adi courts counterplanadi2010.pbworks.com/f/adi+courts+cp+final.doc · web viewadi courts...

ADI 20101

FellowsCourts Counterplan

ADI Courts Counterplan ADI Courts Counterplan............................................................................................................................................1

1NC – Courts CP ........................................................................................................................... 3 Solvency – General.....................................................................................................................................................4Solvency – General.....................................................................................................................................................5Solvency – General – Fifth Amendment....................................................................................................................6Solvency – General – Fifth Amendment....................................................................................................................7Solvency – Visa Caps – First Amendment.................................................................................................................8Solvency – Beneficiary Eligibility – First Amendment..............................................................................................9AT: Rollback.............................................................................................................................................................10AT: Rollback.............................................................................................................................................................11AT: Rollback.............................................................................................................................................................12AT: Rollback.............................................................................................................................................................13

Net Benefits ................................................................................................................................... 14 Net Benefit – International Law 1/2.........................................................................................................................15Net Benefit – International Law2/2..........................................................................................................................16Net Benefit – Midterms............................................................................................................................................17Net Benefit – Agenda Politics...................................................................................................................................18Extension – Courts Don’t Link to Politics................................................................................................................19Extension – Courts Don’t Link to Politics................................................................................................................20Extension – Net Benefit – Ilaw.................................................................................................................................21Plenary Powers Bad – Unique Internal Link............................................................................................................22Plenary Powers Bad – Self-Determination...............................................................................................................23Plenary Powers Bad – Presidential Powers..............................................................................................................24Plenary Powers Bad – Presidential Powers..............................................................................................................25Plenary Powers Bad – Separation of Powers............................................................................................................26AT: Plenary Powers Good – Terrorism....................................................................................................................27

AT: Court Disadvantages ............................................................................................................ 28 AT: Judicial Activism...............................................................................................................................................29AT: Judicial Activism...............................................................................................................................................30AT: Judicial Activism...............................................................................................................................................31AT: Legitimacy DA..................................................................................................................................................32AT: Legitimacy DA..................................................................................................................................................33AT: Court Stripping DA...........................................................................................................................................34AT: Court Stripping DA...........................................................................................................................................35

ADI 20102


AFF Answers ................................................................................................................................ 36 AFF: 2AC Court Stripping DA.................................................................................................................................37AFF: 2AC Court Stripping DA.................................................................................................................................38AFF: 2AC Court Stripping DA.................................................................................................................................39AFF: Extension – CP Court Stripping.................................................................................................................40AFF: Extension – CP Court Stripping.................................................................................................................41AFF: Extension – Court Stripping Turns Plenary Powers........................................................................................42AFF: Double Bind.....................................................................................................................................................43AFF: Courts Link to Politics.....................................................................................................................................44AFF: Courts Link to Politics.....................................................................................................................................45AFF: Permutation – Shielding..................................................................................................................................46AFF: Permutation – Shielding..................................................................................................................................47AFF: No Solvency – No Authority...........................................................................................................................48AFF: No Solvency – No Authority...........................................................................................................................49AFF: No Solvency – Rollback..................................................................................................................................50AFF: International Law Bad – Democracy...............................................................................................................51AFF: International Law Bad – Terrorism.................................................................................................................52AFF: International Law Bad – SOP..........................................................................................................................53AFF: International Law Bad – Constitution.............................................................................................................54AFF: Plenary Powers Good – Leadership................................................................................................................55AFF: Plenary Powers Good – Human Rights...........................................................................................................56AFF: Plenary Powers Good – Tyranny.....................................................................................................................57AFF: AT: International Law Good – General...........................................................................................................58AFF: AT: International Law Good – Solves Conflict..............................................................................................59AFF: AT: International Law Good – Climate Change.............................................................................................60

ADI 20103


1NC – Courts CP

Counterplan Text: The United States Supreme Court should rule that caps on ___________visas are unconstitutional.

Contention One: Competition

The counterplan is functionally and textually competitive – it does the plan without congressional action and avoids the link to politics

Contention Two: Solvency

The counterplan solves and ends the plenary powers doctrine

Laplante 99, visiting assistant professor at Marquette University Law School (Lisa, “EXPEDITED REMOVAL AT U.S. BORDERS: A WORLD WITHOUT A CONSTITUTION NAME,” New York University School of Law Review of Law and Social Change 1999 25 N.Y.U. Rev. L. & Soc. Change 213, l/n)

If the bills introduced by Congress fail to pass, reforming the expedited removal system presents formidable challenges since Congress has enjoyed almost limitless freedom to regulate the admission and exclusion of foreign nationals at United States ports of entry, as discussed above. The Supreme Court has never used an Equal Protection or due process analysis to strike down a congressional statute whose substance regulated solely immigration law based on race or any other grounds. n271 Although in pre-IIRIRA days, INS exclusion practice could be attacked as denying due process and equal protection in practice, n272 the 235 expedited removal provision needs to be challenged on its face since it does not even allow for judicial review of its application. Although never done, such an affront may not be completely unthinkable: [*269] despite the judiciary's substantial abdication in the immigration field, the government's immigration power is not entirely unconstrained. To begin with, courts have not absolutely foreclosed the possibility of judicial review of the government's substantive immigration decisions. In recent years, the Supreme Court has intimated that in the event of the particularly egregious misuse of government power in this area - what this might be has never been specified - the courts would not stand by. n273The greatest hurdle to judicial review requires the court to scrutinize a Congressional act that falls squarely within the plenary power doctrine, i.e. the admission/exclusion of foreign nationals. However, if the Court seriously evaluates the assumptions upon which the plenary power rests, and the changes in notions of individual rights of foreign nationals in light of changes in the concept of sovereignty, it may realize it is time to adjust immigration law to comport with the same standards by which the rest of American law must abide.

ADI 20104


Solvency – General

The courts can rule to overrule congressional and executive visa policy

Delgado 9 (Tatyana, J.D. Candidate, “THE DOCTRINE OF CONSULAR ABSOLUTISM BEHIND,” Georgetown Immigration Law Journal, Fall, 24 Geo. Immigr. L.J. 55)

In most of the cases discussed above, courts acknowledged that USCs with constitutional claims may seek review of visa denials; thus, the practical effect of these decisions involved an abandonment of the doctrine of consular absolutism. Proper reviews of visa denials based on constitutional claims inevitably involve an assessment of decisions made by consular officers. Even under circumstances where the DHS or the DOS becomes involved in the visa denial process of a given individual, consular officers are still key players in the decision-making process. In addition, these cases indicate that [*67] although the political branches of the government have the power to exclude and expel, the power is not and should not be absolute. n82 The inevitable possibility for error or abuse among members of the executive branch establishes the need for a formal mechanism for third-party review. If courts are willing and able to circumvent the doctrine within the context of First Amendment and Due Process claims made by USCs, then courts should be able to do the same in other contexts involving USC and LPR visa petitioners. Rather than requiring that USC and LPR visa petitioners devise creative constitutional claims in order to obtain judicial review, a formal mechanism for the review of consular decisions should be established.

The Courts can rule on visa policy – plenary powers is unconstitutional

Laplante 99, visiting assistant professor at Marquette University Law School (Lisa, “EXPEDITED REMOVAL AT U.S. BORDERS: A WORLD WITHOUT A CONSTITUTION NAME,” New York University School of Law Review of Law and Social Change 1999 25 N.Y.U. Rev. L. & Soc. Change 213, l/n)

[*219] Renewed challenges to the plenary power doctrine build on previous arguments to expose how the assumptions upon which the doctrine rests have dramatically changed. n29 In the late 1890s, the Supreme Court created the plenary power doctrine to avoid scrutinizing a Congressional act that excluded Chinese nationals even if they had substantial liberty or property interests in the United States. n30 The decision was motivated by xenophobic fears and conceptions of sovereignty that no longer apply to contemporary America. n31 In particular, since the creation of the plenary power doctrine, there has been a shift both at the international and national level towards balancing the rights of individuals with the rights of the sovereign, an approach that further undermines the plenary power doctrine. Challenging the insulation of immigration law relies on the legal principle that, as the assumptions that led to a seminal decision changes, so should the precedent. Scholars and advocates alike call upon the courts to recognize that the plenary power is no longer tenable and should be abandoned. The author presents these arguments believing that if the Court finally conceded that the plenary power doctrine can no longer be justified, it would free itself to find the expedited removal procedure in violation of the Fifth Amendment of the Constitution.

ADI 20105


Solvency – General

The courts can review visa decisions – gives them the power to overrule visa decisions


Thus, reviewing the decision of cabinet officer is not, in practical terms, drastically different from reviewing the decision of a consular officer in situations where the decisions made by the two individuals are related to the same issue: whether to grant or deny an individual a visa.In addition, American Academy provides an example of a situation wherein the DHS influenced the decision of a consular officer. The MOU established in 2003 gives the DHS the ability to play a greater role in the visa issuance process. Because the doctrine of consular absolutism does not apply to DHS officials, and DHS officials may influence the decisions of consular officers, the consular officers' ultimate decisions should also be subject to review. Thus, as a result of DHS' increased ability to influence the visa process, it has become less clear that the doctrine of consular absolutism should be upheld.Therefore, in both Mandel and American Academy, the courts acknowledged their ability to review the visa denial decisions of the Attorney General and consular officers in cases where USCs' constitutional rights are implicated

The plenary powers doctrine is dead – the Supreme Court can rule on whatever it wants with regards to immigration

Feere 9, Legal Policy Analyst at the Center for Immigration Studies (Jon, “Plenary Power: Should Judges Control U.S. Immigration Policy?” Center for Immigration Studies, February, http://www.cis.org/plenarypower)

Despite decades of judicial support for the political branches’ plenary power over immigration, the doctrine is not without some cracks. Soon after the early Chae Chan Ping, Ekiu, and Fong Yue Ting cases and prior to the Knauffdecision in 1950, the Supreme Court softened the plenary power doctrine in a number of cases and carved out some exceptions, especially for individuals facing deportation who claimed to be U.S. citizens.43 But most of these small exceptions were short-lived as the plenary power was reinvigorated by Knauff, Mezei, and the other cases discussed above. Nevertheless, with the inevitable appointment of new justices to the Supreme Court and an increasing focus on individual rights during the 1960s and 70s came a judicial willingness to wield “a scalpel [and] dissect the administrative organization of the Federal Government,” at least according to a dissenting Justice Rehnquist in his defense of the plenary power doctrine.44 As the judicial branch expanded the number and types of immigration claims it would hear, the result was a chipping away of the plenary power doctrine. But trying to make sense of the high court’s inconsistent immigration decisions has justifiably been a challenge for the brightest of legal scholars. Quite simply, the agenda of judges opposed to the plenary power doctrine has been to slowly begin applying semi-constitutional norms — what some academics call “phantom norms” — to basic immigration cases that would not otherwise escape the reach of the plenary power doctrine. 45 The thinking is that if the Supreme Court could squeak out a few cases that superficially apply constitutional norms in the immigration context (e.g., the use of a First Amendment analysis as a bar against deportation, race-based civil rights claims as an argument against exclusion, protections against cruel and unusual punishment), then slowly, over time, the entire notion of dragging nearly every deportation or exclusion hearing into the judicial branch and granting constitutional protections to all aliens — both those within and outside the country — would become the status quo. The resulting decisions, logically, are much more sympathetic to the alien as the increasingly powerful judiciary finds more and more justifications for denying exclusions and deportations. The overall outcome is that political decision-making in immigration law becomes usurped by unelected, and largely unaccountable, Article III judges with little or no understanding of the political implications of their decisions.

http://www.cis.org/plenarypower#45



http://www.cis.org/plenarypower

ADI 20106


Solvency – General – Fifth Amendment

Federal visa restrictions are unconstitutional – persons beyond the US borders are given legal protections

Laplante 99, Visiting Assistant Professor of Law at Marquette University (Lisa, “EXPEDITED REMOVAL AT U.S. BORDERS: A WORLD WITHOUT A CONSTITUTION NAME,” New York University School of Law Review of Law and Social Change 1999 25 N.Y.U. Rev. L. & Soc. Change 213, l/n)

The geographical distinction, however, began to melt in the landmark case Landon v. Plasencia, in which the court extended due process protections to exclusion proceedings in which the foreign national is a lawful permanent resident seeking to return from brief visits abroad. n253 The rationale looked at the individual stakes which render the exclusion proceeding to be de facto deportation thereby triggering basic procedural protections. n254 For [*265] instance, a legal permanent resident would have entitlement to be admitted to the U.S. through not only the government's permission but also through her "membership connections" to our society. n255 Therefore, under Landon, a foreign national avoids being sent back to her point of departure if she can somehow demonstrate entitlement through a valid visa or "substantial connections" to the U.S. n256The immigration judge uses these factors to determine whether the individual has more at stake and thus deserves more protection. n257Since Landon diminished the importance of location and based entitlement on something other than citizenship, it may be possible to conclude that foreign nationals considered to be located outside of U.S. jurisdiction, may nonetheless be considered "persons" protected by the Constitution whose "stakes" create a liberty interest. n258 Emphasis on the foreign national's status as a person lays the foundation for expanding due process protections to all foreign nationals located outside of US territory despite the plenary power doctrine. n259As was presented in the first half of this article, the "substantial connection" test should apply in the expedited removal system, but when INS officers fail to refer a foreign national to an INA 240 hearing, she never has the opportunity to demonstrate her entitlement to admission, consequently she is denied her due process rights. It can be argued that because every foreign national may potentially be able to prove "substantial connections," the procedural protections afforded all foreign nationals arriving [*266] at U.S. ports of entry previous to IIRIRA n260 was not at the discretion of Congress but rather codification of existing and inherent due process protections.

ADI 20107


Solvency – General – Fifth Amendment

US Treaty obligations give the Supreme Court 5th Amendment grounds


Since the plenary power doctrine originally arose out of sources of international law, it follows that, as international concepts change, the domestic ones should adjust accordingly. n185 The nineteenth century origin of [*251] sovereignty rested on the fears of national security that in most respects ring hollow today. n186 The pivotal point, as discussed, came from the majority's pronouncement in the Chinese Exclusion Case that the jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. n187 The Court, by reiterating a premise established in earlier judicial interpretations, overlooked that sovereignty is in fact a flexible doctrine. n188 Yet, as is typical with the common law tradition, this mere omission became axiomatic to the Court. Moreover, the continuing adherence to this doctrine ignores the real changes in the relationship among nations which has diminished vulnerability to foreign invasion or control, especially by immigrants arriving for personal reasons. n189 The decision also neglected to explore the constitutional restrictions, especially found in the Bill of Rights, to this unenumerated power although admitting that such restrictions would trump the plenary power doctrine. n190 [*252] In other words, not only have the threats to sovereignties changed, so too has the notion that this power can not be constrained by considerations of individual rights. Before World War II, international law emphasized the rights of states to regulate themselves. n191 Following the war, when the world witnessed the atrocities that a nation can inflict on its own people, n192 nations came together to draft various multilateral treaties to promote the idea that all people are entitled to basic, fundamental rights which require a redefinition of sovereignty. n193 Currently, in a number of international forums, national leaders are engaging in an active examination of how the concept of sovereignty must adjust to changing political contexts. n194 [*253] In the case of immigration law, the basic request for due process protections in the determination of a foreign national's status can be found in various international instruments such as the Universal Declaration of Human Rights ("UDHR"), n195 International Covenant of Civil and Political Rights ("ICCPR"), n196 and American Convention on Human Rights ("American Convention"). n197 These treaties emphasize that "universal approaches require that [national] constitutional provisions that create rights with no express limitations as to the persons or places covered should be interpreted as applicable to every person and at every place." n198The implication of celebrating individual rights shifts the balance away from a sovereignty's absolutism, n199 and promotes "a notion of fundamental [*254] human rights that protects individuals regardless of their status." n200 The ICCPR begins by "recognizing that these [civil and political rights] derive from the inherent dignity of the human person." n201 It further acknowledges that it is the duty of all member states to "promote universal respect for, and observance of, human rights and freedoms." n202 Of these human rights, the right to due process is often viewed as fundamental, and basic guarantees of due process can be found in the ICCPR: a fair and public hearing with a competent, independent and impartial judge that will lead to an effective remedy. n203 The United States is a party to the ICCPR n204 and technically should abide by these principles, many of which mirror the basic principles found in the United States Constitution, including basic due process tenants of the Fifth Amendment. In fact, the ICCPR, along with another treaty, has come to be called the "International Bill of Rights," n205 [*255] extending to all the world's people the rights found in our own Bill of Rights. n206

ADI 20108


Solvency – Visa Caps – First Amendment

The Mandel decision establishes precedent


Under limited circumstances, USCs have been able to overcome the doctrine of consular absolutism by bringing constitutional claims. In several [*63] cases, judges have been willing to review USCs' First Amendment and Due Process claims related to the denial of visas to non-citizens.a. First Amendment ContextKleindienst v. Mandel n56 provides insight on courts' ability to review visa denials by executive branch officials in instances where USCs have asserted First Amendment claims. In Mandel, Mandel and several USCs, including university professors, alleged that the Attorney General (AG) and the Secretary of State violated their First and Fifth Amendment rights. n57 Mandel, a Belgian citizen, sought a non-immigrant visa from the consulate in Brussels because he had been invited to speak at an event in the U.S. A consulate officer informed Mandel that he was inadmissible under INA § 212(a)(28), which makes non-citizens who support communism inadmissible. The Attorney General (AG) had the power to grant a waiver, which he had done for Mandel on previous occasions. On this occasion, the AG denied Mandel the waiver and thus, his visa was denied. n58 The plaintiffs claimed that, under the First Amendment, they had a right to "receive information and ideas." n59 Thus, the court focused on the USCs' rights "to have the alien enter and to hear him explain and seek to defend his views" and agreed to hear the case. n60In Mandel, the U.S. Supreme Court engaged in judicial review (although quite limited) by considering whether the AG's decision to deny the waiver was "facially legitimate and bona fide." The Court found that the AG's decision was facially legitimate and bona fide because the AG established that Mandel's abuse of the conditions of his previously granted visas gave the AG reason to deny the waiver on this occasion. n61Some have argued that Mandel solely stands for the proposition that courts may engage in the review of the AG's decisions to deny waivers to visa applicants. n62 However, in American Academy of Religion v. Napolitano, the United States Court of Appeals for the Second Circuit stated that Mandel also stands for the proposition that courts may review consular officers' decisions to deny visas to applicants. n63

