia's means to retaliate against a nuclear attack, thus
making thermonuclear war more likely. The Izborsk Club, founded on Lyndon LaRouche's 90th birthday, Sept. 8, 2012 (a
fact of which the group officially took note), brings together leading patriotic, anti-liberal Russian analysts with figures close to the
Kremlin. Its new report was co-authored by Gen. Leonid Ivashov (ret.) (former head of the International Relations Department of
the Ministry of Defense), Academician Sergei Glazyev, editors Alexander Prokhanov and Alexander Nagorny from the weekly Zavtra,
and historian Andrei Fursov, among others. The document was issued in a setting of turmoil within the Russian Armed Forces.
Former furniture-store manager and tax collector Anatoli Serdyukov, who, as Defense Minister, oversaw defense reform for four
years under Dmitri Medvedev's Presidency, is under interrogation by the federal Investigative Committee in connection with the
embezzlement scandal around the Ministry's real estate agency, which had been headed by a woman who was apparently his
mistress. On Feb. 27, President Putin and his appointee as Defense Minister, Sergei Shoygu, addressed an expanded meeting of the
Defense Ministry Board, to deal with the past year's developments, and what Putin called "a difficult and at times painful"
modernization process in the military. In this speech, Putin stated that, "We see methodical attempts to undermine the strategic
balance in various ways and forms. The United States has essentially launched now the second phrase in its global missile defense
system." In this and several other passages, Putin's remarks were consonant with the assessments and recommendations of the
Izborsk Club. Like LaRouche, the Izborsk authors soberly assess the danger of thermonuclear war, and its finality, as stemming from
utopian policies reigning in the West. They write: "Washington is escalating its efforts to achieve overwhelming

military-technological superiority over Russia, such that the R[ussian] F[ederation] would dismantle its
strategic nuclear arsenal, thus losing its retaliatory nuclear-strike capability and, consequently, losing
strategic parity with the U.S.A. Washington is pursuing this goal both by developing advanced strategic
rearmament programs, and through diplomatic efforts to impose upon Russia strategic and conventional
arms reduction agreements that are advantageous to the U.S.A.... "Washington's likely line in its Russia

policy in the near future will be to involve Russia in a NEW RESET scheme, using the NATO bloc in order
to (a) prevent Russia's rapprochement with China, and (b) weaken Russia's military potential as much as
possible. This weakening will be accomplished through a series of disarmament agreements, reducing
Russia's strategic nuclear missile potential, as well as tactical nuclear weapons, to a minimum; the latter
are especially important in the event of regional and local conflicts, including in Central Asia and the
Caucasus region.... "For the decades ahead, however, any real threat of a massive nuclear-missile strike against
Russia would originate only from the U.S.A and its allies. For the time being, the likelihood of such a war can be
regarded as very small, as long as as Russia maintains its strategic nuclear forces and its deterrent capability of launching an assured
retaliatory nuclear-missile strike. This turns nuclear weapons into the military-political ultima ratio, and makes them the subject of
continuous military-technological competition between the superpowers, in attempts to neutralize this power factor. At the same
time, in wars on a local or regional scale, tactical weapons are gaining more and more importance. Over the last decade, the USA and
the NATO countries have been intensely developing the conception of a disarming non-nuclear strike against Russia's control
systems and its strategic nuclear forces. Such a counterforce strike would rule out the possibility of Russian nuclear retaliation that
would cause unacceptable damage to the U.S.A." Concerning a "major war scenario," the report continues: "The nature of such a war
will be: high-intensity and high-technology, since any of the countries named above would seek to deliver a preemptive, disarming
strike with HPW [high-precision weapons] against our strategic nuclear forces, reconnaissance, control, and communications
systems in outer space, in the air, and on the ground; "based on a massive employment of HPW and conventional forces and means
of battle in the first attack echelon (in all-or-nothing mode), in order to destroy our forces and achieve the basic war objectives
before a retaliatory nuclear strike can be launched and before the initiation of political negotiations. "In strategic terms, such a
conflict may be preceded by a period of escalating conflict potential, which could allow the timely detection of war preparations by
intelligence/ reconnaissance forces and assets, and the ability to carry out the needed countermobilization." The Way Out The
Leiber-Press article appears to have only one major weaknesshow the U.S. should get out of the strategic trap it has marched into.
They offer the alternatives of either avoiding war with nuclear-armed states, which they say may not be possible, or doing more of
what it is currently doing, that is, building its counterforce capabilities to the point that it overcomes the danger of coercive
escalation. They don't suggest, however, a complete change in the strategic policy of the United States, but such a strategic change
would require the Constitutional removal of President Obama from office and a paradigm shift in the way that strategic policy is
made in Washington. Recently, two top-level Russian officials, Sergei Ivanov, former Defense Minister and present head of the
Russian Presidential Administration, and Vladimir Kozin, a member of an interagency working group attached to the Russian
Presidential Administration and a researcher at the Russian Institute of Strategic Studies, both argued that the U.S. must stop
surrounding Russia with missile defenses, and instead should join with the world community to develop the defenses necessary to
protect the Earth from asteroid strikes. Ivanov told Komsomolskaya Pravda on March 5 that the U.S. ABM system in Europe "does
not appear to respond to potential threats coming from North Korea and Iran. This affects Russia's strategic nuclear forces and
undermines the balance of forces. In this case Moscow can't afford a new round of nuclear arms reduction as the U.S. currently
outnumbers Russia in nuclear weapons." Ivanov said that Russia sees "no light at the end of tunnel" in missile

defense discussion with the U.S ." Pravda added, "Mr. Ivanov implied that Washington's position is not sincere and cannot
be taken seriously." On planetary defense, he said, "No country, not even the United States, can solve this alone," and therefore there
must be a collective effort. Ivanov's remarks followed a hard-hitting Feb. 28 article in the Moscow Times by Kozin, who warned that
the U.S. anti-ballistic missile (ABM) systems are out to "destroy Russia intercontinental ballistic missiles,"
and advising that instead of trying to surround Russia, the United States should be working with Russia to defend the Earth from
meteorites and similar dangers. Kozin's piece is an unusually detailed analysis that rips into President Obama's phony offers of
reducing offensive systems, and shows that Obama is covering up the buildup of tactical nuclear weapons at the
same time as the ABM systems are built up.
Nuclear war with Russia may occur inadvertently and wipe out humanity
Baum, Executive Director of the Global Catastrophic Risk Institute, 2014
[Seth, March 7th, Huffington Post, Best And Worst Case Scenarios for Ukraine Crisis: World Peace And
Nuclear War, http://www.huffingtonpost.com/seth-baum/best-and-worst-case-scena_b_4915315.html,
7/3/15 DOA, DL]
Let's start with the worst case scenario, nuclear war involving the American and Russian arsenals. How
bad would that be? Put it this way: Recent analysis finds that a "limited" India-Pakistan nuclear war could
kill two billion people via agricultural declines from nuclear winter. This "limited" war involves just 100
nuclear weapons. The U.S. and Russia combine to possess about 16,700 nuclear weapons. Humanity may
not survive the aftermath of a U.S.-Russia nuclear war. It seems rather unlikely that the U.S. and Russia would end up
in nuclear war over Ukraine. Sure, they have opposing positions, but neither side has anywhere near enough at stake to justify such
extraordinary measures. Instead, it seems a lot more likely that the whole crisis will get resolved with a minimum of deaths.
However, the story has already taken some surprising plot twists. We cannot rule out the possibility of it ending in
direct nuclear war. A nuclear war could also occur inadvertently, i.e. when a false alarm is misinterpreted

as real, and nuclear weapons are launched in what is believed to be a counterattack. There have been
several alarmingly close calls of inadvertent U.S.-Russia nuclear war over the years. Perhaps the most
relevant is the 1995 Norwegian rocket incident. A rocket carrying scientific equipment was launched off
northern Norway. Russia detected the rocket on its radar and interpreted it as a nuclear attack. Its own
nuclear forces were put on alert and Boris Yeltsin was presented the question of whether to launch

Russia's nuclear weapons in response. Fortunately, Yeltsin and the Russian General Staff apparently
sensed it was a false alarm and declined to launch. Still, the disturbing lesson from this incident is that
nuclear war could begin even during periods of calm. With the Ukraine crisis, the situation today is not
calm. It is even more tense than last year, when the United States was considering military intervention in Syria. By
coincidence, Israel had a pre-scheduled ballistic missile defense test during that brief period. Despite the tensions, Israel
conducted its test, launching two missiles from the Mediterranean towards Israel. Russian radar again
picked up the launch, initially suspecting it was the start of military action before Israel set the record
straight. This incident could have escalated, especially because the U.S. and Russia had opposing
positions on Syria. Fortunately, the confusion was quickly resolved and no escalation occurred.

