Courts Affirmative - Samford 2015

Contents
1ac................................................................................................................... 1
FYI on What the Plan Does...................................................................................... 1
Inherency Extensions.............................................................................................. 1
INH: Need to Update the Law in digital age........................................................1
Solvency Extensions................................................................................................ 1
SOLV--AT: Law is Indeterminate...........................................................................1
SOLV--Court Should Reconcile Fourth Amendment...............................................1
SOLV--AT: Rollback/Wont Be Enforced.................................................................1
SOLVExecutive Will Comply...............................................................................1
SOLV--Solvency: Lower Courts will follow.............................................................1
SOLV--Solvency: The Plan will Snowball...............................................................1
SOLV--Solvency: Supreme Court Decisions are Modeled.....................................1
Solvency: Court Creates Social Change...............................................................1
Democracy Advantage Extensions..........................................................................1
DEM--AT: Other invasions of privacy exist...........................................................1
DEM--Status Quo is a significant intrusion on privacy..........................................1
DEM--Fourth Amendment Key to Democracy.......................................................1
DEMDemocracy Good Extensions.....................................................................1
DEM--Democracy Good ExtensionsPoverty Add-On..........................................1
DEMAT: People just shouldnt use the internet.................................................1
Internet Advantage Extensions............................................................................... 1
INT: Internet Impact Extensions..........................................................................1
INT: Internet is in trouble now............................................................................. 1
Imperial Presidency Advantage Extensions.............................................................1
IMP--Executive Power is Increasing Now...............................................................1
IMPExecutive Power = War................................................................................1
IMPPres Powers = War....................................................................................... 1
IMP--Rights........................................................................................................... 1
IMPPres Powers destroy economy.....................................................................1
IMPPres Powers = Biopower..............................................................................1
IMPAT: Impact Cards Dont Assume Obama.....................................................1
IMP--Solvency for Imperial Presidency..................................................................1
IMP--AT: FISA Courts Solve................................................................................... 1
IMPStrong Courts Check Pres Powers................................................................1

IMP: Executive Will Comply with the Supreme Court...........................................1
Theory Answers2ac....................................................................................... 1
AT: Test Case FIAT (Have to have a test case).....................................................1
AT: Effects TCourt Mandates Then Congress Does...........................................1
AT: Over-spec...................................................................................................... 1
AT: Ground Specification is Extra-Topical.............................................................1
Disad Answers.................................................................................................. 1
Politics DA Answers................................................................................................. 1
1ar: Politics: Decisions Announced in May.........................................................1
1ar: Blame Deflection.......................................................................................... 1
1ar: Individual Decisions Dont Matter................................................................1
Court Politics Answers2ac.................................................................................... 1
1ar: Courts Politics AnswersNo Spillover..........................................................1
Spokeo Answers................................................................................................... 1
1ar: Robins will win............................................................................................. 1
1ar: No Major Settlements................................................................................... 1
Court Stripping Answers.......................................................................................... 1
Hollow Hope DA Answers........................................................................................ 1
1ar: Brown v. Board ProvesCourt Creates Social Change.................................1
1ar: Court Creates Social Change.......................................................................1
Legitimacy DA Answers........................................................................................... 1
Legitimacy DA AnswersExtensions: Controversial Decisions Help the Court....1
Legitimacy DA AnswersIndividual Decisions Dont Matter.................................1
Counterplan Answers....................................................................................... 1
Congress CP Answers.............................................................................................. 1
Cong CP--1ar: PERMUTATION SOLVES BEST.........................................................1
Lower Courts CP Answers2ac............................................................................... 1
Lower Courts: Links to Legitimacy DA.................................................................1
1AR Lower Courts CPSolvency Extensions........................................................1
1ar: Solvency ExtensionsNo Trickle-Up.............................................................1
1ar Extensions: Roll Back.................................................................................... 1
1ar: Ext. Rule of Law DA...................................................................................... 1
State Courts CP Answers......................................................................................... 1
CP Competing Off Plan Certainty 2ac......................................................................1
1ac
Observation 1: Inherency: The Courts analysis of the Fourth
Amendment is outdated with regard to new technologies:
Abdulmajeed Alhogbani, 2014 (J.D. Candidate, The Catholic University of
America, 2016, CommLaw Conspectus, GOING DARK: SCRATCHING THE SURFACE
OF GOVERNMENT SURVEILLANCE, Accessed 6/23/2015, rwg)
The Court's analysis of the Fourth Amendment is outdated in regards to new
technologies . n35 The Court has held that an individual has no reasonable
expectation of privacy in what they disclose to third parties . n36 In U.S. v. Jones, as Justice
Alito opined, "[s]ome people may find the 'tradeoff' of privacy for convenience 'worthwhile,' or come to accept this
Justice Scalia, on the other hand, noted that, "this

approach is ill-suited to the digital age , in which people reveal a great deal of
information about themselves to third parties in the course of carrying out mundane
tasks." n38 The two differing opinions exemplify the public's standing on surveillance in the 21st century.
'diminution of privacy' as 'inevitable.'" n37
Plan:
The United States Supreme Court should recalibrate the Fourth
Amendment test in Katz v. United States for domestic internet
surveillance to allow what a person seeks to preserve as
private, even in an area accessible to the public, may be
constitutionally protected.
Observation 2: Solvency
The plan text solves and Courts are key to protecting privacy
rights over the internet:
The application of the Fourth Amendment to Internet surveillance has expanded the
government's ability to conduct unreasonable searches. The government's power is
currently unchecked and must be recalibrated . n173 The Court's interpretation in
Katz, that the Fourth Amendment protects people, not places, and that people have
a "reasonable expectation of privacy" has become irrelevant due to the advances in
technology. n174 Understanding that the Internet is, in theory, a place where content flows, and renders nearly
everything on the Internet incapable of protection under the Fourth Amendment. n175 Instead of adopting a
narrow interpretation, legislatures need to apply the broader rationale behind the
Fourth Amendment, which reasons, "[w]hat a person knowingly exposes to the
public, even in his[/her] own home or office, is not a subject of Fourth Amendment
protection. But what he[/she] seeks to preserve as private, even in an area
accessible to the public, may be constitutionally protected." n176 The Court must
better protect what a person seeks to preserve as private . n177
Courts are key to check the executive branch with the Fourth
Amendmentself-restraint and Congress fail:
Timothy Casey, 2008 (Associate Professor of Law, Case Western Reserve
University School of Law, RIGHTS AND REMEDIES: Electronic Surveillance and the
Right To Be Secure, UC Davis Law Review, Lexis/Nexis, Accessed 6/25/2015, rwg)
The courts must be more proactive in their role in limiting the reach of the
executive branch. Both the Pen Register Decisions and the NSA Cases presented
Fourth Amendment issues in a context that suggest a greater role for the courts . In
the traditional conception of the adversarial system, the court plays the role of neutral arbiter, deciding only the issues framed by
the parties, based on the evidence provided by the parties. n276 However, in the constitutional context, and particularly in the
context of ex parte proceedings, the courts must protect the unrepresented interests of the People. Courts should assume the
additional obligation of assuring that the government does not reach further than permitted by the Fourth Amendment and the
relevant statutory structure. If courts are not comfortable accepting this role, and many may not be, then they should freely explore
alternative measures to ensure the representation of the interests of the People. The Pen Register Decisions suggest one immediate
[*1032] remedial measure. n277 Commendably, a few courts appointed amici to brief the position opposed to the government.
n278 The appointment of counsel to represent the interests of the People would identify the separate interests of the collective
courts
must accept their role of enforcing the Constitution against the executive branch by
applying greater scrutiny to executive claims of authority . The NSA Cases present the courts with
people and would encourage a more thorough litigation of the issues before the courts. From an institutional perspective,
an opportunity to revisit the difficult issue of the state secrets privilege. As discussed earlier, the application of the state secrets
privilege should be subject to a balancing test where the significance of the interests at stake in the lawsuit are fairly weighed in the
determination of whether the privilege applies. The privilege itself rests on the proposition that some interests, such as national
security, are superior to other types of interests, such as the individual claims in a lawsuit. However, where the interest asserted in
the lawsuit is not a claim for breach of contract but a claim for breach of the Constitution, the application of the privilege should not
be taken lightly. The difficulty in apportioning proper weight to the interests protected by the Fourth Amendment stems from the
use of the language in the reasonable expectation of privacy test. Reclaiming the language of the Fourth Amendment implies a
different role for the courts because the original language denotes a right, rather than an expectation. An expression of the interests
protected by the Fourth Amendment as a right rather than as an expectation necessarily entails a higher degree of involvement for
If we expect to restore significance to the promise of the Fourth Amendment,

we must encourage courts to abandon the reasonable expectation of privacy test.
We cannot reasonably expect the executive branch to limit itself , nor can we expect
the courts.
the legislative branch to successfully restrain the executive. The Constitution's

original promise to the People of a right to be secure cannot survive without a
renewed commitment and vigilance from the courts.
Advantage 1: Democracy
Government surveillance of the internet risks a police state
the internet is a critical threshold:
Government spying is not a new phenomenon; it has been an ongoing custom since the earliest forms of
The NSA's spying program constrains one of humanity's most

important inventions, the Internet . n13 The United States government crossed a
government. n12
threshold that grants access to limitless amounts of information . n14 They are
overstepping constitutional boundaries , n15 and raising the possibility of a police
state. n16 By advocating that surveillance is necessary for national security, the government provides an
incentive for citizens to bypass the surveillance. n17 Anonymity is an important virtue of the Internet, and
destroying it causes more harm than good. n18 Legislators must reexamine current legislation, redefine what
constitutes a reasonable search, and balance national security with an individual's right to privacy.
Courts must
reconcile
[*471] modern technology with the U.S. Constitution. Moreover, the judiciary must
fulfill their constitutional function by keeping the executive branch in check.
And now is key: several democracies worldwide are

backsliding away from democracy:
Bla Greskovits, 4/3/2015 (Central European University, Budapest, The
Hollowing and Backsliding of Democracy in East Central Europe,
http://politicalscience.ceu.edu/sites/politicalscience.ceu.hu/files/attachment/event/1
113/greskovitshollowingandbackslidingofdemocracy-globalpolicy2015.pdf, Accessed
6/24/2015, rwg)
Focusing on ten East Central European member states of the E uropean Union, this
essay explores two major challenges to the quality and solidity of their
democracies. The first of these refers to the general European problem of declining
popular involvement in politics, termed hollowing of democracy (Mair, 2006). The
second challenge is captured by the term backsliding, which suggests
destabilization or even a reversal in the direction of democratic development .
Backsliding is usually traced to the radicalization of sizeable groups within the remaining active citizenry, and the
weakening loyalty of political elites to democratic principles. While the long-term process of hollowing of democracy
Today analysts and the

general public are alarmed by the frequent disruptive protests against unemployment,
poverty and uncertainty stemming from austerity, and the occasional remarkable showing of
radical Right-wing and other anti-system parties at elections. In several countries of
the region, especially those hard hit by the global financial crisis and the Great Recession, governments
have also attempted to gain control over free media and other institutions of
democratic checks and balances, as well as over the activity of civil society
organizations.
is less spectacular, the news on backsliding often make it to the headlines.
Democracies solve for human survival:

Cheema & Maguire, 1/25/13 (Shabbir Cheema Principal Adviser and Programme
Director Division for Public Economics and Public Administration United Nations
Department of Economic and Linda Maguire Social Affairs and (Evaluation Specialist
United Nations Development Programme,
http://unpan1.un.org/intradoc/groups/public/documents/un/unpan005781.pdf, AP)
Democratic governance has three distinct advantages over authoritarian regimes.
First, democracies are better able to manage conflicts and avoid violent political
change because they provide opportunities for the people to participate in the political process of the country.
Second, democracies are better able to avoid threats to human survival because
the checks by the opposition parties, uncensored criticism of public policies and the
fear of being voted out of office. Third, democracies lead to greater awareness of social development
concerns including health, primary health care and rights of women and minorities.
Developing standards for surveillance restores trust in

democratic government:
Morton H. Halperin, 5/7/2014 (Senior advisor, Open Society Foundations, I Spy,
You Spy: Limiting Government Surveillance of Private Citizens,
http://www.huffingtonpost.com/morton-h-halperin/i-spy-you-spy-limitinggovernment-surveillance_b_5269132.html, Accessed 6/24/2015, rwg)
the two governments should agree to initiate a
process designed to develop standards and guidelines for surveillance of private
persons that each government would commit to incorporating into its own domestic
laws. Other democratic governments, both in Europe and across the globe, should be invited to commit to the
Building on this common understanding,
same goal and join the effort along with other stakeholders, including Internet companies and civil society
organizations. The guidelines should require that the rules governing surveillance of private persons be enacted
into law and that each government be required to provide a clear and complete explanation of what surveillance is
The guidelines should cover direct surveillance,

searching large data bases, and minimizing the use of personally identifiable
information. The guidelines should provide for effective oversight of the intelligence activity consistent with
each country's traditions and provide for the right of redress for anyone improperly surveilled. The successful
negotiation of such standards will go a long way to restore the trust of democratic
governments in each other and of their citizens in their governments and intelligence services.
permitted and under what circumstances.
And the Fourth Amendment is key: it is the most vital element

of democracy:
Iaconeta 13 (Christine, 3/21) Book Review: More Essential Than Ever: The Fourth
Amendment in the Twenty-first Century. American Association of Law Libraries.
Professor Iaconeta is a member of the California Bar and an active member of the
American Association of Law Libraries (AALL), Law Librarians of New England
(LLNE), and NELLCO. She has served on numerous committees and has held
leadership positions in these organizations. Currently she is the Chair of the
Academic Law Libraries Special Interest Section (ALL-SIS) of AALL, AALLs largest
special interest section with 1200 members. http://www.aallnet.org/Blogs/spectrumblog/47280.html// LDonn
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures, requiring a
finding of probable cause before a search can take place. The amendment allows for governmental invasion of
privacy but it also requires that it be justified and that the government be held accountable for its actions.
Seemingly straightforward when originally drafted by our Founding Fathers, technological advances, changes in
police work, and threats to national security have had a profound effect on the Courts Fourth Amendment
jurisprudence. In More Essential Than Ever: The Fourth Amendment in the Twenty-first Century, author, Stephen J.
Schulhofer, takes the reader through a concise retelling of Fourth Amendment jurisprudence, hoping to reconcile
the historically held belief that governmental intrusions into the publics private matters cannot be allowed in a free
society; even when so doing my lead to the increased risk of danger and harm to the public. Accordingly, Mr.
Schulhofer argues that the protections provided by the Fourth Amendment as it was originally
must be adhered in todays modern society. A persons right to

privacy and the right to be secure in their persons, houses, papers, and effects [1] is that
conceived can be, should be and
essential to democracy .After an introduction that outlines the four myths that fuel skepticism about the
Fourth Amendment[2], the author begins, in Chapter Two, by discussing the historical tenets of the Fourth
Amendment, outlining the Framers strongly held belief that unconstrained governmental discretion cannot be
allowed and that judicial oversight is needed to prevent improper governmental actions. In this chapter, Mr.
Schulhofer argues that the present day courts should focus on the principles and values laid out by the Court in
early Fourth Amendment jurisprudence when deciding cases, rather than relying on a strict adherence to the
specific rules established by the Courts Fourth Amendment jurisprudence. The author calls this adaptive
originalism.[3] This concept is explored further in Chapter 3, as well as in the next chapter where he examines
the changing nature of everyday police work. In both of these chapters the author discusses the exceptions to the
Fourth Amendment that were necessitated by the nature of illegal activity and the need for the police to protect the
public from criminal activity while still adhering to the spirit of the Fourth Amendment. The author continues to
discuss the need for flexibility in Chapter 5, when he discusses administrative searches, those searches that take
place outside the realm of traditional police work. In these special circumstances, for example, searches done to
insure public health and safety, the Court has relaxed the traditional warrant and probable cause requirements.
Although this allows for flexibility, the author argues that this threatens the traditional notions of privacy requiring
the need for governmental accountability and oversight. Again, the author is calling for flexibility while still
recognizing the need for actions that promote the Fourth Amendments original ideals.In Chapter 6, the author
examines the privacy implications resulting from the development of modern technologies, including the effect
wiretapping, electronic eavesdropping and increased access to personal information has had on our Fourth
Amendment jurisprudence. Chapter 7 looks at national security and how the events of 9/11 have affected Fourth
Amendment jurisprudence. In this final chapter, Mr. Schulhofer discusses the effect the events of 9/11 had on our
Fourth Amendment rights, arguing that the assumption that security and prevention of future tragedies outweighs
the protections afforded to us by the Fourth Amendment is misconceived. All decisions have risk and to alienate the
millions of law abiding Muslims in the U.S. in order to protect us from the few that mean us harm is more
damaging. Governmental transparency and checks on governmental power will generate the societal trust needed
to better protect our society from the dangers we now face.[4] In conclusion, Mr. Schulhofer argues in the last
chapter that despite the many societal advances and changes the Framers couldnt possibly have anticipated when
the Fourth Amendment was drafted,
the notion of individual privacy continues to be the most vital
component of individual freedom and democracy, making the protections offered by

the Fourth Amendment are vital in todays society.
US democratic law is modeled internationally and sets the

foundations for other democracies:
Krotoszynski, 2009 (Ronald J. John C. Stone Chair, Director of Faculty Research, and Professor of Law,
University of Alabama School of Law. The Perils and the Promise of Comparative Constitutional Law: The New
Globalism and the Role of the United States in Shaping Human Rights. Arkansas Law Review 2009.
http://www.lexisnexis.com.ezproxy .samford.edu/hottopics/lnacademic/? 06/24/2015. clj)
Only a few years ago, former Chief Justice Aharon Barak, of the Supreme Court of Israel, tied these developments
directly to the contribution of United States constitutional law stating, " United
States public law in general,

and United States Supreme Court decisions in particular , have always been, to me and
to many other judges in modern democracies, shining examples of constitutional
thought and constitutional action." n10 He also noted that "the United States is the richest
and deepest source of constitutionalism in general and of judicial review in
particular." n11 Further, he acknowledged, "We foreign jurists all look to developments in the
United States as a source of inspiration." n12
Advantage 2: The Internet