ADI 20109


Solvency – Beneficiary Eligibility – First Amendment

The courts can based on the Ramadan decision


In American Academy, the American Academy of Religion, American Association of University Professors, the PEN American Center, and Tariq [*64] Ramadan ("Ramadan"), sued the Secretary of the DHS and the DOS. The plaintiffs claimed that by excluding Ramadan from the U.S., the DHS and DOS violated their First Amendment rights to "have Ramadan share his views with the organizations and with the public." n64 Ramadan, a Muslim scholar and Swiss citizen, planned to serve as a professor at the University of scholar and Swiss citizen, planned to serve as a professor at the University of Notre Dame. In May 2004, the University of Notre Dame sought an H-1B visa for Ramadan and the visa was granted. Shortly before the day that Ramadan was scheduled to travel to the U.S., the U.S. Embassy in Bern announced that his visa had been revoked, but did not provide a reason. n65 Ramadan later filed two additional applications for non-immigrant visas. n66 In June 2006, the United States District Court for the Southern District of New York ordered that defendants render a decision regarding the visa application. The defendants subsequently refused to grant Ramadan a visa based on their belief that "he had provided material support to a terrorist organization." n67In December 2007, the United States District Court for the Southern District of New York held that it could exercise jurisdiction over the plaintiffs' First Amendment claims based on the powers granted to the court in Article III of the U.S. Constitution. n68 The court also held that the "exclusion of Professor Ramadan is facially legitimate and bona fide." n69 In July 2009, the United States Court of Appeals for the Second Circuit also stated that the district court could exercise jurisdiction, based on 28 U.S.C. § 1331 and Mandel. n70 Yet, the Second Circuit vacated and remanded the lower court's decision. It ordered the lower court to determine whether the consular officer had informed Ramadan of the allegation that he had provided support to an organization with links to terrorism and whether Ramadan was given the opportunity to prove that he lacked knowledge of the organization's ties. n71In American Academy, the Second Circuit confirmed that when USCs pursue First Amendment claims related to visa denials by consular officers, the courts may review the decisions of the consular officers. The Second Circuit referred to Mandel and held that the court's jurisdiction was not limited to the review of decisions made by the Attorney General. In American Academy, the court stated that,Since the First Amendment requires at least some judicial review of the discretionary decision of the Attorney General to waive admissibility, [*65] we see no sound reason to deny similar review to the decision of a consular officer to deny a visa. It seems counterintuitive to review a cabinet officer's discretionary decision, but not a consular officer's decision as to statutory ineligibility. n72

ADI 201010


AT: Rollback

No rollback by the congress or publicLasser 88 (William, Professor of Political Science at Clemson, “The Limits of Judicial Power: The Supreme Court in American Politics,” p266)

The salient fact, however, is that none of the modern Court's decisions has created a "really clear wave of public demand" within the electorate or the Congress in favor of reversal; and only Congress or the electorate can supply sufficient pressure to the Court to make a difference. When the issues decided by the Court have been sufficiently important to provoke a serious crisis--as on the race question in the 1950s and early 1960s--the Court's decisions have been supported by a majority of the American people and by a majority of Congress; or, at a minimum, the country has been so hopelessly divided that a clear expression of public will has been impossible. When a substantial majority of the people have opposed specific Supreme Court decisions--as on school prayer or criminal law questions--the issues have not produced sufficient concern among enough of the electorate or their representatives to create an unmistakable and irresistible public demand for change. And even on those rare occasions when it appeared, however briefly, that a really clear wave of public demand would be forthcoming--as in the case of school busing in 1972 or the national security cases in the late 1950s--other more critical issues quickly appeared to capture the public's attention and eclipse the Court.

No risk of executive rollback of court decisionsLasser 88 (William, Professor of Political Science at Clemson, “The Limits of Judicial Power: The Supreme Court in American Politics,” p266)

If Congress has been unable to summon the will to curb the Court, presidents have been no more effective. Even those presidents who have had the opportunity to lead an anti-Court campaign have declined to put the full force of their prestige and authority behind the effort. Despite his opposition to busing and his support for "law and order," Nixon, for example, did little more than promise to appoint "strict constructionists" to the Court. Even Ronald Reagan, though extremely outspoken at times in his rhetoric against the Court, placed the Court issues at the bottom of the agenda for his entire first term and well into his second, a policy well noted by some of his more conservative critics. In its early years, in fact, his administration actively opposed some of the most extreme anti-Court measures considered by Congress, and even Attorney General Meese--whose rhetoric has made him the de facto leader of the anti-Court battle--lent only sporadic support to specific efforts to curb the Court.

The Public thinks the Congress should follow the Courts even on issues they disagree with – Incentive for politicians to go along

Fontana 8 (David, associate professor of law at George Washington University Law, , “The Supreme Court: Missing in Action,” Dissent Magazine, Spring, http://dissentmagazine.org/article/?article=1165)

Second, Court decisions do not necessarily create the backlash that many on the left fear. If the Court had decided cases in favor of rights before the tide had turned against the Bush administration, its decisions might have elicited formulaic and near-obligatory compliance. There is considerable evidence suggesting a strong presumption in American public opinion that the Court’s decisions should be widely accepted and then complied with by the other branches of government. Even when citizens disagree with Supreme Court decisions, an overwhelming majority of them are loyal to the Court and inclined to think that the less popular branches of government should fall into line—even when the Court issues controversial decisions such as Bush v. Gore.

ADI 201011


AT: Rollback

Virtually no risk of congressional rollback – there are substantial limits on legislative action

Cross 1 (Frank, Professor of Business Law at the McCombs School at Texas , “Strategic Institutional Effects on Supreme Court Decision Making”, 95 NW. U. L. REV. 1437, Lexis)

A recent book by Keith Krehbiel discusses the difficulties of taking legislative action. n95 The fundamental thesis of the book is that there are certain "pivot points" in the legislative process that must be overcome. Because a presidential veto requires a two-thirds vote for an override, actions that are contrary to the President's ideological preferences require approval by two-thirds of the Congress. Rather than demanding a majority, such policies require a substantial supermajority. Even when policies are on the President's ideological side, a supermajority is required by Senate rules. A sixty percent majority is required for cloture necessary to halt a Senate filibuster. The consequence is that when the status quo policy, in this case a judicial decision, is within this broad range of congressional preferences, it will not be altered. This, according to Krehbiel, explains why "gridlock" or stalemate is the "essential reality" of the U.S. government. n96 Even when the President and Congress are of the same party, bipartisan coalitions tend to be necessary to pass new laws. Because of the relative difficulty of taking congressional action, the risk of an override is relatively low. While overrides do sometimes occur, it may be difficult to predict which opinions will be reversed. The predictability of any override is difficult. Baum notes that the "determinants of congressional action on an issue are highly complex, and this complexity leads to the notorious difficulty of predicting that action." n97 The legislative overrides may be "simply the product of the confluence of randomly occurring factors, each with variable probabilities at different points in time." n98 Even if the justices knew that a certain number of legislative overrides could be expected, they would not modify their actions unless they could predict which decisions were likely to be overridden. Walter Murphy observed that judicial deference to congressional preferences should be rare, given the difficulty of passing legislation, the Court's own prestige, and the risk that a practice of deferring would diminish that prestige and weaken the Court politically. n99 He also noted that a strategic judiciary would not establish a reputation of readily deferring to Congress, when such action may prove unnecessary. n100

Congress cannot rollback court decisions – the courts can influence congress

Cross 1 (Frank, Professor of Business Law at the McCombs School at Texas , “Strategic Institutional Effects on Supreme Court Decision Making”, 95 NW. U. L. REV. 1437, Lexis)

[*1454] Nor are judges themselves without an armament of arguments that may be used to persuade or lobby Congress. They may engage in "intellectually and emotionally persuasive opinion writing, the creative use of dicta, public speeches and writings, and personal contact and lobbying, either directly or indirectly through emissaries." n101 These efforts might be aimed directly at other institutions of government or at public interest groups, which can themselves influence those institutions. The Court itself has a certain prestige that presumably carries some weight with the legislature. All these factors mean that the Court need not be passive and acquiesce in legislative preferences for fear of override. In short, the risk of any given decision being overridden appears to be quite low and the probabilistic magnitude of that risk difficult for the Court to assess. Yet the risk is not zero, as we know from Eskridge and others that some number of Court opinions are in fact overridden. If the probability of any individual opinion being overridden is relatively small and difficult to predict, a strategic court would generally pay relatively little heed to the risk. This is especially so insofar as the override simply restores the status quo ante. In this circumstance, the Court may benefit from ignoring the legislative preference (when no override occurs) and does not risk any net policy loss from ignoring the preference (when the override simply restores the decision that a deferential court itself would have made). n102

ADI 201012


AT: Rollback

Deference to the decision of the court is the norm

Hall and McGuire 6 (Kermit and Kevin, Former University at Albany President, pre-eminent scholar of American constitutional, legal, and judicial history, and Prof of PoliSci @ UNC Chapel Hill. “Institutions of American Democracy: The Judicial Branch” Oxford University Press, 109)

What have the Congress and the President done to check or guide the powers of the judiciary? Congressional and presidential deference to Supreme Court decisions is the norm, even when the justices decide controversial issues such as the outcome of the 2000 presidential election. Possibly because the justices simply have seldom impeded a legislative majority for long periods or because the president and congress respect the rule of law, the public and officials’ support of the Court has remained substantial, even at times of political conflict. Also, because Congress can avoid political controversy by drafting ambiguous statutes that encourage litigation and leaving hot-button controversies such as abortion, racial injustice, and school prayer to the courts, its members can avoid blame and potential electoral defeat. Thus, acting for its own political advantage, Congress empowers judges rather than checks judicial interpretations. In these circumstances the judiciary can react by either legitimating congressional and presidential action or bearing the blame for unpopular political choices and choices made when the president and Congress cannot reach a compromise.

The court can be its own independent policymaker in the face of contrary executive desiresHall and McGuire 6 (Kermit and Kevin, Former University at Albany President, pre-eminent scholar of American constitutional, legal, and judicial history, and Prof of PoliSci @ UNC Chapel Hill. “Institutions of American Democracy: The Judicial Branch” Oxford University Press, 112)

The U.S. Supreme Court justices’ interpretations nonetheless have bounded some exercises of congressional and Presidential power. They have diminished the threat of governmental tyranny when politically weakened presidents claimed prerogative or when legislation from a divided or irresolute Congress contradicted the constitutional text. These actions have tended to occur when the national political leadership is unpopular, such as with the Watergate tapes case, national leaders have adopted policy positions at variance with majority or elite sentiments, as with Truman’s seizure of the steel mills, or the national leadership is locked in controversies that require immediate resolution but with no easy political solution, as with spiraling budget deficits. Also, by acting to empower minorities and women, the judiciary has abetted the broadening of the constituencies that offer political support to Congress, the president, and state officeholders. It has thus further democratized political debate about the performance of these institutions. Of course, in some intractable political conflicts among the branches that threaten the stability of the regime, the judiciary has acted as an independent policy maker. Separated powers and checks and balances thus works – sometimes – to ensure that American government responds to the people.

ADI 201013


AT: Rollback

Even if the courts don’t have complete supremacy over the executive, they follow court rulings out obeisance.Paulsen 94, law professor at the University of Minnesota (Michael Stokes, “Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber,” Georgetown Law Journal, 83 Geo. L.J. 385, December, Lexis)

Eisgruber, of course, is making less a textual argument than a structural one. Again, however, the structural point of Marbury is that separation-of-powers means not having to kowtow to the views of another branch. John Marshall never said that courts are better at interpreting the Constitution than Congress is; he said only that courts have as much right to interpret the Constitution as Congress does and to exercise that right independently [*391] by virtue of their independent status. And again, the point about the task of legal interpretation is that it is not a specifically enumerated, unique function of any one branch but is something that all branches do, incidental to their designated powers. The specialized function of courts is not law-interpretation, but deciding cases. Interpretation is not a specialized task of one branch, but something that overlaps the functions of all three branches. It is a shared power. The need for separate branches to accommodate their views to each other in order to form a working government may suggest, as I have argued, a principle of deference in the sense of due consideration of the views of others; but it is hard to find in the mere fact that the Constitution divides tasks among branches a rule of strict Eisgruberian deference -- a better word might be obeisance -- to the interpretations of those who perform the judicial task.

ADI 201014


Net Benefits

ADI 201015


Net Benefit – International Law 1/2 A supreme court ruling on immigration to discredit the plenary powers doctrine is critical to the effectiveness of international law

Saito 2 (Natsu Taylor, Professor of Law, Georgia State University College of Law, “The Plenary Power Doctrine: Subverting Human Rights in the Name of Sovereignty”, 51 Cath. U. L. Rev. 1115, p. lexis)

The United States is frequently criticized for its reluctance to ratify human rights agreements or to accept the jurisdiction of international decision-making bodies. n9 However--with the exception of a few voices, such as that of Senator Jesse Helms--the U.S. government does not generally justify its actions with the argument that sovereignty permits the violation of basic human rights. n10 Instead, it typically responds that it does not need to bind itself to international human rights instruments because the U.S. legal system provides not only full justice but more protection than international law. n11 The United States' failure to comply with the most fundamental tenets of international law with respect to many people and peoples under its jurisdiction is not merely a result of its failure to ratify human rights conventions or participate in international institutions. Even when the United States becomes a party to multilateral treaties or acknowledges relevant customary law, U.S. courts frequently refuse to enforce international law, particularly when it is violated by congressional or executive action. Instead of recognizing that domestic courts are the most important forum for the enforcement of international law n12 or [*1118] taking seriously the Constitution's mandate that treaties are part of the supreme law of the land, n13 federal courts have created a vast array of judicial doctrines that render international law nearly meaningless within U.S. jurisprudence . These self-imposed judicial limitations include the declaration of some treaties or treaty provisions as "non-self-executing" and the consequent refusal to enforce them in the absence of enabling legislation; n14 the "last-in-time" rule under which later-enacted federal laws are enforced even if they put the United States squarely in violation of its treaty obligations; n15 the "political question doctrine" under which certain issues are declared "non-justiciable" because they address subjects delegated to Congress or the Executive; n16 the "act of state"doctrine under which courts refrain from judging the actions of other sovereigns, n17 and the refusal to allow prosecution of actions against the U.S. government on grounds of sovereign immunity. n18 The combined effect of these doctrines is that U.S. courts are not effective fora for the redress of violations of international [*1119] law; thus, the United States violates a fundamental principle of customary international law, articulated in Article 27 of the Vienna Convention on the Law of Treaties, that a "party may not invoke the provisions of its internal law as justification for its failure to perform a treaty." n19 There is, in addition, another extremely important judicially created rationale for the courts' failure to enforce basic human rights, one that is almost always overlooked in assessments of U.S. compliance with international law. This is the doctrine that both Congress and the Executive have "plenary power" over large groups of people subject to U.S. law. n20 "Plenary" means full or complete, and the doctrine as applied means that U.S. courts, rather than assessing governmental actions under the usual constitutional standards, defer to the "political" branches of government. n21 The plenary power doctrine is explicitly justified as an exercise of sovereignty either because those against whom it is used are subjects

of another sovereign or because the United States' national security or foreign policy objectives are at stake. n22 Thus, the plenary power doctrine is essential to U.S. jurisprudence relating to American Indian nations, n23 immigrants, n24 and colonized territories such as Puerto [*1120] Rico and Guam. n25 Plenary authority is also exercised over persons in the military and in prison. n26A cursory look at the common roots, functioning, and purposes of the doctrine in U.S. immigration, Indian, and colonial law reveals significant human rights problems. For example, the plenary power doctrine is the legal rationale for allowing the federal government control over indigenous peoples through its exercise of "trust" authority, by which American Indian nations are robbed of their resources and rendered the poorest sector of the country; n27 for detaining and arbitrarily deporting noncitizens, most recently thousands of young men of Middle Eastern origin not accused of any crime; n28 for sanctioning the ongoing bombing of the island of Vieques; and for continuing to refuse to allow Puerto Ricans a binding vote on their relationship with the United States. n29 Nothing in the Constitution explicitly gives the federal government such power. Explanations and justifications of the exercise of plenary power are confused and sometimes contradictory, but they boil down to [*1121] the notion that it is an extraconstitutional power inherent in sovereignty, which the U.S. government acquired upon becoming a recognized state. n30 Thus, the theory goes, the government's powers are limited by the Constitution with respect to domestic policy--its relations with its political subdivisions and its citizens--but unrestrained in its dealings with outsiders or its control over its domestic population in the context of defending against outside threats. n31 Are there no limits on the exercise of this power? Justifications for the doctrine invoke the need to deal effectively with other sovereigns, so one would suppose that its exercise is limited by the response of other sovereigns and, presumably, by the international law that governs relations between sovereigns. But, in fact, plenary power is used against those over whom the United States exercises essentially complete control, in situations in which the United States neither respects their sovereignty nor extends the usual protections of domestic or international law. The harsh consequences of the plenary power doctrine are generally ignored or dismissed as aberrations. n32 Examination of the plenary power doctrine as a whole, however, reveals that it is not an exception to a general rule of conformity with human rights law but a systematic denial of both domestic and international protections to those who most need them. As noted above, the United States justifies its failure to incorporate international law more specifically by arguing that domestic law provides more protection of basic human rights. n33 However, under the guise of the plenary power doctrine, the courts not only refuse to apply the basic protections "guaranteed" by the Constitution, but they also refuse to apply international law, leaving the basic rights of immigrants, American [*1122] Indians, residents of U.S. "territories," and other sectors of the American population essentially unprotected by anything except the goodwill of Congress. n34 The jurisprudential rationale for the plenary power doctrine is the United States' sovereignty, and thus the United States has, in effect, returned to the premise it explicitly rejected at Nuremberg: the most fundamental human rights acknowledged in international law can be overridden by domestic law.

http://www.lexisnexis.com/us/lnacademic/frame.do?reloadEntirePage=true&rand=1280268383188&returnToKey=20_T9825583601&parent=docview&target=results_DocumentContent&tokenKey=rsh-20.115675.64445751188#n34

























ADI 201016


Net Benefit – International Law 2/2

International law solves extinction

Damrosch and Mullerson 95 (Professor of Law, Columbia, Professor of International Law, King’s, Beyond Confrontation, International Law for the Post Cold War Era, p. 2-3)

