Gonzaga Debate Institute 2010



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XO Solvency: Force of Law


XO’s are Law

Mayer 01 (Kenneth, Proff. Of Polt. Science Univ. of Wisconsin, Princeton Univ., “With the Stroke of a Pen: Executive Orders and Presidential Power”, p. 4-5, http://www.questiaschool.com/read/103282967?title=With%20the%20Stroke%20of%20a%20Pen%3a%20Executive%20Orders%20and%20Presidential%20Power) CBC

Working from their position as chief executive and commander in chief, presidents have used executive orders to make momentous policy choices, creating and abolishing executive branch agencies, reorganizing administrative and regulatory processes, determining how legislation is implemented, and taking whatever action is permitted within the boundaries of their constitutional or statutory authority. Even within the confines of their executive powers, presidents have been able to “legislate” in the sense of making policy that goes well beyond simple administrative activity. Yale Law School professor E. Donald Elliot has argued that many of the thousands of executive orders “plainly ‘make law’ in every sense,” 7 and Louis Fisher finds that despite the fact that the Constitution unambiguously vests the legislative function in Congress, “the President's lawmaking role is substantial, persistent, and in many cases disturbing.”

A2: Congress will rollback


The president has the power to move first-this checks Congressional rollback

Mayer 01 (Kenneth, Proff. Of Polt. Science Univ. of Wisconsin, Princeton Univ., “With the Stroke of a Pen: Executive Orders and Presidential Power”, p. 26, http://www.questiaschool.com/read/103282967?title=With%20the%20Stroke%20of%20a%20Pen%3a%20Executive%20Orders%20and%20Presidential%20Power) CBC

The second presidential advantage in the institutional setting is the ability to act first, leaving it up to other institutions to reverse what presidents have done. Whether presidents have effective plenary executive authority or not (an open question), there is no doubt that they can take action faster and more efficiently than either Congress or the courts. Congress as a collective organization takes definitive action through the legislative process, which is cumbersome, difficult to navigate, and characterized by multiple veto points. Even when Congress can create and sustain majorities at the subcommittee, committee, floor, and conference stages, the president can use the veto power to raise the bar from a simple majority to a two-thirds majority necessary to enact legislation over the president's objection. The president, at the same time, “has a trump card of great consequence in his struggle against Congress for control of government. He can act unilaterally in many matters of structure.” 118 The president, in effect, can often make the first move in these disputes, forcing Congress to take positive action to undo what the president has created.
The XO will not be overturned by Congress or by the Courts

Mayer 01 (Kenneth, Proff. Of Polt. Science Univ. of Wisconsin, Princeton Univ., “With the Stroke of a Pen: Executive Orders and Presidential Power”, p. 26, http://www.questiaschool.com/read/103282967?title=With%20the%20Stroke%20of%20a%20Pen%3a%20Executive%20Orders%20and%20Presidential%20Power) CBC

Similarly, the judiciary can overturn executive actions but must wait for controversies to come to it, and definitive resolution can take years. Moreover, even after the judicial decision, enforcement is a matter for the president. The president's ability to win by default is, like his residual authority, reinforced by judicial doctrines that make it more difficult to challenge presidential action. The so-called Chevron rule determines how judges referee presidential-legislative disputes over statutory interpretation, and the rule provides clear advantages to the president. In Chevron U.S. A v. National Resources Defense Council, 467 U.S. 837 (1984), the Supreme Court ruled that an agency interpretation of a statute is “controlling unless Congress has spoken to the ‘precise question at issue.’” 119 Once the president, through the executive branch, has interpreted a statute, Congress can only override that determination through narrow, explicit legislation on the exact point in question. This requirement places a heavy burden on Congress in confronting unilateral presidential action, given that body's collective nature and inherent bias toward not changing the status quo.


Congress won’t rollback-fear of giving the President more power prevents

Mayer 01 (Kenneth, Proff. Of Polt. Science Univ. of Wisconsin, Princeton Univ., “With the Stroke of a Pen: Executive Orders and Presidential Power”, p. 24, http://www.questiaschool.com/read/103282967?title=With%20the%20Stroke%20of%20a%20Pen%3a%20Executive%20Orders%20and%20Presidential%20Power) CBC

Moreover, efforts to check presidential power through legislative restrictions often have had the counterproductive effect of legitimizing the very powers that Congress has tried to limit. I treat this problem in more detail in chapter two, but two examples highlight the problem that Congress faces. When Congress tried to limit the president's ability to carry out covert intelligence operations by imposing reporting requirements in the Hughes-Ryan amendments to the Foreign Assistance Act and the Intelligence Oversight Act in 1980, it inadvertently provided legislative recognition of the president's covert operations authority. The mere fact that Congress required the president to report on such activities was read by the courts as a congressional recognition of the president's right to conduct them.“So once again,concludes Gordon Silverstein,c “Congress' attempt to control the executive's actions in foreign policy only provided fresh and unprecedented explicit authorization for executive prerogative.” A similar dynamic occurred in 1977 when Congress tried to limit the way in which presidents exercised emergency economic powers. Since 1917, when Congress passed the Trading with the Enemy Act (TWEA), the president has had the legal authority to regulate aspects of foreign trade in emergency or wartime circumstances. Over the years, presidents had relied on the act to give them an ever-expanding range of authority to exercise control over more and more; Congress played a part in the president's expanding authority by modifying the law to, for example, extend the president's authority to certain domestic situations as well (which it did in March 1933). Between 1933 and 1968, a congressional investigation found, presidents had issued dozens of executive orders and proclamations under the act, with some far removed from what was originally intended: examples included FDR's proclamations closing the nation's banks and prohibiting the removal of gold from the country, FDR's executive orders freezing the assets of enemy nationals, Johnson's executive order restricting capital transfers abroad, and a Nixon executive order continuing certain export restrictions.



Congress won’t rollback-empirically proven

Mayer 01 (Kenneth, Proff. Of Polt. Science Univ. of Wisconsin, Princeton Univ., “With the Stroke of a Pen: Executive Orders and Presidential Power”, p. 121, http://www.questiaschool.com/read/103282967?title=With%20the%20Stroke%20of%20a%20Pen%3a%20Executive%20Orders%20and%20Presidential%20Power) CBC

In 1954 Richard Neustadt described the expansion of central clearance this way: “For more than thirty years now, central clearance has persisted, its history marked by a long series of ‘accidental,’ unforeseen accretions. Nothing once absorbed has been wholly displaced; each new element somehow encompasses the old … overall, here is a record of great growth, successful adaptation—this under six successive Presidents, through every variation in national and governmental circumstance since Harding's term of office.” 57 The presidential budget and growth of BoB power illustrates the pattern: societal and political pressures serve as the impetus for a new government capability; Congress and the president compete over the question of control; the president prevails and uses the new capability in unanticipated ways to develop even more power, and Congress can do little to stop him. Over time, the new powers—once so controversial—become institutionalized as a routine and accepted part of the presidency. The pattern has played out in a number of situations, across presidents and eras, and has less to do with specific presidential initiative than the motivations and incentives, relative positions, and inherent institutional qualities of Congress and the presidency.



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