Impacts Executive Power Bad Democracy

Presidents have been given too much power, threatening our democratic system
Scholastic Teachers, no date (Can a President Be Too Strong?, Scholastic,
http://www.scholastic.com/teachers/article/can-president-be-too-strong, DOA 07-05-15, AX)
Can a president be too strong? "Of course not," most people would answer. "It's always better to be strong than weak." Perhaps. But
can a president be so powerful that he or she threatens the nation's freedom? Should a president be allowed to violate the rights of
the American people? Or to ignore the rights of other nations? In recent years, many people think that the president

has become too strong. They say that the president has taken so much power from the other branches of
government that this threatens our democratic system. Are there rules to tell a president how far he or she can go?
The U.S. Constitution is supposed to prevent the president from using power in the wrong way. Article II states all the things that a
president may do and some of the things that he or she may not do. The Growing Power of the President The Constitution was
written over 200 years ago. The people who wrote it did not know about nuclear weapons or rockets to the moon or computers or
television. They didn't know that the U.S. would some day be the richest, most powerful nation on Earth, with the power to destroy
other nations in minutes. They didn't know that our economy would become so complicated and so big that it would require
constant attention to keep it running smoothly. Therefore, the rules that they wrote in the Constitution say little about a modern
president's real power. George Washington would be shocked to know the following facts: The president today has the power to
command the instant destruction of entire cities. The U.S. has thousands of missiles with nuclear warheads. Only the president can
give the signal to launch them. How much military power did president Washington command in 1789? A few cannons and 718
soldiers. The president's power is felt all over the world. The president travels by jet from one nation to another. Foreign leaders
often come to the White House. If Washington had tried to visit Europe or Asia, he would have been on a ship at sea for months at a
time. The American people expect the president to deal with a huge number of problems. If there is economic trouble, they expect
the president to cure it. Modern presidents don't just try to administer the laws passed by Congress. Nor do they merely
"recommend measures" to Congress as required by the Constitution (Article II, Section 3). Through staff members, they often bring
pressure on Congress to pass favored bills, including some actually written in the Executive Department. In Washington's day, many
people thought the president's powers were only those directly mentioned in Article II of the Constitution. Does the Constitution
Allow a "Strong" President? How much power should the president have? How much does the Constitution set limits to the
president's actions? These are very old questions. Throughout American history, there have been many kinds of presidents. But a
number of them have tended to fall into two very different groups in their attitudes toward presidential power. The first believed
that the powers of the president were few and limited. presidents of this type thought they could, or should, do no more than follow
the exact words of the Constitution and carry out the laws of Congress. You might call them "weak executive" presidents. That
doesn't mean that they were weak people. It means only that they believed their actions were strictly limited by the Constitution.
Modern examples of such presidents were Warren Harding (192123), Calvin Coolidge (192329), Herbert Hoover (192933), and
Dwight Eisenhower (195361). Some others have been "strong executive" presidents. They believed the Constitution gave them
enough power to be strong leaders. In their view, a president could act in ways not specifically mentioned by the Constitution.
Almost all our most famous presidents since Abraham Lincoln have believed in a strong Presidency. Lincoln, Theodore Roosevelt
(190109), Woodrow Wilson (191321), and Franklin Roosevelt (193345) all acted in bold new ways. Their critics were sometimes
shocked by their actions and complained that the Constitution was ignored. But the "strong executive" defended himself. The
question of how strong a president should be may be more important now than ever before. After all, the president has gained
enormous power in recent years. Some scholars who once favored a strong president now believe that the trend has gone too far.
They believe that we should go back to the days when the president and congress were more or less equal in power. What do you
think? Below are arguments on either side of the question. Decide which argument is strongest. The Case Against a Strong
President We often treat our presidents as if they were royalty. presidents live in a big mansion. They have
servants and assistants whose only job is to make sure the president has everything he or she wants. They
don't get much personal contact with the American people because the Secret Service fears they may be attacked. As one critic

says: "No one speaks to him unless spoken to first. No one ever tells him to go soak his head when his
demands become unreasonable." The president has taken more and more power at the expense of
Congress. The people who wrote the Constitution believed in checking and balancing power between
Congress and the president. But today, the president is more powerful than Congress. One example of
what has happened is in the power to declare war. The Constitution clearly gives that power to Congress
only. Yet recent presidents have been able to fight wars without a formal declaration of war by Congress.
Take, for example, Vietnam. Though the president never asked Congress for a declaration of war against anyone in Southeast
Asia, Congress allowed the president to conduct a war there. Congress passed a resolution allowing the president "to take all
necessary measures to ... prevent aggression [in Vietnam]." Then, over the course of the years, it consistently gave the president the
money that he said he needed to do so. It may be said that by doing this Congress willingly gave up its exclusive power to declare
war.

Increased executive powers undermines democracy

Nelson, Vanderbilt University professor, 08 (Dana D., Bad for Democracy: How the Presidency
Undermines the Power of the People, pg 145, 9-19-08, DOA 07-03-15, AX)
The massive aura of power that accrues to the commander in chief does not seem to secure the power,
efficacy, and legacy of individual presidents. Despite their successes at building powers for the presidency,
both Harry Truman and Lyndon Johnson left the office in a thick haze of disapproval over wars to which

theyd unilaterally committed U.S. forces. And as George W. Bush moved toward the final phase of his
second term, his job approval ratings took a worse dive than any president since Richard Nixon, which
doesnt bode well for his presidential legacy. Political scientists like Richard Pious call this kind of
presidential failure in the face of increased executive powers a performance paradox, suggesting that the
seemingly endless ramping up of presidential dominance presents simply a kind of intellectual puzzle, a
structural conundrum that functions contrary to expectations and hamstrings presidents. If anything, as
this perspective implies, we should be worried that for all their ability to dominate the national and
international agendas, presidents still dont have the right kind of powers, since those they do have
seemingly only work to jeopardize their legacy. But the model of the executive power touted by Bush
pushes against the limits of such common sense spouted by presidential analysts who keep insisting that
we neednt worry that the accumulation of powers around the presidency could ever be a threat to
democracy.
Executive power gives the president too much power, destroying our democracy
Genovese, Bellarmine political science professor, Ph.D., 11 (Michael A., The Presidential
Dilemma: Revisiting Democratic Leadership in the American System, pg 166, 12-31-11, DOA 07-02-15,
AX)
In a democracy, following the will of the people is essential. Any leader who pursues policies contrary to
the expressed wishes of the people can be accused of the democratic cardinal sin: defying the will of the
people. Thus leadership requires, first, that a leader use every possible means to bring about informed
judgments by the people. Then, the leader must serve the people. This form of democratic accountability calls for
the leader to play an important role, but it ultimately relies upon the people to make final judgments. The best
democratic leadership, in Bruce Miroffs words, not only serves peoples interests but furthers their democratic dignity as well.
Thus, Thomas Jeffersons vision of a democratic leadership that informs the public, then follows their will, elevates both leader and
citizen. Such a form of leadership is difficult, time consuming, and fraught with pitfalls. But it is a style of leadership which builds
strong citizens for a strong democracy. A Powerful and Accountable President? Can the presidency be made power and
accountable? Can the president lead yet not become an autocrat? In some areasforeign policy and war, for examplethe
president has perhaps too much power. In other areas, domestic and economic policy, the president seems far too weak.
The former means we sometimes get heroic but undemoncratic leadership; the latter means we often lead presidential lambs to
political slaughter. Overall, the system of presidential leadership is dysfunctional. Presidents rarely build coalitions or generate
consensus, and they sometimes act as independent policy entrepreneurs. This is not democratic leadership. It is not
leadership.

