Executive Order (XO) Counter Plan



Executive Order (XO) Counter Plan

Executive Order 1nc (Prostitution Aff Shell) 2

Executive Orders Solve 3

No Rollback 4

Permutation Answers 5-6

AT: Roll Back 7

Politics Net Benefit 8

***Affirmative Answers*** 9

Permutation Solvency 10

No Solvency 11

No Solvency- Roll Back 12

Congress Key 13

Executive Orders Bad 14

Politics Answers 15

Politics- Executive Orders Perceived 16

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Executive Order 1nc (Prostitution Aff Shell)

Text: The president of the United States should issue an executive order repealing, via appropriate administrative agencies, any regulations and/or directives that require nations or organizations receiving money for AIDS relief in sub-Saharan Africa to have in place a pledge explicitly opposing prostitution or sex trafficking or to sign a “prostitution loyalty oath”.

Observation one: counterplan is legit

Its mutually exclusive—the president and congress cannot and will not enact the plan simultaneously

Observation two: Solvency

Executive foreign policy superior to legislation for five reasons, faster, better information, public demand, weak interest groups, congressional reluctance

Paul Peterson (Professor of Government at Harvard University) 1994 The President, The Congress, And The Making Of Foreign Policy, p. 14-15.

The distinction between foreign and domestic issues has long been noticed. Two decades ago, in a classic essay written under the fetching title “the two presidencies,” the political scientist Aaron Wildavsky ([1966]1991) argued that modern presidencies were fraternal – but hardly identical – twins. The one – the domestic policy president – was subject to the debate, pressure politics and congressional infighting that is a concomitant of the ordinary workings of democratic processes. The other – the foreign policy president – enjoyed an independent, respect, and prestige that enabled him to manage the external relations of the country quite autonomously. Wildavsky identified several factors that differentiated domestic from foreign policy. 1. Since foreign policy questions often require “fast action”, they are more appropriate for executive than legislative decision making. 2. Presidents have vast “formal powers to commit resources in foreign affairs,” and they have “far greater ability than anyone else to obtain information on developments abroad.” 3. Since voters know little about foreign policy issues, they “expect the president to act in foreign affairs and reward him with their confidence”. 4. On foreign policy questions, “the interest group structure is weak, unstable, and thin.” 5. Members of Congress follow a “self-denying ordinance. They do not think it is their job to determine the nation’s defense policies.” Wildavsky’s analysis was not so much an original statement as a summary of a more generally held scholarly perception. Robert Dahl had put forth much the same argument more than a decade earlier: “In foreign policy the president proposes, the congress disposes”, Dahl wrote, adding that: “in a very large number of highly important decisions about foreign policy, the Congress does not even have the opportunity to dispose.” (1964, 58). Samuel Huntington similarly concluded that “strategic programs are determined in the executive rather than the Congress.” “Just as power to legislate strategic programs was at one time, at least in theory, shared by President and Congress, so it is now, very much in practice, shared by the President and a variety of agencies within the executive branch. (1961, 146, 127-28). Richard Fenno’s views were a little different: “Foreign Affairs members…help make policy in an environment strongly dominated by the President… [They} have been hard put to develop any strategic posture than one calling for responsiveness to executive branch expectations” (1973, 213-3).

Executive orders solve, Congress will not challenge

William G. Howell (Professor at Harvard University) “Unilateral Powers: A Brief Overview,” Presidential Studies Quarterly v. 35 n. 3, September 2005, p. 417

Fortunately, from the president's perspective, unilateral directives provide a way out. For when presidents act unilaterally, they do not call into an expansive void, hoping that someone will respond. Quite the opposite, with the stroke of a pen presidents instantly make gays in the military or arsenic in drinking water or military tribunals the news of the day. And if its members hope to affect the course of policy making, Congress had better spring to action, for an executive order retains the weight of law until, and unless, someone else overturns it. The strategy of ignoring the president is turned against Congress; and the check on presidential power that complacency typically affords is instantly removed. Indeed, having issued a unilateral directive, presidents would just as soon pass unnoticed, for congressional inaction often is functionally equivalent to support.

