Professional Documents
Culture Documents
Index
FISA/FISC CP
SOP Supreme Court CP
Contributing:
Jake Galant
Ian Dill
KCathy Min
FISA/FISC CP
Notes
Contributing:
Ian Dill
The FISC is an Article III district court set up by the FISA act of 78 which makes
rulings regarding the FISA act as well as the FISA Amendments act of 2008. The
FISCR is the appeals court set up to review the FISCs decisions. Both are secret,
and are able to withhold decisions and opinions from public review.
Solves any advantage that is based purely in ending surveillance as opposed to
advantages based on modeling or perception of reform.
Best run against the freedom act aff, or any aff that restricts NSA surveillance, as
thats all channeled through the FISC courts as it is. Specifically, it solves the
privacy and bigotry advantages well.
Good net benefits are ptx, a deference da (if its a courts aff), or potentially a terror
DA
(You would need to run a perception/deterrence link to the terror DA to make it net
beneficial, because you still restrict surveillance to the same degree as the aff
would)
1NC
The Foreign Intelligence Surveillance Court of Review should
rule that [Insert Plan Mandate].
CP solves FISCR Rulings set binding precedent for future
FISC rulings AND those decisions remain secret
Boeglin & Taranto 15, Jack Boeglin & Julius Taranto; Both are J.D. candidates in the class of 2016 at
Yale Law School. Stare Decisis and Secret Law: On Precedent and Publication in the Foreign Intelligence
Surveillance Court Yale law Journal Number 124, Volume 6, April, 2015, 1836-2201.
http://www.yalelawjournal.org/comment/stare-decisis-and-secret-law
*en banc a hearing where all judges make a ruling
*Stare Decisis setting law based on legal precedent
*FISCR Foreign Intelligence Surveillance Court of Review
A. The Foreign Intelligence Surveillance Court The Foreign Intelligence Surveillance Act, enacted in 1978,10 sets up
the Foreign Intelligence Surveillance Court (FISC), a specialized Article III court with the power to hear and grant
government requests for foreign surveillance.11 The FISCs work consists almost entirely of ex parte proceedings
granting, modifying, and denying government requests for the authority to conduct surveillance or searches, or to
compel the production of tangible things.12 Pursuant to the statute, the FISC consists of eleven Article III district
of exceptional importance.15 According to public records, the FISC has sat en banc only once,16 but it is
court, and like other Article III appellate courts, it has the power to bind
both lower courts (in this case, the FISC ) and later Court of Review
panels .22 The Court of Review probably has the same discretion as federal
courts of appeals to designate opinions as precedential and nonprecedential; at least, no statutory provision declares otherwise.23 The two public Court of Review opinions
are published in redacted form in the Federal Reporter.24 As with the published case of the
FISC sitting en banc, these published Court of Review cases are certainly
precedential .25 We do not know the volume, if any, of secret nonprecedential Court of Review opinions, or whether there are non-public Court of Review
opinions that are nonetheless treated as precedential.
2NC
2nc Overview
Cp solves the case legal action by FISCR sets legal precedent
for all NSA surveillance requests and ensures compliance from
the FISC that solves unwarranted bulk surveillance - all
surveillance cases go through FISC
Avoids the NB
body of secret policy and legal precedent. Finally, the courts reliance on the government to provide
all the necessary information needed to fairly make decisions is not sufficient, something that is painfully obvious as one reads the
Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Actboth of which were passed decades after the initial
FISAgranted far broader spying authorities to the government than had existed before, and the government has claimed the right
innocent people. As former FISC judge James Robertson stated to the Privacy and Civil Liberties Oversight Board, What [the FISC]
the
2008 (FISA) amendment has turned the FISA court into an administrative
agency making rules for others to follow . The result of this expansion of the FISCs role is a body of
does is not adjudication, but approval. This works just fine when it deals with individual applications for warrants, but
secret law that, now that some has come to light, has shocked most Americans. The most obvious example of this is, of course,
descriptions of the NSA not fulfilling its duties and being very slow to inform the court about it. Judge John Bates noted: The court is
troubled that the governments revelations regarding the NSAs acquisition of Internet transactions mark the third instance in less
than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection
program, and noted repeated inaccurate statements made in the governments submission, concluding that the requirements
had been so frequently and systematically violated that it can fairly be said that this critical element of the overallregime has
never functioned effectively. Judges have consistently chastised the NSA for inaccurate statements, misleading or incomplete
filings and for having circumvented the spirit of laws protecting Americans privacy. EFF had its own brush with this problem earlier
this year, when we discovered that the government had not even informed the FISC of its duties to preserve evidence. In March,
after an emergency hearing, a federal court in San Francisco ordered the government to preserve records of Section 215 call details
collection. On that same day, the FISC issued its own strongly worded order in which it mandated the government to make a filing
explaining exactly why it had failed to notify the FISC about relevant information regarding preservation orders in two related cases,
Jewel and Shubert. This failure had affected the courts earlier ruling mandating that certain information be destroyed. Its clear that
the FISC simply cant rely on the government to get the full picture.
Snowden.553 Critics have argued that the FISCs ex parte process presents both constitutional and practical
problems and have put forward a variety of suggested cures.554 For example, Orin Kerr has argued that Congress
should establish a special advocate within an existing security-cleared government department to offer adversary
presentations during FISC proceedings.555 Steve Vladeck has urged instead that private security-cleared lawyers,
not government employees . . . serve as adversaries in secret litigation commenced by the government.556 Such
proposals have gained traction in Congress; newly introduced bills would attempt to ensure adversarial
presentations by requiring the appointment of public interest advocates in certain situations.557 One commentator
has argued that private attorneys might be appointed to serve as consultants to the court in proceedings deemed
to require some adversarial presentation.558 We do not claim expertise in matters of national security and have
little to add to the policy debate over the wisdom of introducing an adversary process to improve decision making
officials may not always discharge their duties of candor to the FISC and may exceed the scope of the warrants
authority in carrying out the surveillance in question. Remedies should be available in such cases (just as they were
FISA solves
Cardy 08 Emily A Cardy. B.A in Law from Yale University THE
UNCONSTITUTIONALITY OF THE PROTECT AMERICA ACT OF 2007 Boston University
Public Interest Law Journal 18 B.U. Pub. Int. L.J. 171. Fall, 2008.
In 1978 the Foreign Intelligence Surveillance Act (FISA) established the processes by
which the United States intelligence community could effectively gather foreign
intelligence, while striking "a balance between national security interests and civil
liberties." n10 "FISA provides a means by which the government can obtain
approval to conduct electronic surveillance of a foreign power or its
agents without first meeting the more stringent standard" required in
domestic criminal investigations. n11 That the TSP operated outside of FISA's
purview made it automatically constitutionally suspect. n12 The Article III court
established by FISA, the Foreign Intelligence Surveillance Court (FISC), is
essential to FISA's operation. n13 FISC objectively adjudicates intelligence
collection proposals and procedures, while protecting such details in the
interest of national security. In short, FISA establishes the United States'
legal standard for gathering foreign intelligence, and provides safeguards
[*174] to protect the Fourth Amendment's promises to the American public
that they will be free from unwarranted government intrusion. n14
should Americans just keep calm and carry on phoning? Not really. Instead, we should worry about a court that,
lacking a real adversarial process to inform it, failed while taking its best shot at explaining its position to the public
may render the NSA's phone records collection program unconstitutional. No court that had been briefed by both
sides would have ignored the grave constitutional issues raised by the three opinions of Justices Scalia, Sotomayor,
The
newly-released FISC opinion, the first to opine on the legality of the phone
metadata collection program since the Snowden leaks brought the
program to national attention, is based on two straightforward points. First,
in 1979, the supreme court held in Smith v Maryland that using " pen registers" that record what number
called what other number, when, and for how long, did not violate the fourth amendment .