Presidents are given too much power and arent cooperative when reduction attempts are
madeBush proves
Nelson, Vanderbilt University professor, 08 (Dana, Too Much Presidential Power -- We've Got to
Address the 'Unitary Executive' Question, Alternet,
http://www.alternet.org/story/102856/too_much_presidential_power_-_we've_got_to_address_the_'unitary_executive'_question, 10-13-08, DOA 07-02-15, AX)
One problem is that presidential unilateralism can seem reassuring in times of crisis, so it often receives
congressional support. Most recently, in the name of managing our fiscal crisis, Congress has granted
unprecedented powers to the executive and to an unelected and unaccountable secretary of the Treasury.
Another problem is that once Congress gives powers to the executive branch, it seldom can get them back.
In 2001, Congress granted Bush the authorization to use military force against terrorists; five years later,
when Congress sought to take back some of that authority by passing a bipartisan anti-torture bill, Bush
was unwilling to back down. Instead, he signed the bill into law but appended a signing statement insisting that he would
uphold the law in a manner consistent with "the constitutional authority of the president to supervise the unitary executive branch
and as commander in chief." In other words, he would ignore its provisions if he felt they limited his authority.

Impacts Executive Power Bad Democracy Impacts

Democracy protects human rights and freedoms
UN, no date (The United Nations, Democracy and Human Rights, Global Issues,
http://www.un.org/en/globalissues/democracy/human_rights.shtml, DOA 07-03-15, AX)
The human rights normative framework The values of freedom, respect for human rights and the principle of holding
periodic and genuine elections by universal suffrage are essential elements of democracy. In turn, democracy
provides the natural environment for the protection and effective realization of human rights. These values
are embodied in the Universal Declaration of Human Rights and further developed in the International Covenant on Civil and
Political Rights which enshrines a host of political rights and civil liberties underpinning meaningful democracies. The link between
democracy and human rights is captured in article 21(3) of the Universal Declaration of Human Rights, which states: The will of
the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall
be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. The rights enshrined in
the International Covenant on Economic, Social and Cultural Rights and subsequent human rights instruments covering group
rights (e.g. indigenous peoples, minorities, people with disabilities) are equally essential for democracy as they ensure inclusivity for
all groups, including equality and equity in respect of access to civil and political rights. For several years, the UN General Assembly
and the former Commission on Human Rights endeavored to draw on international human rights instruments to promote a
common understanding of the principles, norms, standards and values that are the basis of democracy, with a view to guiding
Member States in developing domestic democratic traditions and institutions; and in meeting their commitments to human rights,
democracy and development. This led to the articulation of several landmark resolutions of the former Commission on Human
Rights. In 2000, the Commission recommended a series of important legislative, institutional and practical measures to
consolidate democracy (resolution 2000/47); and in 2002, the Commission declared the following as essential
elements of democracy: Respect for human rights and fundamental freedoms Freedom of association
Freedom of expression and opinion Access to power and its exercise in accordance with the rule of law The holding of
periodic free and fair elections by universal suffrage and by secret ballot as the expression of the will of the people A pluralistic
system of political parties and organizations The separation of powers The independence of the judiciary Transparency and
accountability in public administration Free, independent and pluralistic media

Research proves democracies are the most peacefulthey dont go to war as often and
dont commit genocide
Rummel, former political science professor at the University of Hawaii, no date (R.J., The
Democratic Peace: A New Idea?, https://www.hawaii.edu/powerkills/POLSYS.ART.HTM, DOA 07-0515, AX)
By the end of the eighteenth century a complete [classical] liberal theory of international relations, of war and peace, had ...
developed... Peace was ... fundamentally a question of the establishment of democratic institutions throughout the world.[2]
SUMMARY Are political systems related to collective violence and war? This is now fundamentally answered in one
of three ways: yes, democracies are least violence prone; yes, socialist equalitarianism assures peace; and no, political
systems and violence are unrelated. Recent theoretical and empirical research confirms the first answer: those
political systems that maximize and guarantee individual freedom (democracies) are least violence prone ;
those that maximize the subordination of all individual behavior to state control (totalitarian systems) the most, whether socialist or
not; and wars do not occur between democracies. Known for centuries, a tenet of classical liberalism, the pacific nature of
democracy has became largely forgotten or ignored in the last half-century. That democracy is inherently peaceful is now probably
believed by no more than a few prominent peace researchers. In part this has been due to the intellectual defection of Western
intellectuals from classical liberalism to some variant of socialism, with its emphasis on the competitive violence and bellicosity of
capitalist freedoms. Many intellectuals, and in particularly European and Third World peace researchers, have come to believe that
socialist equalitarianism is the answer to violence; others, particularly American liberals, believe that if the socialist are wrong, then
at least democracies are no better than other political systems in promoting peace. Socialism aside, there also has been a rejection
of Western values, of which individual freedom is prominent, and acceptance of some form of value-relativism (thus, no political
system is better than any other). In some cases this rejection has turned to outright hostility and particularly anti-Americanism, and
thus opposition to American values, such as freedom. To accept, therefore, that democratic freedom is inherently most peaceful, is to
the value-relativist, to say the unacceptable--that it is better. For another, to accept that this freedom promotes non-violence seems
to take sides in what is perceived as the global ideological struggle or power game between the United States and Soviet Union.
Independent of different ideological or philosophical perspectives, several interacting methodological errors have

blinded intellectuals and peace researchers to the peacefulness of democracies. One of these is the strong,
general tendency to see only national characteristics and overall behavior. Then a nation is rich or poor,
powerful or weak, belligerent or pacific. But most important for identifying the relationship between
freedom and violence is rather the similarities and differences between two states and their mutual
behavior. Thus should be observed a lack of violence and war between democracies; and the most severe
violence occurring between those nations with the least freedom. Another error has been to selectively focus upon
the major powers, which include among them not only several democracies having many wars, but also Great Britain having the
most. However, a systematic comparison among all the belligerents and neutrals in wars, would uncover the

greater peacefulness of democracies. Along with this selective attention is the tendency to count equally against
democracies all of its wars, no matter how mild or small. Thus, the American invasion of Grenada would be one mark against
democracy; Hitler's invasion of Poland that initiated World War II would be a similar mark against non-democracies. This stacks
any such accounting against democracy. Finally, while a systematic survey of the literature shows significant

support for the inverse relationship between democracy and violence, researchers have done little
theoretical testing of this relationship, thus resulting in their overlooking or ignoring it when it appears in
their results. DEMOCRACIES PROMOTE NONVIOLENCE The organizers of this conference asked me write a taxonomic paper
on the question: "Can the relative bellicosity of states be measured and predicted as a function of their internal political system?"
The answer of most current empirical research is decidedly yes.[3] Indeed, the empirical relationship is even more profound and
comprehensive than the question implies. In theory and fact, the more democratic the political systems of two
states, the less violence between them; and if they are both democratic violence is precluded altogether. [4]
That is, democratic states do not make war on each other. Moreover, the more democratic a political system, the less
foreign and domestic collective violence; the more totalitarian, the more likely such violence. [5] Perhaps the most
surprising finding is that the less democratic a government, the more likely it will kill its own citizens in cold
blood, independent of any foreign or domestic war. Now, war is not the most deadly form of violence. Indeed, while