The contemporary world has an ever-increasing need for an international legal system that can respond to the demands of our time. Of the many reasons for this fact, we will survey only a few of the most salient. First and foremost is the increasing interdependence of all peoples. Even as the world is riven with many contradictions and conflicts, it is also becoming more integrated with a greater need for orderly, predictable conduct. Events, and especially natural and social disasters, even when they occur within a single country, have more noticeable effects on conditions in the world at large. The Chernobyl accident, the earthquake in Armenia, and even internal political processes underway in the territories of the former Soviet Union and Eastern Europe -- these and many other events occurring within separate countries or regions have a global significance affecting the destiny of all peoples. The intertwining of the economic life of diverse countries today is even greater than was the interdependence of different regions within the same state only half a century ago. Order and predictability of the behavior of actors on the international scene can be achieved first of all with the aid of social norms, among which international law occupies an important place. A second reason for the growth of the role of international law is

inextricably connected with the first. The threats of a thermonuclear catastrophe, universal ecological crisis, and acute economic problems in developing countries are of global concern and endanger the very existence of humanity. Resolution of these problems demands coordinated efforts of all states and peoples, which would be impossible to achieve without the aid of international norms, procedures, and institutions. A third reason is the breathtaking political transformations of recent years. The changes that began in 1985 in the former Soviet Union and were unleashed in Eastern Europe have radically transformed the map of the world. Although it is impossible to give a final evaluation of the character and significance of these changes at the present time, it is possible to conclude that the fundamental global contradiction of the Cold War era -- the contradiction between socialism and capitalism, which to a great extent determined not only the general climate in the world but also the role and significance of international law in it -- has been overcome. In the Charter of Paris for a New Europe, 32 countries of Europe, together with the United States and Canada, affirmed that "the era of confrontation and division of Europe has ended." 1 The end has come not only for division in Europe, but also in the world at large. But this fact can hardly lead automatically to a non-contradictory, stable world order. The acuteness of conflicts that are not connected with the so-called "fundamental contradiction of the epoch" can even intensify, as the unleashing of savage interethnic conflict in the former Yugoslavia and the former Soviet Union amply demonstrates. Nonetheless, it is precisely the cooperation between former ideological and political adversaries that can serve as the prerequisite and condition for the resolution of many problems and conflicts. A vivid example may be found in the reaction of world society to the aggression of Iraq against Kuwait and the reining in of the aggressor with the aid of U.N. mechanisms in accordance with the U.N. Charter and other norms of international law.

http://www.questia.com/read/8972707

ADI 201017


Net Benefit – Midterms

Court decisions don’t affect elections

Gates 99 (John, Teaches Political Science at UC Davis, The Supreme Court in American Politics, p105)

The literature's concern with the important power of judicial review and realignments neglects a third important role for the Supreme Court and partisan change: diffusing partisan conflict by upholding legislation or Court precedent in less dramatic elections. This much more subtle type of issue formation or diffusion is nonetheless important to the course of national policy making and can be seen in the months preceding the 1992 presidential election. The Supreme Court upheld state policies making abortion services more difficult, such as a twenty-four-hour waiting period between the signing of the surgery consent form and the performance of an abortion a position consistently struck down in the 1980s (Hinkson-Craig and O'Brien 1993). At the same time, the five-justice majority struck down the spousal notification provision of the Pennsylvania law and announced that Roe v. Wade (1973) continues to be good law and worthy of Supreme Court respect. This is of no minor consequence as groups and the executive branch called for the overturn of Roe.

ADI 201018


Net Benefit – Agenda Politics

No backlash on democrats – Supreme Court is mostly Republican appointees.

Perine 8 (Katherine, Staff at CQ Politics, “Congress Unlikely to Try to Cover Supreme Court Detainee Ruling,” CQ Politics, June 12, http://www.cqpolitics.com/wmspage.cfm?docID=news-000002896528&cpage=2)

Thursday’s decision, from a Supreme Court dominated by Republican appointees, gives Democrats further cover against GOP sniping.“This is something that the court has decided, and very often the court gives political cover to Congress,” said Ross K. Baker, a Rutgers Universitiy political science professor. “You can simply point to a Supreme Court decision and say, ‘The devil made me do it.’ ”

ADI 201019


Extension – Courts Don’t Link to Politics

The court is seen as apolitical – no spillover to everyday politics

Baird and Gangl 6 (Vanessa and Amy, Professors of Political Science, “Shattering the Myth of Legality: The Impact of the Media’s Framing of Supreme Court Procedures on Perceptions of Fairness” Political Psychology, Vol. 27, pg 597)

The tendency of the media to depict the Supreme Court as inherently apolitical, some scholars argue, is part of the reason that many believe in the “myth of legality” in which the Court is perceived to operate above the ideological skirmishes of everyday politics. Our experimental analyses show that citizens react more negatively to press reports of a politically motivated Court than they do to coverage portraying a Court that strictly follows legal guidelines. Interestingly, our results also suggest that it is not so much the perceived absence of political wrangling among justices but rather it is the presence of legal guidelines driving the outcome that is the source of the perception of fairness.

Court politics aren’t perceived by the public

Smith 93 (Christopher, Associate Professor of Criminal Justice, Michigan State University, Courts, Politics and the Judicial Process, p1)

What images come to mind when Americans hear the words "government" and "politics"? Politicians making campaign speeches ... Legislators debating controversial public policies ... The president being followed by reporters, microphones, and television cameras. It is unlikely, however, that many people immediately visualize black-robed judges presiding over solemn, ornate courtrooms. Yet, the judicial system constitutes one of the three branches of government. In the United States Constitution, after Article I describes the structure and powers of the legislative branch and Article II describes the president's authority, Article III establishes the Supreme Court and describes the jurisdiction of the judicial branch. Although the courts are a component of government, generally accepted beliefs about the proper role and behavior of judicial actors differ from expectations about the actions and motivations of officials in the other branches of government. For example, when legal commentators speak about "the independence of the judiciary from the political branches [of government],"' they are clearly identifying the courts as different from the other branches. Unlike the judicial branch, the legislative and executive branches are recognized as "political" in nature! Justice Felix Frankfurter echoed this theme when he warned that the judicial system should be kept separate from political issues and institutions: "It is hostile to a democratic system to involve the judiciary in the politics of the people."' When Americans discuss the court system, they convey the image of a governmental branch which, by its very nature, is distinctively different from other components of government. Courts are unique among government institutions because of their association in the public mind with law rather than politics .

And, the court gets political cover on issues that other agencies don’t want to rule on

Rosenberg 91 (Gerald, Associate Professor of Political Science at the University of Chicago, The Hollow Hope: Can Courts Bring About Social Change? p285)

Similarly, courts have provided both leverage and cover for committee agency officials. In battles over priorities and resources, courts can serve the "gorilla in the closet" that enhances the argument of the side the decisions support (Wenner, forthcoming). In addition to this kind of leverage, courts have been effective where administrators were willing to act but felt the need for political cover. Department of Transportation Secretary Volpe, for example, had demonstrated concern for the environment before the enactment of NEPA. After enactment, however, he would sometimes "rely on the courts to order a project modified or halted [that he wanted modified or halted]. He would then be able to lay on others responsibility for 'meddling' with the project" (Liroff 1976, 127). In other words, when administrators wanted to make pro-environment decisions, courts could help.

ADI 201020


Extension – Courts Don’t Link to Politics

The court has political cover

O’Brien 3 (David, Professor of Government and Foreign Affairs at the University of Virginia, Storm Center: The Supreme Court in American Politics, Sixth Edition, p337-338)

Public opinion serves to curb the Court when it threatens to go too far or too fast in its rulings. The Court has usually been in step with major political movements, except during transitional periods or critical elections .47 It would nevertheless be wrong to conclude, along with Finley Peter Dunne's fictional Mr. Dooley, that "th' supreme court follows th' iliction returns ."48 To be sure, the battle over FDR's "Court-packing" plan and the Court's "switch in time that saved nine" in 1937 give that impression. Public opinion supported the New Deal, but after his landslide reelection in 1936, turned against FDR when he proposed to "pack the Court" by increasing its size from nine to fifteen. In a series of five-to-four and six-to-three decisions in 1935-1936, the Court had struck down virtually every important measure of FDR's New Deal program. But in the spring of 1937, while the Senate Judiciary Committee considered FDR's proposal, the Court abruptly handed down three five-to-four rulings upholding major pieces of New Deal legislation. Shortly afterward, FDR's close personal friend and soon-to-be nominee for the Court, Felix Frankfurter, wrote justice Stone confessing that he was "not wholly happy in thinking that Mr. Dooley should, in the course of history turn out to have been one of the most distinguished legal philosophers ."49 Frankfurter, of course, knew that justices do not simply follow the election returns. The fact that the Court abandoned its opposition to the New Deal when it did, moreover, significantly undercut public support for FDR's Court-packing plan. Gallup polls taken during the spring of 1937 reveal that the Court's switch-in-time influenced the shift in public opinion away from support for FDR's proposed reforms. In this instance at least, as political scientist Gregory Caldeira concludes, the Court "outmaneuvered the president" and by retreating from its defense of conservative economic policy shaped public opinion in favor of preserving its institutional integrity. However, as noted in Chapter Two, the "switch in time that saved nine," the actual vote to uphold New Deal legislation, took place in conference in December i936, prior to FDR's introduction of his Courtpacking proposal. But, the publication of its opinions upholding progressive legislation in spring 1937 was, to be sure, timely and influential.

ADI 201021


Extension – Net Benefit – Ilaw

The counterplan is key to compliance with international law


The international rights movement has revealed the reluctance of the United States government to recognize international human rights despite expecting other nations to do so. n209 The International Bill of Rights and other sources of international law prove useless in protecting the interests of foreign nationals if Congress ignores or purposefully circumvents them. n210 The fact that the United States often falls short of its political accountability to the international community presents a great challenge to applying international law principles that encourage reform of the plenary power doctrine. As a member of the world community, the United States [*256] supposedly holds itself to international law, yet, its immigration policy flagrantly disregards many international treaties and customs. n211 In fact, the Chinese Exclusion Act Cases, discussed above, violated a treaty between the United States and China. n212Although treaties enjoy the status as "supreme law of the land" n213, the national legislature is not bound to comply with its obligations under international law until it has enacted legislation to trigger the treaty. In other words, international treaties are not self-executing in the United States system of law. n214 However, an important rule of construction interprets statutes, to the extent possible, to be consistent with treaties. n215 Despite this theoretical alignment, in practice "immigration policy makers have become [*257] increasingly indifferent to international obligations, disingenuously misconstrued international norms, and paid undeserved deference to the law-breaking conduct of a coordinate branch." n216Even when the United States passes an act to implement an international treaty, such as with the Refugee Act of 1980, n217 it manages to avoid its obligations, even disregarding fundamental norms such as non-refoulement (non-return): n218 The United States has taken a narrow, some would say hyper technical, view of its international obligation in order to forestall mass attempts at immigration. Through aggressive interdiction at sea, the use of "safe havens," and the deferential review of its actions by federal courts, the United States has avoided the spirit, if not the letter of nonrefoulement." n219This underhanded approach can be seen in the case involving interdiction of Haitian refugees on the high seas. n220 The Sales decision permitted a narrow and contrived reading of the Refugee Protocol to put the best face on a bad policy, by creating a pretense that it is not, contrary to all appearances, in breach of international law. On the other hand specious interpretation of international agreements has become rather a bad habit for the present-day Court. n221 [*258] When dealing with foreign nationals in exclusion proceedings, adherence to international norms by the United States falls short of compliance. In fact, the new expedited procedure raises new issues of non-compliance with the Refugee Protocol. n222 In the specific case of the expedited removal procedure, foreign nationals with liberty and property interests are often denied the basic due process rights championed by these international treaties. If an INS inspection officer misunderstands or overlooks a foreign national's valid entitlement to enter, the victim of this error has no opportunity to correct such mistakes before a fair and impartial judge. Yet, the adjustment that it would take to follow international norms would require the same effort that it would take to follow the U.S. Constitution. The basic due process rights listed in international treaties, as shown above, mirror those enumerated in the Fifth Amendment. The challenge is to push the Supreme Court to overcome its stubborn reluctance to universalize its own constitutional rights by interpreting "all persons" to include foreign nationals.

ADI 201022


Plenary Powers Bad – Unique Internal Link

Plenary powers are on the brink – the counterplan is key to shattering the doctrine

Spiro 2 (Peter, Professor, Hofstra Law School, “Explaining the End of Plenary Power,” Georgetown Immigration Law Journal, November 17,http://papers.ssrn.com/sol3/papers.cfm?abstract_id=300575

That may now finally change. Two decisions from the 2000 Term, Nguyen v. INS1 and Zadvydas v. Davis,2 point the way to the abandonment of plenary power. Although as a formal matter neither expanded the quantum of constitutionally-mandated rights owed aliens in immigration proceedings, the decisions strongly suggest such an expansion. Nguyen upheld the Nationality Act’s discrimination against American citizen fathers and their out-of-wedlock children (as opposed to citizen mothers and theirs), but it did so under an ostensibly undifferentiated standard; that is, the Court purported to apply the same equal protection standard that it would in any other context. Although framed as an exercise in statutory interpretation, Zadvydas went further, casting serious constitutional doubt on the indefinite detention of removable aliens. The decisions are as much significant for what they don’t say as what they do. Absent are rote invocations of plenary power precedents; indeed, both opinions refused to pass on the doctrine’s continuing validity. This posture, to be sure, does not preclude the retrenchment of plenary power. I think such retrenchment unlikely, however. It may be a bit premature to enter a tombstone date on plenary power, but the grave has been dug. Here one must consider explanations for the Court’s apparent retreat from plenary power now rather than at any other point of time. The turn cannot be explained by any change in constitutional discourse, for the doctrine has long been relegated to a sort of constitutional hall of shame.3 However one might try to peg it to recent trends towards greater popular acceptance of immigration and of aliens, plenary power has in the past survived the cycles of welcome and animosity. Nor can it be portrayed as an element in other jurisprudential trends relating to constitutional rights, for such rights as recognized by the courts are, if anything shrinking. In other words, no constitutional tide is buoying immigration cases with it. Finally, although the demise of plenary power is consistent with the Court’s recent insistence in other contexts that it get the last institutional word in constitutional interpretation, there is no evidence that the retreat from immigration exceptionalism is driven by the credo of judicial supremacy.

ADI 201023


Plenary Powers Bad – Self-Determination

Ending the plenary powers doctrines allows for the successful implementation of internal self-determination strategies

Saito 2 (Natsu Taylor, Professor of Law, Georgia State University College of Law, “The Plenary Power Doctrine: Subverting Human Rights in the Name of Sovereignty”, 51 Cath. U. L. Rev. 1115, p. lexis)

Under the rubric of exercising its " plenary power" over American Indian nations, a power said to derive from its existence as a sovereign nation, the United States has denied to the Indians within its borders their right to self-determination as acknowledged by international law; to basic human rights guaranteed all persons under international law; and to protections mandated by the Constitution. First, it must be noted that the United States has violated the terms of every one of the approximately eight hundred treaties, ratified and unratified, that it imposed upon Indian nations; yet, it continues to use those treaties to justify its occupation of Indian lands. n189 Bringing "federal Indian law" into compliance with international law would first require enforcing the treaties that exist between the United States and Indian nations and interpreting them in accordance with customary international law and the principles articulated in the Vienna Convention on the Law of Treaties. n190 As Siegfried Wiessner stated:The fact that treaties with Indian nations can be abrogated under Lone Wolf does not stand in the way of their characterization as obligations under international law. . . . Traditional international law scholarship, applied in intellectual honesty, would have a hard time denying commitments arising from U.S.-Indian treaties the effect of international legal obligations. n191Weissner concluded that these treaties are still enforceable under international law, particularly in light of the 1975 advisory opinion of the International Court of Justice on the status of the Western Sahara, which [*1146] confirmed the "international legal effect of agreements between indigenous [peoples] . . . and clearly recognized sovereign states." n192 Weissner also noted that the treaties must be interpreted in accordance with the provisions of the Vienna Convention, which differs significantly from U.S. domestic law interpreting treaties with Indian nations and means that judicially-created doctrines cannot be invoked to avoid their enforcement. n193Instead of interpreting treaties in accordance with the provisions of the Vienna Convention, courts continue to invoke the plenary power doctrine as justification for ongoing violations of those treaties and for treatment that violates customary international law as well as numerous human rights treaties to which the United States is a party. n194 American Indians within the United States today are subject to all of the laws governing U.S. citizens and to several thousand additional statutes. n195 This system of federal law imposes a "quasi-sovereign" status on Indian nations and subjects them to the "trusteeship" of the U.S. government. As Robert Clinton states, "vestiges of the law's historic colonial role in legitimating conquest and expropriation remain imbedded in the doctrines employed today allegedly to protect Indian interests." n196

External self-determination makes all of their impacts inevitable

Gottlieb, 1993, Leo Spitz Professor of International Law and Diplomacy – University of Chicago,Gidon, Nation Against State, p. 26-27

Self-determination unleashed and unchecked by balancing principles constitutes a menace to the soceity of states. There is simply no way in which all the hundreds of peoples who aspire to sovereign independence can be granted a state of their own without loosening fearful anarchy and disorder on a planetary scale. The proliferation of territorial entitites poses exponentially greater porblems for the control of weapons of mass destruction and multiple situations in which external intervention could threaten peace. It increases problems fro the management of all global issues, including terrorism, AIDS, the environment, and population growth. It creates conditions in which domestic strife in remove territories can drag powerful neighbors into local hostilities, creating widening circles of conflict.