Executive Orders Solve

Executive orders can be used to make sweeping changes--history proves

Clay Risen, “The Power of the Pen,” American Prospect, August 2004

Taken as a whole, executive orders are pretty mundane. Even today, they usually amount to little more than bureaucratic fine-tuning--an order issued by Bush on April 30, for example, streamlined the process for building border-crossing stations. But they have also been used by presidents to effect dramatic change. In 1948, frustrated with his efforts to get civil-rights legislation moving in Congress, Harry Truman used the executive order to desegregate the military. In 1994, after Congress refused to bail out the Mexican economy, Clinton invoked his power under the Exchange Stabilization Fund, a Depression-era mechanism allowing the president to defend the dollar abroad, to provide $20 billion in loan guarantees. The most famous executive order may be the Emancipation Proclamation, which drew on Abraham Lincoln’s power as commander in chief to free slaves held in Confederate states. “It was quite clearly the most expansive use of the executive order power ever,” says Walter Dellinger, a Duke University law professor and a Clinton assistant attorney general. Presidents have deployed executive orders for less admirable reasons as well, Franklin Delano Roosevelt’s decision to intern Japanese Americans during World War II being perhaps the most egregious example.

Presidents have used executive orders to do pretty much everything

Kevin M. Stack (Assistant Professor of Law at Benjamin N. Cardozo School of Law Yeshiva University) 2005 “The Statutory President,” Iowa Law Review

Presidents shape our national life. In executive orders and other written directives, presidents have declared a nationwide freeze on wages and prices; established major agencies such as the EPA, the Peace Corps, and the Office (now Department) of Homeland Security; mandated nondiscrimination and affirmative action programs for the vast portions of the economy engaged in government contracting; suspended private legal claims against foreign governments in domestic courts; established military tribunals; ordered that an American citizen captured in Chicago be subject to military jurisdiction; and initiated federal funding for faith-based organizations.

Presidents empirically use executive orders to achieve a number of policy goals

Kenneth R. Mayer (Associate Professor of Political Science at University of Wisconsin-Madison) May 1999 “Executive Orders and Presidential Power,” Journal Of Politics

The standard conception of the presidency is that the office is constrained by the separation of powers and general weakness of the chief executive's formal powers. Yet presidents have, throughout U.S. history, used their executive authority to make policy on their own without interference from either Congress or the courts. This article investigates how presidents have used one particular unilateral tool --the executive order. An executive order is a presidential directive that requires or authorizes some action within the executive branch. Presidents have used executive orders to establish policy, reorganize executive branch agencies, alter administrative and regulatory processes, affect how legislation is interpreted and implemented, and take whatever action is permitted within the boundaries of their constitutional or statutory authority.[1]

Executive orders solve

Phillip Cooper Lawrence, Kansas: University Press of Kansas - March 2003 accessed online - - 7/27/07

To the degree that presidential power tools are used to hide important actions, to deceive other players as to the true nature of an administration’s decision, to make an end run around the other institutions, or to fabricate what purports to be real authority for important moves by piling one directive on top of another, these rules are dramatically undermined

No Rollback

Political concerns limit ability of congress to challenge executive orders

Kenneth Mayer (University of Wisconsin-Madison) “Who Should Decide Foreign Policy?” Talk of the Nation, National Public Radio, April 28, 2003

Prof. MAYER: Well, there's no question that Congress has the constitutional powers to take the president on. If you look at the powers that the Constitution grants to Congress in Article I with regard to foreign affairs, it's actually a pretty extensive list. Congress raises armies and navies and provides for their regulation. They regulate foreign commerce. They have the power to declare war. And so I think some people have a misconception that it's Congress' duty to step back and let the president do whatever he wants and that they don't have the authority to actually force some of those issues. They do. The problem is that as a practical matter, it's much more difficult for Congress to muster the kind of institutional majorities that it takes to make those kinds of decisions. And when you add a natural political reluctance to attack or to confront a president who's a popular president in the middle of a war, that's a very delicate political situation. And for people like Daschle and Gephardt, a lot of people come down hard on them for actually questioning the president. And I think that's probably a little misguided. They certainly have a right and maybe even an obligation to serve as the loyal opposition. But one of the things that members of Congress are, if anything else, very carefully tuned in to the political ramifications of what they do. And they are picking their fights and choosing their words very carefully because it's very easy to see how they could just get overwhelmed by public criticism and wind up in a much worse spot.