36 million people have been killed in battle in all foreign and domestic wars in our century, at least 119
million more have been killed by government genocide, massacres, and other mass killing. And about 115
million of these were killed by totalitarian governments (as many as 95 million by communist ones).
There is no case of democracies killing en masse their own citizens.[6] The inverse relationship between
democracy and foreign violence, collective domestic violence, or government genocide is not simply a
correlation, but a cause and effect. In a nutshell, democratic freedom promotes nonviolence. These results are
worthy of the greatest attention and analysis, for if true, which I am now convinced they are, then peace research has in fact defined
a policy for minimizing collective violence and eliminating war: enhance and foster[7] democratic institutions--civil liberties and
political rights--here and abroad.[8]

Impacts Executive Power Bad Separation of Power

Unlimited executive power is uncontrollable and undermines the separation of powers
doctrine

Nelson, Professor of American Studies at Vanderbilt University,

2008

[Dana, October 13th, Alternet, Too Much Presidential Power -- We've Got to Address the 'Unitary
Executive' Question, http://www.alternet.org/story/102856/too_much_presidential_power_-_we've_got_to_address_the_'unitary_executive'_question, 7/5/15 DOA, DL]
Plenty of presidents have worked to increase presidential power over the years, but the theory of the
unitary executive, first proposed under President Reagan, has been expanded since then by every president,
Democrat and Republican alike. Reagan's notion was that only a strong president would be able to dramatically
limit big government. Perhaps drawing on a model for unitary corporate leadership in which the CEO also serves as chairman
of the board, the so-called unitary executive promised undivided presidential control of the executive branch and its agencies,
expanded unilateral powers and avowedly adversarial relations with Congress. In the years that followed, Heritage Foundation and
Federalist Society conservatives worked to provide a constitutional cover for this theory, producing thousands of pages in the 1990s
claiming -- often erroneously and misleadingly -- that the framers themselves had intended this model for the office of the
presidency. Unitarians (for lack of a better word) want to expand the many existing uncheckable executive powers

-- such as executive orders, decrees, memorandums, proclamations, national security directives and
legislative signing statements -- that already allow presidents to enact a good deal of foreign and domestic
policy without aid, interference or consent from Congress. Ardent proponents even insist that there are
times when the president -- like a king -- should operate above the law. Presidents and their supporters
justify the unitary executive with an expansive reading of Article II of the Constitution (which sets out the
role of the executive branch), invariably citing congressional log-jamming (what we used to call "checking
and balancing") or national security. Each president since 1980 has used the theory to seize more and
more power. Reagan used expanded unilateral powers to launch an era of deregulation. Presidents George H.W. Bush,
Clinton and George W. Bush all used the legislative signing statement -- the written text they are allowed to give
when signing a bill into law in order to explain their position -- not simply to offer warnings and legal interpretations but to make
unilateral determinations about the validity of the provisions of particular statutes. The American Bar
Assn. denounced this practice in 2006 as presenting "grave harm to the separation of powers doctrine,
and the system of checks and balances, that have sustained our democracy for more than two centuries."
One problem is that presidential unilateralism can seem reassuring in times of crisis, so it often receives
congressional support. Most recently, in the name of managing our fiscal crisis, Congress has granted
unprecedented powers to the executive and to an unelected and unaccountable secretary of the Treasury.
Another problem is that once Congress gives powers to the executive branch, it seldom can get them back .
In 2001, Congress granted Bush the authorization to use military force against terrorists; five years later,
when Congress sought to take back some of that authority by passing a bipartisan anti-torture bill, Bush
was unwilling to back down. Instead, he signed the bill into law but appended a signing statement insisting
that he would uphold the law in a manner consistent with "the constitutional authority of the president to supervise the unitary
executive branch and as commander in chief." In other words, he would ignore its provisions if he felt they limited

his authority . Bush's aggressive exercise of unilateral powers has attracted serious opposition. Unfortunately, too many imagine
that the unitary executive doctrine and its kingly prerogatives will leave office with him. That hope is false. History teaches that
presidents do not give up power -- both Democrats and Republicans have worked to keep it. And besides,
hoping the next president will give back some powers means conceding that it is up to him to make that
decision.

Solvency

1AC Solvency
Ruling on 4th amendment is key to restore standing to challenge surveillance
Liz Clark Rinehart 14, J.D. Candidate, 2015, University of Maryland Francis King Carey School of Law,
CLAPPER v. AMNESTY INTERNATIONAL USA: ALLOWING THE FISA AMENDMENTS ACT OF 2008
TO TURN INCIDENTALLY INTO CERTAINLY MARYLAND LAW REVIEW [VOL. 73:1018, SSRN,
DOA: 7-1-15, y2k
In Clapper v. Amnesty International USA, the Supreme Court refused to grant standing to U.S. persons
who feared the U.S. government would intercept their communications with non-U.S. persons living in
foreign countries.248 The Court found that since the plaintiffs could not be actual targets of surveillance authorized under the
challenged statute, 50 U.S.C. Section 1881a, they could not show their interception was sufficiently certain to occur.249 For similar
reasons, the plaintiffs expenditures in response to their fear of surveillance could not constitute sufficient injury to confer
standing.250 By refusing to grant standing, the Court severely limited the ability of U.S. persons to

challenge the increasingly broad surveillance programs conducted by the federal government.251 Additionally, the
Courts inquiry into the imminence of the injury will do little to remedy the confusion and uncertainty regarding
when an injury is sufficiently likely to occur such that a plaintiff can bring suit in federal court .252 The
Courts analysis will likewise do little to clarify whether incidentally intercepted U.S. persons can challenge surveillance laws.253
The Court could have given more guidance to lower courts and Congress had it recognized the plaintiffs were a class of individuals
the drafters of Section 1881a contemplated as being potentially intercepted individuals254 and, as such, their claim for standing

should have been analyzed under a more lenient standard .255 Although the Court still could have denied standing by
refusing to narrow the incidental interception exception, the need for robust Fourth Amendment protection from
ever-increasing governmental invasions of privacy suggests that the Court should reverse its course of
selecting certain activities and people for less Fourth Amendment protection .

Solvency Court Key Judicial Review

Using its judicial power, the Supreme Court is responsible for checking the executive
branch when it gets out of hand

Lynch, Director of the Project on Criminal Justice at Cato

Institute, 2000

[Timothy, Summer 2000, Harvard Society for Law & Public Policy, Inc., ARTICLE: IN DEFENSE OF
THE EXCLUSIONARY RULE, 23 Harv. J.L. & Pub. Pol'y 711, Lexis, DL]
Liberals, on the other hand, generally have defended the exclusionary rule, both as an appropriate judicial remedy for Fourth
Amendment violations and as a mechanism to deter police misconduct. This Article will conclude that the exclusionary rule is
fundamentally sound, but for somewhat different reasons than liberal legal scholars typically offer. The drive to abolish the

exclusionary rule is fundamentally misguided on constitutional grounds, for the rule can be justified on
separation of powers principles, which conservatives generally support. When agents of the executive
branch (the police) disregard the terms of search warrants or attempt to bypass the warrant-issuing
process altogether, the judicial branch can and should respond by "checking" such
misbehavior when it can. The most opportune time to check such unconstitutional behavior is when lawyers for the
[*716] executive branch (prosecutors) attempt to introduce illegally seized evidence in court. Because the exclusionary rule is
the only effective method the judiciary has to preserve the integrity of its warrant-issuing authority, any
legislative attempt to abrogate the rule should be declared null and void by the Supreme Court. II. First
Principles: The Separation of Powers Doctrine Before examining the constitutional merits of the exclusionary rule in detail,
it will be useful to begin with first principles and then proceed, through deduction, to the narrow question of whether use of the
exclusionary rule can be justified in criminal proceedings. One might say without overstatement that the central organizing