ADI 201024


Plenary Powers Bad – Presidential Powers

Checking plenary powers is key to restricting the president’s warmaking ability

Schultz 6 (David, Graduate School of Management at Hamline University, “THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11,” Vol. 16 No.1 (January 2006), pp.102-105, by John C. Yoo. http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/yoo0106.htm)

How do the arguments of THE POWERS OF WAR AND PEACE compare to those of the Memorandum? There are subtle differences, even if they reach the same overall conclusions about presidential power. First, Yoo remains consistent in arguing that the Constitution, history, and practice all endorse preeminence of presidential power in foreign affairs and national security issues, leaving Congress only the powers of the purse and de-authorizing the military if it wishes to check the executive branch. The book is also clearer in stating that the judiciary should have no role in foreign affairs, viewing such issues as political questions. However, some of the arguments endorsing presidential power are expounded upon and changed.For one, while the Memorandum stressed the intent of the framers in exclusively conveying foreign policy power upon the president, the book shifts the argument. It looks not to what the original intent of the framers was but to the original understanding of ratifiers and those who read the Constitution. Specifically, in the first four chapters, Yoo draws heavily upon Blackstone and British experiences and writings to support the claim that the ratifiers of the Constitution—including the members of the various state legislators as well as the Federalists and Anti-Federalists—all understood that foreign policy authority was exclusively [*104] an executive function. He also argues that when war making and foreign policy power shifted to Congress under the Article of Confederation, this was not a diversion of these functions to the legislative branch because this body was essentially an executive body. In addition, Yoo relies upon colonial and post-independence state constitutions to support his contention that foreign affairs are exclusively executive.What we are left with under the Constitution of 1787 is a document that was understood as vesting plenary power in the president to act in foreign affairs and which did not make his ability to wage war contingent upon formal declarations of Congress. It is also a Constitution, for Yoo, that does not establish a fixed process for foreign policy decision making, but leaves it open to the “contemporary demands of the international system at the time and the relative position of the different branches” ( p.8). Given the somewhat open texture here, this sets the stage for Yoo to argue that the war on terrorism is a new type of conflict that demands more rapid response than in the past. In terms of what this means for the presidency, it includes vesting in him sole authority to make, interpret, and suspend treaties, including the Convention Against Torture and the Geneva Convention Relative to the Treatment of Prisoners of War, and to deploy troops.

http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/yoo0106.htm

ADI 201025


Plenary Powers Bad – Presidential Powers

Unfettered presidential powers cause nuclear warForrester, 89 (Ray Professor, Hastings College of the Law, University of California August, The George Washington Law Review 57 Geo. Wash. L. Rev. 1636 “Presidential Wars in the Nuclear Age: An Unresolved Problem.” ) Abramson, Wherever President Goes, the Nuclear War 'Football' is Beside Him, Los Angeles Times, April 3, 1981, at 10, col. 1

On the basis of this report, the startling fact is that one man alone has the ability to start a nuclear war. A basic theory--if not the basic theory of our Constitution--is that concentration of power in any one person, or one group, is dangerous to mankind. The Constitution, therefore, contains a strong system of checks and balances, starting with the separation of powers between the President, Congress, and the Supreme Court. The message is that no one of them is safe with unchecked power. Yet, in what is probably the most dangerous governmental power ever possessed, we find the potential for world destruction lodged in the discretion of one person. As a result of public indignation aroused by the Vietnam disaster, in which tens of thousands lost their lives in military actions initiated by a succession of Presidents, Congress in 1973 adopted, despite presidential veto, the War Powers Resolution. Congress finally asserted its checking and balancing duties in relation to the making of presidential wars. Congress declared in section 2(a) that its purpose was to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations. The law also stated in section 3 that [t]he President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated. . . . Other limitations not essential to this discussion are also provided. The intent of the law is clear. Congress undertook to check the President, at least by prior consultation, in any executive action that might lead to hostilities and war. [*1638] President Nixon, who initially vetoed the resolution, claimed that it was an unconstitutional restriction on his powers as Executive and Commander in Chief of the military. His successors have taken a similar view. Even so, some of them have at times complied with the law by prior consultation with representatives of Congress, but obedience to the law has been uncertain and a subject of continuing controversy between

Congress and the President. Ordinarily, the issue of the constitutionality of a law would be decided by the Supreme Court. But, despite a series of cases in which such a decision has been sought, the Supreme Court has refused to settle the controversy. The usual ground for such a refusal is that a "political question" is involved. The rule is well established that the federal judiciary will decide only "justiciable" controversies. "Political questions" are not "justiciable." However, the standards established by the Supreme Court in 1962 in Baker v. Carr, 369 U.S. 186, to determine the distinction between "justiciable controversies" and "political questions" are far from clear. One writer observed that the term "political question" [a]pplies to all those matters of which the court, at a given time, will be of the opinion that it is impolitic or inexpedient to take jurisdiction. Sometimes this idea of inexpediency will result from the fear of the vastness of the consequences that a decision on the merits might entail. Finkelstein, Judicial Self-Limitation, 37 HARV. L. REV. 338, 344 (1924)(footnote omitted). It is difficult to defend the Court's refusal to assume the responsibility of decisionmaking on this most critical issue. The Court has been fearless in deciding other issues of "vast consequences" in many historic disputes, some involving executive war power. It is to be hoped that the Justices will finally do their duty here. But in the meantime the spectre of single-minded power persists, fraught with all of the frailties of human nature that each human possesses, including the President. World history is filled with tragic examples. Even if the Court assumed its responsibility to tell us whether the Constitution gives Congress the necessary power to check the President, the War Powers Resolution itself is unclear. Does the Resolution require the President to consult with Congress before launching a nuclear attack? It has been asserted that "introducing United States Armed Forces into hostilities" refers only to military personnel and does not include the launching of nuclear missiles alone. In support of this interpretation, it has been argued that Congress was concerned about the human losses in Vietnam and in other presidential wars, rather than about the weaponry. Congress, of course, can amend the Resolution to state explicitly that "the introduction of Armed Forces" includes missiles as well as personnel. However, the President could continue to act without prior consultation by renewing the claim first made by President [*1639] Nixon that the Resolution is an unconstitutional invasion of the executive power. Therefore, the real solution, in the absence of a Supreme Court decision, would appear to be a constitutional amendment. All must obey a clear rule in the Constitution. The adoption of an amendment is very difficult. Wisely, Article V requires that an amendment may be proposed only by the vote of two-thirds of both houses of Congress or by the application of the legislatures of two-thirds of the states, and the proposal must be ratified by the legislatures or conventions of three-fourths of the states. Despite the difficulty, the Constitution has been amended twenty-six times. Amendment can be done when a problem is so important that it arouses the attention and concern of a preponderant majority of the American people. But the people must be made aware of the problem. It is hardly necessary to belabor the relative importance of the control of nuclear warfare. A constitutional amendment may be, indeed, the appropriate method. But the most difficult issue remains. What should the amendment provide? How can the problem be solved specifically? The Constitution in section 8 of Article I stipulates that "[t]he Congress shall have power . . . To declare War. . . ." The idea seems to be that only these many representatives of the people, reflecting the public will, should possess the power to commit the lives and the fortunes of the nation to warfare. This approach makes much more sense in a democratic republic than entrusting the decision to one person, even though he may be designated the "Commander in Chief" of the military forces. His power is to command the

war after the people, through their representatives, have made the basic choice to submit themselves and their children to war. There is a recurring relevation of a paranoia of power throughout human history that has impelled one leader after another to draw their people into wars which, in hindsight, were foolish, unnecessary, and, in some instances, downright insane. Whatever may be the psychological influences that drive the single decisionmaker to these irrational commitments of the lives and fortunes of others, the fact remains that the behavior is a predictable one in any government that does not provide an effective check and balance against uncontrolled power in the hands of one human. We, naturally, like to think that our leaders are above such irrational behavior. Eventually, however, human nature, with all its weakness, asserts itself whatever the setting. At least that is the evidence that experience and history give us, even in our own relatively benign society, where the Executive is subject to the rule of law. [*1640] Vietnam and other more recent engagements show that it can happen and has happened here. But the "nuclear football"--the ominous "black bag" --remains in the sole possession of the President. And, most important, his decision to launch a nuclear missile would be, in fact if not in law, a declaration of nuclear war, one which the nation and, indeed, humanity in general, probably would be unable to survive.

Plenary Powers Bad – Separation of Powers

Judicial review over immigration policy is key to separation of poers

http://www.lexisnexis.com/us/lnacademic/mungo/lexseestat.do?bct=A&risb=21_T9842011382&homeCsi=7338&A=0.48452774259109876&urlEnc=ISO-8859-1&&citeString=369%20U.S.%20186&countryCode=USA

ADI 201026


Lee 2005, associate in Litigation, Antitrust, and Federal-State Programs practice groups, Covington & Burling lawfirm (Anne, “The Unfettered Executive: Is There an Inherent Presidential Power to Exclude Aliens?,” 39 Colum. J.L. & Soc. Probs. 223, Lexis)

Blending elements of both domestic and foreign policy considerations, the power to exclude aliens from entering the country poses challenges and difficulties not found in other legal areas. Immigration regulations force courts to think hard about the legal basis for their decisions and grapple with difficult moral considerations about the right to migrate freely and the right to enter into a country, as well as the economic and social ramifications of such decisions. This Note has sought to highlight the importance of understanding the topic of alien exclusion, and has argued that the latent theory of inherent presidential authority to regulate immigration admission should be rejected. The President’s immigration authority is a derivative one that requires delegation by Congress, following debate and policy considerations. This Note provides evidence that the power to regulate admission has historically rested primarily within the legislative branch and has existed in a shared capacity between the President and Congress. Moreover, this Note warns against the ten dency to frame the immigration power as a foreign relations power, and thus classify it among those inherent, plenary, presidential powers. In hopes of maintaining the necessary separation of powers, the courts should continue to review executive actions in this field to ensure compliance with statutory authority.

SOP is key to hegemony

Ikenberry 1 (John, Professor of Politics and International Affairs at the Woodrow Wilson School of Public and International Affairs at Princeton, Spring, The National Interest, http://www.dni.gov/nic/confreports_stratreact.html)

First, America's mature political institutions organized around the rule of law have made it a relatively predictable and cooperative hegemon. The pluralistic and regularized way in which U.S. foreign and security policy is made reduces surprises and allows other states to build long-term, mutually beneficial relations. The governmental separation of powers creates a shared decision-making system that opens up the process and reduces the ability of any one leader to make abrupt or aggressive moves toward other states. An active press and competitive party system also provide a service to outside states by generating information about U.S. policy and determining its seriousness of purpose. The messiness of a democracy can, indeed, frustrate American diplomats and confuse foreign observers. But over the long term, democratic institutions produce more consistent and credible policies--policies that do not reflect the capricious and idiosyncratic whims of an autocrat. Think of the United States as a giant corporation that seeks foreign investors. It is more likely to attract investors if it can demonstrate that it operates according to accepted accounting and fiduciary principles. The rule of law and the institutions of policymaking in a democracy are the political equivalent of corporate transparency and accountability. Sharp shifts in policy must ultimately be vetted within the policy process and pass muster by an array of investigatory and decision-making bodies. Because it is a constitutional, rule-based democracy, outside states are more willing to work with the United States--or, to return to the corporate metaphor, to invest in ongoing partnerships.

ADI 201027


AT: Plenary Powers Good – Terrorism

The courts can rule against plenary powers without undermining national security measures


But plenary power could be shelved altogether without putting the courts in the possibly untenable position of nullifying special security regimes. It is perhaps improbable that the courts would strike down the alien terrorist removal procedures as inconsistent with due process protections, at least not now. The sense of threat and the risk of undermining the Court’s institutional legitimacy are too great. But that does not preclude the Court from applying ordinary principles of judicial review even where terrorism is implicated. The fact is that most of the regime now in place for the removal of alleged terrorists could pass constitutional muster under non-exceptional analyses. In other words, the Court could approach constitutional challenges to the removal of terrorists with its usual toolbox and find those challenges wanting. The result is the same as under plenary power, but the judiciary would assert itself as a relevant player and the Constitution as the relevant standard.

Mathews decision ensures we can still fight terrorism


Thus, the legislative scheme for the removal of terrorists could be rationalized within a Mathews v. Eldridge framework,83 even where removal is sought on the basis of secret evidence. As applied against permanent resident aliens whose removal is sought, the case in which the individual interest is greatest, the special removal procedures supply an elaborate scheme intended to safeguard individual interests while protecting against the disclosure of information that would harm the national security. 84 The scheme would not pass muster were it applied in the context of criminal prosecutions.85 But however grave a remedy it may be, deportation would seem (on average) one level removed from imprisonment, and the distinction, perhaps, allows for a finding of adequate due process in this context. A Mathews analysis might even sustain some unconstrained uses of secret evidence, at least where the alien’s interest is not grave. The removal on the basis of secret evidence of an arriving alien on a tourist visa does not seem dramatically unjust, even if the procedure will sometimes generate false positives, given the relatively insubstantial individual interest at stake.

ADI 201028


AT: Court Disadvantages

ADI 201029


AT: Judicial Activism

Activism now – Citizens United, Bush v Gore, and the Federalist societyEmblem 10, Escondido attorney and former Democratic candidate for the 50th Congressional District(Tracy, “Senator Orin Hatch: Judicial Activism Cuts Both Ways,” June 30, http://www.laprogressive.com/law-and-the-justice-system/judicial-activism/)

Certainly the recent United States Supreme Court’s controversial decision in Citizens United which gave corporations “rights” the federal constitution never contemplated should be considered blatant activism. Corporations are not citizens; they do not vote and do not deserve the panoply of rights accorded to individuals. Yet the activist 5-4 Supreme Court reversed precedent to substitute personal political preferences for corporations and special interests against democracy.In Bush v. Gore, the U.S. Supreme Court 5-4 majority usurped Florida’s election law by relying upon the Equal Protection Clause of the Fourteenth Amendment to determine there was no time to create a system that was fair to both Bush and Gore. But Florida already had a “fair” election process which was codified. So the Florida Supreme Court’s interpretation of its state election law should have been followed under the “states’ rights” doctrine.Speaking of judicial activism – both United States Supreme Court Justices Samuel Alito and Antonin Scalia are members of a Federalist Society – an organization that advocates a roll back of civil rights. Bush nominee Justice John Roberts claims he had no recollection of membership in the Federalist Society, but according to the Washington Post, Roberts was listed as a 97-98 member of the organization. Other right wing members include Senator Orrin Hatch, Kenneth Starr, and Robert Bork.

The court is activist now – trends proveCarrington 99 (Paul D., Prof of Law @ Duke, Alabama Law Review, ln)

The Court's own statements describing its understanding of courts' roles in government reinforce the widespread perception of the Supreme Court and other high courts as political institutions. Although they incidentally decide cases, Justices sitting on the Supreme Court of the United States have by the terms of their certiorari rule 9 almost completely disowned responsibility for assuring that individuals' legal rights and duties are actually enforced by lower courts in individual cases. They seldom bother to decide a case unless it has impact on some public interest. Moreover, when the Court was deciding only 150 cases a year, it was tolerating widespread undiscipline by lower federal courts; 10 now that it has cut that number almost in half, it is forsaking responsibility for holding lower courts in line. It decides only those cases which provide a suitable occasion for expressing policies the Justices choose to express; in that critical respect, their work is unmistakably, and by any standard, political. While the Court may have been viewed somewhat differently before 1925 when it began to exercise this form of discretion, 11 it is no longer unreasonable to regard the Court less as a [*402] court of law engaged in law enforcement and more as a political institution openly and primarily engaged in making policy. Most highest state courts exercise discretion in the selection of their cases similar to that enjoyed by the Supreme Court and likewise view themselves as engaged primarily in making rules rather than enforcing them. 12

http://www.lexis.com/research/retrieve?_m=3e39def99beafc8864486a5c519bf029&docnum=1&_fmtstr=FULL&_startdoc=1&wchp=dGLbVlb-zSkAb&_md5=a6580639fda9851cfa681f7ff0a92d41&focBudTerms=carrington%20AND%20alabama&focBudSel=all#n12%23n12




ADI 201030



Bush v. Gore proves Court is activist

Bybee 01 (Keith J., Department of Government @ Harvard, “The Jurisprudence of Uncertainty,” 35 Law & Soc'y Rev. 943)

Is there anything to the claims of judicial incrementalism? The legal battle spawned by the 2000 presidential election makes this question particularly relevant. During the recount struggle, supporters of Bush and Gore both lambasted the courts for violating the boundaries of judicial power. Although each partisan camp directed its ire toward different decisions and different courts, the overall tenor of their criticism was consistent with the conventional ideal of judicial action. At one point or another, everyone decried the judicial failure to seek the guidance (and obey the constraints) of general principle. From this angle, one could argue that the electoral dispute simply reinforced the value of principled judicial decisionmaking, demonstrating that without the discipline of legal rules and standards judges are just as partisan as everyone else.Yet, contrary to the conventional view, one might also argue that the line of court decisions culminating in Bush v. Gore (2000) actually demonstrated the need for judicial incrementalism. It is true that Bush and Gore partisans called for the courts to apply general principles. But it is also true that what the partisans ultimately resented was not the absence of such principles. The most troublesome fact was that judges issued sweeping orders with decisive consequences. Given the depth of disagreement between partisans, judicial decisions awarding clear victory to one side were inevitably denounced by the loser, regardless of how many general principles judges cited to support their rulings. Under such circumstances, one could argue that the better course would have been to forgo broad judicial decisions.

Court is activist – Hamden

Conservative Voice 06 [http://www.theconservativevoice.com/forum/read.html?id=4804]In a breathtaking decision, Hamdan v. Rumsfeld, a liberal majority on the Supreme Court held that the president does not have authority to order that terrorists be tried before military commissions. In a case where the court should not have had jurisdiction if the Detainee Treatment Act of 2005 were to be taken seriously, liberal judicial activism has once again reared its ugly head. Justice Clarence Thomas offered a stinging dissent regarding the court’s willingness “to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous.” Andrew McCarthy, a former federal prosecutor and National Review contributor, anticipated such a ruling offering this prescient thought: “Make no mistake: if this happens, the Supreme Court will have dictated that we now have a treaty with al Qaeda—which no president, no senate, and no vote of the American people would ever countenance.”

ADI 201031



( ) Checking the constitutionality of other branches’ actions isn’t activist – there’s a distinction between active and activist courts that their evidence misses.