Congress rarely succeeds when challenging executive

Columbus Dispatch, staff editorial, “Bush and Iraq,” March 17, 2003

Members of Congress in the modern era have an honorable -- and largely unsuccessful -- tradition of seeking redress in federal court when they're unhappy with a presidential action of some sort. In the 1970s, for example, Arizona Sen. Barry Goldwater sued President Carter over Carter's decision to withdraw from a mutual defense treaty with Taiwan. The U.S. Supreme Court, in a majority opinion written by then-Associate Justice William H. Rehnquist, refused to get involved, holding that the issue of how the president and Congress conduct foreign affairs is a political question that the courts will stay out of. A similar outcome was to be expected in a recent lawsuit in which several members of the House of Representatives were among plaintiffs challenging President Bush's power to attack Iraq without a declaration of war from Congress. Last month in Boston, U.S. District Judge Joseph L. Tauro dismissed the lawsuit, saying it raised a political question that was "beyond the court's ability to resolve." That decision was predictable, although the plaintiffs were given another shot when the 1st U.S. Circuit Court of Appeals, also sitting in Boston, agreed to hear an expedited appeal of the dismissal. Then, as quickly as the appeals court raised the plaintiffs' hopes, it dashed them, ruling Thursday that without a clear conflict between the executive and legislative branches, it had no authority to intervene. The chances of the Supreme Court giving the case another hearing are slim.

Executive Orders are the Law

George Washington Law Review 1987 lexis 7/29/07

When the President issues an executive order pursuant to a specific grant of authority, he exercises legislative authority delegated to him by Congress. Federal courts therefore have considered such orders to be the equivalent of federal statutes with respect to having the force and effect of law.

Congress turns to the president to implement XO’s

American Government & Politics July 15, 1998

accessed online - - 7/29/07

Executive Orders are controversial because they allow the President to make major decisions, even law, without the consent of Congress. This, of course, runs against the general logic of the Constitution -- that no one should have power to act unilaterally. Nevertheless, Congress often gives the President considerable leeway in implementing and administering federal law and programs. Sometimes, Congress cannot agree exactly how to implement a law or program. In effect, this leaves the decision to the federal agencies involved and the President that stands at their head. When Congress fails to spell out in detail how a law is to be executed, it leaves the door open for the President to provide those details in the form of Executive Orders.

Permutation Answers

Anything short of autonomous executive action collapses to judicial supremacy and will result in tyranny

Michael Stokes Paulson (Associate Professor of Law at University of Minnesota Law School) 1993 “The Merryman Power And The Dilemma Of Autonomous Executive Branch Interpretation,” Cardozo Law Review, v.15, October

Lincoln's words upon becoming President in his First Inaugural strike the same theme even more strongly:

The candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, ... the people will have ceased to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.

Not only does a judicial decision not bind the executive and the legislature in making subsequent policy, Lincoln argued, but the contrary suggestion, that the political branches must acquiesce in Supreme Court judgments as supplying the rule governing all their actions, is inconsistent with democratic self-government: "the people will have ceased to be their own rulers, having to that extent practically resigned their Government" to the judiciary. Lincoln was thus a vigorous advocate of what we today would call "nonacquiescence."

every violation of tyranny must be rejected

Petro 1974 (Sylvester- Professor of Law at Wake Forest University, Toledo Law Review, , p. lexis)

It is seldom that liberty of any kind is lost all at once. Thus it is unacceptable to say that the invasion of one aspect of freedom is of no import because there have been invasions of so many other aspects. That road leads to chaos, tyranny, despotism and the end of all human aspiration. Ask Solzhensyn. Ask Milovan Dijilas. In sum, if one believes in freedom as a supreme value and the proper ordering any society aiming to maximize spiritual and material welfare, then every invasion of freedom must be empathically identified and resisted with an undying spirit.