principle of the U.S. Constitution, as distinct from its substantive principles, is the separation of powers
doctrine. Although the phrase "separation of powers" does not appear in the constitutional text, no one can deny that
the Constitution's structure centers on that maxim . Article I vests certain "legislative Powers" in Congress;
n17 Article II vests the "executive Power" in the President; n18 and Article III vests the "judicial Power" in the Supreme
Court. n19 As Justice Joseph Story observed: The first thing, that strikes us, upon the slightest survey of the national Constitution,
is, that its structure contains a fundamental separation of the three great departments of government, the legislative, the executive,
and the judicial. The existence of all these departments has always been found indispensable to due energy and stability in a
government. Their separation has always been found equally indispensable, for the preservation of public liberty and private rights.
Whenever they are all vested in one person or body of men, the government is in fact a despotism, by whatever name it may be
called, whether a monarchy, or an aristocracy, or a democracy. n20 Because two hundred years have passed since the ratification of
the Constitution, modern day Americans tend to forget that [*717] the Constitution of 1787 represented a bold new experiment in
political science. In England, the balance of power would shift back and forth between the King and Parliament. n21 The judiciary
was not known as a separate power, but was in both theory and practice a part of the executive. n22 While the Framers of the U.S.
Constitution did incorporate those aspects of the British Constitution they deemed worthwhile, the separation of powers principle
and an independent judiciary are distinctively American innovations in political science. n23 To guard against the danger of

one branch seizing the powers and prerogatives of the others, the Framers devised a sophisticated series
of "checks and balances." Congress has the power to pass and repeal laws, n24 but the President can check those measures by
vetoing bills. n25 Congress can, in turn, override a veto if it can muster a two-thirds vote. n26 The Supreme Court has
the power of judicial review, n27 but the President has the power to nominate judges and justices and Congress can
confirm or reject executive nominations. n28 The House of Representatives has the power to impeach executive and judicial officers
who engage in misconduct, n29 but the Senate tries all impeachments, and the constitutional threshold for conviction is high concurrence of two-thirds of the members present. n30 By equipping each branch with powers of self-defense, the Framers believed
they could prevent the concentration of all governmental power in any one branch. The constitutional system of separation of
powers also operates within the criminal justice system. At a general level, the legislature passes criminal laws; the executive
enforces the [*718] laws; and the judiciary interprets and applies the laws. Often the relations between the three branches of
government are cordial and cooperative, but sometimes they clash. Under a system of separate and coordinate powers, however,

each branch is expected to remain within its sphere and to respect the powers that the Constitution has
assigned to the other branches. Acrimonious disagreements about the scope of their respective powers were both expected

and tolerated; encroachment, on the other hand, was proscribed because the usurper essentially would be declaring itself above the
fundamental law of the Constitution. A few hypothetical situations in which one branch of government blatantly

disregards the separation of powers principle may illustrate the potentially disastrous consequences of
encroachment or usurpation in criminal cases. For example, police officers would act outside their sphere
if they executed prisoners based upon their own assessment of the evidence. Even if California state
authorities had acquired ironclad proof that Charles Manson and his cohorts were killers, summary
executions would have violated the Constitution. The U.S. Constitution expects executive officers to
present their evidence in court and to respect judicial processes. n31 Nor can the legislature bypass the judicial

branch. Any law that called for the immediate arrest and execution of certain citizens would be null and void because of the
Constitution's prohibition against bills of attainder n32 and its requirement that citizens be given an opportunity to defend
themselves. n33 Even if Congress had unanimously passed a resolution declaring Julius and Ethel Rosenberg guilty of espionage in
1950, the couple still would have had the right to a trial by a jury in a court of law. n34 The separation of powers doctrine also
applies to the judiciary. If a judge were to order prosecutors to file criminal indictments against certain citizens, for example, he
would be acting outside of the judicial sphere. The power to prosecute is [*719] an executive power that cannot be assumed by any
judge or judicial officer. n35 Modern academics sometimes disparage the Framers' idea of checks and balances as a formula for
"gridlock," n36 but such criticism misses the point. The primary purpose of the Constitution is to safeguard the freedom of the
American people, not to facilitate government programs or operations. As Judge Frank Easterbrook has noted, "Separation of
powers - the inability of any one person or branch to have its way - was thought to be an essential component of a free Republic, not
a hindrance to good government." n37

The Supreme Court unanimously checks executive abuse of power Nixon and Watergate
proves

Dean, Former Counsel to the President of the United States,

2004

[John Wesley, January 16th, FindLaw, The U.S. Supreme Court and The Imperial Presidency: How
President Bush Is Testing the Limits of His Presidential Powers,
http://writ.news.findlaw.com/dean/20040116.html, 7/1/15 DOA, DL]
Pulitzer Prize-winning historian Arthur Schlesinger, Jr.'s The Imperial Presidency gave the term its currency. He traces its growth
from George Washington to Richard Nixon, showing how a presidency never contemplated by the founders has

evolved. As a basis for their authority, presidents typically cited their role as commander-in-chief -- an
undefined constitutional term -- and "inherited powers" other presidents had used before them. After
Nixon pushed the presidential powers even further than past presidents had, both the Congress and
Supreme Court acted to curtail his activities . In the name of protecting national security, Nixon
wanted to be able to wiretap without the approval of a judge. The authority for this power? Before the
Court of Appeals, Nixon relied on a vague "historical power of the sovereign to preserve itself" and "the
inherent power of the President to safeguard the security of the nation." Later, arguing the issue before
the Supreme Court, the government got even more vague -- just loosely using the national security
contention. In the end, the Court -- in the ironically named case United States v. United States Court for the Eastern District
of Michigan (which became known as the Keith Case) -- said no. Joining the opinion were all of Nixon's own
appointees -- except William Rehnquist, who recused himself. In another Supreme Court case, New York
Times Co. v. United States, Nixon also tried, but failed to get the Supreme Court to extend Executive powers.
Then, Nixon's government sought an order blocking publication of the Pentagon Papers. It claimed the release
of the classified documents that had been leaked to The New York Times, The Washington Post, and other newspapers, could harm
national security. Again, Nixon lost. Then, in United States v. Nixon, Nixon resisted turning over to the

Watergate Special Prosecutor his taped conversations. He asserted his implied authority to invoke
"executive privilege." But once again, he lost: It was the Supreme Court's unanimous decision
that the privilege did not protect the tapes , when a grand jury had sought the information. This
ruling, of course, ended Nixon's presidency. After Nixon had departed, the Supreme Court also
addressed Nixon's effort to impound federal funds -- to not spend money that Congress had appropriated. Nixon
claimed he was only doing as his predecessors had done (albeit a bit more aggressively than they had). But
the Court again unanimously ruled against him. It held that the president had exceeded his
constitutional authority. In short, at the zenith of the Imperial Presidency era, the Supreme Court
consistently ruled in such a way as to pull the presidency back into Constitutional balance with the other
branches. Its rulings were wise, for the alternative would have been to allow presidential
power to burgeon, at the expense of the balance of power with the Legislative and Judicial
branches.

