Gonzaga Debate Institute 2010



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Affiramtive Answers: Presidential Powers kill SOP (DA)


Presidential Power destroys the separation of powers

Branum 2 (Tara, Editor in Chief Texas Review of Law and Politics, Texas Review of Law and Politics, “President or King? The Use and Abuse of Executive Orders in Modern-Day America”, http://heinonline.org/HOL/Page?men_tab=srchresults&handle=hein.journals/jleg28&id=8&size=2&collection=journals&terms=increased&termtype=phrase&set_as_cursor=#7) CBC

The perception of Americans that the President is not only willing, but also able to solve their problems is reinforced by the media and by the political process…(CONTINUES)… Congressmen and private citizens besiege the President with demands that action be taken on various issues. To make matters worse, once a president has signed an executive order, he often makes it impossible for a subsequent administration to undo his action without enduring the political fallout of such a reversal. For instance, President Clinton issued a slew of executive orders on environmental issues in the weeks before he left office. Many were controversial and the need for the policies he instituted was debatable. Nevertheless, President Bush found himself unable to reverse the orders without invoking the ire of environmentalists across the country. A policy became law by the action of one man without the healthy debate and discussion in Congress intended by the Framers. Subsequent presidents undo this policy and send the matter to Congress for such debate only at their own peril. This is not the way it is supposed to be. Restoration of our system of separation of powers will require that the public be educated on what does—and does not—constitute a constitutional use of executive orders and other presidential directives.
SOP is critical to liberty
Redish 95

Martin Redish - Professor of Law and Public Policy at Northwestern University School of Law, 1995: [Martin Redish, published 1995, Oxford University Press, “The Constitution as Political Structure.” pg. 111. http://books.google.com/books?id=cb_BlipRCVQC&printsec=frontcover&source=gbs_navlinks_s ]


The most significant problem with the modern attacks on separation of powers is that they completely ignore the very real fears that led to adoption of the system in the first place. No critic has adequately demonstrated either that the fears of undue concentrations of political power that caused the Framers to impose separation of powers are unjustified, or that separation of powers is not an important means of deterring those concentrations. It might be argued that the dangers of tyranny thought to be prevented by the use of separation of powers are at best speculative. After all, no one can predict with certainty that, but for the formal separation of branch power, the nation would be likely to sink into a state of tyranny. It is, then, conceivable that all of the Framers’ efforts to separate and check powers have been wasted. But that is a risk inherent in the use of any form of prophylactic protection: we cannot be sure that, but for the use of protection, the harm we fear would result. The decision regarding whether to employ a particular prophylactic device, then, must come down to a comparison of the costs incurred as a result of the device’s use with an estimate of both the likelihood and severity of the feared harm. Although some undoubtedly believe that separation of powers imposes severe costs on the achievement of substantive governmental goals, it would be inaccurate to suggest that government ahs been paralyzed as a result of separation of powers. Too much legislation is enacted by Congress to accept such a criticism. More importantly, in critiquing the failure of the federal government to act, one must do so behind a Rawlsian “veil of ignorance”: Assuming that abolition of separation of powers would result in an increase in governmental action, we cannot know whether those actions will be ones with which we agree. Moreover, the facilitation of governmental programs could just as easily lead to a withdrawal of existing governmental programs that we deem to be wise and just. For example, but for separation of powers, election of Ronald Regan could have easily led to the abolition of social welfare programs that had been instituted in previous Democratic administrations. Political liberals who criticize separation of powers for the constraints it imposes on governmental actions should therefore recognize how removal of separation of powers could turn into a double-edged sword. Thus, the costs imposed by maintenance of separation of powers are probably nowhere near as great as critics have suggested. Whether the costs that we actually do incur are justified by the system’s benefits requires us to examine the likelihood and severity of harm that could result if separation of powers were removed. AS previously noted, some might question the likelihood of tyrannical abuse of power if separation of powers were abolished. After all, Britain lacks our system of formalistic separation of powers, and democracy still flourishes. Why, the, could we not do the same here? The same could, however, be said of the First Amendment rights of free speech and press: In Britain, speech and press receive no countermajoritarian constitutional protection, yet it is reasonable to believe that for the most part those institutions flourish there. Yet undoubtedly, few would feel comfortable with the repeal of the First Amendment. If we have begun to take the value of separation of powers for granted, we need only look to modern American history to remind ourselves about both the general vulnerability of representative government and the direct correlation between the concentration of political power and the threat to individual liberty. The widespread violation of individual rights that took place when President Lincoln assumed an inordinate level of power, for example are well document. Arguably as egregious were the threats to basic freedoms that arose during the Nixon administration, when the power of the executive branch reached what are widely deemed to have been intolerable levels. Though in neither instance did the executive’s usurpations of power ultimately degenerate into complete and irreversible tyranny, the reason for that may well have been the resilience of our political traditions, among the most important of which is separation of powers itself. In any event, it would be political folly to be overly smug about the security of either representative government or individual liberty. Although it would be all but impossible to create an empirical proof to demonstrate that our constitutional tradition of separation of powers has been an essential catalyst in the avoidance of tyranny, common sense should tell us that the simultaneous division of power and the creation of inter-branch checking play important roles toward that end. To underscore the point, one need only a limited modification of the actual scenario surrounding the recent Gulf War. In actuality, the war was an extremely popular endeavor, thought by many to be a politically and morally justified exercise. But imagine a situation in which a president, concerned about his failure to resolve significant social and economic problems at home, has callously decided to engage the nation in war, simply to defer public attention from his domestic failures. To be sure, the president was presumably elected by a majority of the electorate, and may have to stand for reelection in the future. However, at this particular point in time, but for the system established by separation of powers, his authority as commander in chief to engage the nation in war would be effectively dictatorial. Because the Constitution reserves to the arguably even more representative and accountable Congress the authority to declare war, the Constitution has attempted to prevent such misuse of power by the executive. It remains unproven whether any governmental structure other than one based on a system of separation of powers could avoid such harmful results.

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