The court in Smith reasoned that individuals have no expectation of privacy in
information they knowingly hand over to the phone company . The FISC
reasoned that even though the NSA metadata program collected more
information than the program the supreme court upheld 35 years ago, the
details did not make a constitutional difference. Individuals have no fourth
amendment rights in their phone call metadata . The second component of
the FISC argument was that "grouping together a large number of
individuals", no single one of whom has "a fourth amendment interest",
"cannot result in a fourth amendment interest springing into existence ex
nihilo". Adding up many zeros doesn't create a positive value; bulk collection of
and Alito in United States v Jones. And no opinion that fails to consider these should calm anyone down.
unprotected materials over a sustained period of years raises no special constitutional considerations. Standing on
its own, this logic may seem persuasive. But only until you think about how last year's Jones decision by the
supreme court destabilizes this logic.
relevance of the requested records to the FISC's satisfaction, as Section 215 requires, it is difficult to understand
how the government can be said to have acted in excess of statutory authority." n283 [*823] Even more surprising
than the role the granting of orders is playing for establishing legal precedent is the revelation that
FISC has
express holding that a foreign intelligence exception exists by assuming arguendo that whether or not the warrant
FISCR went on to
as a federal appellate court, it would "review findings of fact for
clear error and legal conclusions (including determinations about the
ultimate constitutionality of government searches or seizures) de novo ."
requirements were met, the statute could survive on reasonableness grounds." n286
determine that,
n287 It then asserted, for the first time, a foreign intelligence surveillance exception to the Fourth Amendment: The
question . . . is whether the reasoning of the special needs cases applies by analogy to justify a foreign intelligence
exception to the warrant requirement for surveillance undertaken for national security purposes and directed at a
foreign power or an agent of a foreign power reasonably believed to be located outside the United States. Applying
principles derived from the special needs cases, we conclude [*824] that this type of foreign intelligence
surveillance possesses characteristics that qualify it for such an exception. n288 The court analogized the exception
to the 1989 Supreme Court consideration of the warrantless drug testing of railway workers, on the grounds that
the government's need to respond to an overriding public danger could justify a minimal intrusion on privacy. n289
The government subsequently cited In re Directives in its August 9, 2013 white paper, defending the telephony
FISC
continues to go beyond its mandate. In August 2013, for instance, FISC issued a twentynine-page Amended Memorandum Opinion regarding the FBI's July 18, 2013 application for
the telephony metadata program. n291 Appending the seventeen-page order to the opinion, Judge
metadata program, in support of an exception to the Fourth Amendment warrant requirement. n290
Claire V. Eagan considered Fourth Amendment jurisprudence, the statutory language of Section 215, and the canons
FISCR
suggested the case raised "important questions of statutory
interpretation, and constitutionality" and concluded "that FISA, as amended by
the Patriot Act, supports the government's position, and that the restrictions
imposed by the FISA court are not required by FISA or the Constitution."
of statutory construction to justify granting the order. n292 Similarly, in a 2002 per curiam opinion,
n293 Congress did not design the Foreign Intelligence Surveillance Court or the Court of Review to develop its own
jurisprudence. Particularly in light of the secrecy and lack of adversarial process inherent in the court, it is
including in the wake of the Snowden affair n190 (although President Obama
recently ordered that the metadata be stored with a third party rather than the NSA
itself n191). As described in more detail in Part III, Snowden's revelations and the
NSA's own disclosures indicate that these bulk metadata are "queried" on a
frequent basis, resulting in the examination of the communication records of
thousands of people. n192
2NC AT Circumvention/Noncompliance
FISC wont get circumvented has disciplinary authority over
NSA
Sinha 13 G. Alex Sinha. Aryeh Neier Fellow, Human Rights Watch and the American Civil Liberties Union. NSA
SURVEILLANCE SINCE 9/11 AND THE HUMAN RIGHT TO PRIVACY Loyola Law Review 59 Loy. L. Rev. 861. Winter, 2013
AFF FISA/FISC CP
2AC FISA/FISC CP
Perm do both
Perm do the CP
Non-compliance guarantees circumvention no oversight
means precedent is reversed or ignored by lower FISC court or
the NSA
Stanley 13 Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology
Project. The FISA Courts Problems Run Deep, and More Than Tinkering is Required
NOVEMBER 21, 2013. ACLU. https://www.aclu.org/blog/fisa-courts-problems-rundeep-and-more-tinkering-required
With the latest release of documents about the NSA and the FISA Court (this one in response to an ACLU/EFF
yesterday detailed the sorry story of how these characteristics allowed the court to stretch the law to permit bulk
metadata collection.
Two forms of relatively weak judicial review exist over the NSA Metadata Program. The primary mechanism by
which the NSA has legitimated its surveillance activities is the Foreign Intelligence Surveillance Court (FISC), a
closed, non-adversarial setting. Article III courts have had the opportunity to consider post-9/11 surveillance
programs on numerous occasions, and with few exceptions, Article III courts have refused to review matters of
post matter, it is unclear to what extent the FISC's work guarantees any meaningful accountability over NSA
of which had met FISC's legal standard for reasonable suspicion. 78 On such occasions, the administration has
modified problematic aspects of the surveillance and continued forward without further impediment by the FISC. 79
On the other hand, the fact that the NSA itself has brought potential compliance incidents to the notice of the FISC
indicates at least some internal policing of these programs. However ,
which we agree, and which we hope you adopt and encourage Congress to act on.
These include: * Ending the widespread use of National Security Letters (NSLs)
without judicial review: National security letters are a form of administrative
subpoena that give the FBI and other government agencies expanded power to
compel the production of records. Under the PATRIOT Act of 2001, authorization for
their use was greatly expanded; the need for individualized suspicion was reduced
and a broader array of officials became authorized to issue them. As a result, the
use of NSLs dramatically increased to the point where the FBI currently issues
nearly 60 NSLs per day without judicial approval and accompanied by strict gag
orders on the recipients. According to a report by the Office of the Inspector General
in the Department of Justice, the lack of oversight has resulted in serious
compliance issues and extensive misuse of NSL authority.[9] The review
group effectively called for an end to this practice, saying that NSLs should be
subject to judicial authorization, like 215 orders. We agree with these
recommendations, and though they require Congressional action we strongly urge
you to support them. * Creating an Institutional Advocate at the Foreign Intelligence
Surveillance Court (FISC): For years, the FISC has been authorizing dramatic
changes to US law in secret without any adversarys view being part of the process.
That is a recipe for decisions that set the wrong balance between security and
rights, because any judge is more likely to be persuaded by the side whose
views he or she hears. The panel supported creating an institutional advocate
with appropriate security clearances at the FISC to represent the publics privacy
interests. We strongly urge you to support legislative action on this matter. *
Strengthening the Privacy and Civil Liberties Oversight Board (PCLOB) and Investing
It with Whistleblower Reporting Authority: The PCLOB was established by Congress
after September 11, 2001, to conduct oversight of the intelligence community and
make recommendations about how to improve privacy and civil liberties protections.
But for years, the board remained dormant, without a chairman or staff. It now has a
chairman and staff but limited resources. If strengthened further and provided with
adequate resources, it can help to check the powers of an intelligence community
that gravitates toward over-classification and secrecy. Additionally, we agree with
the review group that the PCLOB should be empowered to receive whistleblower
complaints. Would-be whistleblowers need an independent and effective body to
which they can report abuses or wrongdoing without having to report them
internally first. A presidential policy directive issued in 2012, intended to improve
whistleblower protections for federal employees, does not cover contractors and
requires whistleblowers to report to a person in their direct chain of command
instead of a more independent body.[10] While this would not adequately address
the need for whistleblower reform that Human Rights Watch has previously
identified, it would be a starting point. More complete whistleblower reform would
require more than just creating an independent body to report wrongdoing. It would
also require providing whistleblowers with legal protection against retaliation and
legal defenses to prosecution. We urge you to propose to Congress a law that will
grant such protections to federal employees and consultants in this sector. The rules
that the United States establishes today on these matters will likely govern
surveillance long after your administration has completed its term. They will also set
a key precedent to which other countries will look to as they debate crucial
questions about privacy and Internet freedom across the world. We strongly urge
you, even as US surveillance capabilities continue to increase, to ensure that
those capabilities are effectively regulated, within a framework of the rule
of law, maximum transparency, and respect for democracy and human
rights. Adopting the recommendations outlined above will be a first step in that
direction.
positive view of the bill. "While far from perfect, this bill is an unambiguous statement of congressional intent to rein in the out-ofcontrol NSA," she said in a statement. "While we share the concerns of many including members of both parties who rightly
believe the bill does not go far enough without it we would be left with no reform at all, or worse, a House Intelligence Committee
bill that would have cemented bulk collection of Americans communications into law." The Electronic Frontier Foundation simply
called it "a weak attempt at NSA reform." The
Shanthi Kalathil - Adjunct Faculty and Adjunct Lecturer in the Communication, Culture, and Technology
(CCT) Master of Arts Program at Georgetown University. Kalathil has extensive experience advising the
U.S. government, international organizations and nonprofits on supporting civil society, independent
media, technology, transparency and accountability. Previously a senior Democracy Fellow at the U.S.