Smith 2 (Stephen, Associate Professor, University of Virginia School of Law, April, Texas Law Review, 80 Tex. L. Rev. 1057, p. 1080)

1. Substantive Activism. - Some have argued that activism results whenever courts interfere with initiatives of the political branches of government. Richard Posner has perhaps most clearly articulated this view, stating that judicial activism involves courts "acting contrary to the will of the other branches of government" and thereby "taking power from those other branches." 102 It is true, of course, that judicial interference, usually manifested and most easily seen in the form of judicial invalidation of statutes, is strongly correlated with periods of heightened activism. 103 Even so, equating "conflict" or "interference" with activism rests on an unwarranted assumption - namely, that the federal courts are supposed to be inactive rather than active but restrained. There is a critical distinction between an "activist" court, on the one hand, and an "active" court, on the other. A court faithful to principles of judicial restraint could never be activist (at least not in a first-best world) but would nevertheless be quite active in demanding that other branches of government remain within their proper constitutional bounds. 104 It could hardly be otherwise given Marbury v. Madison, 105 which held that enforcing the Constitution is an essential part of the "judicial Power" vested in the federal courts by Article III.

http://web.lexis-nexis.com/universe/document?_m=b6183733f431140ec20d32a562b46cfe&_docnum=1&wchp=dGLbVzW-zSkVb&_md5=ea94882756dfac4691841a80ea46b841#n105




ADI 201032


AT: Legitimacy DA

( ) Overrules happen all the time and don’t hurt legitimacy or rule of law – Rehnquist Court was more politicized and disproves their link Christopher P. Banks, Assistant Professor of Political Science, Buchtel College of Arts and Sciences, The University of Akron, 1999, Akron Law Review, 32 Akron L. Rev. 233, p. 233-234

Associate Justice Robert H. Jackson once suggested that rulings from the Supreme Court of the United States have "a mortality rate as high as their authors." 1 Jackson's quip is significant since it is consistent with the political reality that the Court often manipulates the law to make social policy. The remark is also controversial since it raises the question of whether the Supreme Court, led by Chief Justice William H. Rehnquist, is engaging in result-oriented jurisprudence. This is a significant issue since some claim that the Rehnquist Court uses an unprincipled theory of stare decisis to achieve partisan objectives in law. Critics argue that this diminishes the Court's institutional prestige and undermines the rule of law. 2 Notably, since 1986 the Supreme Court seems to invite condemnation in some of its high-profile cases, especially in those instances when a defendant's constitutional rights are at issue. In Payne v. Tennessee, 3 for example, the Supreme Court reversed itself twice by admitting into evidence victim impact statements in capital sentencing proceedings. In Payne, dissenting Justice Thurgood Marshall denounced Rehnquist's plurality opinion on the grounds that the Court was creating a novel theory of stare decisis. Payne, in other words, held that the force of precedent is at its acme in cases involving contract or property rights; and, conversely, that it is at its nadir either in opinions relating to procedural and evidentiary rules, 5-4 decisions, or majority opinions achieved over "spirited dissents." The Chief Justice responded to Marshall by saying that "stare decisis is not an inexorable command; rather, it 'is a principle of policy and not a mechanical formula of adherence to the latest decision . . . .'" 4 As a policy matter, therefore, prior law did not prevent the [*234] statements from being admitted into evidence. This article analyzes if Justice Marshall is correct in castigating the Rehnquist Court and asserting that it is destroying the rule of law through its stare decisis jurisprudence. It concludes that Justice Marshall is only partially correct. While the ideological direction of its jurisprudence has shifted to the right, the Court's behavior in reversing itself is normal and does not endanger the Court's legitimacy or its faithful adherence to law. A fair assessment of the Rehnquist Court's precedent cases indicates that they are reversals which were decided in times of natural court instability and rapid membership change. As a result, the Rehnquist Court's behavior is not that unusual because it is merely re-examining precedent in periods of constitutional "flux" and legal policy change.

No Internal Link: The Public won’t perceive decisions as activist—legitimacy is resilient Smith 91 [Christopher E., Prof PoliSci @ Akron Law, Kentucky Law Journal, ln]

The Supreme Court's status as a legal institution reinforces the image of law as neutral and objective. n8 The Court seeks to preserve its role and image as the country's leading legal institution because, given its removal from direct electoral accountability, to behave otherwise would lead to overt clashes with popular notions about democratic government. n9 Upon close examination it is obvious that, contrary to the imagery of stable, slowly evolving legal principles determining legal decisions, case holdings can be dramatically affected by changes in the Court's composition. Within specific cases, it is easy to see how the competing policy preferences of liberal and conservative justices are manifested in their opinions . n10 Overall, however, justices approach their decisions differently from actors within the other branches of government. Although the justices' values and policy preferences affect their decisions, the Supreme Court's decision making process is cloaked in legal procedures that permit considered judgments and careful explanations of underlying justifications. According to one study, "[t]he institution perceived [by the public] to make decisions most fairly is the United States Supreme Court, in part because it makes [*321] decisions on the basis of full information." n11 As described by one long-time observer of the Supreme Court, the Court's image and legitimacy as a legal institution are to some extent deserved: [ P]ublic respect for the [C]ourt -- based partly on ignorance and partly on myth -- is fundamentally well-placed. The justices' constitutional interpretations owe more to political ideologies than they pretend. But far more than the Congress, far more than any recent president, justices reach decisions by searching their consciences, carefully sifting facts and law, trying to do right as they see the right. n12

ADI 201033


AT: Legitimacy DA

The Court is resilient – despite waves of activist decisions its decisions are complied with and its power remains intact Lasser 88 (William Lasser, Professor of Political Science at Clemson. 1988. The Limits of Judicial Power: The Supreme Court in American Politics. p. 2489)

Obviously, the modern Supreme Court has not taken McCloskey's advice. Instead of pulling back, operating at the margins, nagging and coaxing the people and their representatives, the modern Court has become more involved--and more directly involved--in political controversies than ever before in its history. The school desegregation cases, which so concerned McCloskey and other friends of the Court, were followed by even more controversial decisions on school prayer, busing, defendant rights, reapportionment, and abortion. The modern judiciary has taken anactive role in supervising state prisons, mental hospitals, and school districts, and plays a highly visible role in the resolution of countless public policy disputes. And yet, despite McCloskey's warnings, the modern Court is not in mortal peril. To the contrary, its decisions stand largely unaltered and are generally obeyed, and it has achieved more in terms of governance in the three decades since Brown than in all the years of nudging and coaxing that came before. Certainly the past thirty years have been filled with loud and angry attacks on the Court, criticism of its conduct, and threats against its independence and autonomy. But through it all the Court has survived, and is hardly less powerful--or less active--than in the heyday of the Warren era.

No impact – court is resilient and there is no danger in its attempt to dictate policyLasser 88 (William Lasser, Professor of Political Science at Clemson. 1988. The Limits of Judicial Power: The Supreme Court in American Politics. P. 2489)

McCloskey was correct in suggesting that the Supreme Court would be unable to block the popular will on an issue of extreme importance and urgency, but he was surely wrong to conclude that it was dangerous for the Court to try. Time and again the Court has placed constitutional barriers in the path of a determined majority, and time and again it has survived and prospered. Dred Scott, Reconstruction, and the New Deal may reveal the ultimate strength of popular sovereignty in the United States, but they also show the strength and resiliency of the Supreme Court.

Public support for the court is unwavering – no risk of losing legitimacy

Jennings 99 (Terri Jennings Peretti, Prof. of Poli. Sci. at Santa Clara. 1999. In Defense of a Political Court. P. 163)As a matter of logic, the Court does indeed seem to lack any obvious sources of power and legitimacy. As Mondak and Smithey simply state the matter, “The Supreme Court is an inherently weak institution.” 6 This weakness derives from the fact that the Court can rely on neither an electoral connection nor funding and enforcement mechanisms for insuring compliance and ongoing political support. Why is it then that the Court is permitted to endure as a significant national policymaker, particularly when it often acts against the desires of the majority and other powerful institutions? The traditional answer offered is the special status of the Court in the public mind. As Adamany and Grossman explain, “Legal Realists and political scientists in the 1930s argued that public reverence for the Constitution is rooted in psychological needs for stability and security in human affairs and in the powerful hold that constitutional symbolism has on the American mind. This reverence in turn transferred to the justices of the Supreme Court, as interpreters and protectors of the sacred Constitution.” 7 This “judicial symbolism” or “sancrosanctity proposition” 8 thus argues that public support for the Court, even for its unpopular decisions, is insured by its connection to a powerful symbol, the Constitution. Public support is further assured by expectations of judicial infallibility and impartiality. These expectations arise from the lack of electioneering or partisan campaigning on the part of judges and by the outward symbols of judicial decisionmaking. To conventional legal scholars, certain normative implications follow. To the extent that the Court fulfills those “mythic” expectations, it will continue to receive the public support and confidence necessary for carrying out its often unpopular role of enforcing reason and the rule of law against the arbitrary will of the majority.

AT: Court Stripping DA

Other branches follows Court rulings

http://www.questia.com/PM.qst?a=o&d=99829624



ADI 201034


Neal Devins, Professor of Law and Professor of Government, College of William and Mary. October, 2001 COMMENTARY: CONGRESS AS CULPRIT: HOW LAWMAKERS SPURRED ON THE COURT'S ANTI-CONGRESS CRUSADE, Duke Law Journal, 51 Duke L.J. 435

It is little wonder that Supreme Court Justices feel empowered by such legislative deliberations. By seeing the Constitution as the Supreme Court's domain, Congress encourages the Court to strike down measures the Justices dislike, to settle presidential elections, and so forth. n54 And while the Justices may not know about the [*447] Gramm-Murray exchange, they certainly know that a legislative backlash has not followed in the wake of recent rulings limiting congressional power. There is no talk of packing the Court, of stripping it of jurisdiction, n55 or of amending the Constitution in response to these rulings. Moreover, these decisions played no role in the 2000 elections. n56 Finally, Congress has shown relatively little interest in rewriting these statutes. n57 And when Congress has revisited its handiwork, lawmakers have paid close attention to the Supreme Court's rulings, limiting their efforts to revisions the Court is likely to approve. n58

Court will win the fight – empirically other branches won’t pursue stripping

Resnik 6 (Judith, Professor at the Yale Law School, “Court Stripping: Unconscionable and Unconstitutional?” Slate Magazine, February 1,http://www.slate.com/id/2135240/

Move even further now, beyond the specifics of any clauses of the Constitution, to "structural" arguments. The Constitution created three branches of government and committed itself (and us) to a system of separated powers, checking, balancing, and not encroaching. The words endowing one branch with power should not be read to undermine the essential function of another branch. The structure of the three coequal branches thus makes implausible the idea that Congress could give no funds to the federal courts or close all the facilities, or end all the lower courts' jurisdiction. Such painstaking debates have done more than provide the grist for law professors to get tenure. Article III is the text that framed Marbury v. Madison, the 1803 decision by Chief Justice John Marshall establishing the power of judicial review. Unlike the jurisdiction-stripping parts of the DTA, Marbury turned on whether Congress could give the Supreme Court more original jurisdiction that the Constitution detailed; Marshall ruled that Congress could not. The court faced a variant of the question during the Civil War, when the issue was not giving more but taking away jurisdiction. Congress tried to stop the Supreme Court in the 1860s from ruling on the constitutionality of the Reconstruction. A newspaper editor, William H. McCardle, who was a vehement objector, challenged his detention by the military command. As the case was pending, Congress plucked it from the court by repealing the legislative basis on which the Supreme Court had taken the case. The court upheld that repeal while noting that other routes to justice were open. A few other odd-lot precedents exist. One 19th-century case refused to permit Congress to overturn the court's interpretation of a presidential pardon relating to loyalty to the Union. Another, after World War II, found that no jurisdiction existed for prisoners of war to bring habeas petitions in the United States. Generally, these and other opinions are fact-specific, focused on the nitty gritty of individual statutes and the facts. Moreover, many are dated, decided before the court had announced a host of individual rights and liberties. During the second half of the 20th century, as federal courts that had once protected corporations and property came to recognize the rights of African-Americans, women, and criminal defendants, members of Congress would routinely register objections by proposing to take jurisdiction over some set of cases away. While limitations on certain kinds of remedies (injunctions against unions, or against state rate-making) were imposed, most of these bills did not pass. Law professors used proposed bills stripping court jurisdiction over topics ranging from school prayer and busing to abortion as hypotheticals, to practice students on trying to figure out exactly what constitutional powers Congress had over the federal courts.In the 1990s, however, the hypothetical became real. Congress enacted sharp limits relating to the courts' jurisdiction over immigration. Soon thereafter, a majority of the Supreme Court read the terms of the statute narrowly, concluding that when Congress had not used clear and plain language in the text of a statute cutting off all routes to courts, their doors remained ajar.

ADI 201035


AT: Court Stripping DA

Courts produce social change – will alter the perception of the CP as controversial

Tucker 95 (D.F.B., Political Science at the University of Melbourne, The Rehnquist Court and Civil Rights, p35-36)

One important issue is whether Rosenberg’s (and Dahl’s) ‘constrained court’ view overlooks the indirect impact that landmark decisions may have. What I have in mind is whether courts can act as some sort of catalyst to facilitate the mobilization of political forces for change. Perhaps they can influence outcomes by shaping the political agenda so that issues that would otherwise escape attention are brought into public focus. Perhaps important cases serve as symbols so that the members of social movements are prevented from despair and even inspired to increase their efforts to work for change. In a review of Rosenberg’s The Hollow Hope Malcolm Feeley sug gests that judicial decisions do produce indirect effects of this kind.27 He wonders whether Rosenberg has overlooked the various and subtle ways that courts can raise expectations and, by offering a hope of victory motivate reformers. Certainly the cases that Rosenberg focuses on in his study (Brown v. Board of Education, Roe v. Wade, Mapp v. Ohio, Miranda v. Arizona and Baker v. Carr) do serve as important symbols in United States cultural life.

ADI 201036


AFF Answers

ADI 201037


AFF: 2AC Court Stripping DA

There’s a slow transition to use international law in the squo

Rahdert 7 (Mark, Professor of Law at Temple, “Comparative Constitutional Advocacy, 56 Am. U.L. Rev. 553, Lexis)

The American tradition of legal and constitutional isolation is slowly breaking down and will continue to do so. There are several factors contributing to this development, including the increasing globalization of American law, the interaction and exchange among judicial officials of different nations, the international convergence of constitutional norms, and the increasing sophistication and progressivism of foreign constitutional courts.A. Globalization and its Constitutional Implications Globalization of the law is eroding American constitutional isolation. n273 Globalization of American law has advanced along many fronts, most notably in areas related to trade and finance, but also in environmental law, intellectual property, and other important domains. n274 Where globalization has occurred, it has introduced into the American judicial process a new need for attention to comparative legal analysis. n275 While most of these developments do not have direct constitutional implications, they carry overtones that can indirectly introduce a comparative element into American constitutional discourse.For example, the United States has agreed to abide by and enforce a variety of international legal principles that constrain domestic discretion both to adopt restrictive policies toward foreign trade and to provide preferential treatment for domestic competitors in global markets. n276 Two prominent examples are U.S. participation in the [*603] World Trade Organization and the North American Free Trade Agreement. Such agreements introduce comparative elements into U.S. judicial decisionmaking. They create the possibility of conflict between their terms and domestic laws, contracts, or other legal arrangements. When that occurs, U.S. courts will be called upon to interpret the language of the multinational agreements, determine the extent (if any) of their legally cognizable conflict with domestic laws or regulations, and decide how the conflict will be resolved. n277Conflict between international trade arrangements and domestic law has constitutional overtones because, under Article VI's Supremacy Clause, such international free trade obligations become part of the "supreme law of the land" in the United States, binding upon government and private citizens alike. n278 Under the constitutional doctrine of preemption, the international trade obligations adopted at the national level displace conflicting state and local law. n279 They also become judicially binding in domestic as well as international commercial arrangements, for example by rendering certain contractual arrangements illegal or defeating claims based on domestic protective legislation that conflicts with international legal commands.Globalization of this sort obliges greater consideration of transnational and comparative principles and materials in American courts. It not only promotes awareness of international and comparative precedents, but it also creates a pressure for conscious complementarity of decisionmaking between American and foreign tribunals, which in turn requires comparative analysis. In litigation over domestic application, American courts must interpret the international agreements in question. n280 When they do so, they must [*604] be aware that other foreign national tribunals will also interpret the same agreements, and that international tribunals may exist to provide final authoritative interpretation of disputed questions. n281 The U.S. courts thus may well have occasion to consider: (1) how other world tribunals have interpreted the provisions of the international agreement in question; (2) whether similar domestic law conflicts have been detected in other participating nations; and (3) if so, how other court systems have chosen to resolve those conflicts. At a minimum, U.S. courts probably would not want to give the international norms more restrictive effect in the United States than they received abroad. And while the U.S. courts might not be required to interpret the international agreements in the same way as foreign courts, divergent interpretation could trigger various forms of international conflict. This conflict may range from international litigation, to legal and diplomatic responses by other nations (or in some cases even by foreign corporations or citizens) whose interests are harmed by the U.S. interpretation, to economic or legal retaliation by foreign states whose interests are negatively affected by the U.S. decision. n282Given the prospect for such international consequences, it would behoove American courts to attend carefully to potential interpretative divergences from foreign tribunals. n283 At a minimum, American courts need to know what foreign and international courts have said regarding the trade provisions in question before adopting a different interpretation. Where possible, the American courts should probably harmonize U.S. interpretation with the weight of [*605] interpretation elsewhere; n284 alternatively, they should have good cause, solidly grounded in U.S. law and policy, for adopting any interpretation that is at odds with comparative precedent. n285 In either event, they need to know what comparative law is on the interpretative issues in question in order to make an intelligent decision. They should not depart from comparative precedent lightly, let alone ignorantly or absent-mindedly.Ultimately, of course, authoritative U.S. interpretation of disputed provisions in international trade agreements becomes the responsibility of the U.S. Supreme Court. The Court is most likely to take up this duty where the terms of the agreement are subject to competing plausible interpretations. n286 That possibility could emerge (as with domestic statutory law) through a conflict in interpretation by lower federal courts, or between federal and state tribunals. In the case of international agreements, it could also arise because of a conflict in interpretation between a lower U.S. court and a foreign tribunal.In such a case, the Supreme Court's interpretation will perform the important constitutional function of providing uniformity in federal law. n287 But the Court's choice among competing interpretations of international agreements will carry additional constitutional significance. This occurs both because the choice will affect how the provision in question preempts other American laws, and because the choice will have implications for the exercise of national legislative and executive powers. n288 Although the Court may not be technically [*606] required to consider foreign interpretations of the disputed treaty language, there are powerful constitutional policy reasons for doing so. A decision at odds with international precedent, for example, could affect the President's ability to conduct foreign policy by triggering international litigation, inviting retaliatory measures by other states, or leading to sanctions against the United States in international tribunals. n289As globalization progresses, and as U.S. participation in international agreements proliferates, the circumstances in which both the Supreme Court and lower federal courts need to be aware of foreign precedents will increase. As they do, judicial demand for information about foreign law will grow, as will the need for both advocates and judges proficient in understanding and utilizing international and foreign precedent. n290 Over time, the inevitable effect will be more extensive knowledge and use of foreign legal decisions in American courts.

http://www.lexisnexis.com.proxy.foley.gonzaga.edu:2048/us/lnacademic/frame.do?reloadEntirePage=true&rand=1269638940992&returnToKey=20_T8929040855&parent=docview&target=results_DocumentContent&tokenKey=rsh-20.232261.18857918042#n290


















ADI 201038



High profile Supreme Court rulings using international law galvanize opposition and cause court stripping

Hutt and Parshall 00 (David and Lisa, J.D., Ph.D., legal trainer in Washington, and former Adjunct Assistant Professor at Le Moyne College, and, Ph.D., Assistant Professor in the Department of History and Gov’t at Daemen College, “Divergent Views on the Use of International and Foreign Law: Congress and the Executive versus the Court,” 33 Ohio N.U.L. Rev. 113, p. Lexis)

In its last few terms, the United States Supreme Court has utilized foreign and international law to justify decisions in three high-profile cases involving matters of constitutional interpretation. In these decisions, the High Court explicitly referenced international and foreign decisions in striking down the death penalty for the mentally retarded, n1 invalidating statutes prohibiting same-sex sodomy, n2 and declaring the juvenile death penalty unconstitutional. n3 Although these rulings avoided any claim that foreign and international legal decisions are dispositive to domestic constitutional interpretation, the Court's use of foreign and international legal material set in motion expressions of outrage by Congress, including the introduction of legislation designed to reign in such practice.This article addresses the apparent divergence of views between the legal and political branches of the U.S. government regarding the role of foreign and international law in domestic constitutional interpretation and the formulation of U.S. law and policies. This basic thesis of a conflict emerging between the Court, and the Congress and the Executive in the appropriateness of internationalizing American law was recently articulated by Hadar Harris. n4 Like Harris, we argue that executive policy decisions and congressional legislative action reveals much less receptivity to international and foreign law than exemplified in the recent trend in Supreme Court decision-making. From restrictions placed on U.S. cooperation with the International Criminal Court, to the Bush Administration's unilateral withdrawal from the Optional Protocol on the Vienna Convention for Counselor Relations, the political branches have taken a more restrictive, if not hostile, approach towards the importation of foreign legal jurisprudence than the Court. While we accept Harris' argument, we expand on his approach, providing more justification for the existence of [*114] the divergence, and considering possible reactions by the U.S. Supreme Court to the mounting political pressure over the continued use of "comparative constitutional analysis." In addition, we assert that the divergence ultimately impacts American law in different ways with disparate implications for the international and domestic arenas. In fact in several respects, the divergence highlights a contrast between the international and the domestic spheres of the three branches. The Supreme Court's decisions utilizing foreign law have primarily domestic consequences, whereas congressional and executive action have greater ramifications for U.S. relations with other nations and international organizations.