Permutation does not solve- political micromanagement cripples policy, weakens public confidence in government

John Dilulio (Analyst at Brookings Institute) Improving Government Performance 1993 improvegov.html

Political micromanagement and the mismatch of government’s tools with its problems have crippled public management, increased government inefficiency, and impeded performance. Perhaps worst of all, they have provoked a widespread distrust of the American system: by elected officials, who cannot understand why administrators do not produce better results; by administrators, who complain about constant interference by elected officials as they try to do their jobs; and by citizens, who curse elected officials and administrators both for squabbling among themselves and for overlooking why they are there to begin with.

Permutation undercuts executive autonomy in interpretation which is key to uphold the separation of powers doctrine

Michael Stokes Paulson (Associate Professor of Law at University of Minnesota Law School) 1993 “The Merryman Power And The Dilemma Of Autonomous Executive Branch Interpretation,” Cardozo Law Review, v.15, October

The premise underlying autonomous executive branch interpretation is the coordinacy of the three branches of the federal government - a premise based on no less an authority than James Madison and The Federalist No. 49: The people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold \their power, is derived... The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers. The premise of coordinacy, as articulated by Madison, implies that no branch has final interpretive authority, but that each branch has interpretive authority within the sphere of its other constitutional powers; the resolution of disputed points depends on the pull-and-tug of the different branches, just as the Constitution's separation of powers in other respects works to preserve a system of checks and balances. The coordinacy principle thus implies that the executive branch - that is, the Presidency - has completely independent interpretive authority within the sphere of its powers.

Permutation Answers

SOP violations carry the same risk as nuclear war.

Martin H. Redish (Law Professor at Northwestern University) and Elizabeth J. Cisar (Clerk Chief Judge William Bauer, U.S. Court of Appeals) 1991 Duke Law Journal

In summary, no defender of separation of powers can prove with certitude that, but for the existence of separation of powers, tyranny would be the inevitable outcome. But the question is whether we wish to take that risk, given the obvious severity of the harm that might result. Given both the relatively limited cost imposed by use of separation of powers and the great severity of the harm sought to be avoided, one should not demand a great showing of the likelihood that the feared harm would result. For just as in the case of the threat of nuclear war, no one wants to be forced into the position of saying, "I told you so."

AT: Roll Back

Executive Orders overrule Congress

Vin Suprynowicz (nationally syndicated Libertarian columnist and author) “Congress must seize back the law-making power” December 20, 1999 accessed online - - 7/27/07

But since then, the Cato authors detail how the Clinton White House has increasingly succeeded in subsequent attempts to overrule the Congress and enact law by executive decree -- in such matters as the Grand Staircase-Escalante Monument, the American Heritage Rivers Initiative, and most blatantly in President Clinton's conduct of the war in Yugoslavia without even the penumbra of a declaration of war from Congress.

Politics Net Benefit

Public has little perception of executive orders

Phillip Cooper (University of Vermont political science professor) October 28, 1999 Federal Document Clearing House Congressional Testimony

Few Americans, even those normally considered part of the informed public, know anything about executive orders. That is true even for many experienced public service professionals at all levels of government. When informed that there are now some 13,140 numbered executive orders in which the chief executive has sought to issue directives having binding legal force to agencies in the executive branch, a very common response is that no one ever told them the president could make law with the stroke of a pen.

Executive orders avoid the cumbersome process of pushing through legislation

Phillip J. Cooper (Professor, Liberal Arts at University of Vermont) 2002 By Order Of The President: The Use And Abuse Of Executive Direct Action

Executive orders are often used because they are quick, convenient, and relatively easy mechanisms for moving significant policy initiatives. Though it is certainly true that executive orders are employed for symbolic purposes, enough has been said by now to demonstrate that they are also used for serious policymaking or to lay the basis for important actions to be taken by executive branch agencies under the authority of the orders. Unfortunately, as is true of legislation, it is not always possible to know from the title of orders which are significant and which are not, particularly since presidents will often use an existing order as a base for action and then change it in ways that make it far more significant than its predecessors. The relative ease of the use of an order does not merely arise from the fact that presidents may employ one to avoid the cumbersome and time-consuming legislative process. They may also use this device to avoid sometimes equally time-consuming administrative procedure, particularly the rulemaking processes required by the Administrative Procedure Act.