Agency for International Development and she has authored or edited numerous policy and scholarly
publications, including the edited volume Diplomacy, Development and Security in the Information
Age. She has taught courses on international relations in the information age at the Monterey Institute
of International Studies and Georgetown University. Kalathil holds degrees from U.C. Berkeley and the
London School of Economics and Political Science Internet Freedom: A Background Paper October
2010 - Available via:
http://www.aspeninstitute.org/sites/default/files/content/images/Internet_Freedom_A_Background_Pape
r_0.pdf
As use of the Internet has grown exponentially around the world, so too have
concerns about its defining attribute as a free and open means of
communication. Around the world, countries, companies and citizens are grappling
with thorny issues of free expression, censorship and trust. With starkly different
visions for the Internet developing, this era presents challengesand also opportunitiesfor
those who wish to ensure the Internet remains a backbone of liberty and
economic growth. U.S. officials have made clear their vision for the
Internet s future. President Obama, in a speech before the UN General Assembly, said that the U.S. is
committed to promoting new communication tools, so that people are
empowered to connect with one another and, in repressive societies, to do so with security. We will
support a free and open Internet, so individuals have the information to make up their own minds. His words were reinforced by
FCC Chairman Julius Genachowski: It
global
initiativesspearheaded by governments, private sector and civil societyare attempting to enshrine the
norms, principles and standards that will ensure the Internet remains a public space for
free expression. At the same time, other norms are fast arising
particularly those defined by authoritarian countries that wish to splinter the Internet into
independently controlled fiefdoms. Even as Internet access has expanded around the
world, many governments are attempting to control, regulate and censor the
Internet in all its forms: blogs, mobile communication, social media, etc. Such governments have
devoted vast resources to shaping the Internets development within their
own borders, and they are now seeking to shape the Internet outside their
borders as well. Indeed, Internet experts are worried that national governments of all stripes will increasingly seek to extend
their regulatory authority over the global Internet, culminating in a balkanized Internet with
limited interoperability. Hence, the next few years present a distinct window
of opportunity to elevate the principles of the free exchange of ideas, knowledge and commerce on the
Internet. While U.S. leadership within this window is vital , a global effort is necessary to
ensure that these norms become a standard part of the Internets supporting architecture.
in the network. However, making reality live up to aspirations for Internet freedom can prove difficult. Numerous
scenarios for the future of the world order illustrate the range of
possibilities, albeit at the risk of oversimplification. The first scenario entails the premature crumbling of the postWestphalian system. One or more of the acute tensions apparent today evolves into
an open and traditional conflict between states, perhaps even involving the use of
nuclear weapons. The crisis might be triggered by a collapse of the global
economic and financial system, the vulnerability of which we have just
experienced, and the prospect of a second Great Depression, with consequences for peace and
democracy similar to those of the first. Whatever the trigger, the unlimited exercise of national
sovereignty, exclusive self-interest and rejection of outside interference would likely
be amplified, emptying, perhaps entirely, the half-full glass of multilateralism, including the UN and the European Union.
Two neatly opposed
Many of the more likely conflicts, such as between Israel and Iran or India and Pakistan, have potential religious dimensions. Short of
war, tensions such as those related to immigration might become unbearable. Familiar issues of creed and identity could be
exacerbated. One way or another, the secular rational approach would be sidestepped by a return to theocratic absolutes,
competing or converging with secular absolutes such as unbridled nationalism.
Advocate would be appropriate in the FISA context where FISC judges are asked to
make novel and significant legal determinations regarding important constitutional
rights. Two former FISC judges,214 and other prominent legal scholars,215 have
proposed adding such an adversarial position to ensure that legal developments at
the FISC do not suffer from unbalanced advocacy.216
SOP Court CP
Notes
SOP Supreme Court CP
1. The Counterplan is to have to Supreme Court rule on the separation of
powers doctrine.
2. The net benefits are the internal SOP DA, and the 4 th amendment DA
3. You could read this aff against affirmatives that have the Supreme Court rule
on an amendment that is not the separation of powers doctrine ie. 1 st, 4th,
etc.
1NC Material
1NC Solvency
[Insert Plan] replace the grounds with = based on the
separation of powers doctrine
1st and 4th amendment challenges to surveillance fail the
counterplan is key to legitimately stopping surveillance
Slobogin 15
(Christopher -Milton Underwood Professor of Law, Chris Slobogin has authored more
than 100 articles, books and chapters on topics relating to criminal procedure,
mental health law and evidence. Named director of Vanderbilt Law Schools Criminal
Justice Program in 2009, Professor Slobogin is one of the five most cited criminal law
and procedure law professors in the country, according to the Leiter Report,
Vanderbilt University Law School, Standing and Covert Surveillance, Pepperdine Law
Review, February 18, 2015, http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2567070, JZG)
BASIS FOR CHALLENGING SURVEILLANCE: SEPARATION OF
POWERS AND THE NONDELEGATION DOCTRINE One response to standing arguments
IV. A THIRD
based on the insights of scholars like Milligan and Richards is that they ignore the close relationship
between standing and the scope of the right in question.131 Indeed, when the Fourth Amendment is
the basis for the claim, the Supreme Court has explicitly conflated standing with the Amendments
substance. In Rakas v. Illinois, 132 the Court stated that the decision as to whether a defendant can
make a Fourth Amendment claim forthrightly focuses on the extent of a particular defendants rights
under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined
concept of standing.133 If a government action is not a Fourth Amendment search vis--vis the
litigant, Rakas held, then the litigant lacks standing to challenge it. If that reasoning is the correct
approach to standing, then in cases challenging covert surveillance on Fourth or First Amendment
grounds everything rides on whether the surveillance, as it operates in the way the plaintiff describes
it, infringes the plaintiffs reasonable expectations of privacy or speech and association interests.134
While such a finding would presumably be made in the Clapper case, which involved the alleged
interception of the content of overseas phone calls,135 it is less certain in connection with collection
constitutionally cognizable interest was infringed cannot be made. If, despite its impact on political
participation, covert surveillance like the metadata program remains immune from Fourth and First
claims that courts ought to hear because they assure the proper functioning of the political process
that the Court is so eager to protect (with, inter alia, its standing doctrine). To requote Chief Justice
Roberts, [T]he obligation of the Judiciary [is] not only to confine itself to its proper role, but to ensure
that the other branches do so as well.152
Unwarranted
surveillance broadly stifles fundamental liberties and undermines the
very foundation of constitutional government. Government is no longer
functioning as the framers of the Constitution imagined it should if
political discourse, individual creativity, outspokenness and nonconformity are not allowed to flourish. This state of affairs threatens
rather than sustains the notion of separate but equal governmental
powers, because it diminishes the vitality of the legislative function,
improperly enhances the executive function, and ignores the judiciarys
role as a regulator of law enforcement through determinations of cause.
Standing doctrine, meant to ensure each branch of government is allowed
to do its job, should not prevent courts from ensuring that the other
branches actually do it.
of the Republic, the very foundation of constitutional government.164
obligations and because their openness makes it much more difficult to breach agreements in secret. Precisely because, within their
2NC CP
2NC Solvency
The political process theory supports the cps solvency
Slobogin 15
(Christopher -Milton Underwood Professor of Law, Chris Slobogin has authored more
than 100 articles, books and chapters on topics relating to criminal procedure,
mental health law and evidence. Named director of Vanderbilt Law Schools Criminal
Justice Program in 2009, Professor Slobogin is one of the five most cited criminal law
and procedure law professors in the country, according to the Leiter Report,
Vanderbilt University Law School, Standing and Covert Surveillance, Pepperdine Law
Review, February 18, 2015, http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2567070, JZG)
One objection to the political process rationale for granting
standing to litigants with colorable claims of injury from NSA surveillance
is that, as Clapper stated, the Court has 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.153 A
separate but related objection comes from Professor Jesse Choper, who argued
in 1980 that the executive and legislative branches have tremendous
incentives jealously to guard [their] constitutional boundaries and
assigned prerogatives against invasion by the other, and thus separation
of powers issues ought to be non-justiciable political questions .154 Neither
of these objections are sustainable from the political process perspective.
Precisely because of the perceived importance of national security, the
legislative and executive branches often either act in collusion with one
another or, as illustrated earlier, function in ways that undermine the others
prerogatives, with the result that both end up ignoring their constitutional
obligations.155 Particularly when it comes to national security, courts
should have the authority to ensure that legislatures define the scope of
permissible law enforcement and that law enforcement abide by
appropriate rule-making mechanisms, a notion the Court has accepted in
related national security contexts.156 At the least, these obligations should
include procedures for assuring public accountability (such as notice-andcomment
V. OBJECTIONS
or other transparent rule-making processes), or, if that is not feasible, some method of assuring
accountability to the legislature.157 Unfortunately, the perceived imperatives of the War on Terrorism
noted above,160 in FEC v. Akins the Court has already recognized as much with respect to the most
basic of political rights of voting.161 Whether other interests less closely related to the democratic
process might be treated similarly is beyond the scope of this Article.
2NC AT Perm Do CP
The counterplan severs the part of the plan text that rules on
the ____ amendment. Severance is bad because it also the aff
to be a moving target we can never get stable negative
ground voting issue for fairness
decisions bind the parties in the particular case.2 Our jurisprudential tradition further assumes that all cases
elaborate a general rule of decision, or ratio decidendi, that applies to future cases involving similar issues.3 The
discernment of a ratio decidendi from a majority opinion is generally uncontroversial because a majority opinion
represents the rationale of a majority of Justices.4 But, the discernment of a ratio decidendi from a plurality opinion,
which represents the rationale of less than half of the Justices, is more problematic .