The lack of legal protections to check internet surveillance
leads to a chilling effect and prevents the development of an
open internet:
Jeff Jarvis, 6/17/2013 (staff writer, I fear the chilling effect of NSA surveillance on
the open internet,
http://www.theguardian.com/commentisfree/2013/jun/17/chilling-effect-nsasurveillance-internet, Accessed 6/24/2015, rwg)
The essential problem is not
the internet or internet companies or even the spies. The real problem is the law
I fear the collateral damage the NSA's spying via technology will do to that technology.
and what it does not prevent the American government from doing with technology,
and how it does not protect the principles upon which this nation was founded. The damage to the net and its
freedoms will take many forms: users may come to distrust the net for
communication , sharing, and storage because they now fear with cause that the
government will be spying on them, whether or not they are the object of that
surveillance. International users properly concerned that they are afforded even less protection than Americans may ditch
American platforms. The European Union and other national governments, which already were threatening laws targeting US
technology companies, will work harder to keep their citizens' data away from the US. Technologists may find it necessary to build in
If we
trust the net less, will we use it less? Will it become less of an engine for innovation
and economic development? Will it be a diminished tool for speech and assembly among citizens? If governments
so many protections, so much encryption and caution, that the openness that is a key value of the net becomes lost.
use this event as an excuse to exercise more oversight and control over the net, will that not then, in turn, reduce citizens' trust in
the net and their freedom using it? Governments present themselves as the protector of our privacy, but as the NSA story
demonstrates, governments present the greatest threat to our privacy as they have the means both to surveil us and to use our
information against us. And note well that governments' relationship with the net is necessarily influenced by the net's disruptive
force on government: witness the internet's use in organizing protests against governments in Turkey, Brazil, Egypt, Tunisia, Iran,
and more nations by the day. Isn't a weakened, controlled, distrusted net in governments' interests? Advertisement So far, much of
the negative coverage and emotion in this story have centered on the technology companies alleged by Edward Snowden's leaked
PowerPoint slides to have cooperated with the NSA. The Washington Post has yet to correct its contention that the NSA and FBI are
"tapping directly" into the servers of internet companies, though that simplistic characterization has been soundly denied by Google,
Facebook, and others. The Associated Press has given a more nuanced and sensible interpretation of the slides, explaining that
some Prism data is the product of warrants served on those companies, producing data from their servers that is delivered by file
transfer, or disc in Google's case, and some is the result of apparent wholesale eavesdropping on internet fibre. That tapping into
the net's full flow of communications is far more troubling even than the US government's secret warrants. For a savvy description of
how that can occur, listen to security expert Steve Gibson's podcast. I've yet to hear internet bandwidth providers (Level3, Verizon,
et al) questioned as internet service companies have been about whether and how they are cooperating with the spies. That is a
next phase of this story. What the NSA is doing may be legal, made so by the Patriot Act. But even on Fox News, regular contributor
Andrew Napolitano has questioned whether its actions and this law are constitutional. That is the key question Edward Snowden and
company now put before us: what principles are being violated or upheld by the government's actions? That is the discussion we
must have. I see these core principles at stake. First, privacy: in the United States, first-class letters and parcels are protected from
search and seizure except by warrant. That should be the case, but is not, for any private communication using any technology:
other classes of mail, email, internet telephony, Twitter direct message, or means yet to be invented. Second, the balance of
powers: the NSA is overseen by a secret court and gagged legislators. Thus, save for Snowden's leaking, we the people are excluded
from the information we need and the opportunity we deserve to keep our representatives and agents in check. A third principle
riding atop these is transparency: the notion that government should be transparent by default and secret by necessity (and there
are necessary secrets). Today, government is secret by default and transparent by force, whether from whistleblowers and
journalists. When government threatens to torture the whistleblowers and prosecute the journalists who share information with us,
then that puts a chill on speech and a choke on the transparency citizens depend upon to assure their rights and monitor their
governments. The first two are principles enshrined in the US constitution: in the fourth amendment that guarantees freedom from
unreasonable searches and seizures; and in the structure of American government itself. The third is a principle whose value I have
learned from the net and the power it gives any citizen to speak publicly; to find, organize, or join a public; and ultimately, to choose
The NSA's actions and the laws that enable them as well as
some occasionally overblown conjecture around this threaten to diminish the
what is public and what is not.
power and freedom of the net .
I worry that the damage is done.
The chilling effect is real and spreading: websites are shutting

down for fear of NSA surveillance:
Mathew Ingram, 8/20/2013 (staff writer, Through a PRISM darkly: Fear of NSA
surveillance is having a chilling effect on the open web,
https://gigaom.com/2013/08/20/through-a-prism-darkly-fear-of-nsa-surveillance-ishaving-a-chilling-effect-on-the-open-web/, Accessed 6/24/2015, rwg)
Just a few weeks ago, the secure email service Lavabit which Edward Snowden used
while corresponding with Guardian writer Glenn Greenwald about NSA leaks, ironically shut down because
of the founders concern about government surveillance, as did fellow email
provider Silent Circle. Now, the well-respected legal discussion forum Groklaw has
done the same, driven by what its founder has called the forced exposure of NSA
surveillance. How many more web services do we have to lose before NSA chilling
effects become a serious drain on the internet we all take for granted? In his note about
the closure of his secure email service, Lavabit founder Ladar Levison said that if we knew what he knows about the
security of the global email system, we wouldnt use email at all. Pamela Jones, the founder of Groklaw, said in her
own closure notice that this warning started to gnaw away at her, and finally she couldnt stomach running her web
forum and email list any longer, because of a fear that its entire contents were available to the NSA. The simple
truth is, no matter how good the motives might be for collecting and screening everything we say to one another,
and no matter how clean we all are ourselves from the standpoint of the screeners, I dont know how to function in
such an atmosphere. Safety in the rule of law? Not so much privacy / spying / eye in computer Not only did Jones
say that she couldnt continue running Groklaw because of the fear of surveillance (especially since she has readers
and subscribers around the world, and surveillance of non-U.S. citizens is even easier than it is with U.S. residents)
but she said the rise of the security state actually seemed to contradict some of the reasons she started the
Groklaw service in the first place, or at least to conflict with them, and that made it even more difficult to continue.
As she put it: I loved doing Groklaw, and I believe we really made a significant contribution. But even that turns out
to be less than we thought, or less than I hoped for, anyway. My hope was always to show you that there is beauty
and safety in the rule of law, that civilization actually depends on it. How quaint. Some of those who have been
commenting on Jones and her decision seem to feel she is over-reacting. But is she? The PRISM documents and
subsequent revelations about how much of our online behavior is being captured either for immediate
surveillance or stored in some database for future analysis are enough to make even the biggest government
supporter think twice, not to mention incidents like the detention of Glenn Greenwalds partner at a British airport
How much of what we value

about the internet is in jeopardy because of the sheer scale of the surveillance that
is going on all around us? Its one thing to lose a secure email service or a legal discussion forum, but how
and the seizure of his belongings. Who will decide to shut down next?
long until other more mainstream services are affected? And it doesnt have to be outright shutdowns or closures
just a series of restrictions or the gradual decline in usage by users who are (rightly) concerned about the
information they are putting online or the digital cookie crumbs they are leaving behind them. As Jones points out,
the cumulative effect of a multitude of decisions like hers could have substantial
repercussions for internet companies (and in fact have already done so) as well as the digital
economy as a whole. How many people will want to use an e commerce solution like Facebook is said to be
launching if they know every transaction will be indexed and tracked by the government or the NSA? Thats just one
example. As Jones puts it: My personal decision is to get off of the Internet to the degree its possible. Im just an
ordinary person. But I really know, after all my research and some serious thinking things through, that I cant stay
online personally without losing my humanness if everyone did that, leap off the Internet, the worlds economy
would collapse, I suppose. I cant really hope for that. But for me, the Internet is over.
The internet solves multiple scenarios for extinction:

David Eagleman, 11/9/2010 (Neuroscientist at Baylor College of Medicine, Six
ways the internet will save civilization,
http://www.wired.co.uk/magazine/archive/2010/12/start/apocalypse-no, Accessed
6/24/2015, rwg)
Many great civilisations have fallen, leaving nothing but cracked ruins and scattered genetics. Usually
this results from: natural disasters, resource depletion, economic meltdown, disease, poor information flow and
But were luckier than our predecessors because we command a

technology that no one else possessed: a rapid communication network that finds
its highest expression in the internet. I propose that there are six ways in which the net
has vastly reduced the threat of societal collapse . Epidemics can be deflected by telepresence
One of our more dire prospects for collapse is an infectious-disease epidemic . Viral and
corruption.
bacterial epidemics precipitated the fall of the Golden Age of Athens, the Roman Empire and most of the empires of
The internet can be our key to survival because the ability to work
telepresently can inhibit microbial transmission by reducing human-to-human
contact. In the face of an otherwise devastating epidemic, businesses can keep supply chains running with the
the Native Americans.
maximum number of employees working from home. This can reduce host density below the tipping point required
for an epidemic. If we are well prepared when an epidemic arrives, we can fluidly shift into a self-quarantined
society in which microbes fail due to host scarcity. Whatever the social ills of isolation, they are worse for the
microbes than for us.
The internet will predict natural disasters
We are witnessing the downfall of
slow central control in the media: news stories are increasingly becoming user-generated nets of up-to-the-minute
information. During the recent California wildfires, locals went to the TV stations to learn whether their
neighbourhoods were in danger. But the news stations appeared most concerned with the fate of celebrity
mansions, so Californians changed their tack: they uploaded geotagged mobile-phone pictures, updated Facebook
the internet carried news about the fire more quickly

and accurately than any news station could. In this grass-roots, decentralised scheme, there were
embedded reporters on every block, and the news shockwave kept ahead of the fire. This head start could
provide the extra hours that save us. If the Pompeiians had had the internet in 79AD, they could have
statuses and tweeted. The balance tipped:
easily marched 10km to safety, well ahead of the pyroclastic flow from Mount Vesuvius. If the Indian Ocean had the
Pacifics networked tsunami-warning system, South-East Asia would look quite different today. Discoveries are
retained and shared Historically, critical information has required constant rediscovery. Collections of learning -from the library at Alexandria to the entire Minoan civilisation -- have fallen to the bonfires of invaders or the
wrecking ball of natural disaster. Knowledge is hard won but easily lost. And information that survives often does
not spread. Consider smallpox inoculation: this was under way in India, China and Africa centuries before it made its
way to Europe. By the time the idea reached North America, native civilisations who needed it had already
collapsed. The net solved the problem. New discoveries catch on immediately; information spreads widely. In this
way, societies can optimally ratchet up, using the latest bricks of knowledge in their fortification against risk.
Tyranny is mitigated Censorship of ideas was a familiar spectre in the last century, with state-approved news
outlets ruling the press, airwaves and copying machines in the USSR, Romania, Cuba, China, Iraq and elsewhere. In
many cases, such as Lysenkos agricultural despotism in the USSR, it directly contributed to the collapse of the
nation. Historically, a more successful strategy has been to confront free speech with free speech -- and the internet
allows this in a natural way. It democratises the flow of information by offering access to the newspapers of the
world, the photographers of every nation, the bloggers of every political stripe. Some posts are full of doctoring and
dishonesty whereas others strive for independence and impartiality -- but all are available to us to sift through.
Given the attempts by some governments to build firewalls, its clear that this benefit of the net requires constant
vigilance. Human capital is vastly increased Crowdsourcing brings people together to solve problems. Yet far fewer
We need expand human capital. Most of the

world not have access to the education afforded a small minority. For every Albert
Einstein, Yo-Yo Ma or Barack Obama who has educational opportunities, uncountable others
do not. This squandering of talent translates into reduced economic output and a
smaller pool of problem solvers. The net opens the gates education to anyone with a computer. A
than one per cent of the worlds population is involved.
motivated teen anywhere on the planet can walk through the worlds knowledge -- from the webs of Wikipedia to
The new human capital will serve us well when we

confront existential threats weve never imagined before. Energy expenditure is reduced
the curriculum of MITs OpenCourseWare.
Societal collapse can often be understood in terms of an energy budget: when energy spend outweighs energy
return, collapse ensues. This has taken the form of deforestation or soil erosion; currently, the worry involves fossilfuel depletion. The internet addresses the energy problem with a natural ease. Consider the massive energy
savings inherent in the shift from paper to electrons -- as seen in the transition from the post to email. Ecommerce
reduces the need to drive long distances to purchase products. Delivery trucks are more eco-friendly than
individuals driving around, not least because of tight packaging and optimisation algorithms for driving routes. Of
course, there are energy costs to the banks of computers that underpin the internet -- but these costs are less than
the wood, coal and oil that would be expended for the same quantity of information flow. The tangle of events that
vast,
networked communication can be an antidote to several of the most deadly
diseases threatening civilisation . The next time your coworker laments internet addiction, the banality
triggers societal collapse can be complex, and there are several threats the net does not address. But
of tweeting or the decline of face-to-face conversation, you may want to suggest that the net may just be the
technology that saves us.
The internet is key to the economy:

Gabriela Gonzalez, 9-4-2014 (A million reasons why the internet is good for
you,http://blogthinkbig.com/a-million-reasons-why-the-internet-is-good-for-you/,
accessed 6-23-2015, Kkb)
The internet contributes an average of 3.4% to gross domestic product (GDP) in at
least 13 countries worldwide, including the US, the UK, Canada and Spain. Money
production through the internet is so high that it is the same as the
amount in GDP produced by Canada each year and more than that
produced by Australia; and the research only covered 13 countries, not the
whole world. The internet creates jobs and for each job created in the
technology industry, five more are created in other branches, jobs that are needed to support an entire
company. Crowdfunding platforms raised more than $2.7 billion in 2013, providing enough money for over one
million campaigns created by ordinary people with big ideas. 95% of the companies in countries belonging to the
organization for Economic Co-operation and Development (OECD) are present online, which increases their sales
and improves the customer-seller relationship. The internet has made many things change, and in the search for a
formula to reduce piracy, the Netflix effect has come about, something so simple whereby if people have a legal
place where they can pay to watch movies, view series and listen to music piracy will fall. According to one study,
40% of people download less pirate copies if they can use a service such as Netflix and similar sites.
US economic decline causes global great power wars