ADI 201039



Court stripping turns the cp—means no future use of CIL and plan’s unenforced.

Kubiak 5 (David, Project Censored award-winning journalist, “Introducing The Constitution Restoration Act,” Z Magazine, April 3, http://www.zmag.org/content/showarticle.cfm?SectionID=104&ItemID=7569]

In other words, the bill ensures that God's divine word (and our infallible leaders' interpretation thereof) will hereafter trump all our pathetic democratic notions about freedom, law and rights -- and our courts can't say a thing. This, of course, will take "In God We Trust" to an entirely new level, because soon He (and His personally anointed political elite) will be all the legal recourse we have left. This is not a joke, a test, or a fit of libertarian paranoia. The CRA already has 28 sponsors in the House and Senate, and a March 20 call to lead sponsor Sen. Richard Shelby's office assures us that "we have the votes for passage." This is a highly credible projection as Bill Moyers observes in his 3/24/05 "Welcome to Doomsday" piece in the New York Review of Books: "The corporate, political, and religious right's hammerlock... extends to the US Congress. Nearly half of its members before the election-231 legislators in all (more since the election)-are backed by the religious right... Forty-five senators and 186 members of the 108th Congress earned 80 to 100 percent approval ratings from the most influential Christian Right advocacy groups." This stunning bill and the movement behind it deserve immediate crash study on at least 3 different fronts. 1. Its hostile divorce of American jurisprudence from our hard-won secular history and international norms. To again quote the Conservative Caucus: "This important bill will restrict the jurisdiction of the U.S. Supreme Court and all lower federal courts to that permitted by the U.S. Constitution, including on the subject of the acknowledgement of God (as in the Roy Moore 10 Commandments issue); and it also restricts federal courts from recognizing the laws of foreign countries and international law [e.g., against torture, global warming, unjust wars, etc. - ed.] as the supreme law of our land." Re the last point, envision some doddering judges who still revere our Declaration of Independence's "decent respect to the opinions of mankind," and suppose they invoke in their rulings some international precepts from the UN's Universal Declaration of Human Rights, the Covenant on the Elimination of All Forms of Discrimination against Women or, God forbid, the Geneva Conventions. Well, under the CRA that would all be clearly illegal and, thank God, that's the last we'd ever hear from them.

http://www.zmag.org/content/showarticle.cfm?SectionID=104&ItemID=7569

ADI 201040


AFF: Extension – CP Court Stripping

No solvency – court stripping

Fyfe 6 (Alonzo, Human Cloning Foundation, “Opposing Unjust Laws,” September 28, http://atheistethicist.blogspot.com/2006_09_01_atheistethicist_archive.html)

Waiting for the courts to declare the law unconstitutional is one of the most foolish and reckless tendencies practiced among those who claim to be interested in defending the separation of church and state. Here is what will happen: There will be a series of trials as the case moves up the court system - a series of trials that will take years to complete. With each trial, if the judge should render a verdict opposed to the law, unjust religious groups will send out fundraising letters complaining about how 'liberal activists judges' are destroying the rights of believers to practice their faith. Tens to hundreds of millions of people will hear a message that the law is meant only to prevent governments from being intimidated from perfectly legitimate acts by the fear of a costly trial in which they might have to pay court costs. They will use these mailings to collect hundreds of millions of dollars that they will use to further spread their message to more people. They will also coach those people into voting for candidates who will promise to fill the courts with judges who understand that our rights come from God and that worshipping God in the public square is the only way to protect us from His wrath (hurricanes, terrorist attacks, and the like). Because of these political maneuverings, we have no reason to believe that the Supreme Court will, in fact, declare the law unconstitutional. In the amount of time it takes the case to make its way through the court, we might have a court filled with people who actually believe that local governments must be protected from the fear of citizens seeking the protection of their First Amendment rights. Okay, it does not make sense to use that anybody could believe such a thing. Yet, clearly, people who can believe the contradictions and absurdities that are to be found in most religious interpretations are not going to have trouble interpreting the First Amendment as saying, "Atheists shall not be permitted to impose their anti-God hatred on local governments by exploiting fear of expensive lawsuits." If the Supreme Court does declare the law unconstitutional, then the perpetrators of religious injustice will send out another set of mass mailings, collect a few hundred million dollars, that will be contributed to candidates who will make sure that those 'liberal activist judges' are replaced by people who understand the Constitution's true meaning. Even if the law is never reversed, society will be seeped in a doctrine that promotes vicious hatred of anybody who dares challenge a government statute that aims to establish a religion. We will live in a society where few citizens will be willing to tolerate the hatred and abuse that will be heaped upon anybody who dares stand up and say that governments shall not become tools for the Church to use as it sees fit.

Court stripping is likely – the Court’s reputation is toastNorton 6(Helen Norton--Professor of Law at the University of Maryland, 41 Wake Forest L. Rev. 1003, “Reshaping Federal Jurisdiction,” Lexis Nexis)

Not only are these efforts increasingly successful, they are likely to reemerge in future proposals to shape subject matter jurisdiction and thus the balance of judicial power. The House's passage of two separate court-stripping bills in the same Congress represents a high-water mark in the court-shaping movement, as does its passage of the Pledge Protection Act in successive Congresses. Indeed, some of the dynamics that helped thwart earlier court-stripping measures appear to have diminished or disappeared altogether. __n97__ In the past, for example, the courts - and especially the Supreme Court - may have survived congressional attack due to their comparatively strong public reputation. __n98__ Shifting perceptions of government institutions may weaken that shield, as one survey found that a majority of respondents agreed "that "judicial activism' [*1027] has reached the crisis stage, and that judges who ignore voters' values should be impeached. Nearly half agreed with a congressman who said judges are "arrogant, out-of-control and unaccountable.'" __n99__ Other recent polls also suggest a drop in public support for the courts, including the Supreme Court, at least in some quarters. __n100__ Changes in public opinion, accompanied by proponents' sheer political power, may encourage further jurisdictional realignment.

ADI 201041


AFF: Extension – CP Court Stripping

Court stripping is likely and common historically when courts overstep their bounds

Lau 8 (Terrance, Associate Professor at the University of Dayton, Associate Professor at the University of Dayton, Judicial Independence: A Call for Reform, Nevada Law Journal, 9 Nev. L.J. 79, fall 2008, Lexis)

After the Chase impeachment proved the futility of impeachment as a legislative tool to check the judiciary, attention in Congress turned to the use of jurisdiction as a means of controlling the courts. Attempts to strip the Court of its jurisdiction to hear cases are nothing new in American legal history. After Martin v. Hunter's Lessee, __n268__ for example, when the Court affirmed its authority to invalidate unconstitutional state laws, states' rights advocates attempted to strip the Court of its jurisdiction to review state laws altogether. __n269__ In the 1950's, Congress considered legislation to "remove certain internal security laws from the possibility of Supreme Court invalidation." __n270__ In the 1960's, proposals to preclude judicial review of obscenity laws were considered. __n271__ In the 1980's, there were a number of proposals that would have stripped courts of the power to hear cases on abortion __n272__ and school prayer. __n273__ More recently, the [*103] Antiterrorism and Effective Death Penalty Act of 1996, the Prison Litigation Reform Act, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 have all contained jurisdiction-stripping provisions. __n274__ Introduced but unenacted legislation seeks to prevent federal courts from hearing any case involving a federal officer's acknowledgement of God, __n275__ to prevent federal courts from considering international law, __n276__ the free exercise or establishment clause, __n277__ the right to privacy, __n278__ an equal protection challenge to marriage laws, __n279__ challenge to specific legislation, __n280__ challenges to state pornography laws, __n281__ and royalties under certain offshore oil and gas leases. __n282__ In one notable speech, Senator Jesse Helms said: "In anticipation of judicial usurpations of power, the framers of our Constitution wisely gave the Congress the authority, by a simple majority of both Houses, to check the Supreme Court by means of regulation of its appellate jurisdiction." __n283__ Even Chief Justice John Roberts, as a special assistant to Reagan's Attorney General, William French Smith, "provided a vigorous argument as to why it would be constitutional for Congress to enact a law that would strip the Supreme Court of jurisdiction over school prayer and busing cases." n284 The most well-known, and perhaps notorious, example of jurisdiction stripping, however, remains Ex parte McCardle. __n285__

Courts will be stripped

Chemerinsky 4 (Erwin, Professor at the Duke School of Law, “In Defense of Judicial Review: A Reply to Professor Kramer,” 92 Calif. L. Rev. 1013, July, Lexis))

A fourth meaning of popular constitutionalism, and one which is consistent with the third, is that the other branches of government should develop mechanisms to convey their disagreement with court decisions. Professor Kramer expressly endorses this and mentions such congressional techniques as stripping jurisdiction from the courts and cutting the budget of the judiciary as a sanction for objectionable decisions. n14 In other words, if Congress disagrees with controversial decisions, such as those concerning abortion or school prayer, Congress could preclude the courts from hearing such cases. In fact, Congress could enact a law that it knows is of dubious constitutionality, for example, prohibiting partial birth abortion, and include a provision prohibiting judicial review of the statute. Congress also could threaten the courts: if they acted in an unpopular way, they would be without funds.

ADI 201042


AFF: Extension – Court Stripping Turns Plenary Powers

Court stripping takes out judicial independenceACLU 01 [UPSETTING CHECKS AND BALANCES:CONGRESSIONAL HOSTILITY TOWARD THE COURTS IN TIMES OF CRISIS, http://www.aclu.org/FilesPDFs/ ACF47C9.pdf]

As a practical matter, court-stripping may be self-defeating. Such legislation is typically motivated by congressional anger toward the content of certain court rulings. But removing future jurisdiction over the issue may simply serve to lock in “bad” precedent – a conundrum even some critics of so-called activist judging have acknowledged. Former Judge Bork notes that: Some state courts would inevitably consider themselves bound by the federal precedents; others, no longer subject to review, might not. The best that Congress could hope for would be lack of uniformity. This is a far cry from amending the Constitution or even overruling a case. While it may seem preferable to some to lack uniformity on a particular issue rather than to have a repugnant uniform rule, the government could not easily bear many such cases and certainly could not long endure a complete lack of uniformity in federal law. Thus there are practical limitations on excessive use of the Exceptions Clause.165 More troublesome is that court-stripping defeats the spirit of the Constitution. The Framers took care to create an independent judiciary to safeguard individual liberty. Removing important issues from the purview of the courts, especially those concerning the rights of unpopular minorities, is a direct assault on these constitutional protections. By the same token, Congress does great harm to the integrity of the federal judiciary when it leaves issues before the courts, but attempts to manipulate how judges may remedy violations of constitutional or statutory rights. Even scholars who believe that the Constitution allows significant congressional control of federal jurisdiction generally agree it would be unwise to invoke it over any significant category of federal law or use it to achieve a desired substantive outcome.166 Thus Professor Gerald Gunther, writing at the time Congress was considering court-stripping bills in the early 1980s regarding abortion, busing and school prayer, concluded “I would urge the conscientious legislator to vote against the recent jurisdiction-stripping devices because they are unwise and violate the ‘spirit’ of the Constitution, even though they are, in my view, within the sheer legal authority of Congress.”167 Put another way, “[w]hat may be conceivable in theory would be devastating in practice to the real world system of checks and balances that has enabled our constitutional system to function for 200 years.”

ADI 201043


AFF: Double Bind

Court action requires outside enforcement – puts them in a double bind. Either the counterplan

O’Brien 3 (David, professor of Government and Foreign Affairs at the University of Virginia, 2003 (Storm Center: The Supreme Court in American Politics Sixth Edition pg 314)

Denied the power of the sword or the purse, the Court must cultivate its institutional prestige. The power of the Court lies in the persuasiveness of its rulings and ultimately rests with other political institutions and public opinion. As an independent force, the Court has no chance to resolve great issues of public policy. Dred Scott v. Sandford (i857) and Brown v. Board of Education (i954) illustrate the limitations of Supreme Court policy-making. The "great folly," as Senator Henry Cabot Lodge characterized Dred Scott, was not the Court's interpretation of the Constitution or the unpersuasive moral position that blacks were not persons under the Constitution. Rather, "the attempt of the Court to settle the slavery question by judicial decision was simple madness." As Lodge explained:Slavery involved not only the great moral issue of the right of one man to hold another in bondage and to buy and sell him but it involved also the foundations of a social fabric covering half the country and causedmen to feel so deeply that it finally brought them beyond the question of nullification to a point where the life of the Union was at stake and a decision could only be reached by war.A hundred years later, political struggles within the country and, notably, presidential and congressional leadership in enforcing the Court's school desegregation ruling saved the moral appeal of Brown from becoming another "great folly."

Courts issue decisions without teeth because they know they can’t enforce them

Smith 93 (Christopher, Associate Professor of Criminal Justice at Michigan State University, Courts, Politics and the Judicial Process p. 296).

Because the judicial branch is a component of the political system rather than a separate entity, judicial policy-making is affected by interactions with other branches of government. When courts issue decisions, other political entities react, especially if judicial decisions conflict with the policy goals of other political institutions. Judges are cognizant of the power of other governmental and political actors, and so judicial decisions may be limited by anticipation of external reactions.

ADI 201044


AFF: Courts Link to Politics

Court action doesn’t shield politics

Harrison 5 (Lindsay, Lecturer in Law, University of Miami Law School and Stephen I. Vladeck, Associate Professor of Law at the University Of Miami School Of Law, is a national expert in national security law and the Detention Power., Does the Court Act as "Political Cover" for the Other Branches? November 18, 2005 legaldebate.blogspot.com)

While the Supreme Court may have historically been able to act as political cover for the President and/or Congress, that is not true in a world post-Bush v . Gore. The Court is seen today as a politicized body, and especially now that we are in the era of the Roberts Court, with a Chief Justice hand picked by the President and approved by the Congress, it is highly unlikely that Court action will not, at least to some extent, be blamed on and/or credited to the President and Congress. The Court can still get away with a lot more than the elected branches since people don't understand the technicalities of legal doctrine like they understand the actions of the elected branches; this is, in part, because the media does such a poor job of covering legal news. Nevertheless, it is preposterous to argue that the Court is entirely insulated from politics, and equally preposterous to argue that Bush and the Congress would not receive at least a large portion of the blame for a Court ruling that, for whatever reason, received the attention of the public.