A majority opinion
may command more authority than a plurality decision,5 but precisely
what authority does a plurality decision command? In other words, how
should courts apply a plurality decision to subsequent controversies
involving similar issues? This Note posits that the growing confusion surrounding
plurality opinions is a foreseeable consequence of the formative years of the Supreme
Court. The hubris of wielding federal judicial power, that has driven Justices since the Court's inception, is the cause
understanding of the Supreme Court's role. We must begin, at least, by recognizing the esteemed and modest
beginnings of the Supreme Court.
2NC CP Overview
The counterplan solves 100% of the case that is not based on the ____ amendment.
We use the same process of the plan but rule on different grounds. 1NC Slobogin is
the most specific to the counterplans process, multiple standings exist for litigants
to sue based on the doctrine and the Supreme Court has often given standing to
those litigants.
The Counterplan solves the internal SOP net benefit and avoids the 4 th amendment
good DA.
FISA court hears from only one side in the case the government .49 One
need not be a Constitutional law professor or political science scholar to realize that if only one side of
an argument is heard, the chance for a fair examination of both sides
diminishes. The government routinely seeks trillions of records about American citizens, including, but not
limited to phone call and e-mail records.50 One wonders how the FISA court considers
both sides if only one side is being argued. The fear, of course, is that the two outcomes, to
the
grant or deny the governments request, are not accorded equal weight, if any weight at all. Under such a scenario,
one might suspect a disproportionate number of granted requests by the government. Unfortunately, that appears
government gets to present its case and every single government request for spying is granted, where is the
check? Nothing about the aforementioned process comports with Constitutional notions of checks and balances,
2014, http://works.bepress.com/cgi/viewcontent.cgi?
article=1006&context=ryan_williams, JZG)
Is the Executives newfound expansive ability to spy on
Americans, and seeming inability to challenge it, harmful? Such spying may be
D. Resulting Harm
necessary to protect the nation from credible terrorist threats. Moreover, on an individual level, why is
there is any problem with the Executive tracking all of peoples activities and information ?
If
people have nothing to hide, then what is the harm? First, one potential
harm is if (and when) the Executive wants to further expand its powers, and,
in secret, unilaterally take away other rights or privileges. By granting the
Executive unchecked power for its NSA surveillance program, a dangerous
precedent is set where the Executive may have incentive to take
additional power in other areas, while falsely claiming it is for national
security . It may really be for political or personal gain, or to push another
agenda to improperly shape American policy, but if its under the guise of
national security, a precedent is being set where the Executive is beyond
reproach. Thus, not having a watchdog over the NSA and the Executive
can lead to a host of abuses we have yet to even realize, the worst of
which may be yet to come. Second, aspects of the NSA surveillance program may be
unconstitutional. Facially, the concept of tracking phone calls, email communications and Internet traffic to see
if someone is behaving suspiciously seems a little unnerving. It is not we have a target, lets start
monitoring them. Instead, its lets monitor virtually everyone, to see if there are any targets. To
some, like the plaintiffs in Clapper, this difference is troubling enough to challenge in court, but their
case was dismissed for lack of standing. Conjointly, the NSA surveillance program may have
unconstitutional components, but they will continue to remain unnoticed if no one is ever able to
person in charge of the military and controlling the spying agencies, to be effectively unchecked by
Fathers fought hard to guard against when they formed the United States of America.72 The
aforementioned dangers highlight the problems with the Executives newfound and unchecked secret
and growing power to spy on Americans. The NSA surveillance program, however, is not the only way
the Executive has usurped power without being stopped by Congress or the Judiciary in the War on
Terror.
And here we come to a subtle change in the legal landscape with broad ramifications: the demise of
The story begins with the collapse of the nondelegation doctrine in the 1930s, which enabled broad areas of
policymaking authority to be given to the President and agencies under
his control. That collapse, however, was tempered by the legislative veto,
meaning, in practical terms, that when Congress did not approve of a
particular agency action, the legislature could correct the problem . But
after INS v. Chadha, 15 which declared the legislative veto unconstitutional,
that checking function, too, has disappeared. While Congress has at times engaged in
the congressional checking function.
oversight, such as the scandal-driven 1995- 2000 period, such oversight is often stymied by structural
House can block such a bill.16 For example, when some of the Senates most powerful Republicans
(John McCain, Lindsay Graham, and John Warner) tried to regulate detentions and trials at
Guantnamo Bay, they were told that the President would veto their bill or any other attempt to
modify the AUMF.17
act, such as the AUMF, to give the President broad powers, Congress often
cannot reverse the interpretation, even if they never intended to give the
President those powers in the first place. Members of Congress must not only
surmount a supermajority requirement, they must do so in each House. Senator McCain might
persuade every one of the other ninety-nine Senators to vote for his bill, but that is of no moment
The combination of deference and the presidential veto is particularly insidiousit means that a
President can interpret a vague statute to give him additional powers, receive deference in that
interpretation from courts, and then lock that decision into place via his veto power. This ratchetand-
This expansion of
presidential power is exacerbated by the party system. When the political
lock scheme makes it almost impossible to rein in executive power.
branches are controlled by the same party, considerations of loyalty, discipline, and self-interest
generally preclude inter-branch checking. That general reluctance is exacerbated by the paucity of
weapons with which to check the President, with the only ones in existence called nuclear ones. In
earlier times, it was not difficult to use legislative vetoes as surgical checks. But post-Chadha,
Congress only has weapons that cause extensive collateral damage. The fear of that damage, of
course, becomes yet another reason why Congress is plagued with inertia. And the filibuster, the last
big check in periods of single-party government, is useless against the host of problems where
Presidents take expansive views of their powers under existing laws (such as the AUMF). Instead of
preserving bicameralism, the rule in Chadha has therefore led to its subversion and no-cameralism.
All legislative action is therefore dangerous. Any bill, like Senator McCains torture bill, can be
derailed through compromise. Even if its text ultimately has teeth, a President will interpret it
niggardly, and that interpretation will likely receive deference from a court, and it will then be locked
into place due to the veto. A rational legislator, fearing this cascading cycle, is likely to do nothing at
all. A Congress that conducts little oversight provides a veneer of legitimacy to an adventurist
President. The President can appeal to the historic sense of checks and balances, even if those checks
are entirely compromised by modern political dynamics. With this system in place, it is no surprise
that calls for legislative revitalization in the wake of the September 11th attacks have failed. No
successful action-forcing mechanisms have been developed; instead we are still in John Hart Elys
world of giving a halftime pep-talk imploring that body to pull up its socks and reclaim its rightful
authority.20 Instead of another pep-talk, it is time to consider second-best solutions to bring
separation of powers into the executive. Bureaucracy can be reformed and celebrated (instead of
Design
choices such as these can help bring our government back in line with the
principles envisioned by our Foundersones that have served our nation
and the world so well for so long.21
purged and maligned), and neutral conflict-decision mechanisms can be introduced.
The most
conspicuous and controversial manifestation of the pragmatism in power
allocation that the Court has acquiesced to is the dramatic growth of
executive power, and corresponding decrease in congressional power, over
the past century. A good example of this dramatic growth, and the reality that the political process is
apparent upon a cursory examination of the state of modern government.
the only check on it, is the recent use by Presidents of executive orders and other mechanisms of
presidential control over administration to manage national affairs. In 2001, then-Professor Elena
Kagan reflected on the increasing control asserted by Presidents since Ronald Reagan over
administrative agencies and declared quite correctly that "[w]e live today in an era of presidential
administration." 19 3 She emphasized that "presidential control of administration, in critical respects,
expanded dramatically during the Clinton years, making the regulatory activity of the executive
branch agencies more and more an extension of the President's own policy and political agenda." 194
Lest one conclude that this is the result of rank grabs at power by ambitious Presidents, Kagan
convincingly explained how this increasing assertiveness of Presidents is likely the result of
"structural aspects of the modern presidency," 195 created by several dynamics beyond Presidents'
control. For example, the American public's expectations of what Presidents can do have increased in
recent decades, but the President's ability to convince Congress to go along has only decreased due to
presidency that Justice Kagan discusses manifest in controversies over, for example, President
legislatures to resolve, yet one the legislature has left Presidents to resolve through massive
delegation, a disinclination to be responsible for controversial federal policy, and a resignation to a
reality that modern life requires a powerful executive branch. As of this writing, President Obama is
well into his eight-year presidency, and the former constitutional law professor now well-appreciates
Rightly or
wrongly-but no doubt controversially-President Obama has recently
declared that, in light of Congress' inability or unwillingness to legislate
with respect to important issues, "I have got a pen and I have got a
phone," and that he would use his pen and phone to advance his policies
without the help of Congress.20 1 Obama has thus, for example, announced, without
the practical limitations of attempting to govern with the assistance of Congress.
