Gonzaga Debate Institute 2010

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A2: Courts will rollback

Courts won’t rollback-they side with the President

Mayer 01 (Kenneth, Proff. Of Polt. Science Univ. of Wisconsin, Princeton Univ., “With the Stroke of a Pen: Executive Orders and Presidential Power”, p. 56, http://www.questiaschool.com/read/103282967?title=With%20the%20Stroke%20of%20a%20Pen%3a%20Executive%20Orders%20and%20Presidential%20Power) CBC

The relative institutional capabilities of the presidency and Congress to adapt and respond have also played a role, as have long-standing judicial doctrines that give the president important advantages. In the past few decades the judiciary has through various decisions created a presumption that favors presidential initiative. Unless a presidential act contravenes a clear and explicit statutory or constitutional prohibition that directly addresses the action, the courts are likely to side with the president. In a series of decisions in the 1980s that expanded the scope of executive power, the Supreme Court indicated a willingness to validate executive action in the absence of an explicit congressional prohibition (which must take legislative form), to find implicit congressional consent in legislation that provides authority to the president in tangential policy areas, and to uphold executive interpretations of ambiguous statutes unless Congress has spoken precisely to the issue in point. These patterns hold true in domestic as well as in foreign policy, but take on additional weight in foreign affairs when combined with the traditional deference to presidential action in that arena. Much of the time, analyses of the president's constitutional power rely on historical evidence of how individual presidents viewed that power and how they put it into practice.
The courts will not rollback XO’s

Mayer 01 (Kenneth, Proff. Of Polt. Science Univ. of Wisconsin, Princeton Univ., “With the Stroke of a Pen: Executive Orders and Presidential Power”, p. 11, http://www.questiaschool.com/read/103282967?title=With%20the%20Stroke%20of%20a%20Pen%3a%20Executive%20Orders%20and%20Presidential%20Power) CBC

In making this argument about the importance of executive power, I recognize that our “separated system” puts both formal and informal limits on what presidents can do. 52 Presidents come to office in widely varying electoral and political contexts that shape their ability to transform their formal powers into action. Checks and balances were built into institutional structures of the federal government from the beginning, and presidents reeling from a prolonged recession, facing united majority party opposition in Congress, or mired in an unpopular war will find little solace in the powers specified or implied in Article II of the Constitution. Nevertheless, in most circumstances presidents retain a broad capacity to take significant action on their own, action that is meaningful both in substantive policy terms and in the sense of protecting and furthering the president's political and strategic interests. Some of this authority, particularly in regulatory affairs, has been delegated to the president by Congress, 53 but presidents have also simply assumed many policy-making powers, especially in national security and foreign policy matters. 54 Although the courts do step in to block presidential action on constitutional grounds (with Youngstown the most notable case), the general pattern has been more one of judicial deference to executive action than of assertiveness.

A2: Perm -->Do both

Executive Order: A2 Perm – Do Both

Double Bind Either you sever out of congressional action and that makes the plan a moving target, which is worse than cp abuse cause the plan is the focus of debate. Also, would justify 2ac plan amendments which would jack all neg ground—voting issue.


The perm still includes congressional action which sparks opposition, triggering the link
Doesn’t solve presidential power – simultaneous legislative and executive action creates a mixed precedent, undermining presidential authority

Bellia 2 [Patricia, Professor of Law @ Notre Dame, “Executive Power in Youngstown’s Shadows” Constitutional Commentary, , 19 Const. Commentary 87, Spring, Lexis]

Second, courts' failure to resolve the contours of the President's constitutional powers creates uncertainty about whether some forms of constitutionally based executive action have the same legal force as a federal statute. Returning to Dames & Moore, the fact that the Court rested the President's authority on grounds of congressional approval rather than implied constitutional authority avoided the difficult question of how the President could by his sole authority displace the application of the federal statutes that had provided the basis for Dames & Moore's original cause of action against the Iranian enterprises. 291 Similar questions arise with respect to the displacement of state law by operation of sole executive agreements. The result is confusion about whether sole executive agreements are the "supreme Law of the Land," 292 with the available precedents suggesting that they are 293 and the weight of recent commentary suggesting that they are not.

-- Congressional silence key to presidential power

Bellia 2 [Patricia, Professor of Law @ Notre Dame, “Executive Power in Youngstown’s Shadows” Constitutional Commentary, , 19 Const. Commentary 87, Spring, Lexis]

To see the problems in giving dispositive weight to inferences from congressional action (or inaction), we need only examine the similarities between courts' approach to executive power questions and courts' approach to federal-state preemption questions. If a state law conflicts with a specific federal enactment, n287 or if Congress displaces the state law by occupying the field, n288 a court cannot give the state law effect. Similarly, if executive action conflicts with a specific congressional policy (reflected in a statute or, as Youngstown suggests, legislative history), or if Congress passes related measures not authorizing the presidential conduct, courts cannot give the executive action effect. n289 When Congress is silent, however, the state law will stand; when Congress is silent, the executive action will stand. This analysis makes much sense with respect to state governments with reserved powers, but it makes little sense with respect to an Executive Branch lacking such powers. The combination of congressional silence and judicial inaction has the practical effect of creating power. Courts' reluctance to face questions about the scope of the President's constitutional powers - express and implied - creates three other problems. First, the implied presidential power given effect by virtue of congressional silence and judicial inaction can solidify into a broader claim. When the Executive exercises an "initiating" or "concurrent" power, it will tie that power to a textual provision or to a claim about the structure of the Constitution. Congress's silence as a practical matter tends to validate the executive rationale, and the Executive Branch may then claim a power not only to exercise the disputed authority in the face of congressional silence, but also to exercise the disputed authority in the face of congressional opposition. In other words, a power that the Executive Branch claims is "implied" in the Constitution may soon become an "implied" and "plenary" one. Questions about presidential power to terminate treaties provide a  [*151]  ready example. The Executive's claim that the President has the power to terminate a treaty - the power in controversy in Goldwater v. Carter, where Congress was silent - now takes a stronger form: that congressional efforts to curb the power are themselves unconstitutional. n290

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