Duncan 12 [Richard Duncan, former IMF consultant, financial sector specialist for the World Bank,
Chief Economist Blackhorse Asset Management, The New Depression: The Breakdown of the Paper
Money Economy, Page 12, Ebooks]
The political battle over Americas future would be bitter, and quite possibly bloody. It cannot be guaranteed that the U.S.
Constitution would survive. Foreign affairs would also confront the United States with enormous challenges. During the Great Depression, the United States did not
have a global empire. Now it does. The United States maintains hundreds of military bases across dozens of countries around the world. Added to this is a fleet of 11
aircraft carriers and 18 nuclear-armed submarines. The country spends more than $650 billion a year on its military. If
into a New Great Depression, the
the U.S. economy collapses

United States could not afford to maintain its worldwide military presence or to continue in its role as
global peacekeeper. Or, at least, it could not finance its military in the same way it does at present. Therefore, either the United States would have to find an
alternative funding method for its global military presence or else it would have to radically scale it back. Historically, empires were financed with plunder and
territorial expropriation. The estates of the vanquished ruling classes were given to the conquering generals, while the rest of the population was forced to pay imperial
taxes. The U.S. model of empire has been unique. It has financed its global military presence by issuing government debt, thereby taxing future generations of
Americans to pay for this generations global supremacy. That would no longer be possible if the economy collapsed. Costbenefit analysis would quickly reveal that
much of Americas global presence was simply no longer affordable. Manyor even mostof the outposts that did not pay for themselves would have to be
abandoned. Priority would be given to those places that were of vital economic interests to the United States. The Middle East oil fields would be at the top of that list.
The United States would have to maintain control over them whatever the price. In this global depression scenario, the price of
oil could collapse to $3 per

impoverish the oil-
barrel. Oil consumption would fall by half and there would be no speculators left to manipulate prices higher. Oil at that level would
producing nations, with extremely destabilizing political consequences. Maintaining control over the Middle East oil fields would
become much more difficult for the United States. It would require a much larger military presence than it does now. On the one hand, it might become necessary for
the United States to reinstate the draft (which would possibly meet with violent resistance from draftees, as it did during the Vietnam War). On the other hand,
Americas all-volunteer army might find it had more than enough volunteers with the national unemployment rate in excess of 20 percent. The army might have to be
employed to keep order at home, given that mass unemployment would inevitably lead to a sharp spike in crime. Only after the Middle East oil was secured would the
country know how much more of its global military presence it could afford to maintain. If international trade had broken down, would there be any reason for the
United States to keep a military presence in Asia when there was no obvious way to finance that presence? In a global depression, the United States allies
in
Asia would most likely be unwilling or unable to finance Americas military bases there or to pay for the upkeep of the U.S. Pacific
fleet. Nor would the United States have the strength to force them to pay for U.S. protection. Retreat from Asia might become unavoidable. And Europe? What would
a costbenefit analysis conclude about the wisdom of the United States maintaining military bases there? What valued added does Europe provide to the United
States? Necessity may mean Europe
will have to defend itself. Should a New Great Depression put an end to the Pax Americana, the world
would become a much more dangerous place. When the Great Depression began, Japan was the rising industrial power in Asia. It invaded
Manchuria in 1931 and conquered much of the rest of Asia in the early 1940s. Would China, Asias new rising power, behave the same way in the event of a new
global economic collapse? Possibly. China is the only nuclear power in Asia east of India (other than North Korea, which is largely a Chinese satellite state). However,
in this disaster scenario, it is not certain that China would survive in its current configuration. Its economy would be in ruins. Most of its factories and banks would be
closed. Unemployment could exceed 30 percent. There would most likely be starvation both in the cities and in the countryside. The Communist Party could lose its
grip on power, in which case the country could break apart, as it has numerous times in the past. It was less than 100 years ago that Chinas provinces, ruled by
warlords, were at war with one another. United or divided, Chinas nuclear arsenal would make it Asias undisputed superpower if the United States were to withdraw
Asia would be at Chinas mercy. And

hunger among Chinas population of 1.3 billion people could necessitate territorial expansion into Southeast Asia. In fact, the central
from the region. From Korea and Japan in the North to New Zealand in the South to Burma in the West, all of
government might not be able to prevent mass migration southward, even if it wanted to. In Europe, severe economic hardship would revive the centuries-old struggle
between the left and the right. During the 1930s, the Fascists movement arose and imposed a police state on most of Western Europe. In the East, the Soviet Union had
become a communist police state even earlier. The far right and the far left of the political spectrum converge in totalitarianism. It is difficult to judge whether
Europes democratic institutions would hold up better this time that they did last time. England had an empire during the Great Depression. Now it only has banks. In
a severe worldwide depression, the countryor, at least Londoncould become ungovernable. Frustration over poverty and a lack of jobs would erupt into antiimmigration riots not only in the United Kingdom but also across most of Europe. The extent to which Russia would menace its European neighbors is unclear. On the
one hand, Russia
would be impoverished by the collapse in oil prices and might be too preoccupied with internal unrest to threaten anyone. On the
other hand, it could provoke a war with the goal of maintaining internal order through emergency wartime powers. Germany is very
nearly demilitarized today when compared with the late 1930s. Lacking a nuclear deterrent of its own, it could be subject to Russian intimidation. While Germany
could appeal for protection from England and France, who do have nuclear capabilities, it is uncertain that would buy Germany enough time to remilitarize before it
became a victim of Eastern aggression. As for the rest of the world, its prospects in this disaster scenario can be summed up in only a couple of sentences. Global
economic output could fall by as much as half, from $60 trillion to $30 trillion. Not
all of the worlds seven billion people would

survive in a $30 trillion global economy. Starvation would be widespread. Food riots would provoke
political upheaval and myriad big and small conflicts around the world. It would be a humanitarian
catastrophe so extreme as to be unimaginable for the current generation, who, at least in the industrialized world, has known only prosperity.
Nor would there be reason to hope that the New Great Depression would end quickly. The Great Depression was only ended by an even
more calamitous global war that killed approximately 60 million people.
Advantage 3: Imperial Presidency

The judiciary is currently letting the executive branch run
amok in intelligence surveillance, the plan is necessary to
restore the check against the president:
One of the core principles of the United States Constitution is the system of checks and
balances. n237 The judicial branch has been extremely hesitant to oppose the
government with regard to intelligence surveillance.
n238 In In re Application of F.B.I., the FISA
Court approved the collection of telephony metadata on U.S. citizens and interpreted the NSA's surveillance
practices as indistinguishable from a pen register. n239 In similar fashion, an Idaho court held, in Smith v. Obama,
that a citizen seeking an injunction against NSA telephony metadata collection has no reasonable expectation of
privacy with respect to her cellphone data. n240 Other courts dismissed similar actions on the basis that plaintiffs
lack standing. n241 For example, a District Court in Washington, D.C. held that the plaintiff lacked standing,
because "[h]is generalized fear that his communications are being intercepted 'is insufficient to create standing.'"
n242 Opponents of current wiretapping and surveillance legislation have garnered little support from the courts
At the same
time, the executive branch's authority in this area has been greatly expanded
following 9/11. n244 The 9/11 attacks resulted in "the single largest loss of life from a foreign attack on
because national security concerns have prevented revisions to surveillance regulations. n243
American soil," and left the nation in a state of terror. n245 The government has [*495] an obligation to protect
Nonetheless, there must be a balance between the

constitutional rights of the individual and the government's surveillance practices .
n247 The judicial branch must fulfill its constitutional function by serving as a check
citizens from another attack. n246
on the authority of the executive and legislative branches. n248 The FISA court has failed to
restrain the power of intelligence agencies over the past two decades. For example, the FISA court approved 20,909
warrants, approximately thirty-three surveillance warrants per week, from 2001 to 2012. n249 During that span,
FISA court judges denied only ten applications and approved over 500 business record warrants, which also include
bulk metadata from phone and Internet providers under section 215. n250 Most notably, the FISA court
"substantially modified" 376 of the 417 business record warrants for 2011 and 2012. n251 It can be reasonably
inferred that the modifications by the court show that the FISA court is doing everything it can to approve warrants
for the NSA, because the court does not reject them completely.
The presidencys powers are massively expanding now and

Congress isnt providing a check on them:
F.H. Buckley April 2014 (is Foundation Professor at the George Mason University School of Law and author
of The Once and Future King: The Rise of Crown Government in America THE ONCE AND FUTURE KING.
http://spectator.org/articles/58138/ once-and-future-king, 06/23/15 , clj)
Gutzon Borglum knew what he was doing when he picked the site for the future Mount Rushmore. The areas 1.6 billion-year-old
granite is thought to erode only a single inch every ten millennia. Barring a detonation at the hands of our jihadist foes, the faces of
Washington, Jefferson, Lincoln, and Teddy Roosevelt will still look serenely down at future visitors of South Dakotas Black Hills
when the America of the twentieth century is as remote as we are from the pharaoh whom built the first pyramid. If only our
Constitution had been carved out of the same sturdy material. American liberty has not been eroding so much as crumbling
away these last five years. Increasingly burdensome and intrusive legislation, persecution (and sometimes
prosecution) of political enemies by the executive branch, a swelling national debt: Its been a bad few years, to say the
least. But the biggest threat to the bedrock of our freedom is the presidency itself, the crown government of the
almighty chief executive, which is completely at odds with the republican principles of our Founders. Forget what your
high-school civics teacher told you: Since our founding, America has actually had three different constitutions. The
first, the one that the Framers gave us, established congressional government: The House of Representatives,
voting by state, would almost always choose the president, and the executive branch was exceedingly lean
starved, even. Then we had so-called Jacksonian democracy: The president, chosen by the people, enjoyed the
legitimacy of the only person elected by the nation as a whole. This was the constitution of separation of powers, in
which the legislative and executive branches shared the responsibility for governing, and in which a strong
president might be forced to bend before an implacable Congress. We
now live under a third constitution,
one that enshrines an all-powerful executive. The president has slipped off the petty, outdated constraints of the
past. He makes and unmakes laws and spends trillions of dollars without the consent of Congress.
Even the gravest of decisions, whether to commit our country to war, he makes alone . His ability
to reward friends and punish enemies exceeds anything weve seen before. He is rex quondam, rex futurusthe once and future
king. And all of this seems irreversible. The arc of American government has bent from monarch to monarch, from
George III to Obama. To be sure, Im not the first person to detect a whiff of royal perfume amid the effluvium of our
executive branch. Liberals such as Arthur M. Schlesinger, Jr., who drooled over Jack Kennedy but excoriated Richard
Nixon, have always been quick to decry executive overreach by Republican presidents, even as they celebrated the
assertion of presidential power when their fellow slept at 1600 Pennsylvania Avenue. And, indeed, the
role of the
president has been expanding, and that of Congress receding, for many years now. But weve seen a clear
move recently toward a new conception of our nations highest office, and of government itself. The president now enjoys the
power to make law. Never mind that this is inconsistent with the separation of powers, that Article I, Section 1 of the
Constitution specifies that All legislative Powers herein granted shall be vested in a Congress of the United States.
One might have expected the speaker of the House or the leaders of the Senate to defend their domain. They have
not. In fact, Congress has done more than just quietly acquiesce to its own obsolescence. It has aided and abetted
the expansion of presidential power by drafting major legislation in the most general terms, allowing the details to be penciled
in by federal agencies under executive supervision. This can be seen as a grant to the president of legislative powers, the
regal prerogative the Framers so feared.
Unrestrained presidential powers risk nuclear war:

FORRESTER, 89
(Ray, professor @ Hastings College of the Law University @ University of California and former
Dean of Law School @ Vanderbilt, Tulane, and Cornell, George Washington Law Review, August 1989, l/n)
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
On the basis of this report,
the separation of powers between the President, Congress, and the Supreme Court. The message is that no one of
Yet, in what is probably the most dangerous governmental power ever

we find the potential for world destruction lodged in the discretion of one
them is safe with unchecked power.

possessed,
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
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
the merits might entail. Finkelstein, Judicial Self-Limitation, 37 HARV. L. REV. 338, 344 (1924)(footnote omitted).
"vast consequences" in many historic disputes, some involving executive war power. It is to be hoped that the
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
Justices will finally do their duty here.
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 twothirds 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
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.
of law. [*1640]
FYI on What the Plan Does

In the status quo, email users have no expectation of privacy
in the to/from addresses of messages or IP addresses of
websites they visitthe plan would change that:
By nature, the Internet is a public network. n214 Therefore, anytime someone uses
it, they are knowingly exposing information to the public. n215 Courts have
consistently held that senders and recipients of standard mail have no reasonable
expectation of privacy with respect to information "put on the outside of mail,
because that information is voluntarily transmitted to third parties." n216 Similarly,
"e-mail and Internet users have no expectation of privacy in the to/from addresses
of their messages or the IP addresses of the websites they visit." n217 A Verizon
customer has no reasonable expectation of privacy because they are giving their IP
address voluntarily to Verizon. n218
Bulk collection of Internet metadata does not currently

constitute a search under the meaning of the Fourth
Amendment:
The NSA asserts that the identifiers are limited to identifying persons associated with foreign terrorist organizations
and should be allowed because it is vital to NSA's counterterrorism mission. n197 However, evidence has pointed to
the contrary. n198 A report to the government in 2009 showed that as of January 15, 2009, a staggering 1,935 of
the 17,835 identifiers approved by the designated NSA officers were based on a reasonable, articulable suspicion.
the NSA
argues that the bulk collection of Internet metadata is similar to a pen register and does not
constitute a search within the meaning of the Fourth Amendment . n200
n199 Although this appears to be a clear abuse of discretionary authority under 1861, [*490]
Inherency Extensions
INH: Need to Update the Law in digital age

Fourth Amendment interpretations must be updated to the
digital age:
Mason C. Clutter, 2014 (National Security and Privacy Counsel to the National
Association of Criminal Defense Lawyers, DOGS, DRONES, AND DEFENDANTS: THE
FOURTH AMENDMENT IN THE DIGITAL AGE , George Mason Law Review,
Lexis/Nexis, Accessed 6/24/2015, rwg)As technology evolves and expectations of
individual privacy morph, so too must the law. Unfortunately , Congress is failing to keep up
with technological advances, and the courts are forced to refer to our founding document for
guidance on the government's use of new technologies. The Fourth Amendment protects
"persons, houses, papers, and effects, against unreasonable searches and seizures." n1 We know that a man's
what protection do
citizens have from intrusion by electronic devices and other "enhanced searching
technologies" that can see, smell, and hear through walls and track one's physical
location and electronic communications? Can law enforcement use these
technologies against us outside of our homes? The law is always a bit stickier when we step
home is his castle and one of the most private and protected spaces under the law. But
outside of the home and into "public."
Solvency Extensions
SOLV--AT: Law is Indeterminate

(--) Extend our solvency evidencerecalibrating the 4th
amendment provides better guidance to future courts than the
current Katz test.
(--) Reclaiming the language of the 4th amendment provides
greater clarity and guidance:
The increased capacity for electronic surveillance and the need to employ new
technologies require a critical reassessment of the existing legal structure . In essence, it
is time for another paradigm shift. n17 We must abandon Katz's reasonable expectation of privacy and adopt
language that accurately reflects the significance of the interests protected by the Fourth Amendment. The
interests that courts since Katz have described in terms of a reasonable expectation of privacy should be expressed
in terms of personal security and the right to be secure. At first blush it may appear that replacing the reasonable
expectation of privacy with the right to be secure is merely a game of semantics, but
the use of specific
language is important, and reclaiming the language of security will provide greater
clarity and guidance in our analysis of Fourth Amendment issues. n18
(--) Breaking away from the reasonable expectation of privacy

standard in Katz generates legal clarity:
A clean break from the reasonable expectation of privacy standard will generate
clarity by (1) reducing the blurring effect of a reliance on a normative standard, (2) adopting a
conception of Fourth Amendment protection from governmental intrusion that
comports with the realities of modern technology, and (3) linguistically separating the different
notions of privacy in our current legal lexicon.
(--) Courts will follow precedentthey feel an overwhelming

obligation to do so:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review,
April 2005, 118 Harv. L. Rev. 1787; Lexis
Throughout constitutional history, Supreme Court Justices have assumed with near
unanimity that they are legally authorized and sometimes bound to follow
precedents , sometimes even when prior cases were themselves erroneous at the
time of their decision. n149 Indeed, I know of no Justice in the history of the
Supreme Court who has persistently questioned [*1822] precedent-based
decisionmaking. n150 Even leading constitutional originalists
- those who maintain that
courts otherwise ought to decide cases in accordance with the original understanding n151 -
have accepted
the authority of judicial precedent , including past decisions that could not
themselves be justified under originalist principles. n152
SOLV--Court Should Reconcile Fourth Amendment