consultation with Congress, that the executive branch would stop deporting children present in the
country illegally,20 2 which some argue is tantamount to refusing to enforce federal immigration laws,
at least in a significant categorical respect.20 3 Also controversial is his (as of this time) forthcoming
executive order that would raise the minimum wage for federal contractors' employees without any
legislation, 20 4 a move justified, as defenders argue,205 only by vaguely delegated authority in the
Federal Property and Administrative Services Act of 1949, that charges the executive to promote
first declaring them is generally deemed so illegitimate-to the point of being almost adorably quaintsuch that even those generally against U.S. involvement abroad generally bypass the argument
altogether, notwithstanding historical evidence that the Declare War Clause was, absent the need to
repel a sudden attack, intended to ensure Congress and not the executive commit the nation to war.20
7 Even half-way measures meant to preserve meaningful congressional constraints on executive war-
the
Obama administration has asserted that it may conduct airstrikes against
Syria without congressional approval.20 9
making powers, such as the War Powers Resolution, have been largely ignored.208 Thus,
including the Affordable Care Act. It required the employer mandate to begin this year. But Obama wrote a new law,
giving to certain-sized companies a delay until 2016, and stipulating that other employers must certify they will not
drop employees to avoid the mandate. Doing so would trigger criminal perjury charges; so, he created a new crime,
that of adopting a business practice he opposes. Presidents must exercise some discretion in
interpreting laws, must have some latitude in allocating finite resources to the enforcement of laws, and must have
Georgias 11th District in the U.S. House of Representatives, said in a statement that the court has ignored the
foundational intentions of the Constitution. Marriage, he added, has always been recognized as part of a religious
institution, something American founding fathers have deemed to be outside the realm of the federal government.
Therefore, any recognition or licensing of marriage by government was left within the power of the states ,
he
said. In this decision, the Supreme Court fully stepped upon the principle of federalism and
the rights and will of the states regarding social and religious issues. Once again the courts have
overstepped their boundaries and have engaged in social engineering by violating the
basic premise of separation of powers and the will of the people.
2NC AT Non-Delegation DA
The new
agreement to be signed in Paris, to take effect in 2020, will essentially replace the
Progress and a former chief of staff to U.S. Special Envoy for Climate Change Todd Stern.
1997 Kyoto Protocol. Unlike Kyoto, the Paris deal will demand action from everyone, and not just from
wealthy industrialized countries. But in order to make that palatable for governments, negotiators are
moving away from a traditional top-down approach in which scientists dictate what is needed to save
the planet and countries are allotted targets accordingly. Instead, consensus has built around a more
voluntary approach in which governments figure out how much they can cut and offer it up as a
In
interviews with former negotiators and longtime observers of the U.N.
climate negotiations, not one person expressed confidence that the sum of
countries' targets will be enough to keep rising global temperatures below
the internationally agreed 2-degree-Celsius "guardrail " between dangerous and
pledge. Those "intended nationally determined contributions" are due early next year.
extremely dangerous warming. "If that were the case, it would be a stunning surprise. I don't think
anyone expects that," said Joy Hyvarien, executive director of the U.K.-based Foundation for
International Law and Development (FIELD). Recently, the Massachusetts Institute of Technology used
significantly change the picture. The analysis for the Guardian by the non-profit Climate Analytics
comes as climate negotiators from nearly 200 countries meet in Bonn and academics warned the
agreement hoped for in Paris would not keep temperatures to UNs target of holding temperature
rises below 2C above pre-industrial levels. None of the pledges, known in UN jargon as Intended
Nationally Determined Contributions (INDCs), were found to be in line with the 2C limit, when a fair
global distribution of emissions cuts was factored into countries offers. Pledges made by Russia and
Canada would be consistent with potentially catastrophic warming of between 3-4C if the pledges
action and
ambition we have seen to date is far from sufficient and unless it is rapidly
accelerated, the difficulties of limiting warming below 2C will be extreme, said
Dr Bill Hare, the founder of Climate Analytics and a former Intergovernmental Panel
on Climate Change (IPCC) lead author. But he added: What we see in the economic and
were matched with a similar level of ambition globally, according to the research. The
technological potential for emissions reductions gives us hope that if governments are willing to move
fast enough in the next 5-10 years, we might still make it. All that is lacking is political will. Achim
Steiner, the director of the UN Environment Programme, said this week that he would measure
countries commitments by looking at whether the pledges add up to anything that comes close to
ensuring that we at least have the possibility to stay within a 2C scenario. The new analysis suggests
an uphill struggle. Some civil society groups complain that the focus on national pledges distracts
attention from the planets fast-dwindling carbon budget and the UN Framework Convention on
Climate Changes (UNFCCC) goal of stabilising atmospheric greenhouse gas emissions at safe levels.
When the UNFCCC started 21 years ago, atmospheric CO2 concentration were at 300 parts per million
(ppm). Today they are at 400 ppm, and increasing faster each year than the one before, said Michael
Wadleigh, the founder of the Unesco-supported Homo Sapiens Foundation, and director of the Oscarwinning film, Woodstock. Despite all the UNFCCCs negotiated agreements, the body is failing in its
key objective. Reto Knutti, a lead author for the IPCCs last major climate report, said that scientists
would prefer the world to set global carbon quotas rather than percentages of national emissions set
against baseline years but admitted that this was a hard sell. We presented carbon budget schemes
in Warsaw two years ago [the UN climate summit in 2013], and the policy-makers all said we agree
and its urgent. But at the same time, they tried to tweak things so they had to do as little as
possible, he said. Nicholas Stern, the author of aninfluential review of the economics of climate
change for the UK government, said that the Paris summit would be crucial in at least setting a floor
of ambition The question is how fast can you ramp up, he said. Theres no doubt that [INDCs] are
coming in too high for 2030 for 2C [of warming]. Thats crystal clear. Much too high. But if we get
some movement in policies, if we get much stronger innovation of the kind they are trying to
encourage, then they could be ramped up quite quickly. Christiana
climate secretariat, acknowledges Paris is unlikely to meet 2C but said future rounds
of pledges could meet the target. You dont run a marathon with one step, Reuters reported her as
as saying.
Foran 15
(Clare, Mike Pence Says Indiana Will Buck Obamas EPA Climate Plan, 6-24-15,
http://www.nationaljournal.com/energy/mike-pence-says-indiana-will-buck-obama-sepa-climate-plan-20150624, JZG)
June 24, 2015 Indiana Gov. Mike Pence says his state won't comply with the
Environmental Protection Agency's effort to curb carbon dioxide from power plantsunless the
administration dramatically overhauls its regulation. Mike Pence sent a letter to the President Obama
on Wednesday with that warning, saying that unless proposed EPA regulations for power plants are
significantly "improved" before the agency finalizes them, Indiana will buck the rule. That
than three years ago, investments have been made and most plants are already well on their way to
compliance. But congressional Republicans and other critics of EPAs agenda appeared emboldened
by Mondays ruling as a rebuke for the administrations broader agenda. Todays
decision
firmly rejects the Obama administrations circumvention of the democratic
process and restores a dose of accountability to the increasingly
unaccountable executive branch, House Majority Leader Kevin McCarthy (R-Calif.) said in
a statement. He added that the decision vindicates the Houses legislative actions to rein in
What is happening to global temperatures in reality? The answer is: almost nothing for
more than 10 years. Monthly values of the global temperature anomaly of the lower atmosphere,
compiled at the University of Alabama from NASA satellite data, can be found at
the website http://www.drroyspencer.com/latest-global-temperatures/. The latest (February 2012) monthly
global temperature anomaly for the lower atmosphere was minus 0.12 degrees
Celsius, slightly less than the average since the satellite record of temperatures
began in 1979
largely
of climate change
decades will lead to only mild consequences. The severe impacts predicted by alarmists
require a century (or two
predicted impacts assume there will be no or little adaptation . The net economic
impacts from climate change over the next 50 years will be small regardless. Most of
impacts will take more than a century or even a millennium to unfold and
many of these
potential
Strategies to reduce carbon can double as investments that return value for your operations as they evolve over
time, Ms. McCarthy told an audience of energy executives at a conference in Houston in late April about the
George W. Bush administration. Some of those costs are encouraging cleaner alternatives; sometimes theyre
shifting things to other countries. Fully understanding the costs and benefits is really challenging.