Presidential action provides cover to congress—takes the heat

Phillip R. Trimble (Professor of Law at UCLA) American Journal Of International Law, October 1989

In other situations, it may serve a member's political interest to let the President take the heat for decisions that are conceded to be desirable in the overall national interest but are unpopular in certain sectors. It may be awkward to vote for or against retaliatory tariffs, like those imposed in response to the European Community's ban on hormone-treated beef; they will hurt some importers while helping some fanners, but will also risk a general trade war that would hurt everyone. Third World debt relief is another example.

Presidential action allows reps to avoid taking positions and engaging in costly political battles

Phillip R. Trimble (Professor of Law at UCLA) American Journal Of International Law, October 1989

It does not do so for good reason. Congress is above all a political body. Its members are practical politicians who see themselves as responsible for the effective functioning of the Government, in addition to being accountable to their particular constituencies. Because of their role as national statesmen — occasionally enhanced by a desire for higher office — they recognize that many foreign policy problems are truly national problems and do indeed require "one voice," which a legislative body cannot provide. Being practical politicians, they also understand that foreign policy decisions require compromises of competing interests and ' often trade-offs between regional or factional constituencies to promote the overall national interest. More fundamentally, the strictly political interests of Congress lead it to expect and to defer to presidential leadership. Those interests include, most obviously, reelection. To that end, a member must advance particular special interests and also maintain a favorable public posture as an effective legislator and politician. Those interests inevitably dictate some positions, for example on trade and military programs, or aid to Greece and Israel. But most foreign policy is far removed from immediate political concerns. Senator Case repeated a quip, perhaps apocryphal, by one of his colleagues to the effect that "I go to the Health, Education and Labor Committee to help my constituents, and I come here [to the Foreign Relations Committee] [*753] to have fun." Politically, there is often no advantage in having to take a position, through a recorded vote, on pressing foreign policy questions with no immediate implication for local constituencies and with uncertain long-term consequences. To the contrary, it may be preferable to accept presidential leadership and preserve the ability to criticize decisions that turn out wrong. That can enable a person to take credit for popular decisions and to criticize, gathering helpful publicity and stature, those that go awry. Thus, a member may see no advantage in having to vote on support for the opposition in Angola or Cambodia. Stopping communism may be popular; but if victory results in advancing the fortunes of South Africa or Pol Pot, it may not be so desirable. Voting for a policy necessarily entails taking responsibility for its failure.

***Affirmative Answers***

Permutation Solvency

Permutation is the only thing that can give an executive order the power of law and prevent roll back

Leanna Anderson (clerk for H.R. Lloyd, U.S. Magistrate) Hastings Constitutional Law Quarterly 2002

To be challengeable, an executive order must have the force and effect of law. Under the United States Code, federal court jurisdiction is limited to "federal questions." "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." For federal courts to have jurisdiction over a civil action challenging an executive order, the order must have the "force and effect of law." There are two different branches of analysis under this requirement. First, if the order is issued in accordance with Congressional statutory mandate or delegation, the order has the force and effect of law. However, if the order is not based on an express Congressional grant of authority, federal courts may either look for an implied Congressional basis for the order or find that no statutory basis exists so that the order does not have the force and effect of law.

Sharing interpretive power among political and judicial branches increases accountability

Rachel E. Barkow (Fellow at Georgetown University Law Center) 2002 “More Supreme Than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy,” Columbia Law Review

Placing some interpretive power with the political branches also insures that those branches will, as a general matter, be more attentive to constitutional concerns. Under the type of judicial supremacy theory espoused by the current Court, the political branches lose their sense of responsibility to analyze independently the constitutionality of a particular course of action. They can rely on the courts to "correct" any unconstitutional behavior, because it is clear the courts will decide all constitutional questions. Indeed, the political branches today are often only too willing to let the courts wrestle with the hard questions to avoid facing the political consequences. When the courts make the decisions, the people cannot hold the political branches accountable. If it were clear that the buck stops with the politically accountable branches, one would expect them to take more care.