Controversial decisions spark political repurcussions

Friedman 05 [Jacob D., Professor of Law, NYU “The Politics of Judicial Review,” Texas Law Review, december]

[*269] Only recently - sparked, as is typically the case, by a spate of contentious Supreme Court decisions - have many begun to see that constitutional judging cannot be insulated from "ordinary" politics in quite the way theory demands. 60 Recognition of the relationship between law and politics is on the rise. 61 Still, it is apparent that normative scholars remain uncomfortable with the implications of positive scholarship, even as they take notice. Legal theorists indicate their discomfort by moving quickly from positive assertions about the relationship between law and politics to conclusions that positive scholars would suggest simply are implausible. 62 To take a frequent example, some normative scholars look to the political branches to correct errant judges 63 without considering whether there is any reason to think the political branches are likely to do so at present. 64

Court decisions historically have sparked partisan battles


This Part examines how the necessity of separating law from politics became a central tenet of constitutional theory. By explaining how we have arrived at the present, history opens space for understanding our world differently. 37 What began as a rhetorical response by opponents of particular Supreme Court decisions has become a fixture of theories of judicial review. This instinct is not wrong: There clearly is a longstanding and central societal belief that law and politics are not the same and should not be considered as such. At the same time, however, history suggests that a strict separation of law and politics is - and always has been - implausible. Throughout American history, views about judicial review have been shaped more by political responses to judicial decisions in heated controversies than by any jurisprudential theory of what it means to live under a constitution. This was true during the first great clash of will between the courts and the "political" branches following the election of 1800. All the famous partisan skirmishes of that era - the Marbury litigation, the repeal of the Circuit Judges Act, and the impeachment of Samuel Chase - were motivated by the Federalist party's withdrawal to the judiciary and the immediate political challenge this withdrawal posed to Republican policy. 38 Nonetheless, these disputes played out as debates about judicial independence, popular accountability, and the separation of politics and law. 39

ADI 201045


AFF: Courts Link to Politics

The court isn’t separated from politics – their arguments ignore reality


The thesis of this Article is that normative constitutional theory about judicial review will remain impoverished until it fully embraces the positive project. In pursuing the ideal, normative theorists typically sideline the sort of political influences discussed here. 15 For example, in writing about what [*260] might be normative theory's most famous constitutional judge, Hercules, Ronald Dworkin recognizes the very practical problems the real-world judge faces, such as the need to obtain the agreement of other colleagues on the Supreme Court or to ensure the implementation of judicial decrees by other governmental actors. 16 Yet, Dworkin expressly puts these problems to one side so that Hercules will be "free to concentrate on the issues of principle." 17 Granting considerations of principle all the due they properly are owed, it nonetheless is the case that many of the institutional constraints Hercules faces are fixed aspects of our constitutional system that Hercules himself has no choice but to heed. The Constitution does grant Hercules a certain degree of independence, 18 but it also embeds him in politics. This is no accident: The Constitution represents a deliberate balance between, on the one hand, separation and independence of the branches and, on the other, accountability and the idea of checks and balances. 19 Hamilton, the nation's first advocate for judicial review, correctly understood that the judiciary is "the least dangerous" branch, readily susceptible to attacks from the other branches and dependent on the "executive arm even for the efficacy of its judgments." 20 To the extent the judiciary appears more powerful today than it did in Hamilton's time, this itself is a function of broad popular support for judicial review - a political constituency of the most profound kind. 21 That Hercules is a judge and not just any other political actor is a fact of enormous significance; still, Hercules must do his judging in a political world. Although he enjoys life tenure, he was appointed through a political [*261] process, and his confirmation did not scrub him of the ideology he possessed before he ascended to the bench. Further, Hercules cannot act alone. He requires the consent of his colleagues, who may not always agree with him, making compromise of his views a necessity. 22 Even when his colleagues agree, Hercules' court was not given the means to enforce its own decrees. That court must obtain compliance from political actors, 23 as well as from the lower courts that are subservient to it, 24 again necessitating some calculation by Hercules about how those institutions will respond. Ultimately, Hercules' power rests on the willingness of the public, and the political actors accountable to it, to respect his independence and the decrees of his court. Any account of Hercules' proper role falls short if it does not take account of these hard-wired constraints. 25 "Is does not imply ought, but ought implies can." 26

ADI 201046


AFF: Permutation – Shielding

Politics isn’t a net benefit – acting together provides political cover – they’ll say their hands were tied

Garrett and Stutz 05 [Robert T., and Terrence, Dallas Morning News Staff “Justices to decide if overhaul needed after bills fail in Legislature,” August 19, 2005, http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/legislature/schoolfinance/stories/082005dntexsession.8bd31b4a.html]

That could foreshadow the court's response to a chief argument by state attorneys – that the court should butt out and leave school finance to the Legislature. A court finding against the state would put the ball back in the hands of lawmakers, who have tended to put off dealing with problems in schools, prisons and mental health facilities until state or federal judges forced them to act. "It's the classic political response to problems they don't want to deal with," said Maurice Dyson, a school finance expert and assistant law professor at Southern Methodist University. "There is no better political cover than to have a court rule that something must be done, which allows politicians to say their hands are tied."

Court action provides cover

Heise, 00 [Michael, Professor of Law, Case Western Reserve University “Education and the Constitution: Shaping each other and the next century: Preliminary Thoughts on the Virtues of Passive Dialogue,” Akron law Review, 34 Akron L. Rev. 73]

Professor Paul Tractenberg, long active in the New Jersey school finance litigation, 81 identifies institutional credibility as an important practical concern for courts. Tractenberg is acutely aware of the institutional stakes involved in active judicial participation, particularly within the school finance setting. On the one hand he reasons that an active judicial posture might provide political cover for reluctant legislators. After all, politically accountable legislators could point to the state supreme court and suggest that the justices left them with little choice but to increase school spending. 82 Such a calculation, Professor Tractenberg correctly notes, risks [*87] depleting the court's limited and valuable "political capital." 83 He goes on to note that: There are only so many times that the court [the New Jersey Supreme Court] can be portrayed as the dictatorial villain forcing the State to do, in the name of a constitutional mandate, what a majority of its citizens disfavor before judicial credibility is undermined. 84

Even if the courts are just thinking about acting it still provides cover

Grant 3 ( [Douglas L., Professor, William S. Boyd School of Law, UNLV “Interstate Water Allocation Compacts,” University of Colorado Law Review, winter]

Just as states would have negotiated few, if any, boundary and water compacts if the matter were left to the pleasure of the state in possession, a state advantaged by an old water allocation compact negotiated under different circumstances would have little, if any, incentive to renegotiate if left to its pleasure. But the advantaged state's situation changes dramatically if the Supreme Court would allow the dissatisfied state to withdraw from the compact and then apply the doctrine of equitable apportionment. Rather than face highly unpredictable apportionment litigation, the state advantaged by the old compact should then have a serious interest in renegotiating the compact. Furthermore, the unpredictability of apportionment litigation can provide needed political cover for state officials engaged in renegotiating a compact. This was illustrated by the recent negotiated settlement of a claim by Nebraska against [*179] Wyoming for violating a Supreme Court decree equitably apportioning the North Platte River. The Wyoming governor explained to Wyoming citizens why he approved the settlement by saying, in part, "while Wyoming's case was strong and I am confident that Wyoming's legal team would have put forward the very best defense possible to Nebraska' claims, there is always uncertainty in litigation." 405

ADI 201047


AFF: Permutation – Shielding

Court action provides cover for legislators to act on politically controversial issues

Heise 00 (Michael, Professor of Law, Case Western Reserve University, “Education and the Constitution: Shaping each other and the nextcentury: Preliminary Thoughts on the Virtues of Passive Dialogue,” Akron law Review, 34 Akron L. Rev. 73)

Second, active judicial participation in the school finance area might indirectly exacerbate one problem that it seeks to solve. One problem that arises in the school finance context involves legislative inertia. The question is how courts should approach and respond to instances of legislative inertia, assuming that such a condition is easily recognizable. By seeking to address an issue by actively and directly [*106] engaging lawmakers, courts may ultimately "solve" one inertia problem, but they will do so in a manner that will fuel additional inertia problems in the future. Specifically, active judicial participation often provides political "cover" for lawmakers eager to avoid tough -- and possibly divisive -- political questions that sometimes occupy the center of the political process. Once lawmakers see that judges are willing to inject themselves into political debates, some lawmakers might be induced to become more, rather than less, complacent. Moreover, once the judiciary becomes engaged with a political problem, it becomes part of that problem. To the extent that such problems might not go away anytime soon or, for that matter, worsen, the judiciary's institutional credibility could become an issue.

Judicial action sparks congressional action – without a political faoutBlood 99 (Christopher G., Thomas Jefferson School of Law JD – UC-San Diego “The Eroded Power of the Press and the Need to Apply Separation of Powers Principles,” Journal of Law & Politics, fall]

Nor is inter-branch facilitation without precedent. The executive branch makes its high-level nominees available to the legislative branch to facilitate the "advice and consent" role that Congress plays. These nominees undergo intense congressional scrutiny, sometimes only to be rejected, and yet the executive branch has made not only the nominee available but also their own investigative reports in order to assist Congress in carrying out one of their constitutional functions. 163 Similarly, the judicial branch makes indirect recommendations to Congress as to needed legislation, 164 thereby facilitating its job. In so doing, the Court's words can give political cover to the legislative branch, assisting that coordinate branch in the carrying out of its functions. The point is that nothing in the separation of powers doctrine prohibits one branch from assisting a coordinate branch in fulfilling its constitutional role when the needed assistance is merely peripheral to the assisted branch's role. So, when a coordinate branch must restrict access to a government function of great public interest, solely for security reasons, the press branch should be allowed to carry out its function with but minimal restrictions. Certainly, if either the legislative or judicial branches needed access to fulfill their constitutional function, that is the outcome that would result.

ADI 201048


AFF: No Solvency – No Authority

The court has no authority to rule on visa

Charles 10 (Patrick, “The Plenary Power Doctrine and the Constitutionality of Ideological Exclusions: A Historical Perspective,” Texas Review of Law & Politics, Vol. 15, 2010 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1618976)

The history shows that the authority to admit, expel, and exclude foreigners is a political matter that is solely subject to the determination of the political branches as a means of self-preservation—an interpretation of the Constitution that the Supreme Court has always understood.326 The fact that citizens, advocacy groups, or attorneys may personally believe that certain foreigners are being denied First Amendment freedoms by being excluded on association or ideological grounds is irrelevant. It is a well-established tenet of the law of nations that the danger or threat foreigners pose is a determination to be made by the political branches of government based upon such factors as the doctrine of allegiance, and not by a court absent express authority through statute or treaty.327 As Sir Francis Bacon states, even an alien friend “may be an Enemy,” therefore to this “person the Law allotteth…[a] benefit” that is “transitory” at the discretion of the sovereign government.328 At the Constitutional Convention, Roger Sherman made a similar observation when he stated that if the “United States have not invited [the] foreigners” the political branches can “make any discriminations [it] may judge requisite.”3

Court dictating immigration policy doesn’t solve – laundry list

Feere 9, Legal Policy Analyst at the Center for Immigration Studies(Jon, “Plenary Power: Should Judges Control U.S. Immigration Policy?” Center for Immigration Studies, February, http://www.cis.org/plenarypower)

Courts have articulated numerous justifications for keeping immigration regulation largely within the confines of the political branches. Some of those justifications include:Political Question Doctrine: Federal courts generally refuse to hear cases that involve policy questions best resolved by elected officials. The logic is that elected officials are more accountable to the public and can best represent the public’s interests. Elected officials are also more likely to understand the political implications of their decisions. The connection between immigration and foreign affairs, national security, and similar policy-related fields has often resulted in courts invoking this doctrine.Lack of Capacity: Courts are designed to adjudicate legal issues and simply lack the institutional capacity to make political judgments. Immigration law is inherently political because it’s created entirely within the political branches. Any judicial invalidation of immigration statutes almost always requires some amount of “legislating from the bench” and, even still, courts simply do not have the ability to remedy the potentially far-reaching political, social, and economic effects of a ruling that goes against statutory law.4

Uniformity: The specifics of immigration (how many, who gets admitted, who gets deported, etc.) are regulated by federal-level political-branch policies. If lower courts become too involved in this process and craft unique statutory interpretations, there is a strong likelihood of an inconsistent immigration system that varies from one jurisdiction to another. This would arguably be in direct violation of the Constitution, which requires a “uniform rule of naturalization.” Such a result would make it difficult for citizens to change the system if so desired. Aliens would also find it difficult to navigate the system. Efficiency: From a resource perspective, a court-run immigration system would be problematic. Judges are already grappling with the ever-escalating onslaught of immigration cases; reducing the authority of the political branches to easily remove or exclude aliens would obviously increase the caseload.Immigration Enforcement Is Not Punishment: The Supreme Court has held that due process protections apply when an individual faces punishment in the form of deprivation of life, liberty, or property, but that an alien being returned to his homeland or denied entry to the United States is not being punished and therefore cannot expect the courts to grant him these protections. Deportation and exclusion is simply an administrative procedure.History: The great weight of legal authority is in support of judicial deference to the political branches on the issue of immigration. The concept of stare decisis, which stands for the principle that past holdings should be respected by the courts, ensures that the plenary power doctrine cannot easily be abandoned.



http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1618976

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1618976

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1618976#%23

ADI 201049


AFF: No Solvency – No Authority

The courts will never get a test case – they can’t see an immigration case unless its granted by the Attorney general

Slocum 7 (Brian, Assistant Professor of Law, Florida Coastal School of Law. J.D. @ Harvard Law School, “Reforming U.S. Immigration Policy: Courts vs. The Political Branches: Immigration "Reform" and The Battle for the Future of Immigration Law,” 5 Geo. J.L. & Pub. Pol'y 509, Lexis)

The judiciary’s efforts in undermining the reforms of the political branches have been more successful than many commentators have recognized. Nevertheless, the judiciary’s efforts have been limited by its relatively conservative jurisprudential approach to the reforms. The administrative adjudication process designed by the executive branch remains in place because the judiciary has not invalidated any aspect of it on constitutional grounds.73 Similarly, the judiciary’s approach to the reforms of judicial review has been subject to the inherent limitations of undermining reform through non-constitutional decisions. A narrow statutory interpretation, even one produced by applying a canon of statutory interpretation, is only permissible if the narrow interpretation is at least plausible. 74 Because the judiciary has limited itself to statutory, rather than constitutional holdings, there is no right to judicial review in many important immigration cases. Often, for example, the contested issue will not be whether the alien is removable (on the basis of a criminal conviction, for example) but whether the alien should be granted a waiver or relief from removal, which almost always requires a favorable exercise of discretion by the Attorney General.75 In order to receive the relief termed “cancellation of removal,” for example, the alien must establish both that she is eligible for the relief and that she merits a favorable exercise of discretion.76 Under the REAL ID Act, a question of whether the Attorney General correctly interpreted a statutory requirement for relief is reviewable by courts as a legal question.77 As courts have correctly recognized, however, the current judicial review provision, 8 U.S.C. § 1252(a)(2)(B), provides that the ultimate discretionary decision whether to grant relief from deportation is not reviewable.78 Considering the lack of independence in the administrative adjudication process, the vesting of complete and unreviewable discretion in the Attorney General regarding whether an alien should be allowed to reside in this country has understandably troubled immigration scholars.

Congress would never uphold Supreme court decisions – history proves

Slocum 7 (Brian, Assistant Professor of Law, Florida Coastal School of Law. J.D. @ Harvard Law School, “Reforming U.S. Immigration Policy: Courts vs. The Political Branches: Immigration "Reform" and The Battle for the Future of Immigration Law,” 5 Geo. J.L. & Pub. Pol'y 509, Lexis)

Both a decision striking down aspects of the administrative adjudication process on due process grounds and a decision requiring habeas corpus review of discretionary determinations would be consistent with the plenary power doctrine. The government does not receive the benefit of the doctrine in cases involving due process or a claim that a statute violates a structural provision of the Constitution rather than an amendment to the Constitution.83 In addition, such decisions would be relatively modest because they would allow Congress to decide substantive immigration issues, and would thus not interfere with the foreign affairs concerns underlying the plenary power doctrine.84 Of course, the judiciary would not need to make bold constitutional decisions if the political branches enacted reforms that were designed to improve the immigration system.85 As other immigration commentators have argued, Congress should reform judicial review and provide for judicial review of all aspects of a final order of deportation.86 Unfortunately, if recent history is any indication, Congress’s efforts at reform of judicial review are not likely to involve attempts to improve the judicial review process for aliens. Indeed, recent legislative proposals have included provisions that would consolidate immigration appeals in the U.S. Court of Appeals for the Federal Circuit or would provide for a screening process under which a single federal appellate judge could deny a petition for review.87

ADI 201050


AFF: No Solvency – Rollback

No Solvency – Congress will pre-emptO’Brien 3, professor of Government and Foreign Affairs at the University of Virginia, David, Storm Center: The Supreme Court in American Politics Sixth Edition pg 359)

Even more direct attacks appear possible. Under Article III, Congress is authorized "to make exceptions" to the appellate jurisdiction of the Court. That authorization has been viewed as a way of denying the Court review of certain kinds of cases. But Congress succeeded only once, with the 1868 repeal of jurisdiction over writs of habeas corpus, which the Court upheld in Ex pane McCardle (1869).

ADI 201051


AFF: International Law Bad – Democracy

International law is profoundly anti-democratic; it institutionalizes a worldview that denies democratic decision-making. None of their defenses of I-law account for itRubenfeld, 04, Robert R. Slaughter Professor, Yale Law School, Jed, December, New York University Law Review, 79 N.Y.U.L. Rev. 1971, p. 2017-2019

International law is antidemocratic . The existing international governance organizations are famous for their undemocratic opacity, remoteness from popular or representative politics, elitism, and unaccountability. 128 [*2018] International governance institutions and their officers tend to be bureaucratic, diplomatic, technocratic - everything but democratic. That is why internationalization, as the sociologist and former German member of parliament Sir Ralf Dahrendorf puts it, "almost invariably means a loss of democracy." 129 In the last ten years or so, it became common for internationalists to reply to this problem by pointing to the growing influence of non-governmental organizations (NGO) in international law circles, as if these equally unaccountable, self-appointed, unrepresentative NGOs somehow exemplified world public opinion, and as if the antidemocratic nature of international governance were a kind of small accountability hole that these NGOs could plug. 130 This invocation of NGOs as world democratizers served only to highlight how out of touch many internationalists are with what would be actually necessary to democratize international law. The brute fact is that there is no world democratic polity today; the largest entities in which democracy exists are nation-states. As a result, international law can and does frequently conflict with democracy. The problem is not only institutional - a matter of making international bodies more "transparent" or "accountable." The problem is also ideological. There is an antidemocratic worldview built into the fundamental premises of a good deal of international law thought and [*2019] practice. This worldview finds its clearest expression in the international human rights discourse, where the views of democratic majorities in a given country or, indeed, throughout the entire world, will be said to be "simply irrelevant" to the validity and authority of international law: The international lawyer [holds] that there are certain things a society cannot choose to do to itself. Where ... human rights are concerned, international law looks past the fiction which underlies the social contract metaphor and prescribes rules regarding individual citizens. The views of political majorities are simply irrelevant to the validity of such rules. Indeed, these rules are only meaningful as counter-majoritarian rights ... . 131 Democracy does not have much standing here. Consider how this view would regard the controversy over the death penalty, which the "international community" condemns as a violation of human rights law. Actual public opinion in Europe, however, tends to favor capital punishment, in some countries at about the same rate as in the United States. 132 For the "international lawyer," however, this fact is "simply irrelevant." Because the "social contract" is a "fiction" - which means, presumably, that not every individual really consents to the state's authority - "international law" is somehow entitled to step into the breach and, where "human rights are concerned," to "prescribe [the] rules.”