AFF SOP CP
2AC
2AC Nondelegation DA
The CP rules on the nondelegation doctrine their ev
Slobogin 15
(Christopher -Milton Underwood Professor of Law, Chris Slobogin has authored more
than 100 articles, books and chapters on topics relating to criminal procedure,
mental health law and evidence. Named director of Vanderbilt Law Schools Criminal
Justice Program in 2009, Professor Slobogin is one of the five most cited criminal law
and procedure law professors in the country, according to the Leiter Report,
Vanderbilt University Law School, Standing and Covert Surveillance, Pepperdine Law
Review, February 18, 2015, http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2567070, JZG)
panvasive surveillance might be challengeable on one of
three grounds: (1) the surveillance is not authorized by the appropriate
legislative body; (2) the authorizing legislative body does not
meaningfully represent the group affected by the surveillance; or ( 3) the
resulting legislation or law enforcements implementation of it violates
notions underlying the non-delegation doctrine.141 The first and third of
these grounds are based explicitly on separation of powers concerns. As I
pointed out, some panvasive surveillance has not been legislatively authorized
or has been authorized by legislation that does not announce an
intelligible principle governing the implementing agency .142 Panvasive
surveillance is also defective under non-delegation principles if, as I have
argued is true of the NSAs metadata program, it is implemented by rules or
practices that are not explained, were produced through flawed or nontransparent procedures, or are applied unevenly.143
140 More specifically,
decisions, this would both reduce the number of regulations that were
enacted and would ensure that members of Congress would have to be
responsible for their decisions. By contrast, under the current system of
delegation, the administrative agencies can use the efficiency of the
administrative process to pass large numbers of regulation s and members of
Congress can avoid accountability for these regulations, always claiming that they did not intend any particular
regulation which might turn out to be unpopular or controversial.
The EPA will create climate regulations now that are key to
signaling support for Paris
Harder 15
(Amy, Obama Administration Readies Big Push on Climate Change, June 9, 2015,
http://www.wsj.com/articles/obama-administration-readies-big-push-on-climatechange-1433873269, JZG)
The Obama administration is planning a series of actions this summer to rein in
greenhouse-gas emissions from wide swaths of the economy, including
trucks, airplanes and power plants, kicking into high gear an ambitious
climate agenda that the president sees as key to his legacy. The Environmental Protection
Agency is expected to announce as soon as Wednesday plans to regulate
carbon emissions from airlines, and soon after that, draft rules to cut carbon emissions
from big trucks, according to people familiar with the proposals. In the coming weeks, the EPA is also
expected to unveil rules aimed at reducing emissions of methane a potent
greenhouse gasfrom oil and natural-gas operations. And in August, the agency will complete a suite of three
regulations lowering carbon from the nations power plantsthe centerpiece of President Barack Obamas climatechange agenda. The proposals represent the biggest climate push by the administration since 2009, when the
House passed a national cap-and-trade system proposed by the White House aimed at reducing carbon emissions.
Anticipating the rules, some of which have been telegraphed in advance, opponents of Mr. Obamas regulatory
efforts are moving to block them. Senate Majority Leader Mitch McConnell (R., Ky.), is urging governors across the
country to defy the EPA by not submitting plans to comply with its rule cutting power-plant emissions. Nearly all
Republicans and some Democrats representing states dependent on fossil fuels say the Obama administration is
going beyond the boundary of the law and usurping the role of Congress by imposing regulations that amount to a
national energy tax driven by ideological considerations. The Administration seems determined to double down on
the type of deeply regressive regulatory policy weve already seen it try to impose on lower-and-middle-class
families in every state, Mr. McConnell said in a statement. These Obama administration regulations share several
things in common with the upcoming directives: they seem motivated more by ideology than science, and theyre
likely to negatively affect the economy and hurt both the cost and reliability of energy for hard-working American
families and small-business owners. Supporters of Mr. Obamas efforts say the regulatory push has the backing of
both science and the force of law. They cite a 2007 Supreme Court decision that compelled the EPA to regulate
greenhouse-gas emissions if the agency found they endanger the publics health and welfare, which the EPA did in
2009 with a scientific finding shortly after Mr. Obama became president. They also argue that the moves became
necessary after the Senate in 2010 rejected the administration proposal to cap the amount of carbon emitted in the
U.S. Mr. Obama in 2013 issued an executive order directing the EPA to issue the regulations, which it did a year
later, in June 2014. Its a demonstration of his commitment. He tried one path, it wasnt successful, so he took
another path that was available, said Carol Browner, Mr. Obamas top climate adviser for the first two years of his
administration and EPA administrator for President Bill Clinton. Hes following the law Congress passed in 1990,
added Ms. Browner, referring to the 1990 Clean Air Act Amendments. The actions expected as soon as this week
include a scientific finding concluding that carbon emissions from aircraft contribute to climate change, a move that
legally prompts the requirement to regulate based on the 2007 ruling by the Supreme Court, and new carbonemission standards for big trucks and trailers, such as a typical 18-wheeler semi-truck. Two factors are driving the
doing to address climate change. Secondly, once the EPA rules on emissions by
power plants become final, states will have a year to submit plans while
lawsuits challenging the rule are expected to be heard by the courts. The
administration wants to make sure that its officials can oversee as much of
these two developments as possible instead of relying on the next
president, especially if it is one of the GOP White House candidates who
have expressed opposition to the EPAs climate agenda altogether. When
youre regulating as much of the economy as he [Mr. Obama] is attempting
to regulate by executive order, thats clearly an overreach, said Tim Phillips,
president of Americans for Prosperity, a political advocacy group backed by the wealthy Koch brothers.
Plautz 15
(Jason, How Mitch McConnell Is Attacking Obama's EPA, 6-16-15,
http://www.nationaljournal.com/energy/mitch-mcconnell-epa-climate-changeappropriations-20150616, JZG)
June 16, 2015 Senate Majority Leader Mitch McConnell said he joined the
appropriations subcommittee in charge of the Environmental Protection
Agency this year to "fight back against this administration's anti-coal jobs
regulations." Looks like he's doing just that. The fiscal 2016 spending bill passed by the Interior
and Environment Subcommittee Tuesday includes language that would bar federal
enforcement of the EPA's rules limiting greenhouse-gas emissions for
existing power plants. That would allow states to opt out of the rule
without fear of the EPA stepping in with a federal implementation plan. The
rider on the EPA's power-plant rule would represent a significant blow to
President Obama's climate plan by giving states the opportunity to sit out rather than crafting an
individual plan to clean up its power plants and improve energy efficiency. McConnell has been
pushing his "just say no" plan to governors, warning that the climate rule will kill jobs while
delivering minimal environmental benefits. McConnell earlier this year wrote to all 50 governors telling them to sit
out the EPA rule, saying the plan was "already on shaky legal grounds" and that EPA was out of bounds in requiring
states to write plans to cut their emissions. So far only one governor, Oklahoma's Mary Fallin, has said publicly she
would opt out, although Wisconsin Gov. Scott Walker, an expected presidential candidate, has indicated he would
the $30.01 billion bill would cut $539 million from the EPA
well below
President Obama's request of $8.6 billion. The bill seeks to cut $75 million
as well from EPA clean-air and clean-water programs and cuts $7.5 million from civil
opt out as well. Overall,
compared to the fiscal 2015 enacted levels, for a total funding level of $7.6 billion. That's also
and criminal enforcement at the agency. The bill passed by a voice vote, as is traditional in the Senate committee,
and will face a full committee markup on Thursday. The spending bill also looks to block several other landmark EPA
ozone, or smog, until 85 percent of counties that currently do not meet the standard come into compliance. It would
also block EPA from regulating lead fishing and tackle, and block a rule requiring companies to make financial plans
to clean up hazardous-waste contaminations, which Democrats say would leave taxpayers on the hook. Another
who have to determine in the next 15 months whether our descendants in the 22nd century will have to cope with
the risks created by a climate that modern Homo sapiens, less than 250,000 years old, has never experienced.
This choice is shockingly clear from the scientific evidence for climate
change that has now been assembled. But we have constructed an economic and political
system that leads us to disregard this threat to the prosperity and wellbeing of our children and grandchildren. We
make decisions about our economy based on models that discount the future such that the further in the future
someone is born, the less they are worth. This means the impacts of climate change on them are simply dismissed.
about climate change that are mediated by newspapers and broadcasters, many of whom are obsessed with
perpetuating controversy about whether there is a problem, instead of focusing attention on what should be done.
Yet few of the editors of our national media bother to cover the mounting evidence that the UK is already
experiencing climate change. Our seven warmest years and four of our five wettest years on record have all
occurred from 2000 onwards. This year has so far been both the warmest and wettest since records began in 1910,
and has included the rainiest winter we have seen. But worst of all, we have constructed a political process that
focuses on narrow, near-sighted concerns rather than on the profound long-term challenges that we face. In doing
so, we have undermined the legitimacy of our democratic elections by alienating many young people who are
turning their backs on traditional party politics, not out of apathy, but out of sheer disgust and disillusionment. It is
a symptom of how little politics has to offer the young that none of the leaders of the three biggest political parties
in parliament has made a major speech on climate change since the last election more than four years ago.
Meanwhile, Ukip has surged in popularity, mainly among older voters, while embracing outright denial of climate
change as part of its laughable energy policy that pledges a revival of coal, the dirtiest of the fossil fuels. It is little
wonder then that there could be a record low turn-out of young voters in the general election next May, even
though whichever party wins will help to decide whether there should be a strong international agreement on
climate change. Our best hope is for young voters to express their despair about our dismal politics, not by
boycotting the general election as some have advocated, but instead by speaking out loudly and fiercely, and
forcing potential MPs to confront long-term issues such as climate change in the run-up to the next general election.