No Solvency

Executive orders cannot overturn statutes- Cannot Solve for the pledge

Phillip Cooper (Professor of Law at SUNY-Albany) Administration And Society August 1986

If issued under a valid claim of authority and published, executive orders and proclamations have the force of law (Armstrong v. United States, 1871; see also Farkas v. Texas Instrument, Inc., 1967; Farmer v. Philadelphia Electric Co., 1964), and courts are required to take judicial notice of their existence (Jenkins v. Collard, 1893: 560-561). Orders and proclamations may, in some cases, even be grounds for criminal prosecution depending upon the related legislation.8 In general, executive mandates are not valid if they violate a statute (Cole v. Young, 1956; United States v. Symonds, 1887; Kendall v. United States, 1838; Little v. Barreme, 1804). The legislature may ratify presidential orders or proclamations after the fact.9 In most cases, it may also modify or rescind them.

No Solvency- Roll Back

Opposition to executive order risks overturn

The National Journal January 1, 2000

Perhaps the most strenuous opposition to a Clinton executive order came in response to his 1996 proclamation, under a 1906 law, setting up the 1.7 million-acre Grand Staircase-Escalante National Monument in Utah. Westerners and property-rights activists screamed, "land grab"-even though much of the land was federally owned. On other domestic fronts, Clinton has issued an order barring federal contractors from hiring replacements for strikers (a federal court of appeals later overturned this order); set up the American Rivers Heritage Initiative; and created the "don't ask, don't tell" policy for gays in the military. Another order outlined procedures to assist federal agencies dealing with states, but the states objected that their authority would be usurped and the order was withdrawn.

Congress has the power to undo any executive order

Robert Bedell (Deputy and Acting General Counsel) October 27 1999 Testimony before House Subcommittee on Legislative and Budget Process, Federal Document Clearing House Congressional Testimony

With regard to the impact that Executive Orders may have on the prerogatives of the Congress, I think that in very few instances -- primarily where the Constitution or the Congress itself has assigned a responsibility or authority to the unreviewable discretion of the President -- are the prerogatives of Congress unalterably affected by an Executive Order. Congress can act to undue what a President has done by Executive Order in most instances. The prerogative of Congress to legislate is accordingly not unalterably affected by most Executive Orders. As a practical matter, if Congress chooses to over-ride a feature of an Executive Order by enacting a statute, the President may require that each House approve that legislation by a 2/3 vote, often a tall order. But this is the case with any legislation as provided in the Constitution. The real question is whether the President has the requisite authority to do what he proposes in an Executive Order, and I believe that Congress retains its full panoply of prerogatives to deal with it.

Congress Has the Power To Repeal Any Executive Order

Robert Bedell, Former Deputy & Acting Administrator, Office of Information & Regulatory Affairs, October 27th, 1999 (“The Impact of Executive Orders on the Legislative Process: Executive Lawmaking?”, , , Accessed 7/29/07, Google, GC

With regard to the impact that Executive Orders may have on the prerogatives of the Congress, I think that in very few instances – primarily where the Constitution or the Congress itself has assigned a responsibility or authority to the un-reviewable discretion of the President – are the prerogatives of Congress unalterably affected by an Executive Order. Congress can act to undue what a President has done by Executive Order in most instances. The prerogative of Congress to legislate is accordingly not unalterably affected by most Executive Orders. As a practical matter, if Congress chooses to over-ride a feature of an Executive Order by enacting a statute, the President may require that each House approve that legislation by a 2/3 vote, often a tall order. But this is the case with any legislation as provided in the Constitution. The real question is whether the President has the requisite authority to do what he proposes in an Executive Order, and I believe that Congress retains its full panoply of prerogatives to deal with it.

Congress Key

Presidential control of foreign policy is empirically disastrous

Rob Pastor (Professor of Political Science at Emory) The President, the Congress, the Making of Foreign Policy, 1994 p. 226

The executive-dominant model assumes that the optimum foreign policy is the product of a rational choice by the president and his advisers. But such rational choices led to Vietnam, the Bay of Pigs, the Chilean intervention, and Iran-contra, among others. Congress had little or no voice in these debacles, but it did have a compelling voice in the human rights policies, the Panama Canal treaties, and the Bipartisan Accord on Central America, among others—all of which served U.S. interests effectively.