The Supreme Court checked executive abuse of power during the Bush
administration
Cohn, Professor of Law at Thomas Jefferson School of Law, 2009
[Marjorie, Spring 2009, Chapman Law Review, Panel 3: Civil Liberties for Civil Rights: Justifying
Wartime Decline of Civil Liberties by a Gain of Civil Rights: Trading Civil Liberties for Apparent Security
is a Bad Deal, p. 630-637, Lexis, DL]

VII. The

Supreme Court Checks the Executive During the Bush administration, Congress did little to
check the president's usurpation of governmental power. n136 The USA Patriot Act, the authorization for Operation
Iraqi Freedom, and the Military Commissions Act received very little pushback from the legislative branch. n137 It was the
judicial branch that fulfilled its constitutional role to check and balance the executive . In
Hamdi v. Rumsfeld, the Supreme Court ruled that due process demands a U.S. citizen held in the United States as an enemy
combatant is entitled to a meaningful opportunity to contest the factual basis for his detention before a neutral decision maker. n138
Hamdi's father, who filed the lawsuit on his son's behalf, said his 20-year-old son was traveling on his own for the first time, and
because of his lack of experience, he became trapped in Afghanistan once the U.S. military campaign began. n139 Hamdi, who,
according to his father, went to Afghanistan to do relief work, was there less than two months before September 11, 2001. n140 The
government filed a document filled with vague generalities to support Bush's designation of Hamdi as an enemy combatant. n141
Justice O'Connor wrote for the Hamdi Court: "We have long since made clear that a state of war is not a
blank check for the President when it comes to the rights of the Nation's citizens." n142 O'Connor noted, " even the
war power [of the President] does not remove constitutional limitations safeguarding essential liberties ."
n143 O'Connor echoed a theme she has raised in prior Court decisions, which is particularly relevant today: "It is during our most
challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times
that we must preserve our commitment at home to the principles for which we fight abroad." n144 Instead of holding that a
president cannot detain an American citizen indefinitely, the Court set forth a balancing test [*631] for determining whether a
president's designation as an enemy combatant will be upheld. n145 Henceforth, a court reviewing a claim will weigh the private
interest of the detained citizen against the governmental interest in determining whether to sustain an enemy combatant
designation. n146 O'Connor made clear that detentions of U.S. citizens must be limited to the Afghanistan context; they are not
authorized for the broader "war on terrorism." n147 She acknowledged that "history and common sense teach us that an unchecked
system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of
threat." n148 Justice Souter wrote a concurring opinion, noting that the USA Patriot Act authorizes the detention of alien terrorists
for no more than seven days in the absence of criminal charges or deportation proceedings. n149 Congress, therefore, would require
the government to clearly justify its detention of an American citizen held on home soil incommunicado. n150 Interestingly, Justice
Scalia, in his dissenting opinion joined by Justice Stevens, would not permit the indefinite detention of an American citizen in
Hamdi's situation. n151 They would require the government to press criminal charges or release the individual, unless Congress
were to suspend the writ of habeas corpus. n152 "The proposition that the Executive lacks indefinite wartime detention authority
over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's
disposal," according to Scalia. n153 Only Justice Thomas held out for blind deference to the President: "This detention falls
squarely within the Federal Government's war powers, and we lack the expertise and capacity to second-guess that decision." n154

In Hamdan v. Rumsfeld, the Supreme Court struck down the military commissions that Bush and
Rumsfeld had established because they violated the Uniform Code of Military Justice and [*632] the
Geneva Conventions. n155 The Court affirmed that there are no gaps in the Geneva Conventions n156 - everyone must be given
due process and treated humanely. In 2008, the Supreme Court decided Boumediene v. Bush, upholding habeas
corpus rights for the Guantanamo detainees. n157 In a 5-4 ruling, the Court held that they have a constitutional right to

habeas corpus, and that the scheme for reviewing "enemy combatant' designations under the Combatant Status Review Tribunals is
an inadequate substitute for habeas corpus. n158 Article 1, Section 9, Clause 2 of the Constitution is known as the Suspension
Clause. It reads, "the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it." n159 In section 7(a) of the Military Commissions Act of 2006, Congress purported to strip habeas
rights from the Guantanamo detainees by amending the habeas corpus statute. n160 In Boumediene, the Court held that section of
the Act to be unconstitutional, declaring that the detainees still retained the constitutional right to habeas corpus. n161 Justice
Kennedy, writing for the majority, reiterated the Court's finding in Rasul v. Bush, n162 that although Cuba retains technical
sovereignty over Guantanamo, the United States exercises complete jurisdiction and control over its naval base and thus the
Constitution protects the detainees there. n163 Kennedy rejected "the necessary implication" of Bush's position that the political
branches could "govern without legal constraint" by locating a U.S. military base in a country that retained formal sovereignty over
the area. n164 In his dissent, Chief Justice Roberts flippantly characterized Guantanamo as a "jurisdictionally quirky outpost." n165
Kennedy worried that the political branches could "have the power to switch the Constitution on or off at will" which would [*633]
"lead to a regime in which Congress and the President, not this Court, say "what the law is.'" n166 "Even when the United States acts
outside its borders," Kennedy wrote, "its powers are not "absolute and unlimited' but are subject "to such restrictions as are
expressed in the Constitution.'" n167 Thus, Kennedy observed, "the writ of habeas corpus is itself an indispensable mechanism for
monitoring the separation of powers." n168 Indeed, habeas corpus was one of the few individual rights the Founding Fathers wrote
into the original Constitution, years before they enacted the Bill of Rights. n169 "The test for determining the scope of [the habeas
corpus] provision," Kennedy wrote, "must not be subject to manipulation by those whose power it is designed to restrain." n170 It

was a Republican-controlled Congress, working hand-in-glove with Bush, that tried to strip habeas corpus
rights from the Guantanamo detainees in the Military Commissions Act. n171 The Supreme Court has
determined that effort to be unconstitutional. Fulfilling its constitutional duty to check and balance the
other two branches, the Court has carried out its mandate to interpret the Constitution and
say "what the law is." n172 Finding that the Guantanamo detainees retained the constitutional right to habeas corpus, the
Court turned to the issue of whether there was an adequate substitute for habeas review. n173 The Department of Defense
established Combatant Status Review Tribunals ("CSRTs") to determine whether a detainee is an "enemy
combatant." n174 These kangaroo courts provide no right to counsel, only a "personal representative," who owes no duty of
confidentiality to his client and often does not [*634] even advocate on behalf of the detainee. n175 Some personal representatives
have even argued the government's case. n176 The detainee does not have the right to see much of the evidence against him and is
very limited in the evidence he can present. n177 The CSRTs have been criticized by military participants in the

process. n178 Lt. Col. Stephen Abraham, a veteran of U.S. intelligence, said they often relied on "generic"
evidence and were set up to rubber-stamp the "enemy combatant" designation. n179 When he sat as a
judge in one of the tribunals, Abraham and the other two judges - a colonel and a major in the Air Force "found the information presented to lack substance" and noted that statements presented as factual
"lacked even the most fundamental earmarks of objectively credible evidence." n180 After they determined
there was "no factual basis" to conclude the detainee was an enemy combatant, the government pressured
them to change their conclusion but they refused. n181 Abraham was never assigned to another CSRT
panel. n182 Many believe that Abraham's testimony regarding the shortcomings of the CSRT's in
Boumediene's companion case prompted the Supreme Court to issue a rare reversal of its denial of
certiorari and agree to review Boumediene. n183 While the Court declined to decide whether the CSRTs satisfied due
process standards, it concluded that "even when all the parties involved in this process act with diligence and in good faith, there is
considerable risk of error in the tribunal's findings of fact." n184 The Court then had to determine whether the procedure for judicial
review of the CSRTs' "enemy combatant" [*635] designations constituted an adequate substitute for habeas corpus review. n185
Kennedy wrote: For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the
court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This
includes some authority to assess the sufficiency of the Government's evidence against the detainee. It also must have the authority
to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. n186 But in the Detainee
Treatment Act of 2005 ("DTA"), n187 Congress limited appellate review of the CSRT determinations to whether the CSRT complied
with its own procedures. n188 The United States Court of Appeals for the District of Columbia Circuit had no authority to hear newly
discovered evidence or make a finding that the detainee was improperly designated as an enemy combatant. n189 The Boumediene
Court noted that "when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate
authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief,
including, if necessary, an order directing the prisoner's release." n190 Since the DTA's scheme for reviewing determinations of the
CSRTs did not afford this authority, the Court held that the review of CSRTs was not an adequate substitute for habeas corpus and
thus section 7 of the Military Commissions Act functioned as "an unconstitutional suspension of the writ." n191 In his dissent,