Courts should reconcile the Fourth Amendment with modern
technology:
Modern courts seek a proper application of the Fourth Amendment adapted to
modern technology. n294 The next step is for the courts to understand that
technology is rapidly evolving, and that they must be flexible to find a proper
solution. This is about accountability. The Constitution is something 'we the people' placed on the government.
n295 On November 18, 2014, legislators had the ability to curtail the NSA's surveillance program. n296 Senator
Patrick Leahy's [*500] bill to limit the NSA's telephony metadata collection program was up for a vote, which
needed sixty votes to pass. n297 It was the hope of the American people that our government will respond to the
encroachment it has allowed thus far. Unfortunately, Leahy's USA FREEDOM Act of 2014 fell short of the sixty votes
needed to pass. n298 The votes were divided among party lines, with the exception of a few votes on each side.
n299 Most view the outcome as a major loss for privacy advocates, because the Patriot Act has not been curtailed
in any way. n300 However, the rejection of the USA FREEDOM Act has the potential of being a major win for privacy
advocates.
SOLV--AT: Rollback/Wont Be Enforced

(--) No rollback: three reasons:
Schacter, 1995 (Assistant Professor of Law, University of Wisconsin Law
School, ARTICLE: METADEMOCRACY: THE CHANGING STRUCTURE OF
LEGITIMACY IN STATUTORY INTERPRETATION Harvard Law Review, JANUARY,
lexis, Accessed 2/18/2013, rwg)
Even if some of the strongest cynicism about legislative behavior and motivation is overstated, several aspects of
statutory override cannot cure all that ails the

essentialist model. First, legislatures are frequently too busy, overextended, or
the pluralist process nevertheless suggest that
inert to respond to an objectionable judicial interpretation . n54 Indeed, there is little

reason to believe that legislators systematically monitor judicial interpretations of
statutes. n55 Second, [*606] statutory override is an imperfect substitute , and
controversial as a normative matter, because the current legislature may have
different preferences from the enacting legislature. n56 Third, even when legislators
do respond to a particular judicial interpretation, the process does not necessarily
end . The new statute might require interpretation, and the process may simply
continue. n57
(--) Strike down efforts in Congress failcant get enough

Congressional support to strike down Court decisions:
Lawrence Baum, 2003 Department of Political Science, Ohio State
University,
[The Supreme Court in American Politics,
http://arjournals.annualreviews.org/doi
/full/10.1146/annurev.polisci.6.121901.085526;jsessionid=n1HzQqZJAL
Re]
It is also worth asking why the Court fares so well in Congress. As noted above, few
of the Court's most controversial interventions in the past half century have been
directly reversed . Nor has Congress enacted any of the numerous bills to remove
the Court's jurisdiction over areas in which the Court has aroused congressional
anger. A large part of the explanation lies in the difficulty of enacting legislation in a
process with so many veto points. That difficulty is especially great in an era like the current one,
which lacks a strong or stable law-making majority. In such an era, interventions are likely to have significant
support in government regardless of their ideological direction, and
even decisions that strike down
federal laws may enjoy majority support .
The line of decisions since 1995 that has limited the

regulatory power of the federal government (e.g., Alden v. Maine 1999, United States v. Morrison 2000) constitutes
the most significant judicial attack on federal policy since the 1930s. But since 1995, Congress has had Republican
majorities except for the bare Democratic Senate majority in 20012002.
In that situation, any significant
action to counter the Court's policies has been exceedingly unlikely .
(--) Other branches will complyfear of public backlash

guarantees:
McFarland, 2008 New York University Annual Survey of American Law
editor (Michael, New York University Annual Survey of American Law,
"Derivative Citizenship: Its History, Constitutional Foundation, And
Constitutional Limitations," 63 N.Y.U. Ann. Surv. Am. L. 467, l/n, accessed
2/18/2013, rwg]
The idea that courts should decline review because they do not want their decisions to be ignored by the political
Congress would rarely risk the public backlash that would come
with ignoring a Supreme Court directive . n240 President Nixon, for example, would have
found it all but impossible to refuse to provide Congress with his Oval Office tapes .
branches is misguided.
n241 Redish even argues that courts gain from challenging the political branches. n242 Courts, and especially the
Supreme Court, are viewed as the final arbiters of the Constitution, and public support will frequently be on their
side if they choose to challenge Congress or the executive. n243 Thus, the institutional reasons for granting
deference to Congress provide little support for the plenary power doctrine.
(--) Politicians will enforce the counterplantheyll act if the

statute is gone away for all time:
Treanor & Sperling 93 William - Prof Law at Fordham. Gene - Deputy
Assistant to President for Economic Policy. PROSPECTIVE OVERRULING AND THE
REVIVAL OF "UNCONSTITUTIONAL" STATUTES, Columbia Law Review, Dec 93, lexis
First, full examination of the revival issue demonstrates the interactive nature of the relationship between judicial invalidation of statutes and majoritarian
the very act of judicial invalidation

powerfully shapes subsequent legislative deliberations. Belief in the finality of judicial
judgments is so pervasive that, when a statute is struck down or when a judicial
decision establishes a rule of law under which a statute is unconstitutional, its
opponents frequently act as if the statute were gone for all time . At the very least, even if
political actors realize the potential for reversal , the finding of unconstitutionality alters
the way in which they spend their political capital. As a result, rather than seek to repeal a statute that appears to be, for all
practical purposes, a nullity, they devote their political resources to other - more clearly consequential - matters. Revival in such circumstances
decision-making. Judicial review is not purely external to the legislative process:
can produce a result contrary to what the political process would have produced in the absence of the initial judicial decision.
SOLVExecutive Will Comply

Executive will comply with Supreme Court decisions:
TODD S. PURDUM, 2004 6/29/2004 (THE SUPREME COURT: THE
PRESIDENT; In Classic Check and Balance, Court Shows Bush It Also Has
Wartime Powers, Accessed 7/26/2012 at
http://www.nytimes.com/2004/06/29/world/supreme-court-president-classiccheck-balance-court-shows-bush-it-also-has.html?pagewanted=all&src=pm,
rwg)
Some historians were not surprised by the court's decisions. Alonzo Hamby, a scholar of the presidency at Ohio
University, noted wryly that ''once upon a time, it was not assumed that presidents necessarily had to pay attention
In the 1830's, when the Supreme Court declared the

government's forced removal of Indian tribes from their lands illegal, President
Andrew Jackson famously dismissed the ruling by the chief justice by saying: ''John
Marshall has made his decision. Now let him enforce it.'' Mr. Hamby said, ''But in the
world we live in now, it's literally impossible for a president to ignore a Supreme
to Supreme Court decisions.''
Court decision , no matter how wrong or dangerous he may think it is.''
SOLV--Solvency: Lower Courts will follow

(---) Doesnt matter if lower courts dont follow--the plan is
modeled and solves for democracies in other nations: thats
the Krotoszynski 09 evidence.
(--) Judges almost always follow the courts leadmultiple
reasons:
University, June [The Supreme Court in American Politics,
http://arjournals.annualreviews.org/
doi/full/10.1146/annurev.polisci.6.121901.085526;jsessionid=n1HzQqZJ
ALRe]
Once we know more about the implementation of the Court's decisions in absolute and relative terms, the most
The Court's limited

concrete powers would seem to aggravate the difficulties faced by all organizational
leaders, so why do judges and administrators follow the Court's lead so frequently?
important question might well be why implementation is as successful as it is.
Within the judiciary, part of the answer undoubtedly lies in selection and
socialization processes that enhance agreement about legal policy and acceptance
of hierarchical authority . Even the Court's limited powers may be sufficient to rein
in administrators, especially in the era of broad legal mobilization that Epp has described: Groups that
undertake litigation campaigns to achieve favorable precedents can also litigate against organizations that refuse to
accept those precedents.
Both judges and administrators may reduce their decision costs

by using the Court's legal rules as a guide. In any event, the relationship between the Court and
policy makers who implement its policies may be an especially good subject for studies to probe the forces that
reduce centrifugal tendencies in hierarchies.
(--) Parties almost always adhere to Court rulings:

April 2005, 118 Harv. L. Rev. 1787; Lexis
(b) Authoritative Legitimacy and Its Limits. - Today, nearly all Supreme Court rulings
possess a high degree of authoritative legitimacy, whether in the strong or the weak
sense, at least with respect to [*1831] the parties before the Court. n195 In plainer
terms, the parties almost always obey the Court's rulings . No logical necessity undergirds
this state of affairs. In the past, General Andrew Jackson famously defied a judicial ruling. n196 So did President
Abraham Lincoln. n197
SOLV--Solvency: The Plan will Snowball

(--) LEGAL PRECEDENTS SNOWBALL:
Tsai, 2005 Assistant Prof. of Law @ University of Oregon School of Law,
2005 (Robert, Iowa Law Review, March 2005; 90 Iowa L. Rev. 1095; Lexis)
The history of law, like human
history generally, is a set of contingencies. Unforeseen events can cause a
disruption; a series of small interpretive choices and popular reactions can add up
to a quiet legal revolution. More important, law's appearance can be deceiving. Still, legal symbols do
It is always risky to attempt predictions based on a reading of signs.
reveal [*1160] gestalts - the particular interaction between law's manifestations and the beliefs they express.
SOLV--Solvency: Supreme Court Decisions are

Modeled
(--) Extend our Krotoszynski 09 evidenceother democracies
model the Supreme Court decisions.
(--) Domestic litigation in the US is modeled by other nations:
Van Schaack, 2004 Assistant Prof. of Law @ Santa Clara University
School of Law, Vanderbilt Law Review, November, (Beth, 57 Vand. L. Rev.
2305; Lexis)
Nonetheless, domestic civil litigation in the U.S. plays a part where criminal
prosecutions are not feasible or forthcoming and where perpetrators are subject to
personal jurisdiction here. By exposing the whereabouts of abusers, civil suits can spur or shame the U.S.
government into invoking administrative n133 and/or criminal remedies against identified perpetrators. n134 For
example, information gathered in connection with civil lawsuits has assisted the Bureau of Immigration and
Customs Enforcement (formerly the Immigration and Naturalization Service) in pursuing actions against abusers for
Likewise, the commencement of civil litigation in the U.S. can trigger

similar judicial responses in the home countries of defendants. n136
visa fraud. n135
Solvency: Court Creates Social Change

(--) Plessy and other race based decisions prove: the stamp of
approval from the Supreme Court has powerful societal
consequences:
Lassiter, 2005 Assistant Professor of History, University of Michigan,
Michigan Law Review, May, 2005, 103 Mich. L. Rev. 1401
Klarman largely substantiates his claim that the Plessy Court's civil rights decisions represented "plausible
interpretations of conventional legal sources" and accurate reflections of white public opinion, and therefore the
corollary that "these rulings were not blatant nullifications of post-Civil War constitutional amendments designed to
secure racial equality" (p. 9). But this does not necessarily confirm his broader thesis about the minimal effect of
Klarman's belief in judicial minimalism downplays

the import of having the institution of the Supreme Court - and not just southern
vigilantes or political demagogues or even Progressive-era reformers - extend the
federal government's stamp of constitutional approval to a formal legal system that
operated on the basis of the systematic racial subordination of African Americans.
the Plessy-era decisions on the path of history.
[*1411] "Jim Crow legislation was generally more symbolic than functional," according to Klarman, because "white
supremacy depended less on law than on entrenched social mores, backed by economic power and the threat and
reality of violence" (p. 82). But surely it is not simply a coincidence that a relatively stable racial order marked the
four decades between the turn of the twentieth century and the beginning of World War II, the same era during
which the Plessy Court's validation of legal segregation and black disfranchisement remained operative. Nor is it
incidental that substantial black activism and corresponding white violence marked the fluid and unsettled racial
climate that existed during the decades before the Supreme Court's endorsement of segregation and
disfranchisement in the late 1890s, and also during the period after the federal judiciary began to chip away at both
The Supreme Court's overt willingness to tolerate

state-action subterfuges that enforced anti-black discrimination through raceneutral facades also helped to shape the legal underpinnings of racial
inequality and provided a segregationist road map for southern (and northern)
policymakers throughout the twentieth century. Between 1910 and 1920, the Court issued a
policies beginning in the 1940s. n35
series of rulings that invalidated forced peonage laws, grandfather clauses, separate-and-unequal luxury
accommodations in railroad cars, and city ordinances mandating residential segregation. n36 These cases, which
Klarman aptly characterizes as "concerned more with form than substance," were therefore "easy to circumvent" as
long as legislatures continued to pay lip service to constitutional principles (p. 62). For example, beginning in the
1920s the NAACP mounted an aggressive assault on residential segregation, which emerged as a decidedly national
phenomenon as a result of urbanization in the South and the First Great Migration of blacks to the North. But the
federal courts upheld restrictive racial covenants under the doctrine of private property rights until the late 1940s,
and they have never seriously challenged "racially motivated but facially neutral zoning" (p. 92) and other public
policies that offer ample evidence of state action. n37 In the area of criminal law, the [*1412] Supreme Court
expanded the scope of due process during the interwar period to rescue black victims of grossly unjust trials, but
these individual (rather than class-action) cases did almost nothing to remedy the structural racism that pervaded
the southern legal system (pp. 117-35, 152-58). During the New Deal era, the justices did signal a greater
willingness to consider the state action dilemma in cases involving the all-white primary in Texas and the failure of
Missouri to provide a substantively equal law school for a black applicant in the Gaines litigation brought by the
NAACP. n38 The civil rights group ensured that voting discrimination and substantive equality in public education
would remain on the judicial agenda during and after World War II, the turning point in Klarman's story.
(--) Court decisions produce massive societal ripple effects:

Brown v. Board of education proves:
Yeazell, 2004 professor of law @ UCLA, 2004 (Stephen, Vanderbilt Law
Review, November, 2004, 57 Vand. L. Rev. 1975; Lexis)
One doubts that Robert Carter, Thurgood Marshall, Spottswood Robinson, Jack Greenberg and the rest of the legal team that argued
Brown v. Board of Education n1 spent much time thinking about mass torts. Nonetheless, it is entirely appropriate
that a commemoration of their achievements include not only that topic but also international human rights and health care, as well
was part of a revolution, and revolutions

often have collateral effects as important as their immediate consequences. The
civil rights movement followed the same pattern. [*1976] As an immediate
consequence, that movement brought us school desegregation. Follow-on effects
included desegregation of public facilities. These were important milestones in
U.S. society. They achieved specific changes, but they also made possible the
second civil rights revolution - the legislative actions that have, in the last four
decades, transformed U.S. society. Beyond race and civil rights, Brown created
several ripples, two of which provide the focus for this Essay. First, Brown and the civil rights
litigation movement helped create a renewed belief, not just in the law, but more
specifically in litigation as a noble calling and as an avenue for social
change. That belief lies open to challenge, and it can leave students and lawyers frustrated at the distance between the
as the more expected ones of education and social welfare. Brown
aspirations that brought them to law school and the world of practice as they perceive it. But whether or not it is well-founded, this
belief, with roots traceable to Brown and civil rights litigation, has endured for several generations. Thus,
the aspirations of lawyers in ways that are still important.
Brown reshaped
Democracy Advantage Extensions
DEM--AT: Other invasions of privacy exist