In doing so, they would ensure that their best interests, and the best interests of future generations, are not
betrayed by those political leaders who will decide in Paris next year whether the world will avoid dangerous climate
change.
are to avoid climate chaos , crop failures , endless wars , melting of the polar
icecaps, and a disastrous rise in ocean levels. Either we radically reduce CO2 and carbon dioxide
equivalent (CO2e, which includes all GHGs, not just CO2) pollutants (currently at 390 parts per million and rising 2
ppm per year) to 350 ppm, including agriculture-derived methane and nitrous oxide pollution,
or else survival
for the present and future generations is in jeopardy. As scientists warned at Copenhagen, business as usual and
a corresponding 7-8.6 degree Fahrenheit rise in global temperatures means that the carrying capacity of the Earth
in 2100 will be reduced to one billion people. Under this hellish scenario,
heat, disease, war, and starvation. If the U.S. significantly reduces greenhouse gas emissions,
other countries will follow. One hopeful sign is the recent EPA announcement that it intends to regulate
greenhouse gases as pollutants under the Clean Air Act. Unfortunately we are going to have to put tremendous
pressure on elected public officials to force the EPA to crack down on GHG polluters (including industrial farms and
food processors). Public pressure is especially critical since "just say no" Congressmen-both Democrats and
Republicans-along with agribusiness, real estate developers, the construction industry, and the fossil fuel lobby
appear determined to maintain "business as usual."
profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming
a marital union, two people become something greater than once they were. As some of the petitioners in these
cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men
and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply
that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness,
excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The
Constitution grants them that right." The opinion's sweeping embrace of "equal dignity in the eyes of the law" has
predictably unhinged Kennedy's strict-constructionist colleagues. Chief Justice John Roberts Jr., reading his dissent
from the bench, chastened those basking in the glow of the ruling: "Celebrate today's decision but do not
celebrate the constitution." Scalia's ignoble, insulting rhetoric set a new low for the court's most conservative jurist,
who called Kennedy's opinion "egotistic" and "silly," filled with "straining-to-be-memorable passages." Scalia's
diatribe mocked the "hubris" of those in the 5-4 majority whom he accused, by virtue of their privilege and position,
of making a "naked judicial claim to legislative indeed, super-legislative power; a claim fundamentally at odds with
our system of government." It often seems as though Scalia resides in an alternate universe, utterly blind to the
forces of avarice, bigotry and political privilege that are indeed dismantling our system of government. It's a system
in which cynically drawn legislative districts and statutory shrouds of secrecy around campaign finance and
administrative functions continually marginalize the disenfranchised and people of modest means struggling to
build lives for themselves and their families. It's a system in which lawmakers, including many in Michigan, are
granted safe harbor to pursue blatantly discriminatory legislation, such as the bills Gov. Rick Snyder signed just this
month allowing faith-based agencies to turn away gay and lesbian couples seeking state-supported adoptions.
Another bill, just introduced, would allow only clergy to perform marriages. The court's ruling in in Obergefell v.
Hodges is indeed a triumph, but it is far from the end of our collective struggle to ensure justice for all. Justice
Kennedy's opinion sets us more firmly on that course, opening the door for more Americans to join the struggle.
Scalia is simply wrong.
1AR
1AR Nondelegation UQ
Climate control protections coming now dramatically reduces
warming
Restuccia 6-22
(Andrew - Andrew Restuccia is an energy reporter for POLITICO Pro. Prior to joining
POLITICO, Restuccia covered energy and environmental politics and policy at The
Hill. He also reported on energy policy for The Washington Independent and Inside
Washington Publishers., White House climate strategy hits its stride, 6/22/15,
http://www.politico.com/story/2015/06/white-house-climate-strategy-hits-its-stride119310.html, JZG)
Critics of the Environmental Protection Agencys climate change agenda
should brace themselves the Obama administration isnt letting up.
President Barack Obama has launched an unprecedented regulatory assault on
greenhouse gas emissions, putting the White Houses executive branch
power on display and enraging conservative opponents as the president works to cement his
environmental legacy. Its the result of 24 months of heavy lifting by EPA that started when Obama
unveiled a sweeping climate plan on a sweltering day at Georgetown University two years ago this
week, telling students there he refused to condemn your generation and future generations to a
first step toward cutting airplane emissions, and its planning to curb methane emissions from new oil
enraged agricultural groups. Its all building to August, when the EPA is expected to finalize first-ever
greenhouse gas rules for the nations massive fleet of power plants, a plan thats set to pummel an
already-ailing coal industry. Environmentalists, who for years have complained about the failure of the
U.S. to take on climate change, are now hailing Obamas vigor in trying to cut the emissions blamed
for the warming planet. The presidents climate action plan identified the biggest opportunities to
cut carbon pollution using the authority of existing laws. His agencies are now delivering, as
promised, said David Doniger, director of the Natural Resources Defense Councils climate and clean
air program. But
overreach for a policy that Obama couldnt get passed in Congress. EPAs overreach comes at a
significant cost to American taxpayers and energy consumers, Senate Environment and Public Works
Committee Chairman Jim Inhofe (R-Okla.), the most vocal climate change skeptic in Congress, said
through a spokeswoman. The administrations extremist agenda on global warming will reduce grid
reliability, raise the cost of energy, undermine the Clean Air Act, move jobs overseas and ignores the
will of Congress. Obamas climate agenda hasnt won him many friends in the fossil fuel industry
either. What started out as an academic speech two years ago will long be remembered for its role in
leading us down a path away from the intent of Congress and the people and towards governance
through executive fiat, Laura Sheehan, a spokeswoman for the American Coalition for Clean Coal
Electricity, a coal industry group. So far-reaching are the administrations environmental missives
that they will undermine our nations energy security and wreak havoc on families budgets; all for
negligible climate impact. Obama jaunted into his second term with a renewed desire to take action
on climate change. But, having been burned by a first-term push to pass cap-and-trade legislation, he
knew Congress had no appetite for the issue. In a much-heralded speech at Georgetown University in
June 2013, the president unveiled a 21-page plan that outlined his agenda. The takeaway from the
speech was clear: The administration would go it alone, abandoning its years-long push for a climate
bill in favor of dozens of new regulations and initiatives that touch on most major sectors of the
economy. Two years later, scarcely a week goes by without the administration unveiling a new climate
change initiative. The EPA last week proposed a new regulation that would require
makers of heavy-duty trucks to hike fuel efficiency by up to 24 percent. The rule, the agency said,
would save 1 billion metric tons of carbon dioxide over the life of the vehicles sold
during the program.
Thursday on the 2012 rule by the Environmental Protection Agency that ordered curbs in mercury and other toxic
pollutants emitted from coal-fired power plants. As a result of the rule, dozens of old coal plants were shuttered,
utilities such as American Electric Power Co. and Southern Co. wont reverse decisions to close old coal plants if the
EPA loses.
without Congress. In no policy area (save perhaps immigration) has that been more evident than in environmental
EPA attempts to regulate greenhouse gases have spoken of the need to rein in the executive branch.
using regulation as a policy tool. Statutes passed in the 1960s and 1970s gave the president considerable ability to
and presidents all pick up the pace of regulating as their time in office grows short.
Based on
recent climate science findings, the summit can be viewed as the last
chance for the global community to meet the mandate countries agreed to back in
1992 avoiding "dangerous human interference with the climate system. "
Negotiators have defined that danger threshold as global warming greater
than 2 degrees Celsius, or 3.6 degrees Fahrenheit. Emissions of planet-warming greenhouse gases
than two decades: a meaningful, effective and enforceable global climate change agreement.
would have to plummet in the next decade to avoid overshooting that 2-degree target, according to many studies.
Increasingly, it seems that leaders recognize this, as many are publicly talking about including a long-term goal of
zero or negative emissions (when more emissions are taken out of the atmosphere than added to it) in the Paris
in 2009. That's when world leaders, including a then-new President Barack Obama, jetted into Denmark expecting
to sign a completed treaty text ready for signature only to be disappointed and embarrassed by the weak
"accord" they hastily adopted when negotiations all but collapsed. There were many reasons for Copenhagen's
failure. But perhaps the best explanation is this: the world was not yet ready to undertake the serious actions that
solving this issue requires. Oil and coal companies were still fighting the science. China and the U.S. were still at
loggerheads over China's responsibility to cut its rapidly-growing emissions. Leaders were not yet feeling much heat
at home for failing to move forward. All that, and more, has changed.