Justice Scalia sounded the alarm that the Boumediene decision "will almost certainly cause more
Americans to be killed." n192 Likewise, the Wall St. Journal editorialized, "we can say with confident horror that more
Americans are likely to die as a result." n193 Their predictions, however, are not based in fact. n194 [*636] Lakhdar Boumediene and
five other Algerian detainees from Bosnia were accused of threatening to blow up an American embassy in Bosnia. n195 The
Supreme Court of Bosnia and Herzegovina concluded there was no evidence to continue to detain them and ordered them released.
n196 The Bosnian officials turned them over to the United States and they were transported to Guantanamo, where they languished
for six years until the Supreme Court decided their case. n197 Many of the men and boys at Guantanamo were sold as bounty to the
U.S. military by the Northern Alliance or warlords for $ 5,000 a head. n198 Indeed, Brig. Gen. Jay Hood, the former commander at
Guantanamo, admitted to the Wall St. Journal, "sometimes we just didn't get the right folks," but innocent men remain detained
there because "nobody wants to be the one to sign the release papers ... there is no muscle in the system." n199 In Boumediene,
Kennedy quoted Alexander Hamilton, who wrote in Federalist No. 84 that "arbitrary imprisonments, have been, in all ages, the
favorite and most formidable instruments of tyranny." n200 "The laws and Constitution are designed to survive, and remain in
force, in extraordinary times," Kennedy wrote. n201 "Liberty and security can be reconciled; and in our system they are reconciled
within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that
framework, a part of that law." n202 Kennedy further elaborated: Security subsists, too, in fidelity to freedom's first

principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty
that is secured by adherence to the separation of powers ... . Within the Constitution's separation-ofpowers structure, few exercises of judicial power are as legitimate or as necessary as the
responsibility to hear challenges to the authority of the Executive to imprison a person. n203 [*637]
The Supreme Court acted as a check on the some of the worst excesses of the executive
branch during the Bush administration. President Obama has begun to reverse some of the most egregious
policies of his predecessor. n204 But he will be tested by the hysteria of those like Berkeley law professor John Yoo, who wrote in the
January 29, 2009 Wall Street Journal that Obama should keep Guantanamo open, continue to hold prisoners, and even authorize
waterboarding. n205

The Supreme Court checks abuses of power by the Executive

Fund, National Affairs Columnist, 2014

[John, June 26, National Review, Supreme Court Rules Unanimously Against Obama for 12th and 13th
Time Since 2012, http://www.nationalreview.com/corner/381296/supreme-court-rules-unanimouslyagainst-obama-12th-and-13th-time-2012-john-fund, 7/3/2015 DOA, DL]
Did you know the Obama administrations position has been defeated in at least 13 thirteen cases before
the Supreme Court since January 2012 that were unanimous decisions? It continued its abysmal record before the
Supreme Court today with the announcement of two unanimous opinions against arguments the administration had supported.
First, the Court rejected the administrations power grab on recess appointments by making clear it could not decide when the
Senate was in recess. Then it unanimously tossed out a law establishing abortion-clinic buffer zones against pro-life protests that
the Obama administration argued on behalf of before the Court (though the case was led by Massachusetts attorney general Martha
Coakley). The tenure of both President Obama and Attorney General Eric Holder has been marked by a

dangerous push to legitimize a vast expansion of the power of the federal government that endangers the
liberty and freedom of Americans. They have taken such extreme position on key issues that the Court has
uncharacteristically slapped them down time and time again. Historically, the Justice Department has won about 70
percent of its cases before the high court. But in each of the last three terms, the Court has ruled against the administration a
majority of the time. So even the liberal justices on the Court, including the two justices appointed by

President Barack Obama Elena Kagan and Sonia Sotomayor have disagreed with the DOJs positions .
As George Mason University law professor Ilya Somin told the Washington Times last year, When the administration loses
significant cases in unanimous decisions and cannot even hold the votes of its own appointees . . . it is an
indication that they adopted such an extreme position on the scope of federal power that even generally
sympathetic judges could not even support it. Those decisions are very revealing about the views of
President Obama and Eric Holder: Their vision is one of unchecked federal power on immigration and
environmental issues, on presidential prerogatives, and the taking of private property by the government;
hostility to First Amendment freedoms that dont meet the politically correct norms; and disregard of
Fourth Amendment protections against warrantless government intrusion. These are positions that should alarm
all Americans regardless of their political views, political-party affiliations, or background. While yesterdays Supreme Court
decision unanimously rejecting the administrations argument that a search warrant wasnt required for the
government to look at cell-phone records and data got a lot of attention, its not the first time the Obama
administration has taken an anticivil liberties stance. In last years case of U.S. v. Jones, the Justice
Department essentially tried to convince the Supreme Court that the Fourth Amendments protections
against search and seizure should not prevent the government from tracking any American at any time
without any reason. Justice argued that the police should be able to attach a GPS device to your car
without a search warrant or even any reason to believe you committed a crime. Fortunately for those who
fear the ever-growing power of the federal government, particularly its abuse of new technology, all nine
justices agreed that the Fourth Amendment prevents the government from attaching a GPS to your car
without getting a warrant. Even Justice Sotomayor, President Obamas own nominee to the Court, agreed
that the government had invaded privacy interests long afforded, and undoubtedly entitled to, Fourth
Amendment protection. But Eric Holder wanted to ignore the Bill of Rights and believed that his agents should be able to
track all of your movements in public by attaching a GPS device to your car without permission from a judge. This is a frightening
view of government power enhanced by new surveillance technology that would have directly threatened our liberty. When will
liberals wake up to the fact that this administration takes positions on executive power that would make Richard Nixon and John
Mitchell, his attorney general, blush?

Presidents love to flaunt their executive power, but the Court can check them

Gaziano, Director of the Center for Legal & Judicial Studies,

2001

[Todd, February 21st, The Heritage Foundation, The Use and Abuse of Executive Orders and Other
Presidential Directives, http://www.heritage.org/research/reports/2001/02/the-use-and-abuse-ofexecutive-orders-and-other-presidential-directives, 7/5/15 DOA, DL]
In recent years, there has been renewed interest in the proper use and possible abuse of executive orders
and other presidential directives. Many citizens and lawmakers expressed concern over the content and scope of several of
President Bill Clinton's executive orders and land proclamations. Congress responded with hearings and the consideration of several
bills designed to curb the President's authority to issue such directives. In an exceedingly rare act, the courts reacted by

striking down one of President Clinton's executive orders , and litigation to contest the validity of other
directives is ongoing. Despite the increased public attention focused on executive orders and similar directives, public
understanding regarding the Legal foundation and proper uses of such presidential decrees is limited. Thus, the increased public
attention generally has been accompanied by confusion and occasional misunderstandings regarding the legality and
appropriateness of various presidential actions. This Legal memorandum provides a general overview of the President's use of
executive directives, including a discussion of the historical practice, the sources of presidential authority, the Legal framework of
analysis, and reform proposals related to the use and abuse of presidential directives. THE SEPARATION OF POWERS " There
can be no liberty where the legislative and executive powers are united in the same person." --Charles-Louis
de Secondat, Baron de Montesquieu1 " The

accumulation of all power, legislative, executive, and judiciary in the

same hands...may justly be pronounced the very definition of tyranny ." --James Madison, Federalist 46 "All

legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of
Representatives." --U.S. Constitution, Art. I, 1 "The executive power shall be vested in a President of the United States of America."
--U.S. Constitution, Art. II, 1, cl. 1 One of the great and enduring gifts from the Founders' generation was the
inclusion of separation of power principles in the United States Constitution. The Framers had studied the
writings of Montesquieu and other political philosophers as well as the workings of the separate branches of their own state

governments. Their conscious design to enforce this separation of functions was carefully explained in The Federalist Papers and
during the debates over ratification of the United States Constitution. The separation of powers is now enshrined in both the
structure of the Constitution and various explicit provisions of Articles I, II, and III. Yet, in the previous Administration,

a
baser motive seemed to prevail in the use of executive power. Former President Bill Clinton proudly
publicized his use of executive decrees in situations where he failed to achieve a legislative objective .
Moreover, he repeatedly flaunted his executive order power to curry favor with narrow or partisan special
interests. If this were not enough, Clinton's top White House political advisers made public statements
about his use of executive decrees that were designed to incite a partisan response, saying, for example,
that the power was "cool" and promising that he would wield that power to the very end of his term. 2 A
President who abuses his executive order authority undermines the constitutional separation of powers
and may even violate it. History will show that President Clinton abused his authority in a variety of ways
and that his disrespect for the rule of law was unprecedented. Given this pattern, no one should be
surprised that President Clinton sometimes abused his executive order authority as well. But it would be a
mistake to try to restrict a President's lawful and proper executive order authority because of one abusive President.