(--) Extend our Alhogbani evidence from the 1acthe internet
is a crucial threshold that grants access to limitless amounts of
information.
(--) Extend our Iaconeta evidencethe Fourth Amendment is
key to democracymeaning their other rights violations dont
matter.
DEM--Status Quo is a significant intrusion on

privacy
Current balancing test is out of whackit is a significant
intrusion on privacy rights:
The NSA asserts that the current government surveillance scheme is a special case
because national security is at stake and the program is part of a counter-terrorism
effort. n226 Therefore, the NSA must provide a compelling case and "[i]t is obvious
and unarguable that no governmental interest is more compelling than the security
of the nation." n227 The government must balance individual rights against the
immediacy of the threat and the efficacy of the NSA's surveillance [*493] program.
n228 The current level of surveillance constitutes a significant intrusion on privacy
rights.
Reliance on warrantless searches in the digital age has

massively increased:
Mason C. Clutter, 2014 (National Security and Privacy Counsel to the National
Association of Criminal Defense Lawyers, DOGS, DRONES, AND DEFENDANTS: THE
FOURTH AMENDMENT IN THE DIGITAL AGE , George Mason Law Review,
Lexis/Nexis, Accessed 6/24/2015, rwg)
The public's reliance on technology has reached new heights. Today, one has a
difficult time functioning in society without the use of technology, like e-mail, ATMs,
and smartphones. At the same time, law enforcement's reliance on technology to conduct criminal
investigations is growing at an exponential rate without adequate and standardized safeguards in place to regulate
From dog sniffs to domestic surveillance drones, from

your front porch to the open road, warrantless searches are being conducted every
the government's use of such technology.
day.
DEM--Fourth Amendment Key to Democracy

4
th
Amendment essential to democracy
Crowley 5/2013(Don, Law and Politics Book Review). Sponsored by the Law and
Courts Section of the American Political Science Association. Review: MORE
ESSENTIAL THAN EVER: THE FOURTH AMENDMENT IN THE TWENTY-FIRST CENTURY.
Department of Political Science Professor, University of Idaho with an emphasis in
privacy law. http://www.lpbr.net/2013/05/more-essential-than-ever-fourth.html//
LDonn
This is a very good and readable book and a very useful addition to Oxfords Inalienable Rights series. Stephen Schulhofer, the
Robert McKay Professor of Law at New York University, skillfully combines an historical overview of the purposes and functions of the
Fourth Amendment with a reasonably lively account of how the U.S Supreme Court has steadily abandoned many of the core
principles embedded in the Fourth Amendment. This, of course, is not a new story and for those who have followed the Courts
approach to the Fourth Amendment and Schulhofer certainly isnt advancing an argument that hasnt been voiced before. Indeed
Justice Brennan proclaimed in 1984 that the Courts victory over the Fourth Amendment was now complete. (U.S v. Leon, 1984,
Justice Brennan dissenting). Brennans comment was perhaps overstated in 1984 but Schulhofers account skillfully documents the
Courts continuing assaults on the Fourth Amendments core principles. Anyone looking for a short but persuasive argument
detailing the Courts victory over the Fourth Amendment should consider this work. Professor Schulhofer begins by advancing the
argument that too many people believe that the Fourth Amendment is primarily designed to protect criminals or to shield
information that is at best disreputable (p.11). Those who see themselves as good law-abiding citizens see little value in the Fourth
Amendment because they have nothing to hide. While Schulhofer offers no empirical support suggesting how many people really
believe that the Fourth Amendment is of no value to them, he is probably right that too many neglect the larger function that the
no less than freedom of speech or the

press, protection from unwarranted government surveillance ranks among these
core liberties that are essential to democracy (p.13). In the second chapter Schulhofer recounts how the
Fourth plays in preserving an open society. Schulhofer emphasizes that
Fourth Amendment grew out of the English common law tradition of resisting general warrants carried out by an executive without
judicial approval. The opposition to such general warrants carried over to the American colonies as seen in the outcries against
writs of assistance aimed at enforcing unpopular British laws. This opposition to general searches or fishing expeditions unmoored
from evidence linking a particular person to a particular crime ultimately became the cornerstone of the Fourth Amendment.
Schulhofer argues that the peculiar structure of the Fourth Amendment gives rise to part of our modern interpretative problem.
While the second part of the Amendment clearly asserts [*233] that warrants can only be issued by a judge (neutral magistrate)
on the basis of probable cause and must identify the places and things to be searched, the opening clause only speaks to not
violating the peoples right against unreasonable searches and seizures. Thus the possibility arises that a search can be
reasonable without having first obtained a warrant. The irony here is that if it is not necessary to get a warrant based on probable
cause then why would government officials ever get one. It would always be easier to avoid obtaining a warrant and simply argue
later that a search was reasonable. One answer would be that what makes a search reasonable is obtaining a warrant based
upon probable cause. While the Court has never firmly adhered to that position the typical answer to this puzzle has been to argue
that the general rule is to obtain warrants based upon probable cause while acknowledging that sometimes it isnt reasonable to
insist on a warrant. Or, as Justice Stewart put it in Katz, searches conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and welldelineated exceptions (Katz v. U.S, 1967). So an important question becomes how varied and how broad are these exceptions? As
Schulhofer argues, the Court has generally adhered to the warrant rule in searches inside the home but has increasingly abandoned
a concern with warrants in other settings. Some of this is familiar territory and non-problematic. No one expects police to get a
warrant in hot pursuit of a suspect and certainly no one wants the police to get a warrant to obtain access to a bomb when there
is evidence that it is in a car along a parade route. Still, despite the Courts assertion in Katz that the Fourth Amendment protects
people not places, the Court has found ways to avoid applying the full protection of the Fourth Amendment to a growing number
of situations. Some of these exceptions are to the warrant requirement (automobiles), while others are to probable cause or even
reasonable suspicion (stop & frisk, drug tests, and other administrative or so called special needs searches). The strength of
Schulhofers book is his ability to provide succinct summaries of Court decisions in a wide variety of search and seizure areas and
still maintain a flowing narrative of the Courts gradual abandonment of key Fourth Amendment principles. Thus, we find nice
chapters on the Courts application of the Fourth Amendment in public places, administrative searches, wiretapping, eavesdropping
in the information age, and issues related to national security. Schulhofers discussion of all of these issues is timely and persuasive.
I would not hesitate to assign any of these chapters, or indeed the entire book, for my civil liberties course. Schulhofers account of
the manner in which the Court has failed to respond to issues related to the new information age is particularly compelling .
He
strongly criticizes the Courts increasingly narrow and largely undefined notion of
what constitutes a legitimate expectation of privacy in this technological era. It
has been far too easy for the Court to pronounce that one has a lesser expectation
of privacy in a [*234] particular setting. Schulhoferman notes that in the Courts view what we turn over to third party actors
doesnt warrant any protection at all since an individual has chosen to reveal this information to others (p.126). He argues that to
treat information conveyed to a trusted intermediary, under promise of confidentiality, as if it had been posted on a public billboard
is to make nonsense out of the Fourth Amendment. (p.127). In a world where participation through communication technologies is
virtually required if one is to be a full participant in civil society the Court seems to be saying that the price of admission is to give
up any notion of privacy. As Schulhofer notes, the Fourth Amendment should be seen as protecting these third party transactions
not as irrelevant to them. The
Fourth amendment was designed to nurture and support civic

life, not to provide an alternative to it (p.132).
All Americans benefit from the 4th Amendment- Absence of the

4th Amendment has a chilling effect
Schulhofer 12 (Stephen , More Essential than Ever: The Fourth Amendment in
the Twenty First Century). Oxford University Press. page 14. Schulhofer is the
Robert B. McKay Professor of Law at New York University.
Any law abiding citizen who feels in any way out of step with the social or political
establishment readily understands this need for a buffer- for protection against
unrestricted government scrutiny. But those who place themselves squarely in the
mainstream benefit personally as well. The great majority of Americans want to live
in a vibrant, diverse, society where a wide range of views can be expressed , where
new ideas can be explored. Nearly every American, even the most conventional,
wants to live in a democracy, after all. So all of us need the 4th Amendment : when
unrestricted search and surveillance powers chill speech and religion, inhibit gossip,
and dampen creativity, they undermine politics and impoverish social life for
everyone.
DEMDemocracy Good Extensions

Democracy promotion key to preventing inevitable extinction
Diamond, senior research fellow at Hoover Institution, 95
(Larry, Promoting Democracy in the 1990s: Actors and Instruments, Issues and
Imperatives, A Report to the Carnegie Commission on Preventing Deadly Conflict,
December 1995, p. 6)
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.
Democracy solves all wars

Muravchik 1 - Ph.D., Resident Scholar, AEI, Member of the State Dept. Advisory
Committee on Democracy Promotion, Adjunct Prof., Institute of World Politics
(Joshua Muravchik, Paper presented before the NPEC/IGCC Summer Faculty Seminar,
"Democracy and Nuclear Peace," http://www.npec-web.org/Syllabus/Muravchik.pdf)
The greatest impetus for world peace -- and perforce of nuclear peace -- is the
spread of democracy In a famous article, and subsequent book, Francis Fukuyama argued that democracy's extension was leading to
"the end of history." By this he meant the conclusion of man's quest for the right social order, but he also meant the "diminution of the likelihood of largescale conflict between states."1 Fukuyama's phrase was intentionally provocative, even tongue-in-cheek, but he was pointing to two down-to-earth
democracies are more peaceful than other kinds of government
historical observations: that

and that
the world is growing more democratic. Neither point has gone unchallenged. Only a few decades ago, as distinguished an observer of international
relations as George Kennan made a claim quite contrary to the first of these assertions. Democracies, he said, were slow to anger, but once aroused "a
democracy fights in anger to the bitter end."2 Kennan's view was strongly influenced by the policy of "unconditional surrender" pursued in World War
II. But subsequent experience, such as the negotiated settlements America sought in Korea and Vietnam proved him wrong. Democracies are not only
slow to anger but also quick to compromise. And to forgive. Notwithstanding the insistence on unconditional surrender, America treated Japan and that
part of Germany that it occupied with extraordinary generosity. In recent years a burgeoning literature has discussed the peacefulness of democracies.
Indeed the proposition that democracies do not go to war with one another has
been described by one political scientist as being " as close as anything we have to
an empirical law in international relations ."3 Some of those who find enthusiasm for democracy offputting have
challenged this proposition, but their challenges have only served as empirical tests that have confirmed its robustness. For example, the academic Paul
Gottfried and the columnist-turned-politician Patrick J. Buchanan have both instanced democratic England's declaration of war against democratic Finland
during World War II.4
Democracy solves all scenarios for conflict escalation

Halperin 11
Morton, senior advisor to the Open Society Institute and co-author of The
Democracy Advantage,
http://www.foreignpolicy.com/articles/2011/01/02/unconventional_wisdom?
page=0,11
For there is one thing the neocons get right: As I argue in The Democracy
Advantage, democratic governments are more likely than autocratic regimes to
engage in conduct that advances U.S. interests and avoids situations that pose a
threat to peace and security. Democratic states are more likely to develop and to
avoid famines and economic collapse. They are also less likely to become failed
states or suffer a civil war. Democratic states are also more likely to cooperate in
dealing with security issues, such as terrorism and proliferation of weapons of
mass destruction.
Democracy is key to environmental protection

Janicke 96
Martin Janicke, Professor of Comparative Policy and Head of the Research Unit for
Environmental Policy at the Free University of Berlin, 1996, Democracy and the
Environment, p. 71
That democracy in general is a better precondition for environmental policy than
authoritarian rule is extremely plausible. There seems to be no need for
explanation. From comparative research we are aware of the poor record on
pollution control in the former communist countries. The previous rightist
dictatorships in southern Europe (from Turkey to Portugal) have also shown
similar records. It is also easy on theoretical grounds to develop plausible
hypotheses about the causal connection between successful (or at least better)
environmental policy and democracy. Environmental policy goals are usually in
direct opposition to current economic trends. Oppositional rights are , therefore,
an important resource for the successful formulation and implementation of
green policy. Critical roles for science and the media can also, in this respect, be
as important as civil rights or a competitive party system.
Democracy is key to prevent the spread of AIDS

Halperin 5
Morton Halperin et al, Senior Vice President of the Center for American Progress and
Director of the Open Society Policy Center, 2005, The Democracy Advantage, p. 42
A similar pattern is apparently evolving with regards to HIV and AIDS. Although
the lack of reliable data makes firm comparisons premature, a snapshot of the
spread of this disease suggests a continuation of the pattern of democratic
responsiveness to human needs among developing countries (see Table 2.3). In
every income category considered, democracies post substantially lower
estimated percentages of adults who are HIV positive. Given the singular
importance of public awareness for the slowing of this highly contagious virus,
this result is not surprising. (And these figures do not factor in the presumed
greater accuracy of reporting in democracies.) Although certain democracies
have been seriously challenged by HIV/AIDS (for example, Botswana), the
openness that is encouraged under democratic governments is a distinct
advantage for public health efforts
DEM--Democracy Good ExtensionsPoverty Add-On

A) Democracy solves poverty
Cheema & Maguire, 1/25/13 (Shabbir Cheema Principal Adviser and
Programme Director Division for Public Economics and Public Administration
United Nations Department of Economic and Linda Maguire Social Affairs and
(Evaluation Specialist United Nations Development Programme,
http://unpan1.un.org/intradoc/groups/public/documents/un/unpan005781.pdf,
AP)
Even though democracy is not a cure all for human development and poverty
alleviation, it holds more potential for achieving these goals than any other
system of government. Democracy creates opportunities and enhances
capabilities of the poor and underprivileged. lv As such, it has an intrinsic
human development value. Moreover, most stable democracies tend to have lower
levels of poverty, and, on the flip side, democracies that let their citizens remain
in protracted poverty tend to be short-lived.
B) Poverty is the equivalent to a thermonuclear war between

Russia and the US this systemic impact is bigger and
more probable than any war
James Gilligan, 2000 Department of Psychiatry at Harvard Medical School, 2000
edition, Violence: Reflections on Our Deadliest Epidemic, p. 195-196
The 14 to 18 million deaths a year caused by structural violence compare with about
100,000 deaths per year from armed conflict. Comparing this frequency of deaths
from structural violence to the frequency of those caused by major military and
political violence, such as World War II (an estimated 49 million military and civilian deaths,
including those caused by genocide--or about eight million per year, 1935-1945), the Indonesian massacre of
and even a
hypothetical nuclear exchange between the U.S. and the U.S.S.R (232 million), it was
clear that even war cannot begin to compare with structural violence, which
continues year after year. In other word, every fifteen years, on the average, as many
people die because of relative poverty as would be killed in a nuclear war that caused
232 million deaths; and every single year, two to three times as many people die from
poverty throughout the world as were killed by the Nazi genocide of the Jews over a six-year
period. This is, in effect, the equivalent of an ongoing, unending , in fact accelerating,
thermonuclear war, or genocide, perpetrated on the weak and poor every year of
every decade, throughout the world.
1965-1966 (perhaps 575,000 deaths), the Vietnam war (possibly two million, 1954-1973),
DEMAT: People just shouldnt use the internet

People shouldnt be forced into outmoded forms of
communicationthere is no realistic alternative to providing
internet freedoms:
It should not be said that U.S. citizens assume the risk of government
surveillance through the use of third party channels . n210 Yet, for citizens to assume
the risk, there must be some notion of choice and unless citizens are willing to go
back to outdated ways of communication, they have to accept the risk of
surveillance. n211 It is evident that most people in the 21st century rely heavily on
cellphones and the Internet in their daily lives. n212 Citizens should not have to give up
[*491]
their privacy when they have no other option. The Fourth Amendment should protect American
citizens against NSA practices under section 215 because it violates the reasonable expectation of privacy, and
"[i]t
is idle to speak of 'assuming' risks in contexts where, as a practical matter,

individuals have no realistic alternative." n213
Internet Advantage Extensions
INT: Internet Impact Extensions

Open access to the internet is key to human survival:
Syed Ali Mujtaba, 4/25/2015 (Net neutrality is essential for human survival,
http://twocircles.net/2015apr25/1429964045.html#.VYsIh1L0968, Accessed
6/24/2015, rwg)
Its the apocalypse of the Internet that offers democratic promise of the information
highway to everyone. So there should be no discrimination in terms of speed, access, cost or any such
criteria. Net is basic requirement for human survival like food water and shelter. It
can be used to build powerful global vision, it can be used to fight corruption, save
lives, and bring people-powered aid to countries in crisis. Any demand that goes against the
grain of net neutrality should be outlawed.
INT: Internet is in trouble now