A global movement is
underway to encourage entities of all sizes, from cities to colleges to entire countries, to divest from fossil fuel
companies. The movement has met with growing success. The U.S. and China
struck a climate agreement that would bring a massive expansion in China's renewable energy use,
and a peak in its carbon emissions by 2030. The U.S. has committed to cutting its emissions
by up to 28% below 2005 levels by 2025. Currently, U.N. climate negotiators are meeting in Bonn, Germany, to
work on the rough draft of an agreement that will be up for debate in Paris. As it is currently written, the draft is
sprawling, with brackets surrounding the most contentious issues. The task before the negotiators is to whittle away
at the text and get closer to widespread agreement on some of the major sticking points such as financial
assistance from the industrialized world to pay for the impact of climate change in developing countries, and to
assist with their transition from fossil fuels to renewable energy. Fossil fuel companies are feeling more pressure
from governments and their shareholders to consider the possibility that some of their assets may become
"stranded" because of the need to cut emissions. On Monday, the leaders of six global oil and gas companies sent a
letter to top U.N. climate official Christiana Figueres, offering support for the implementation of a carbon price. The
chief executives of Shell, BP, Total, Statoil, Eni and the BG Group wrote: We acknowledge that the current trend of
greenhouse gas emissions is in excess of what the Intergovernmental Panel on Climate Change (IPCC) says is
needed to limit the temperature rise to no more than 2 degrees above pre-industrial levels. The challenge is how to
meet greater energy demand with less CO2. We stand ready to play our part. The letter endorsed the increased use
of natural gas, a fuel that has less carbon compared to oil, but is still not a clean energy source, to help fight
climate change. A carbon price could encourage the use of natural gas, according to National Journal. While no one
believes the oil companies are about to stop drilling anytime soon just look at Shell's summer plans for the Arctic
there are other important signs that the Paris meeting will be very different from past negotiating sessions. An
top-down mandate from the U.N. that will be legally binding on some
countries but not others. Instead, it's the reverse: a bottom-up approach in which
each country determines what it is willing to do to address its share of the
global warming problem. These individual goals will then be stitched together into some kind of
patchwork quilt that has legal force to it. This ad-hoc structure may seem wonky, and only of interest to diplomacy
nerds, but it's actually a fundamental part of why many longtime observers of climate talks are more optimistic
countries back regularly to the table to strengthen their commitment to complete the job," says Jennifer Morgan,
global director of the climate program at the World Resources Institute in Washington, an environmental think tank.
Under the old system, there were good reasons for countries to resist ambitious emissions reduction targets
because they were legally binding and came from a complicated, largely arbitrary calculation by the U.N.
countries would come back to the table say every five years, and in the actual Paris agreement would be a
commitment that they would increase their ambition, or not roll back their ambition, every five years," Morgan said
on a call with reporters. "There could even be assessments of the country's proposed commitments for the future
that think climate change will benefit plants need to see the light, literally and figuratively, says Camilo Mora, lead
author of the report and assistant professor in the Department of Geography at the University of Hawaii. A
narrow focus on the factors that influence plant growth has led to major
underestimations of the potential impacts of climate change on plants, not
only at higher latitudes but more severely in the tropics, exposing the world to dire
consequences. Professor Mora has made a career of thinking about global consequences. He and
colleagues recently tried to calculate the possible dates at which local climates could shift inexorably in different
parts of the world, and tried also to build a picture of how ocean warming and acidification would affect incomes
team is not the first to try to calculate the potential impact of catastrophic global warming on global food supply.
Cereals are vulnerable to extremes of heat, and climate change may already be affecting
yields in Europe. But the Hawaiian scientists tried a simple theoretical approach, by first identifying the ranges of
temperature, soil moisture and light that drive 95% of the worlds plant growth today. They then tried to calculate
the number of days in a year in which these growth conditions could be expected at various latitudes in the future,
as carbon dioxide levelsand average temperaturesclimb. They found that, nearer the poles, the number of days
above freezing would increase by 7%. But many plants will not be able to take advantage of those warmer
temperatures because there will not be enough sunlight to sustain their growth, says Iain Caldwell, of the Hawaii
Institute of Marine Biology. The same warming at the lowest latitudes could be devastating: in some tropical
could lose 200 growing days a year. Although some regions in China, Russia and Canada will see an improvement,
around 2.1 billion people who rely on forests and agriculture for food and
revenue could lose 30% of the days they now bank on for plant growth. But
rising levels of carbon dioxide could also affect the quality of plant growth ,
added, says Johan Uddling, a plant physiologist at Gothenburg, and a co-author of the report. This is unexpected
and new. In the same week, a team of scientists at the University of Alaska Fairbanks produced evidence that
climate change has already begun to alter the forests of the far north. They report in the journal Forest Ecology and
Management that in the interior of Alaska, already at the optimum temperature range for white spruce, tree growth
slowed as summer temperatures rose.
here. Might some plants, in some regions, still benefits in a warmer climate? Sure. But thats a long way from saying
that continuing to pump CO2 into our atmosphere will be, in the aggregate, anything but a disaster.
1AR AT Adaptation
( ) Cant adapt to warming rates likely to be too fast to
ensure resilience.
EPA 7
[United States Environmental Protection Agency. Climate Change-health and environmental effects: ecosystems
and biodiversity. http://www.epa.gov/climatechange/effects/ecosystemsandbiodiversity.html -- 12/20]
Observations of ecosystem impacts are difficult to use in future projections because of the complexities involved in
questions of how vulnerable populations will adapt to direct and indirect effects associated with climate change.
increase of one and a half degrees over the most recent 50 years. Moreover, it appears likely that
and hands-off). In our papers we demonstrate that none of these potentially troublesome effects unduly
biased our conclusions. The historic temperature pattern we observed has abrupt dips that match the
emissions of known explosive volcanic eruptions; the particulates from such events reflect sunlight, make for
beautiful sunsets and cool the earths surface for a few years. There are small, rapid variations attributable to El
Nio and other ocean currents such as the Gulf Stream; because of such oscillations, the flattening of the recent
temperature rise that some people claim is not, in our view, statistically significant. What has caused the gradual
polar ice.
FACT: There is no debate among scientists about the basic facts of global
warming. The most respected scientific bodies have stated unequivocally
that global warming is occurring, and people are causing it by burning fossil fuels (like
coal, oil and natural gas) and cutting down forests. The U.S. National Academy of Sciences, which in 2005 the White
The only debate in the science community about global warming is about
how much and how fast warming will continue as a result of heat-trapping
emissions. Scientists have given a clear warning about global warming,
and we have more than enough facts about causes and fixes to
implement solutions right now.
Climate Change [PDF], 2005)
AT Congress Key
Congress is an ineffective actor when it comes to
surveillance, Congress lacks knowledge and oversight.
Setty 15 Sudha Setty, Professor of Law @ Western New England University
School of Law; She specializes in the areas of comparative law and national
security; Her scholarly publications address secrecy, separation of powers and rule
of law issues in the comparative constitutional context, 2015 (Surveillance,
Secrecy, and the Search for Meaningful Accountability, Stanford Journal of
International Law, available at 51 Stan. J Int'l L. 69 @ Lexis, accessed 6/21/15, KM)
B. Congressional Efforts at Oversight and Accountability Enforcement The extent of congressional knowledge
regarding the NSA Metadata Program is not fully known to the public and has been the subject of significant debate.
Nonetheless, even assuming that Congress was sufficiently informed as to the potential reach of the PATRIOT Act
with regard to surveillance n59 and, therefore, that the statutory authority for the bulk data collection and storage
on March 12, 2013, in which Senator Ron Wyden specifically asked Director of National Intelligence James Clapper if
the NSA was systematically gathering information on the communications of millions of Americans. n61 Clapper
denied this, yet subsequent revelations confirmed that the broad scope of the data collection included metadata for
telephonic communications, as well as content data for emails, texts, and other such writings. n62 After public
discussion of the discrepancy in his testimony, Clapper commented that he gave the "least most untruthful" answer
possible under the circumstances. n63 Senator Wyden expressed disappointment and frustration that even while
remains unclear whether senators, including Dianne Feinstein, Chair of the Senate Intelligence Committee, knew of
the lapses in NSA procedure until after such information was leaked to news sources. n67 Further revelations
indicate that administration statements made to Congress even after the Snowden disclosures were not entirely
adversarial process before the FISC will not provide a perfect solution to the dilemmas posed by the government's
because these
changes are institutional and structural, they are well-placed to improve
the dynamic between the intelligence community, oversight mechanisms,
and the public. Conclusion Genuine accountability should not depend on the chance that an unauthorized
legitimate need for secrecy and the protection of the public against potential abuse. Yet
and illegal leak will occur. In the comparative example of the United Kingdom, engagement with a European Union
energized with a commitment to increase privacy protections, along with domestic parliamentary oversight, provide
two potential avenues for increased constraint on surveillance. In India, the parliament and the courts historically
enabled, not constrained, the intelligence community. Whether that stance will continue as the government's
technological capabilities increase is yet to be seen. Domestically, it could be argued that the types of reform
recommended here to improve actual accountability and transparency over programs like the NSA Metadata
Program are overkill: They involve multiple branches of government, the PCLOB, and the public. However, much of
the accountability apparatus that has been in place was dormant until the Snowden disclosures, and would have