The Supreme Court is key to checking executive abuse of power

Ghoshray, Ph.D., Cornell University, Founding Director of the
Institute of Interdisciplinary Studies, 2007

[Saby, Fall 2007, The Wayne Law Review, HAMDAN'S ILLUMINATION OF ARTICLE III
JURISPRUDENCE IN THE WAKE OF THE WAR ON TERROR, p. 1004-1009, Lexis, DL]
II. REVITALIZING JUDICIAL AUTHORITY BY INVOKING THE TREATY OBLIGATION UNDER ARTICLE III OF THE
GENEVA CONVENTION The proponents for broader and expansive presidential power argue that the exclusive grants of Article II
are broad enough to bypass both the judicial scrutiny and the congressional authorization. n43 These scholars believe that the
broader expansive conception of presidential power is derived from the explicit reliance on the President's Commander-in-Chief
power. n44 I have countered this line of reasoning elsewhere n45 by [*1005] observing, among other things, that the historical

development of both the Founding period and the early jurisprudence regarding the meaning of executive
power do not comport with presidential rule making by ignoring the judiciary. Therefore, the Hamdan Court's
reaffirmation of Article III's superseding authority resonates far beyond a hackneyed conception of limits of presidential power due
to two fundamental observations. First, by constructing a legal prism made of treaty obligations under Article 3 of the Geneva
Conventions, n46 the Court provides us with one of the most binding judgments on both the executive

conduct and congressional power under Article III of the Constitution. Second, by stipulating the
requirements of congressional enactment, the Court puts a finite limit around executive authority.
Furthermore, Hamdan puts a leash on congressional power by limiting enactments to comply with the
spirit of International Laws of Armed Conflict (ILAC), n47 in situations where the laws of war should be
[*1006] controlling. In effect, the Court takes away the ability to invoke expansive conception of war power
by both the Congress and the President under the War on Terror doctrine. It further holds that the President's
power must be constrained and must be in resonance with the ILAC. n48 In my view, Hamdan does not prescribe a
strict adherence to ILAC, but encourages proximate fidelity to the spirit of such laws. The Court in Hamdan observed: Article 3
obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general
ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the
President has convened to try Hamdan does not meet those requirements. n49 Justice Stevens' reliance on the Geneva
Convention's Common Article 3 is not only significant at several levels, but also exudes brilliant jurisprudence at its
grandest level of abstraction. By imposing the requirement of trying Salim Hamdan via regular courts, the Court achieves two
objectives. First, I will argue by implication of the holdings in Hamdan, Common Article 3 of Geneva Conventions applies to
members of al-Qaeda in the U.S. government's ongoing war on terror. Second, by recognizing the binding impact of the

relevant provisions of Article 3 in Hamdan, cases can be made against all signatory states to keep them
from passing sentences or carrying out executions against members of al-Qaeda without any previous
judgment pronounced by a regularly constituted court . This is corroborated in Justice Stevens' observation: Common
Article 3, then, is applicable here and, as indicated above, requires that Hamdan be tried by a "regularly constituted court affording
all the judicial guarantees which are recognized [*1007] as indispensable by civilized peoples." 6 U. S. T., at 3320 (Art. 3, P1(d)).
While the term "regularly constituted court" is not specifically defined in either Common Article 3 or its accompanying commentary,
other sources disclose its core meaning. The commentary accompanying a provision of the Fourth Geneva Convention, for example,
defines "'regularly constituted'" tribunals to include "ordinary military courts" and "definitely exclud[e] all special tribunals." n50
The Court does not pass judgment upon the constitutionality of either the Military Commissions Act n51 or the Detainee Treatment
Act n52 discussed above. Instead, the Court invokes its Article III power of the Constitution to provide meaning

to a specific treaty as it relates to circumstances in which the Court uses its plenary power of judicial

review. n53 Section 2 of Article III n54 grants mandatory jurisdiction to the Supreme Court in situations
where legislative enactments or executive assertions could be inconsistent with the laws of the land. n55
The Court [*1008] used the Common Article 3 of the Geneva Convention n56 to reestablish its plenary power over "treaties made"
n57 and also to revisit the mandatory power "arising under the Constitution." n58 Therefore, the findings of Hamdan on treaty
obligations, which are applicable to the conflicts with al-Qaeda, came as a huge blow to the broader usurpation of executive power.
Not because the findings made indefinite detention, or imposition of military tribunal on enemy combatants legally prohibited, but
because they imposed levels of scrutiny on these presidential assertions of power. Furthermore, Hamdan removed the limitations of
justiciability in Article III's authority over "treaties" by explicitly mandating that Article 3 of the Geneva Convention applies to
matters of treaty obligation in the conflict against al-Qaeda. n59 Perhaps this invocation of judicial authority is no accident, as the
Court clarified its position on treaty obligation in Sanchez-Llamas v. Oregon, n60 in which the Chief Justice noted, "if treaties are to
be given effect as federal law under our legal system, determining their meaning as a matter of federal law 'is emphatically the
province and duty of the judicial department' headed by the 'one supreme court' established by the Constitution." n61 Great
jurisprudence does not happen by accident, nor do the moments signal an end to controversies. Hamdan is
no exception. Despite imparting a fresh interpretive gloss on a range of issues regarding the Supreme Court's plenary power under
Article III, Hamdan decision opened up a new Pandora's Box. These included, superseding the role of the judicial branch regarding
treaty obligations, the judicial [*1009] treatment of al-Qaeda detainees, and the U.S. response to wide-spread allegation of torture
while in executive custody, among others. Does it apply to all matters of treaty obligation? If it does, then does it cover torture? n62
Will it also apply to the questionable CIA interrogation techniques, such as extraordinary rendition? n63 If it does, will U.S. forces be
subjected to the violations of war crimes in their heavy handed treatment of Iraqi civilians n64 and thus be held liable for war crimes
violations? In an earlier work, I have suggested the possibility that torture, CIA rendition, and atrocities on civilians are
extreme manifestations of unitary executive power. n65 These unitary executive powers emerged as a
result of inherent uncertainty within the shared power paradigm, first brought to light by Justice Jackson in his
description of the "zone of twilight," n66 followed by Justice Rehnquist when he depicted the shared power as operating in an
uncertain region, "somewhere in between." n67 Does Hamdan help us in untangling the intertwined threads of the co-equal
branches of power? I examine this in the next section by properly framing the judicial authority within the backdrop of the
separation of powers doctrine.

Solvency Court Key Surveillance

Court key to reducing surveillanceNSA decision proves
Hardawar, Engadget staff writer, 15 (Devindra, Snowden: Court ruling against NSA surveillance is
encouraging, http://www.engadget.com/2015/05/08/snowden-nsa-court-ruling/, 5-8-15, DOA 630,15, AX)
Surprising no one, NSA whisteblower Edward Snowden is mighty pleased by yesterday's court decision, which
deemed the agency's widespread surveillance program illegal. Speaking via livestream at the Nordic Media Festival,
Snowden noted that the importance of the decision "can't be overstated," Forbes reports. "This decision will not
affect only the phone metadata program," he said. "It will affect every other mass surveillance program in
the U.S. going forward." The ruling was, after all, exactly what Snowden was going for when he leaked details about the NSA's
data collection methods to the press. While the courts didn't call for the NSA to stop its surveillance programs, it's certainly a
step in the right direction.