Congress is a key bellweather of public support, which is crucial to the sustainability of foreign policy

Ted Galen Carpenter (foreign policy analyst with Cato) May 16, 1986

Events have demonstrated that foreign policy initiatives-- particularly long-term initiatives--cannot succeed without public support. Because members of Congress represent local constituencies, they tend to be more sensitive to undercurrents and shifts in public opinion. Congress is thus a political early-warning system cautioning that contemplated or ongoing executive actions lack popular backing. Proponents of unfettered presidential power contend that congressional sensitivity to public opinion is precisely why Congress should not become involved in foreign policy. They argue that the executive branch, possessing superior expertise and access to classified information, must sometimes pursue policies in conflict with the "whims" of public opinion. But this is arrogant elitism. Because the American people pay the price, both financially and not infrequently in lives, for foreign policy mistakes, they and their congressional representatives surely do have a role in determining policy. Moreover, such misadventures as the Bay of Pigs invasion and the Korean and Vietnam wars suggest that the much-touted wisdom and expertise of the executive branch are vastly overrated.

Executive Orders Bad

Executive Orders Violate The Constitution And Circumvent Legislative Process

Harry V. Martin and David Caul 1995 (Accessed 7/29/07, Google,

Many of the fears of the founding fathers may now be coming to fruition. Today, the executive branch of the government is immensely powerful, much more powerful than the founding fathers had envisioned or wanted. Congressional legislative powers have been usurped. There is no greater example of that usurpation than in the form of the Presidential Executive Order. The process totally by-passes Congressional legislative authority and places in the hands of the President almost unilateral power. The Executive Order governs everything from the Flag Code of the United States to the ability to single-handedly declare Martial Law. Presidents have used the Executive Order in times of emergencies to override the Constitution of the United States and the Congress. President Andrew Jackson used executive powers to force the law-abiding Cherokee Nation off their ancestral lands. The Cherokee fought the illegal action in the U.S. Supreme Court and won. But Jackson, using the power of the Presidency, continued to order the removal of the Cherokee Nation and defied the Court's ruling. He stated, "Let the Court try to enforce their ruling." The Cherokee lost their land and commenced a series of journeys that would be called The Trail of Tears. President Abraham Lincoln suspended many fundamental rights guaranteed in the Constitution and the Bill of Rights. He closed down newspapers opposed to his war-time policies and imprisoned what many historians now call political prisoners. He suspended the right of trial and the right to be confronted by accusers. Lincoln's justification for such drastic actions was the preservation of the Union above all things. After the war and Lincoln's death, Constitutional law was restored.

Executive Orders Pave the Way For Corruption and Abuse

James Hirsen April 1999 (“Professor Of Law, Trinity College, “Executive Orders: Edicts From a Presidential Throne”, Accessed 7/29/07, , GC)

The potential for abuse through executive orders is contained within two primary spheres. First, these instruments may be used to illegitimately further the international agenda expressed in UN treaties.7 Secondly, executive orders may be used to increase presidential authority, thus enabling a president to legislate during periods of what he or she may deem to be a national emergency (which we'll cover in detail next month). The possibility for corruption within these realms cannot be overstated.

Executive Orders Break Down the Governmental Process

William L. Anderson, Professor of Economics at Frostburg State University, May 10th, 2007 (“Executive Orders and the Decline Of Law”, Accessed 7/29/07, Google, , GC)

Lest anyone think that Congress is supposed to be the supreme lawmaking body of the central government of the United States, those days have long passed. A trend that began during the War Between the States and that accelerated during the Progressive Era and the Great Depression continues unabated. Laws and lawmakers are not what they used to be and certainly not what existed when the republic known as the United States of America was formed. The typical schoolroom civics class is taught that the U.S. government has three branches – Congress, the president or chief executive, and the U.S. Supreme Court. Congress, it is said, makes the laws, presidents enforce them, and the Court interprets the laws. Each branch has its own delegated powers, which creates a balance in which no entity gains power at the expense of another. While this makes for nice, tidy civics lessons, the truth is found elsewhere. The political reality of the 20th century, and now the 21st century, is that Congress has faded greatly in importance, with the executive branch gaining the most strength. (Despite what many conservatives claim, the federal courts, while powerful, also have ceded some of their powers to the executive, as shall be later explained.) Furthermore, the executive branch has two powerful entities within it – the presidency itself and the bureaucracies, which in many ways wield more power than the president. One may speak of an “imperial presidency” but a more accurate description is that of an “imperial bureaucracy.”