US surveillance threatens the internet:
Jonathan Turley, 3/24/2014 (professor of law at The George Washington
University Law School, Yes We Can: United States Declared Enemy of the Internet
With Iran, North Korea, and Other Bad Actors,
http://jonathanturley.org/2014/03/24/yes-we-can-united-states-declared-enemy-ofthe-internet-with-iran-north-korea-and-other-bad-actors/, Accessed 6/24/2015, rwg)
the
respected Reporters Without Borders has produced a separate report on Internet
freedoms. In yet another dubious distinction for President Obama, the United States is
now listed with such Enemies of the Internet as Russia, China, North Korea, and
Iran. This is our first time on the infamous list a true accomplishment for an
Administration that has been denounced for its wholesale attacks on privacy and
We previously discussed the rapid drop of the United States in the protection of the free press. Now,
other core civil liberties.
The Administration (and its Senate allies like Sen. Dianne Feinstein) spent little
time in setting itself against the open Internet forum and has sought a variety limitations and sanctions for Internet
Our mass surveillance programs features prominently in our inclusion of this

list. The National Security Agency has worked furiously to break down walls on the Internet while the Justice
speech.
Department has pursued various individuals for web posting. There will come a day when Democrats will seek
again to speak in favor of core values of free speech, free press, privacy, and the like. When that day comes, there
will be a chorus of howls from civil libertarians who have watched in astonishment as the Democratic Party enabled
these assaults on freedom either actively or by acquiescence. The trading away of the power of principle for the
Obama will leave office in a few

years and what he will leave a much larger security system, more extensive
surveillance, and a mountain of hypocrisy for his supporters to climb in his wake.
power of personality will, in my view, be judged harshly in history.
I
am not sure how the Administration will celebrate its latest distinction, but the First Lady is currently traveling at
great public expense in China. That would seem a perfect place to celebrate since the White House told reporters
that they would not answer any questions. However, the First Lady (despite announcements that she would avoid
discussion of human rights) did call for respect for freedom of speech and other rights.
Imperial Presidency Advantage

Extensions
IMP--Executive Power is Increasing Now

Executive branchs power has been greatly expanded:
The U.S. government is not on a mission to abolish American's privacy rights and
turn into a repressive regime. n290 Yet, the fear that they might should not be understated. The
executive branch's power has been expanded greatly and "all men having power
ought to be distrusted to a certain degree." n291 As the legislative and judicial branches reconcile
privacy expectations with modern technology, they should be wary of sacrificing liberty for the sake of a fleeting
sense of security. n292 Terrorists are already operating under the assumption that the NSA is doing everything in its
power to thwart potential attacks, and they are responding by going dark. n293
Obama is guilty of executive overreach throughout his two

presidency terms.
Peterson Jun 20, 2015 (Eric is a graduate of Tulane University with a degree in
Economics and Political Economy. Half-Baked: Obama Executive Overreach Makes Its
Way to Your Dinner Table. http://townhall.com/columnists/ericpete
rson/2015/06/20/halfbaked--obama-executive-overreach-makes-its-way-to-yourdinner-table-n2014973/page/full, 06/23/15, clj)
Obamas second term, it would be regulatory overreach. Despite the
Obama has turned to his pen and
his phone (and the vast government bureaucracy he controls ) to enact his extreme and
often unpopular agenda. Examples of the kind of executive overreach that have come to
define his presidency include unilateral changes to Obamacare , sweeping new rules issued by the
FCC designed to impose centuries railroad-style regulations on the internet, and the farreaching and expensive red tape he is seeking to impose on our electricity grid including
airline emissions, trucking companies, and even humble wood-burning stoves. The latest
If you had to name a theme for
repeated rejection of the Presidents most controversial proposals by lawmakers, Mr.
overreach, however, may quite literally take the cake and comes to us courtesy of the Food and Drug Administration. This sweeping
regulation will directly affect what kinds of food we are allowed to purchase at our neighborhood grocery store. The FDA has long
taken issue with trans fat a type of unsaturated fat found produced from vegetable fats. Products containing trans fat have
become more widespread since the 1950s when they appeared on the scene in the form of margarine and have since made their
way into everything from frozen pizzas to Reeses Pieces. While initially viewed as a healthy alternative to other fats, research
indicates that overindulging can contribute to health risks. That conclusion led FDA regulators to require food manufacturers to label
all their products containing trans fat. While many health conscious individuals choose to steer clear of products that contain trans
fat (consumption has decreased 78 percent between 2003 and 2012), millions of Americans have continued to enjoy many of the
delicious foods that contain trans fat, albeit in moderation. Unfortunately thats a problem for the heavies at Mr. Obamas FDA.
Rather than letting people make their own decisions about whether to indulge in the occasional trans fat-laden snack, the FDA has
just ordered a ban on trans fat, which federal regulators say food companies must remove from all of their products by 2018. And
while the FDA is patting itself on the back, the ban will like most everything else cooked up by federal regulators may have
serious unintended consequences. Foremost, the cost to food producers could be enormous. While many producers have moved
away from trans fat on their own, the fats remain essential to many popular products due to its taste, texture and ability to preserve
shelf life. Finding a replacement may not be easy or cheap, and consumers will ultimately face increased costs as a result. Worse,
its entirely possible that the eventual replacement for trans fat may not be any healthier. But these are things federal regulators
rarely consider when they try to control our behavior and supplant their all-knowing judgment for our own. At its core ,
this ban
represents the worst of Washington . Rather than letting individuals decide whats best for them, our allknowing government overlords want to tell us they know better . These perpetual critics
of freedom simply cant sit idly by while Americans enjoy the occasional slice of frozen pizza, or handful of candy.
For them, that kind of freedom is as dangerous as Reeses Pieces. Kidding aside, Americans have little recourse
when dealing with the alphabet soup of government agencies that continue to intrude into
their daily lives regulating everything from light bulbs to groceries. Thats unfortunate.
Families deserve to make their own decisions about whats best for their lives. Congress should push back on ham-handed FDA
regulation, and tell Mr. Obamas bureaucrats to get their greedy hands out of our collective snack bowl.
The Presidents rise to control came due to a weak Congress

and media.
http://spectator.org/articles/58138/once-and-future-king, 06/23/15 , clj)
Power has been centralized around the heads of

government in all modern democracies. Authority naturally gravitates from disorganized
groupsCongressto a single person. The group must struggle to get its act together; not so the single
How did this happen? No great mystery there.
person. Recall the recent stand-offs between Obama and the House over the debt ceiling. On one side was Obama,
claiming that he alone spoke for the entire country as a whole; on the other was John Boehner of West Chester,
Ohio, and a fractious bunch of congressmen. It wasnt much of a contest. Second ,
the regulatory state

cannot exist without a large bureaucracy, which answers primarily to the president. The
legislative branch must delegate rule-making authority to regulators whose codes are so various and extensive that
the executive, which hires the regulators, promotes and

generally tells them what to do. Third, political campaigns have been
transformed by the media, which makes rock stars of presidents. At one time it was
thought that the rise of new media would prevent a president from
amassing excessive personal power. That hasnt happened. Instead, the White House is now a
oversight is nigh impossible. This leaves matters to
demotes them, and
news outfit in its own right, complete with photographers and videographers. It need not rely on print newspapers
or the television networks to get its message out. It need no longer put the president at the mercy of probing
reporters, preferring instead teleprompters and softball questions from People magazine. The fawning reporter is
rewarded with access; hostile would-be newshounds are frozen out. And so
George Mason once called
we are on the verge of what
an elective monarchy.
Presidential regimes are created as a result of executive

overreach.
http://spectator.org/articles/58138/once-and-future-king, 06/23/15 , clj)
concentrations of power often surround prime ministers in parliamentary governments, but they are
much more dangerous in presidential regimes. For one thing, the American president is head of state
Such
as well as head of government. He is the symbol of the entire country, the figure with whom every patriot identifies,
at least theoretically. A person who moves to America, as I did, must learn to suppress his gag reflex when reading
a Peggy Noonan op-ed on the sublimity of a State of the Union Address, or listening to an MSNBC talking head
bloviate about our godlike president. In parliamentary regimes, politicians are comical figures. If theres a national
tragedy, we dont wait for a speech from the prime minister. Oh sure, we get misty-eyed over jug-eared princes, but
they havent been able to hurt us since 1832. Theyre not going to spend us into bankruptcy or audit us. Further,
presidential regimes lack the means to discipline an overreaching head of

government. In America, scandals are transitory. Benghazi? What difference at this point does it make? asked
an angry Hillary Clinton. She had a point. After all, eight months had elapsed. In a parliamentary system, the prime
minister is expected to meet the House on a daily basis. And the decision of what is to be debated lies, crucially,
with the Opposition, which can, and frequently does, decide to prolong argument just where the government is
weakest. No better method, observed Harold Laski, has ever been devised for keeping administration up to the
mark. Thus, in a parliamentary government, a successful politician must be informed, quick on his feet, and,
perhaps especially, witty. In Canada he must be all of these things in both English and French. The grandiose
(Obama), the verbally clumsy (George W. Bush and Obama again), and the thin-skinned (Nixon and Obama again)
find themselves either excluded or laughed at. When Obama addressed the Indian parliament, its MPs did doubletakes on seeing his teleprompter. Then there are non-confidence motions, which can turf out a parliamentary
government on a simple majority in the House of Commons, and party leadership votes like the one that ended
in the United States is the Big Bertha of impeachment

and removal from officewhich never rears its head unless the president is from one
party and the House and two-thirds of the Senate from another. Heres a piece of trivia:
Margaret Thatchers career. All we have here
Only one president in American history, Andrew Johnson in 1868, has ever faced impeachment by such a Congress.
(Republicans only controlled 55 votesnot two-thirdsin the Senate in 1998, and the 45 Democrats voted in
lockset to acquit Bill Clinton.) Yet even then, the ruling party could not muster the votes in the Senate to toss
Johnson out of office. The requirement of a two-thirds supermajority in that chamber was snuck in at the last
moment at the 1787 constitutional convention, elicited no discussion, and transformed the shape of American
politics. It should not be so hard to give a president the boot . Id like to see it done often, for
high crimes and misdemeanors, for stupidity, for arrogance, or just for the spirit of the thing.
IMPExecutive Power = War

A) Expanded presidential powers risk war & undermine US
leadership:
Neal Kumar Katyal, 2013 (Paul and Patricia Saunders Professor of Law,
Georgetown University, STOCHASTIC CONSTRAINT, Harvard Law Review, Feb.
2013, Lexis/Nexis, Accessed 6/25/2015, rwg)
Given these expanded powers, there is a deep risk that Presidents may, in the interim
between the exercise of power and the ex post check,
work grave harm - to peace, to civil
liberties, and to the image of the United States abroad.
Goldsmith argues that the existence of
ex post checks places all modern Presidents in a "synopticon" that produces a deterrent effect (p. 207). "Officials
a crucial check
on presidential adventurism - reelection - has been nonexistent for second-term
Presidents since 1951. n38 This structural change may hide the Executive from the synopticon's
watchful eyes, making presidential decisionmaking freer of checks and balances than it
otherwise might be in a system that properly relies on Madisonian power sharing. And, as Goldsmith himself
are much more careful merely by virtue of being watched," Goldsmith notes (p. 207). However,
acknowledges, presidential popularity can often blunt the power of the synopticon - particularly when national
security is pitted against civil liberties (p. 47). The popular willingness to err on the side of national security, and the
consequent weakness of the synopticon, will be at its apex when the issue involves the rights of foreigners - who
altogether lack the ability [*1001] to vote. n39 Yet the rights of foreigners are a crucial part of the post-9/11
debate.
C) US leadership is essential to prevent global nuclear

exchange.
Zalmay Khalilzad, RAND, The Washington Quarterly, Spring 19 95
Under the third option, the United States would seek to retain global leadership and
to preclude the rise of a global rival or a return to multipolarity for the indefinite
future. On balance, this is the best long-term guiding principle and vision. Such a
vision is desirable not as an end in itself, but because a world in which the United
States exercises leadership would have tremendous advantages. First, the global
environment would be more open and more receptive to American values -democracy, free markets, and the rule of law. Second, such a world would have a
better chance of dealing cooperatively with the world's major problems, such as
nuclear proliferation, threats of regional hegemony by renegade states, and lowlevel conflicts. Finally, U.S. leadership would help preclude the rise of another
hostile global rival, enabling the United States and the world to avoid another global
cold or hot war and all the attendant dangers, including a global nuclear exchange.
U.S. leadership would therefore be more conducive to global stability than a bipolar
or a multipolar balance of power system
IMPPres Powers = War

Overstepping presidential causes war Iraq proves
Formisano 15 (Matt Scott Formisano, Utah State University graduate with a masters degree
in Political Science, Presidential War Powers, http://digitalcommons.usu.edu/cgi/viewcontent.cgi?
article=1248&context=gradreports, Published 15 April 2015, Accessed June 25 2015, CMT)
the Bush presidency involved the U.S. invasion of Iraq.

When it became evident after the invasion that hostilities in Iraq were not ceasing, Congress accused the
President of overstepping his executive authority, bypassing Congress, and 56
invading Iraq solely on Presidential prerogative . After the first Gulf War, many politicians in
One of the greatest controversies during
Washington regretted not taking Saddam Hussein out of power when they had the chance. Because of recent
intelligence reports that Iraq had evaded UN resolutions requiring it to destroy all stocks of weapons of mass
destruction, including chemical and biological weaponsThere were also reports that Iraq had not abandoned its
efforts to develop nuclear weapons, another violation of UN resolutions (Irons 222). The George W. Bush
administration knew that Hussein posed a threat to national security and to the lives of his fellow Iraqis whom he
Through several attempts by the UN, the Bush

administration warned Hussein that denying UN inspectors into the country to
search for chemical and biological weapons would have serious repercussions . In
was testing his biological weapons on.
October 2002, Congress passed the Iraq Resolution to empower President Bush to use military force against Iraq.
The administration told lawmakers and the public that Iraq possessed weapons of mass destruction and had the
capacity to inflict even greater damage on the United states than the 9/11 terrorist attacks (Fisher 2011, 262).
Louis Fisher in Defending Congress and the Constitution argues that the claims the Bush administration made to the
public and Congress were far-fetched and driven by the administration preying upon the fears of the public (Fisher
Contained in the Iraq Resolution were assertions that the Presidents

constitutional power was to take action in order to deter and prevent acts of
international terrorism against the United States. Once again, Congress was being
asked to authorize the president to begin a war, without a formal declaration. Whether
2011, 223).
such an authorization met the constitutional standard had become a moot point, since Congress had long ago
abdicated its war- declaring power to the executive branch (Irons 234 ).
Irons correctly states that the
war-declaring power belongs to the executive.
Strong presidents lead to war.