Global democracy is key to prevent war and extinctionDiamond, 95, senior fellow at the Hoover Institution, Larry, December,Promoting Democracy in the 1990s, http://wwics.si.edu/subsites/ccpdc/pubs/di/1.htm

OTHER THREATS This hardly exhausts the lists of threats to our security and well-being in the coming years and decades. In the former Yugoslavia nationalist aggression tears at the stability of Europe and could easily spread. The flow of illegal drugs intensifies through increasingly powerful international crime syndicates that have made common cause with authoritarian regimes and have utterly corrupted the institutions of tenuous, democratic ones. Nuclear, chemical, and biological weapons continue to proliferate. The very source of life on Earth, the global ecosystem, appears increasingly endangered. Most of these new and unconventional threats to security are associated with or aggravated by the weakness or absence of democracy, with its provisions for legality, accountability, popular sovereignty, and openness . LESSONS OF THE TWENTIETH CENTURY The experience of this century offers important lessons. Countries that govern themselves in a truly democratic fashion do not go to war with one another. They do not aggress against their neighbors to aggrandize themselves or glorify their leaders. Democratic governments do not ethnically "cleanse" their own populations, and they are much less likely to face ethnic insurgency. Democracies do not sponsor terrorism against one another. They do not build weapons of mass destruction to use on or to threaten one another. Democratic countries form more reliable, open, and enduring trading partnerships. In the long run they offer better and more stable climates for investment. They are more environmentally responsible because they must answer to their own citizens, who organize to protest the destruction of their environments. They are better bets to honor international treaties since they value legal obligations and because their openness makes it much more difficult to breach agreements in secret. Precisely because, within their own borders, they respect competition, civil liberties, property rights, and the rule of law, democracies are the only reliable foundation on which a new world order of international security and prosperity can be built.

http://web.lexis-nexis.com/universe/document?_m=63af8f42205216e1b5158b240621abab&_docnum=1&wchp=dGLbVzW-zSkVb&_md5=2327d10325fcdf2d27e0de2bfa0ec3bf#n132





ADI 201052


AFF: International Law Bad – Terrorism

Reliance on CIL would restrict the ability of the President to have complete control the military – results in conflicts with our national security Paulsen 9 (Michael Stokes, Distinguished University Chair and Prof of Law @ the University of St. Thomas School of Law. “The Constitutional Power to Interpret International Law” The Yale Law Journal)

The arguments against reliance on customary international law as a source of restriction on U.S. military action with respect to members of al Qaeda and the Taliban are almost literally overwhelming. No responsible U.S. lawyer would maintain the contrary, though as the Yoo-Delahunty Memorandum faithfully records, some international law scholars nonetheless have suggested in academic writing that international law forms part of the law which the President is obliged to take care to faithfully execute, under Article II, and that the President cannot act contrary to customary international law unless he believes its commands to be unconstitutional.188 And, of course, attacks on the lawfulness of President Bush’s actions with respect to al Qaeda and the Taliban (and attacks on the legal analysis of this memorandum) have continued to invoke general international law norms in such fashion. The final collection of points in the Yoo-Delahunty Memorandum concern the President’s exclusive constitutional authority as Commander in Chief and the relationship of that power both to international law and to domestic statutes. First, to read international law treaties (such as the provisions of the Third Geneva Convention), statutes of Congress (like the War Crimes Act), or customary international law as restricting presidential authority to direct the conduct of U.S. Armed Forces in the field would be, in the words of the memorandum, “a possible infringement on presidential discretion to direct the military.”189 Such a construction should be avoided, the memorandum concluded (citing well-established principles of statutory and treaty construction190), unless congressional intent to pose such a possible conflict is clear.

ADI 201053


AFF: International Law Bad – SOP

Courts ruling on international law violates separation of powers because it creates a law that Congress has to abide by without consent Kochan 3 (Donald J., Visiting Assistant Prof of Law @ George Mason University School of Law, “Domest Courts and Growing NGO Investment in International Law: At What Cost and Consequence to Democracy?”) http://library.findlaw.com/2003/Jan/1/247344.html

Many of the documents upon which courts are relying to identify customary international law and which NGOs are using in court to attempt to establish liability have not been acknowledged as binding let alone passed as law by Congress. As James Madison articulated, "[N]o foreign law should be a standard farther than is expressly adopted."5 For example, using two Second Circuit decisions – Filartiga6 and Kadic7 – as illustrations, each court looked to various international declarations and resolutions, including the Universal Declaration on Human Rights, to interprete the scope of the "law of nations" under the ATS. Such references create two problems. First, many of the sources relied, or at least partially relied, upon to determine a controlling rule of international law have never been ratified by Congress. Worse yet, Congress considered these declarations and resolutions and specifically chose not to accept them as binding authority. This poses serious questions about the legitimacy of their use as sources of law. In Filartiga, [T]he Second Circuit alluded to certain international treaties on human rights, including the American Convention on Human Rights, the International Covenant on Civil and Political Rights, and the European Convention for the Protection of Human Rights and Fundamental Freedoms. The first two of these were among the four treaties on human rights submitted by President Carter to the Senate for its advice and consent in 1978 [and the United States was not involved in the third]. Neither in the court's opinion nor in the amicus brief filed in the Filartiga case jointly by the Departments of Justice and State, was reference made to the reservations, declarations, understandings, and statements that President Carter recommended that the Senate include in its resolution of advice and consent. The effect of these qualifications of the two treaties would be to render them non-self-executing for the United States, requiring implementing legislation to become effective as law in the United States.8 The Filartiga court did not even discuss or recognize either Congress's failure to ratify these documents or the affirmative and explicit concerns voiced by both Congress and the President in relation to the content of these documents. Yet it seems clear, especially in light of Congress's power to define offenses against the law of nations, that these sentiments should restrict thecourts' reliance upon such documents as an authoritative statement of the law.9 Congress's actions on the International Covenant on Civil and Political Rights,10 the American Convention on Human Rights, or on the Universal Declaration of Human Rights are not isolated situations. In fact, Congress has failed to ratify the vast majority of human rights treaties sponsored by the United Nations.11 This record indicates a general unwillingness on the part of the United States to recognize broad principles of human rights as controlling legal authority.12 For the courts to ignore this reality and insist that these documents form a foundation for ascertaining the "law of nations" component of the ATS is to harm Congress in two ways. First, it ignores Congress's power and prerogative to refrain from codifying certain principles or norms into U.S. law. Second, it restricts congressional power to legislate in a manner contrary to these principles or norms. By proclaiming that this principle or norm is universal and binding upon allstates (or, in the case of Kadic, all states and some individuals), the court is stating that an obligation Congress has been specifically unwilling to accept will now bind the United States and its Congress.

http://library.findlaw.com/2003/Jan/1/247344.html

ADI 201054


AFF: International Law Bad – Constitution

Constitution comes before international law – there is no precedent to uphold Paulsen 9 (Michael Stokes, Distinguished University Chair and Prof of Law @ the University of St. Thomas School of Law. “The Constitutional Power to Interpret International Law” The Yale Law Journal)

My thesis in this Essay is a straightforward one and, from the perspective of basic postulates of U.S. constitutional law, should be an obvious one: for the United States, the Constitution is supreme over international law. International law, to the extent it issues determinate commands or obligations in conflict with the U.S. Constitution, is unconstitutional. Where there exists a conflict between the U.S. Constitution’s assignments of rights, powers, and duties, and the obligations of international law, U.S. government officials must, as a matter of legal obligation, side with the Constitution and against international law, because the Constitution, and not international law, is what they have sworn to uphold. As a matter of domestic constitutional law, U.S. law always prevails over inconsistent international law.

The impact is extinctionHenkin, 88, Professor of Law at Columbia (Louis, Atlantic Community Qtly, Spring)

Lawyers, even constitutional lawyers, argue “technically,” with references to text and principles of construction, drawing lines, and insisting on sharp distinctions. Such discussion sometimes seems ludicrous when it addresses issues of life and death and Armaggedon. But behind the words of the Constitution and the technicalities of constitutional construction lie the basic values of the United States–limited government even at the cost of inefficiency; safeguards against autarchy and oligarchy; democratic values represented differently in the presidency and in Congress, as well as in the intelligent participation and consent of the governed. In the nuclear age the technicalities of constitutionalism and of constitutional jurisprudence safeguard also the values and concerns of civilized people committed to human survival.

ADI 201055


AFF: Plenary Powers Good – Leadership

Only a strong, active Congress can garner the public support essential for US global leadership

Zoellick 00, former Deputy Secretary of State, Robert, “Congress and the Making of US Foreign Policy,” Survival, Winter, p. 23)

Today, America's leaders must garner public support for a redirected US role in the world. The task is not just to rise to an immediate challenge or counter a specific threat. The US has a perpetual foreign-policy mission that must be exercised in many quarters of the globe, every day, in countless ways. This mission necessitates the complex management of alliances and coalitions. It requires overhauling old institutions to perform new tasks. As part of a democracy and a republic, it is inevitable--indeed vital--that the US Congress be involved in deciding these questions of strategy, direction, commitment, and allocation of resources. Without Congressional support, the Executive cannot sustain long-term policies. Engagement of the Congress is also a key step in drawing in the public.

ADI 201056


AFF: Plenary Powers Good – Human Rights

Strong Congressional power is essential in restraining executive actions that threaten human rights protections globally and the civil liberties of US citizens

Fuerth 04, research professor of international affairs at the George Washington University, Leon, May 20, Financial Times, http://www.forwardengagement.org/index.php?option=com_content&task=view&id=17&Itemid=46)

The extreme abuses of prisoners in Iraq were no mere anomaly. They were the predictable consequence of the unchecked exercise of power, beginning not with military prison guards or intelligence contractors but at the highest levels of the US government. Following the terrorist attacks of September 11 2001, the administration created a space where neither the law of the land nor the law of nations operates. This is a region where only the will of the president holds sway, as elaborated by the attorney-general. It is a domain where the power of the executive is not subject to effective monitoring or to legal intervention. Under this system, the good name of US soldiers and of the nation has been entrusted to people who can invent the rules as they go along. That is one reason why legitimate questions are being posed about whether the practices used in Iraq's prisons were based on the earlier treatment of detainees in Afghanistan or at Guantanamo Bay. It is a basic principle of leadership that responsibility must be linked inseparably to authority. Even if those at the bottom of the chain of command acted entirely on their own, responsibility for their actions does not end with them, but extends upwards to their superiors. If it turns out that their superiors let it be known, by word or gesture, that they sanctioned this behaviour, then they, too, are complicit. Moreover, accountability cannot stop even with the military leadership or the intelligence managers. It continues on, inexorably, to those at much higher levels who are responsible for establishing the framework within which these events occurred, even if they were totally unaware of them until recently. What has happened in Iraq took place according to principles that are toxic for democracies. The doctrines of executive authority propounded by the Bush administration endanger not only the human rights of foreigners, but also the civil liberties of Americans. Remember that if the Supreme Court rules in favour of the administration in the case of Jose Padilla, detained on suspicion of plotting with al-Qaeda, it will mean that American citizens as well as foreigners can be locked away beyond the reach of US justice. The executive branch is operating at or beyond its constitutional limits, without effective counteraction by either of the other two branches of government. Our federal judiciary is increasingly beholden to the conservative philosophy of successive Republican administrations. Congress, in fact, is potentially more effective than the courts because it has far more flexible powers for engaging the administration in point-by-point oversight. But Congress is much weakened as the result of a long series of retreats. Members of Congress who decry the loss of their exclusive constitutional power to declare war must remember that it is Congress that let this power slide away. Members of Congress who believe that the institution is being railroaded into hasty action, as it was in the case of the Patriot Act, must acknowledge that they agreed to the voting procedures that allowed this to happen. Members of Congress who deplore flaws in the US national intelligence system need to recognise that they had the authority to investigate before rather than after the nation suffered the consequences. And members of Congress of both parties, who are now angry that they were the last to know what was going on in Iraq, must realise that this negligent treatment by the executive is just the latest episode in an abusive relationship that Congress itself has helped enable. Repairing that relationship is something only Congress can do. It must effectively use the power of the purse as a choke-chain. It must demand timely and adequate information from the executive, so as to make possible vigorous oversight. It must not allow the executive to create regions in which its use of public resources cannot be challenged by those who appropriate them. Only Congress is in a position to fill the constitutional void that has been created by an administration eager to expand its powers, and a judiciary unwilling to challenge them. Congress must use the bipartisan anger its members now feel as the starting point for urgently needed bipartisan action to restore the balance of forces in our government.

ADI 201057


AFF: Plenary Powers Good – Tyranny

Ending plenary powers establishes a tyrannical judiciary

Feere 9, Legal Policy Analyst at the Center for Immigration Studies (Jon, “Plenary Power: Should Judges Control U.S. Immigration Policy?” Center for Immigration Studies, February, http://www.cis.org/plenarypower)

This attempt at erasing the plenary power must not go unaddressed. Without the plenary power doctrine, the judicial branch — rather than elected members of the political branches — would be in control of much of the nation’s immigration system as courts apply constitutional or “constitutional-like” standards to all exclusion and deportation cases. Theoretically, the ability of the political branches to determine who should be welcomed to our shores, who should stay, and who should go could be almost completely abolished in favor of a judge-regulated immigration system. Immigration policy decisions would be less likely to be shaped through the political process and would therefore lessen the power of the electorate to control the nation’s future and to decide who we are as a nation and who we will be. Furthermore, detailed political considerations appropriate to expert agency officials may not be adequately considered by judges who are generally without the requisite immigration expertise. This is good for neither citizens nor aliens. Fortunately, the plenary power doctrine rests on a solid foundation and will remain strong, provided that the political branches steadfastly rebuff any attempts to weaken it.


ADI 201058


AFF: AT: International Law Good – General

( ) It’s impossible to quantify the strength of international rights norms – means there’s no way to assess the impact of their advantage Douglass Cassel, Director of the Center for International Human Rights at Northwestern University School of Law, Spring 2001, Chicago Journal of International Law, 2 Chi. J. Int'l L. 121, p. 131

Quantifying the ultimate benefit for rights protection of all these interacting processes, or even demonstrating a clear qualitative impact, would require an enormously sophisticated methodology, coupled with a herculean effort to gather a range of data, much of which may not exist or may not be reliable. Perhaps some day such an ambitious research agenda will be attempted. In the meantime, judgment, based on experience, and tested for plausibility against the leading international relations-international law theories, is the best guide for policy.

( ) Lack of an established framework for adjudicating international law means judges will make random and unpredictable decisions applying it – they can’t establish a coherent precedentErnesto J. Sanchez, ASIL member and law clerk at the U.S. Court of Federal Claims in Washington D.C., J.D., University of Pennsylvania, December 2005, Connecticut Law Review, 38 Conn. L. Rev. 185, p. 190

Foreign laws, however, do not stem from the same philosophical base, but from different circumstances, philosophies, traditions, and ideas. A foreign law does not reflect an American constitutional principle or tradition, but merely represents the needs and characteristics of a different society and culture, even though some of these traits may outwardly resemble American ones. Consequently, foreign laws' relevance to the circumstances surrounding an American legal issue with no external implications whatsoever remains quite questionable. And the range of these laws, and the social, cultural, and legal concepts they represent, is simply so vast and diverse that a judge could probably find some foreign law supporting any outcome when considering a specific issue. To date, Justice Breyer has offered what appears to be the most detailed framework for an internationalist approach to judicial decisionmaking -- reference to "standards roughly comparable to our own constitutional standards in roughly comparable circumstances." 25 Given each national legal system's own unique characteristics and idiosyncrasies, the absence of any more specific guidelines for a judge to determine how to apply non-American legal principles to purely domestic issues, utilizing a method entirely consistent with the Constitution and the ideas it reflects, remains problematic.

( ) Other countries don’t model bad U.S. practices, and international law is worse for modeling because it’s inherently anti-democratic John O. McGinnis, Professor of Law at the Northwestern University School of Law, and Ilya Somin, Assistant Professor of Law at the George Mason University School of Law, 2006, George Mason University Law And Economics Research Paper Series, Forthcoming Stanford Law Review, online: http://ssrn.com/abstract_id=929174, accessed December 9, 2006

The only noteworthy counterargument is that US norms will have more harmful effects than those of raw international law, yet other nations will still copy them. But both parts of this seem doubtful. First, US law emerges from a democratic process that creates at least some likelihood that they will cause less harm than rules that emerge from the nondemocratic processes that create international law,. Second, other democratic nations can use their own political processes to screen out American norms that might cause harm of copied.

http://web.lexis-nexis.com/universe/document?_m=aa023a5b9d669b3c3e3b1b6a4ce313db&_docnum=1&wchp=dGLbVzb-zSkVb&_md5=e3ee6523b1b9f39f40a124068d82487e#n25

ADI 201059


AFF: AT: International Law Good – Solves Conflict

( ) International law is irrelevant to solving conflicts - Posner 9, Prof of Law @ U of Chicago Eric, “Think Again: International Law” Foreign Policy Online, September 17th 2009) http://www.foreignpolicy.com/articles/2009/09/17/think_again_international_law?page=0,2

Not necessarily. International law is only as strong as the states with an interest in upholding it. Ambitious schemes that seek to transcend countries' interests routinely fail. The 1928 Kellogg-Briand Pact outlawed war shortly before the worst war in world history. The League of Nations was bypassed and ignored. The United Nations has never lived up to its ambitions and has only proved effective for narrow projects after expectations were scaled down to a realistic level. The greatest achievement of international law -- the modern trade system institutionalized in the World Trade Organization -- depends for its vitality on the good faith of a handful of great powers relying on weak self-help remedies.

Posner 9, Prof of Law @ U of Chicago Eric, “Think Again: International Law” Foreign Policy Online, September 17th 2009) http://www.foreignpolicy.com/articles/2009/09/17/think_again_international_law?page=0,2

Wishful thinking. Academic research suggests that international human rights treaties have had little or no impact on the actual practices of states. The Genocide Convention has not prevented genocides; the Torture Convention has not stopped torture. The same can be said for the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and a host of treaties meant to advance the rights of women and children. States that already respect human rights join human rights treaties because doing so is costless for them. States that do not respect human rights simply ignore their treaty obligations. The evidence shows that human rights are best in those states that are wealthiest, leading many scholars to speculate that the best way to promote human rights is to promote growth. This can be done through liberal trade and immigration policies, and perhaps (though this is controversial) carefully targeted aid that is conditioned on institutional reform. One simple step, unlikely to be taken, would be for Europe and the United States to eliminate domestic agricultural subsidies that reduce demand for agricultural exports from poor countries.

http://www.foreignpolicy.com/articles/2009/09/17/think_again_international_law?page=0,2


ADI 201060


AFF: AT: International Law Good – Climate Change

( ) International law doesn’t solve climate change – too many political issues Posner 9, Prof of Law @ U of Chicago Eric, “Think Again: International Law” Foreign Policy Online, September 17th 2009) http://www.foreignpolicy.com/articles/2009/09/17/think_again_international_law?page=0,2

The challenge for governments is finding areas of international cooperation where interests converge enough that states are able to overcome mutual suspicion and commit themselves to complying with their obligations. Real problems, such as climate change, must await propitious international political conditions, which will often take longer than good policy and science indicate is optimal. Promoting international law for its own sake, in the hope that eventually countries will go along, has never been successful.


adi courts counterplanadi2010.pbworks.com/f/adi+courts+cp+final.doc · web viewadi courts...

Documents