Politics Answers

Executive action inevitably draws legislators into the process

Michael J. Foley (professor of International Politics at the University of Wales) and John E. Owens (Senior Lecturer in US Politics at the University of Westminister) Congress and the Presidency, 1996, p. 387

Second, the new ways in which delegated authority was exercised by executive departments and agencies from the 1960s onwards encouraged greater congressional involvement in administration. Traditionally, the predominant means by which agencies fulfilled their congressional mandates was through case-by-case adjudication, where factual evidence and legal deductions were the sole bases for decisions and in consequence the impact on decision-making was typically small and incremental. From the late 1960s onwards, under pressure from the newly empowered public interest group movement, executive administrators resorted increasingly to issuing quasi-legislative rules which affected entire classes of individuals and types of actions instead of specific named parties. As a result, the rule-making process was effectively transformed into a ‘surrogate political process’ which frequently attracted powerful political interests on opposing sides and drew in legislators.

Issuance of orders impose political costs upon the president

Kenneth R. Mayer (Associate Professor of Political Science at University of Wisconsin-Madison) May 1999 “Executive Orders and Presidential Power,” Journal Of Politics

At the same time, however, presidential exercise of authority through executive orders depends on political and institutional context (King and Ragsdale 1988, 121-24). Presidents cannot (and do not) issue one order after another and expect immediate and unquestioned obedience. In deciding whether to issue substantive orders, even when their authority is clear, presidents consider how opponents might respond, the likely degree of compliance, and the costs and benefits of issuing an order as opposed to relying on some other strategy (such as legislation or litigation).

Executive orders spur legislation

Susan Page USA Today “When a law is unlikely, often an order will do”, August 11 1997

Forget Capitol Hill deliberations and back-room negotiations with industry titans. No need for endless debate and dealmaking. For a president, an executive order can be as powerful as a law -- and considerably easier to achieve. Like many of his predecessors, Clinton has turned to executive orders to score symbolic points, assuage key constituencies, needle foes, press legislators and impose some far-reaching policies. And since Republicans won control of Capitol Hill in 1994, he sometimes has used them to take steps Congress would balk at approving. With no more than a piece of paper and his signature, Clinton created a 1.7 million-acre national monument in Utah and required trigger locks on the guns that federal law enforcement agencies buy. He directed federal agencies to give workers leave from their jobs to attend PTA meetings at their children's schools and overhauled the system of inspecting meat, poultry and seafood. "Since '94, the president has taken executive action in a number of areas where he felt that Congress hadn't done enough, and on some issues executive action has helped to spur the legislative process," says Bruce Reed, the top White House domestic-policy adviser. "The president has repeatedly made it clear that he's eager to work with the Congress but that he's going to do everything in his power to get things done with or without Congress."

Politics- Executive Orders Perceived

Executive orders are published, ensures that the president is held publicly accountable

Robert Bedell (Deputy and Acting General Counsel) October 27 1999 Testimony before House Subcommittee on Legislative and Budget Process, Federal Document Clearing House Congressional Testimony

From a public policy perspective, Executive Orders have one salient advantage over these other, less formal and invisible means of communication; they are published in the Federal Register, so that both the Congress and the public can understand what the President has done and can hold him accountable for his actions. The Committee also should understand the severe limitation that Executive Orders have from the point of view of the President and his senior staff.

Public increasingly aware of executive orders

Porter Goss Testimony before House Subcommittee on Legislative and Budget Process, Federal News Service, October 27, 1999

Additionally, a by-product of modern technology appears to have been greater public awareness of and interest in the unilateral actions taken by the executive. Today we have cable television, talk radio, and the internet as means to provide unprecedented access to a wealth of information for the average citizen with an interest. I have found in recent years that and of the people I represent in southwest Florida are contacting me to discuss concerns with executive orders.

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