Bandow October 01, 2002 (Doug is a senior fellow at the Cato Institute and the author of a number of books on economics
and politics. Only Congress Can Declare War. http://fee.org/freeman/detail/only-congress-can-declare-war. 06/23/2015. clj)
The Bush administration has been looking at other potential military targets almost since the war in Afghanistan started. But
should the President decide he wants to expand the war, he should get legislative approval . After September 11
Congress authorized President Bush to retaliate against any nations, organization, or persons he
determined to be involved in the atrocity. But there is no evidence linking even that ugliest of regimes, Iraq, to the
September attacks. So the administration has spent months developing an alternative justification for attacking: the refusal to accept
United Nations inspections aimed at deterring development of weapons of mass destruction. Nonproliferation is a worthy
concern, but not one obviously warranting war. Indeed, Baghdad has been out of compliance with the U.N.s inspection
regime since 1998. Moreover, the President has no authority to act for this reason. Congress authorized him to retaliate
against terrorism, not to commence war to enforce U.N. inspections-or overthrow a nasty dictator. After the Senate
Foreign Relations Committee held hearings on the prospect of war with Iraq last August, President Bush promised to consult with
Congress. But consultation is not nearly enough. Article 1, Sec. 8 (11) states, Congress shall have the power . . . to declare war.
The president is commander-in-chief, but he must fulfill his responsibilities within the framework
established by the Constitution and subject to the control of Congress. Today, of course, presidents prefer to
make the decision for war themselves. In effect, American presidents claim to possess power comparable to,
if not greater than, that of the onetime head of the Soviet communist party. As then-Defense Secretary Caspar
Weinberger rightly criticized the Evil Empire: Now who among the Soviets voted that they should invade Afghanistan? Maybe one,
maybe five men in the Kremlin. Who has the ability to change that and bring them home? Maybe one, maybe five men in the
Kremlin. Nobody else. And that is, I think, the height of immorality. Now who among Americans has voted to attack, say,
Iraq? Should one man in the White House make that decision, it would also be the height of immorality. One
of the founders criticisms of the British king was that he could unilaterally drag his nation into war. President Abraham Lincoln, a
strong president apt to act on his own authority, nevertheless reflected: Kings had always been involving and impoverishing their
people in wars, pretending generally, if not always, that the good of the people was the object. The Constitutions framers
consciously rejected such a system. Still, some Americans opposed the proposed Constitution because they feared that
it gave the president too much authority. Dont worry, explained that great friend of executive power Alexander Hamilton.
The presidents power would amount to nothing more than the supreme command and direction of the land and naval forces . . .
while that of the British King extends to the declaring of war. The founders wrote the Constitution as they did because
they feared that presidents would act as they do now. Explained James Madison in 1793, it is necessary to adhere
to the fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested
in the legislature. Constitutional convention delegates did change Congresss power from make to
declare war, but the intent was to give the president authority to respond to a sudden attack , not initiate a
conflict. The Founders wanted to make war less likely. The president is not safely to be entrusted with the
power to decide on war, said Virginias George Mason. James Wilson advocated a strong presidency, but was pleased that the
proposed constitution will not hurry us into war. Instead, It is calculated to guard against it. It will not be in the power of a single
man, or a single body of men, to involve us in such distress. The founders were prescient. Presidents have routinely
deceived the public, lied to Congress, and manipulated the political system when taking America into war.
IMP--Rights
An increase in presidential power causes tyranny
Turley 14 (Jonathan Turley, is the Shapiro Professor of Public Interest Law at George
Washington University and frequently appears before Congress as a witness on constitutional issues
He is the host of www.jonathanturley.org, an award-winning legal and policy blog, A Question of
Power: The Imperial Presidency, http://www.legion.org/magazine/222394/question-power-imperialpresidency, Published 1 June 2014, Accessed 25 June 2015, CMT)
[the framers of the Constitution] wanted to divide power between three

branches and create lines of separation that prevented the concentration of power
in any single branch. The framers based their ideas on an understanding of human nature and human
weakness. They tried to create a system in which ambition would check ambition. However, they knew
that citizens can be distracted or deceived into giving up their very freedom . Madison
They
warned future generations that if Tyranny and Oppression come to this land, it will be in the guise of fighting a
foreign enemy.
The framers knew how effective fear can be to induce citizens to give
up their liberties. Recent years have proven them once again prophetic in their warnings. To this day, many
Americans misunderstand the separation of powers as simply a division of authority between three
branches of government. In fact, it was intended as a protection not of institutional but of
individual rights, by preventing any branch from assuming enough power to become
tyrannical. No branch is supposed to have enough power to govern alone. Once power becomes concentrated
in the hands of a president, citizens are left only with the assurance that such unchecked power will be used wisely
a Faustian bargain the framers repeatedly warned us never to accept. Benjamin Franklin said it best when he
warned that they who would give up essential Liberty, to purchase a little temporary Safety, deserve neither
Liberty nor Safety.
More presidential power would destroy our civil liberties

Little 14 (Jackie Little, staff writer for BruceFeinLaw.com, King Obama Betters the Tyranny of
King George, http://www.brucefeinlaw.com/2014/11/25/king-obama-betters-tyranny-king-george/,
Published 25 November 2014, Accessed 25 June 2015, CMT)
President Barack Obama currently exercises more unchecked, tyrannical power than King George
III, whose tyrannies provoked the Declaration of Independence and Revolutionary War won by General Washington.
Obama has exterminated American citizens not accused of crime without due
process of law on his secret say-so alone. He has initiated wars against Libya, Syria,
and the Islamic State without congressional authorization. He has imprisoned
persons indefinitely without accusation or trial at Guantanamo Bay even detainees
whom the military has found to be innocent of international terrorism. He has used military tribunals in
lieu of independent courts for the prosecution of civilian offenses. He has substituted
Mr.
executive agreements for treaties to extend United States troop and combat commitments in Afghanistan and to
regulate greenhouse gas emissions. He has issued presidential signing statements to unilaterally de facto void
He has refused to enforce deportation laws and prohibitions

on torture and warrantless surveillance of American citizens in violation of his
constitutional duty to take care that the laws be faithfully executed . He has expended
money contrary to the limits set by Congress in appropriation measures. He has placed the entire
United States population under dragnet surveillance in violation of the Fourth
Amendments right to be let alone the most cherished right among civilized peoples. He has
provisions of duly enacted laws.
frustrated legislative or judicial oversight by improper invocations of state secrets or executive privilege. He has
issued executive orders regulating government contactors which usurp the legislative powers of Congress.
Expansion of presidential powers destroys existing laws and

rights
Kashan 10 (Sunya, The USA Patriot Act: Impact on Freedoms and Civil
Liberties). http://dc.cod.edu/cgi/viewcontent.cgi?article=1123&context=essai
One of the hidden consequences of the Patriot Act is the unprecedented and
dangerous expansion of the presidential powers. According to attorney Joseph
Margulies, who successfully led Rasul vs Bush in the Supreme Court, The president
has treated the war on terror as an armed conflict and has invoked his
constitutional power as commander in chief. The precise scope of presidents war
power is ill defined and subject of endless constitutional debate (11). In How Would
A Patriot Act ?, Glenn Greenwald argues that it was through President Bushs
authorization that the National Security Agency started eavesdropping on
Americans without court approved warrants, in violation of the constitutional laws
(14). Similarly, President Bush also created a controversy when his administration
kept an American born citizen, Jose Padilla, accused of making a bomb plot, locked
away in solitary confinement for more than three years as an enemy combatant,
without right to trial (47). These presidential actions only show us a glimpse of the
absolute authority at the disposal of the president and a complete disregard to the
existing laws, habeas corpus , and constitutional rights of all residents of this
country
IMPPres Powers destroy economy

Increase in presidential powers destroys the economy
Posner 10 (Richard, Abuse of Presidential Power ). http://www.becker-posnerblog.com/2010/07/abuse-of-presidential-power-posner.html Posner is the former
judge of the U.S. Court of Appeals for the Seventh Circuit. He was the chief judge of
the court from 1993 to 2000.
President Obama has used this device of extra-legal presidential intimidation more frequently, probably,
than any President. In the spring of last year he told General Motors to fire its chief executive officer, Rick Waggoner. He had no
authority to do that, and didnt pretend that he did. Waggoner went. Last month the President ordered British Petroleum to put
billions of dollars into an escrow account for payment of claims for losses caused by the BP oil leak in the Gulf of Mexico. He did not
pretend to have any legal authority to order this, but BP quickly compliedas it did with the Presidents insistence that it cut its
dividend in order to be sure of having enough money to pay all the claims that might be made against it and the fines that might be
imposed on it. And the Presidents criticisms of Wall Street bonuses may have been decisive in the decision of Goldman Sachs to
scale down the bonuses it was intending to award for the firms highly profitable 2009.Should a President use the prestige (one
might even call it the moral authority) of the office, and his ability to command public attention, to obtain compliance with
demands made by him on the business community that are not backed by law? I think not, apart from any distaste one may have for
bullying. It
makes business subject to two regulatory regimes. One is a legal regime, created by Congress and by
The other is a kind of
peoples democracy regime, in which government stirs up public anger to force businesses to comply
with extra-legal government demands. This second regulatory regime operates without rules, and so subjects business to
the regulatory agencies to which Congress delegates a portion of its own constitutional regulatory power.
potentially debilitating uncertainty in the sense of a risk that cannot be quantified. We know from Keynes and other students of
uncertainty that a common and often the sensible response to uncertainty is to freeze, in the hope that the uncertainty will dissipate
over time, or to take active steps to reduce the uncertainty. Both are options for business faced with the threat of presidential wrath.
A business can hire less, invest less, and build up its cash balances as a hedge against adversity. It can also redouble its lobbying and
other influence activities in an effort to neutralize or deflect threats of extra-legal regulation. Neither is a healthy response; the first is
downright pernicious, especially in a depression or recession, or the early stages of economic recovery. Both are responses that the
threat of presidential bullying encourages.Many
of the Presidents legislative initiatives, in particular the health

reform law, the just-enacted financial regulatory reform law, and the credit card law of last year, have
increased the uncertainty of the economic environment for business. These laws really havent settled anything; it
will take years of regulatory implementation before their full impact can be determined. But in addition business has to
deal with the unpredictable exercise by the President of an uncanalized extra-legal authority to bend
business to his wishes.It is no wonder that the economic recovery appears to be progressing so slowly.
IMPPres Powers = Biopower

Overstepping presidential powers manifests itself in a state
that can kill anyone at any time
Wilson 13 (Scott Wilson, Scott Wilson is the chief White House correspondent for the
Washington Post Previously, he was the papers deputy Assistant Managing Editor/Foreign News after
serving as a correspondent in Latin America and in the Middle East, Obama on civil liberties: Saying
One Thing, Doing Another, http://www.washingtonpost.com/blogs/the-fix/wp/2013/05/14/obama-oncivil-liberties-saying-one-thing-doing-another/, Published 14 May 2013, Accessed 25 May 2015, CMT)
The decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism
that was neither effective nor sustainable, Obama said, calling it a framework that failed to rely on our legal
Obama did ban

harsh methods in interrogation which the International Committee of the Red
Cross has called torture immediately after taking office. And he has advocated strongly for
gay rights, ending the dont ask, dont tell policy in the military and coming out in
support of gay marriage. But he has failed to close the prison at Guantanamo Bay in
the face of Congressional resistance, even though he recently pledged to try again.
Moreover, Obama has greatly expanded the Bush-era counter-terrorism tactic of drone
warfare, becoming the first president to use an unmanned aircraft to kill an
American citizen abroad without formal charge or trial . The target, Anwar al-Aulaqi, an
traditions and time-tested institutions, and that failed to use our values as a compass.
American-Yemeni cleric
IMPAT: Impact Cards Dont Assume Obama

(--) Obama is massively expanding presidential powershes
channeling Cheney:
Steven Thomma and William Douglas, 2012 6/21/2012 (staff writer,
Obama asserts presidential powers he once spoke critically of,
http://www.mcclatchydc.com/2012/06/21/153365/obama-asserts-presidentialpowers.html, Accessed 7/26/2012, rwg)
Obama is starting to channel his inner Cheney. For years,
Obama talked about the limits on presidential power. Now, driven either by principle
or political expediency, hes working to build and maintain a powerful presidency
that pushes the edge of what it can do, while often telling Congress and the courts
to mind their own business. In the last week alone, he refused a subpoena to share Justice Department
WASHINGTON President Barack
emails with Congress, told courts he doesnt have to justify his claimed power to assassinate suspected terrorists
and decided to stop deporting certain illegal immigrants even though Congress has refused to enact a law to do
that. Those moves cap a slow buildup of executive branch power since Obama took office in January 2009. Some
actions build on war powers seized by the administration of President George W. Bush and Vice President Dick
Taken together, they reinforce the strengthening

presidential power that Cheney pursued ever since he served as White House chief
of staff to Gerald Ford and watched Congress take power away from a presidency weakened by Vietnam
and Watergate. Particularly with regard to national security powers, Obama is as
vigorous in exercising those powers, and expanding some of them, as his
predecessor, said Gene Healy, the author of the book The Cult of the Presidency: Americas Dangerous
Cheney. Some assert new domestic authority.
Devotion to Executive Power.
IMP--Solvency for Imperial Presidency

Reclaiming the Fourth Amendment allows the courts to limit
governmental authority:
Once the reasonable expectation of privacy language is removed from our Fourth Amendment discourse, we can
rely on the original language and intent of the Constitution to provide useful language to describe and fortify the
By reclaiming the original language of the Fourth

Amendment, courts [*1030] can revive the original purpose of the Amendment as a
limitation on governmental authority .
interest protected by the Fourth Amendment.
IMP--AT: FISA Courts Solve

The FISA courts are a rubber stamp and dont place a check on
the executive:
The FISA court's warrant approval rate has led many to believe they are a rubber
stamp for the executive branch and are failing to perform their judicial duty . n257
Furthermore, FISA court proceedings are ex parte, which means they [*496] only hear from one
party. n258 The government justifies an ex parte proceeding because adversarial proceedings are timeconsuming, costly, and can obstruct investigations. n259 However, there is a reasonable concern that without
someone to argue the other side, the FISA court is turning into "an administrative, rather than a judicial, body."
n260 James Robertson, a former FISA judge, explains, a judge must hear both sides of a case to remain unbiased
and impartial. n261
Executive branch currently has the authority to monitor every

communication without the check of judicial review now:
At the heart of both the NSA Cases and the Pen Register Decisions lies the struggle to reconcile the use of
expanding technological [*982] capabilities with a labyrinth of statutes and a problematic standard of
The NSA Cases alert us to the very real possibility that the executive
branch has the capacity to monitor every transaction and communication of any
individual without the check of judicial review . The Pen Register Decisions involve requests for
constitutional review.
judicial orders permitting real time tracking of individuals by the government based on a mere certification that the
information is relevant to an investigation. Both sets of cases provide an impetus to reexamine the increasingly
complicated intersection of law, advancing technology, and our conceptions of personal and national security.
IMPStrong Courts Check Pres Powers

Strong courts are key to check presidential powers:
Michael P. Allen, 2007 (Associate Professor of Law, Stetson University
College of Law, Brooklyn Law Review, Spring 2007, 72 Brooklyn L. Rev. 871;
Lexis/Nexis, rwg)
Rather, the Article explores the serious question of the role of courts in a time of actual or potential constitutional
change. The change we face in our time happens to concern the actions of the federal executive branch under the
leadership of a Republican President. But the theoretical underpinning of the approach I describe would apply
equally to an attempt by Congress to broaden its powers, or to the actions of a President Hillary Rodham Clinton or
a President Barack Obama. I ask, then, that the reader put aside questions of my partisanship -- at least for the
moment -- and judge the theory on its merits. If those of us in the world of legal academia are unable to do so, the
nation may be in greater difficulty than is imagined. What is needed instead is a longer-term focus not on this
President, [*876] but on the presidency as one of many institutions in the constitutional structure. The jury is still
out on the administration's ultimate success in redefining the scope of executive power. In some cases, the courts
effectively have supported the administration. n23 In others, the administration has been rebuked. n24
In the
great majority of situations, a debate still rages over the propriety of unilateral
presidential authority . n25 I will not join the debate about the constitutionality of any of the specific actions
taken by the current administration. For present purposes, I assume merely that the administration's positions are
My aim is to
explore the role of courts in response to such a broad-based and coordinated
assertion of envelope-pushing executive power. Of course, one obvious response to such an
pushing the constitutional envelope in terms of presidential power under the Constitution.
inquiry is that the judiciary should follow Chief Justice Roberts's comment during his confirmation hearings: judges
are umpires who should call balls and strikes. n26 Thus, the judiciary's role is to take each case challenging a given
executive action on its own and use standard principles of constitutional and statutory interpretation to resolve the
narrow issue presented. As I explain further below, however, such a narrow approach provides insufficient
protection for the structural underpinnings of American democracy. I begin in Part II by laying out a constitutional
theory that should guide courts when faced with a broad, constitutionally envelope-pushing assertion of power by
courts must serve as agents of

systemic structural equilibrium. [*877] The judiciary must ensure that the
fundamental structural safeguards built into the fabric of the Constitution are
maintained even if a constitutional change in the balance of power is implemented. The way in which
one structural part of the American constitutional system. In brief,
equilibrium is re-established will vary depending upon the particular change at issue, but the goal of maintaining
the boundaries of the structural safeguards embedded in the Constitution remains constant. Part II also identifies
the fundamental structural principles that should guide courts. The Constitution and the documents surrounding its
drafting and ratification reveal three foundational principles: (1) The Constitution is based on maintaining multiple
and meaningful centers of political authority situated horizontally and vertically from one another. These power
centers -- the three coordinate branches of the federal government and the states -- must be capable of
meaningfully playing their roles in maintaining a separation of governing authority; (2) the People must be allowed
to have meaningful participation in the governing process; and (3) whatever power relationships are implemented,
the resulting governmental structure must be functional. The goal of Part II is to prepare specifically to address how
courts should respond to the Bush administration's assertion of executive authority. Before one is able to do so,
one must get a better understanding of the Bush administration's specific conception of executive authority. Part III
is a descriptive exercise devoted to distilling the single dominant theme and three distinct but related sub-attributes
of President Bush's constitutional Chief Executive. The dominant and overarching theme of the Bush
administration's stance is a strongly unilateral executive who is constitutionally empowered to take a wide array of
actions without "interference" from any other power center in American government. The three distinct subattributes associated with unilateralism are: (1) the unilateral authority is often exercised in secret, greatly reducing
transparency in government (such lack of transparency applies to citizens as well as to other institutions of
government); (2) the administration is highly intolerant of criticism and questioning associated with its exercise of
power; and (3) the administration is disciplinarian and retributive with respect to those people and entities that do
challenge its exercise of authority. [*878] Part IV of the Article turns to the specific question of the courts and
President Bush by applying the theory set out in Part II to the description of the Bushian constitutional executive laid
out in Part III. In order to do so, I use cases considered by the United States Supreme Court during its October 2005
Term. I consider cases in such divergent areas as the legality of military commissions, n27 federal attempts to
interfere with state laws providing a limited right to physician-assisted suicide, n28 partisan redistricting, n29
campaign finance reform, n30 and First Amendment protections for public employees and citizens alike. n31 I
explain how these cases, as well as some others, fit into the structural equilibrium approach. In some instances the
theory produces the same results as those actually reached, while in other important respects I argue that the Court
should have approached matters quite differently in order to act as an agent of structural equilibrium. Finally, Part
V concludes by considering issues on the horizon in which courts will again have the opportunity to respond to the
It is not hyperbole to suggest that what happens in the next few

years will decide in many respects the type of government enjoyed by our children
and grandchildren. The stakes are unquestionably high.
Bush vision of Article II.
(--) Supreme Court is a key check on executive power:

Michael P. Allen, 2007 (Associate Professor of Law, Stetson University
College of Law, Brooklyn Law Review, Spring 2007, 72 Brooklyn L. Rev. 871;
Lexis/Nexis, rwg)
V. Conclusion and a Glimpse of the Road Ahead Times change and so does the Constitution . When
constitutional change is formalized through an Article V amendment, courts have a constitutional duty to enforce
When the change is an

extra-constitutional one, however, courts must ensure that they protect the three
foundational principles on which the original constitutional architecture is based . I
the new constitutional structure or other rule in conformity with the amendment.
have explained the central attributes of the potential constitutional change advocated by the Bush administration.
It is wide-ranging and potentially quite dangerous to American fundamental constitutional values. My goal has been
to develop the operation of the structural equilibrium theory with the Bushian model as an example. I did so using
the Supreme Court's October 2005 Term. As discussed above, with the structural equilibrium model as a baseline,
the Court did well as to some matters but was deficient with respect to others. This effort addressing how the
structural equilibrium approach would have operated is important in its own right. Without doing so, one would not
be in as good a position to evaluate the merits of the approach I advocate. However, the true significance of the
approach is forward-looking. I hope that the Court consciously acts on the approach I have suggested here, because
the challenges most certainly continue in the future. How will the Court rule on cases raising the continued viability
of the "state secrets" privilege? n298 What will [*938] the Court decide concerning executive preemption in a case
it heard during the October 2006 Term? n299 And what will the Court do when it next confronts the applicability of
the Chevron doctrine in the context of aggressive administrative agency actions? n300 Each of these issues
implicates core elements of the proposed new constitutional order. In each case, the Court will need to decide how
to synthesize the new with the old. When it does so, it should consciously act as an agent of constitutional
as
Professor Ackerman recently wrote considering executive power and terrorism, "our
structural equilibrium to preserve the foundational principles in the most effective way possible. In sum,
great constitutional tradition of checks and balances provides the material we need
to withstand the tragic attacks and predictable panics of the twenty-first century ."
n301 They also provide the material to weather the more general storm of extraconstitutional change , whether it is instigated by Democrats or by Republicans.
Now, the Court needs to act on that constitutional tradition.
(--) Court puts checks on executive power:

http://www.nytimes.com/2004/06/29/world/supreme-court-president-classic-
check-balance-court-shows-bush-it-also-has.html?pagewanted=all&src=pm,
rwg)
In the fall of 2001, President Bush justified his decision to treat some captured
terrorist suspects as ''enemy combatants'' without access to lawyers, courts or other longestablished legal rights on the grounds that he could not let the United States' ''enemies use the forums of liberty to
On Monday morning, the Supreme Court upended a good-sized

chunk of that logic, and offered a powerful reminder that in the United States, even
in wartime, no prisoner is ever beneath the law's regard, and no president above its
limits. It was Justice Robert H. Jackson who first noted 52 years ago this month, in another wartime election
destroy liberty itself.''
summer, that a president is not commander in chief of the country, only of the military. Justice Jackson wrote that in
his concurring opinion overturning Harry S. Truman's seizure of the American steel industry during the Korean war,
The effect of the

current court's rulings in two related cases was to place a classic institutional and
and Justice David H. Souter cited those words approvingly in his concurrence on Monday.
political check on Mr. Bush's effort to keep some citizens and aliens held as the
most dangerous ''enemy combatants'' from ever having their day in any court. It is
precisely the right to some such hearing, the court held, that defines the constitutional separation of powers and by
extension the American governing creed.
(--) Court will check the executive:

rwg)
''It is a clear demonstration of how much our system of checks and balances , of
separation of powers, continues to be an effective brake on any one branch,'' said the
historian Robert Dallek. ''After all, this is not a left-leaning court, or one dominated by justices
who are left of center. But ultimately the court has a unique degree of independence
from the executive and legislative branches, that even in times of great difficulty it
does not lightly give up.''
IMP: Executive Will Comply with the Supreme

Court
Executive will comply with Supreme Court decisions:
rwg)
Some historians were not surprised by the court's decisions. Alonzo Hamby, a scholar of the presidency at Ohio
University, noted wryly that ''once upon a time, it was not assumed that presidents necessarily had to pay attention
In the 1830's, when the Supreme Court declared the

government's forced removal of Indian tribes from their lands illegal, President
Andrew Jackson famously dismissed the ruling by the chief justice by saying: ''John
Marshall has made his decision. Now let him enforce it.'' Mr. Hamby said, ''But in the
world we live in now, it's literally impossible for a president to ignore a Supreme
to Supreme Court decisions.''
Court decision , no matter how wrong or dangerous he may think it is.''
Theory Answers2ac
AT: Test Case FIAT (Have to have a test case)

1) We Meet: The Supreme Court can always find an excuse
to decide a case:
Tracy Bach, 3/11/2009 (CLI BACKGROUND PAPER NO. 6, The Recognition of
Intergenerational Ecological Rights and Duties in U.S. Law,
http://www.vermontlaw.edu/Documents/CLI%20Policy %20Paper/BP_06%20%20%28Bach%29.pdf)
While Article III does not explicitly set out any specific standing requirements, the
Supreme Court has formulated the doctrine over time and established requirements
that a plaintiff must show in order to bring a case. Some commentators have
described this evolution as always in flux, even asserting that courts "can always
find an excuse for giving standing if they want to get to the merits of the case.8
Many argue that the Court has restricted standingparticularly in environmental casesto too narrow a set of
individuals.9
2) Counter-interpretation: FIAT allows us to assume a test

case exists.
3) Prefer the counter-interpretation: Their interpretation
would require Congress AFFs to prove a bill exists in a
committee before it could be FIATed.
4) They risk locking out Supreme Court AFFsdenying
education about a third of the federal government and
how it operates.
5) Solvency advocate checks abuse: our Alhogbani and
Casey evidence says the Court should recalibrate the
fourth amendment for internet surveillance.
6) Good is good enough: Reasonability should be your
standard on theory.
AT: Effects TCourt Mandates Then Congress Does

1) We meet: we take one actionthe Court eliminates the
surveillance by striking it down.
2) No different than Congress: Court decisions have the
power and permanency of law:
This Nation.com, 2008 (Supreme Court Decision Making,
http://www.thisnation.com/textbook/judiciary-decision.html, Accessed
7/25/2012, rwg)
Interpretation as law A prominent attorney who had argued hundreds of cases
before the Supreme Court once remarked that the Supreme Court is not final
because it's right, it is right because it is final. The Court's position as the court of
last appeal and as the highest court in the land means that its decisions are
binding and largely unchangeable. Once the Court has ruled, its decisions have all
the effect and permanency of law.
3) Plan is a mandateExecutive and Legislative have to bow

to the judiciary:
Steve Kellmeyer, 2005 The Illinois Leader, 2005 [The coming paradigm shift
from the judiciary to the corporation, July 7,
http://www.illinoisleader.com/opinion/opinionview.asp?c=27040, rwg]
The executive and legislative branches bow to the authority of the judicial branch.
They do not exercise authority on their own, except as the judicial branch gives
them leave. Since the federal judiciary is a creation of the legislative branch, we now have a Frankenstein
government, a government in which the creator has lost control of his creation.
Since the judiciary is the
only real source of power in America , the indirect election of judges through a
republican system should be a source of comfort to all concerned.
True, the term is for

life, not four or six years, the government is by nine people, not thousands, and there remains not even a
semblance of the idea that the judges represent the interests of any of the electorate but the forms are observed.
We have maintained the idea of the republic - sort of.
4) They limit out all AFFs: all AFFs require multiple steps
they create a bill, put it through a committee, Congress passes
it, and then Obama signs it.
5) Their interp limits out all Courts AFFs
A) Bad for education: we learn more about the Courts and
their unique role in surveillance policy.
B) Not real world: the Court decides all kinds of issues
related to Fourth Amendment Law.
6) We spike out of zero topic specific das: we claim to
massively curtail surveillance.
7) Good is good enough: Reasonability should be the standard
on T.
AT: Over-spec
1) Counter-interpretation: AFF gets any agent of the USFG:
The federal government refers to any entity of the federal
government
The Chicago Manual of Style 2010 16th edition text
(http://www.chicagomanualofstyle.org/CMS_FAQ/CapitalizationTitles/Capitalizatio
nTitles32.html)
Q. When I refer to the government of the United States in text, should it be US Federal Government or US federal
A. The government of the United States is not a single official entity . Nor
is it when it is referred to as the federal government or the US government or the
US federal government. Its just a government, which, like those in all countries, has
some official bodies that act and operate in the name of governmen t: the
government?
Congress , the Senate, the Department of State, etc.
2) Prefer the counter-interpretation:

A) Real world: No real world plan wouldnt specify their
agent.
B) Makes the AFF a fixed target: prevents shadiness on
politics links and counterplan competition
C) Preserves topic specific education: we learn about
foreign policy in the context of real world actors
3) No abuse: we act through an agent of the USFG.
4) They have plenty of ground: we claim to massively curtail
domestic surveillance.
5) Not a violation: We violate no words in the resolution by
specifying the judiciary.
6) Reasonability: good is good enough.
AT: Ground Specification is Extra-Topical

1) Counter-interpretation: The AFF is required to specify the
grounds for their decision.
2) Most real world: No Supreme Court decision would ever
not explain the rationale for their decision:
Wiki Answers, 2012 (Accessed 7/25/2012, Written Opinions,
http://wiki.answers.com/Q/What_types_of_written_opinions_may_the_US_Suprem
e_Court_issue, rwg)
The Court's Opinion (usually also the majority opinion) is synonymous with the Court's
decision. The "Opinion of the Court" gives the verdict and explains the reasoning
behind the decision reached. The privilege of writing the official opinion falls to the most senior justice in
the majority group, or to the Chief Justice if he voted with the majority; this person may choose to write the opinion,
or may assign the task to another member of the majority. If the justices who voted against the majority wish to
issue a unified opinion, they simply decide amongst themselves who will write it.
3) We have a solvency advocate: Our Alhogbani and Casey

evidence specifies the right to develop rationale for the
plan.
4) Disads and counterplans check abuse: they can run
disads off the reason for decision or counterplan out of
grounds to solve advantages.
5) Reject argument not teamif you find it illegitimate for us
to specify our grounds, then we can just defend the
curtailment of power.
6) Reasonability: good is good enough on T and theory.
Disad Answers
Politics DA Answers
(--) Normal means is announcing the plan in May or Juneafter
their politics scenario:
Wikipedia, 7/24/2012
(http://en.wikipedia.org/wiki/Procedures_of_the_Supreme_Court_of_the_
United_States#Announcement_of_opinions, Accessed 7/25/2012, rwg)
mostly during the last months of the termMay, June, and, if
necessary, Julythe Court announces its opinions. The decision of the Court is subsequently
Throughout the term, but
published, first as a slip opinion, and subsequently in the United States Reports. In recent years, opinions have been
available on the Supreme Court's website and other legal websites on the morning they are announced.
(--) ZERO LINK AT ALL: The Supreme Court does the plan
Obama doesnt use any capital to push the plan.
(--) Courts preserve presidents political capital
Tushnet, 2008 (law professor at Harvard, Mark, THE OBAMA
PRESIDENCY AND THE ROBERTS COURT: SOME HINTS FROM POLITICAL
SCIENCE: POLITICAL FOUNDATIONS OF JUDICIAL SUPREM-ACY: THE
PRESIDENCY, THE SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN
U.S. HISTORY, Summer, 25 Const. Commentary 343, lexis, Accessed
2/18/2013, rwg)
What can the courts do for a resilient regime? Presidents and Congress have limited
time and political energy. They will spend them on what they regard as central issues. But at any time
there will be "outliers" - geographic regions as yet uncommitted to the regime's constitutional understandings, or
substantive areas that plainly require change if those understandings are to become deeply implanted in society,
yet politically too touchy [*347] or relatively unimportant to Congress. "For the affiliated leader, enhancing judicial
authority to define and enforce constitutional meaning provides an efficient mechanism for supervising and
correcting those who might fail to adhere to the politically preferred constitutional vision" (pp. 105-06). The courts
can serve as a convenient but essentially administrative mechanism for bringing these outliers into the
constitutional order. n16 In addition, the courts may have rhetorical resources unavailable to presidents. Their
obligation to explain their decisions, and the fact that they make decision after decision, means that they have an
opportunity to develop a reasonably general account of the resilient regime's constitutional understandings. In
Whittington's words, "It is the classic task of judges within the Anglo-American tradition ... to render new decisions
and lay down new rules that can be explicated as a mere working out of previously established legal principles" (p.
84). Presidents, in contrast, only sporadically make speeches illuminating those understandings. More boldly,
affiliated presidents may try to use the courts to "overcomee gridlock" (p. 124) caused by the strategic positions
at least rely
on the courts to take the initiative, because "the Court can sometimes move
forward on the constitutional agenda where other political officials cannot" (p. 125).
recalcitrant opponents of the new constitutional regime may occupy. And, if not "use the courts,"
"Coalition leaders might be constrained by the needs of coalition maintenance," but "judges have a relatively free
hand" (p. 125). This "use" of the courts, though, poses risks. The courts may push the regime's constitutional
principles further and faster than is politically wise, and the regime's political leaders may find themselves on the
defensive. Indeed, in this way the courts can contribute to making a resilient regime vulnerable, which may be part
of the story about the Warren Court and the demise of the New Deal/Great Society regime. n17 [*348] Preemptive
presidents face a special strategic problem. Sometimes they take office because they manage to persuade the
public that they remain committed to a resilient regime's constitutional vision even if in their hearts they want to
transform the regime. n18 At other times they take office as a regime becomes vulnerable, but do not themselves
have the program, vision, or charisma to be reconstructive presidents themselves. n19 They are likely to face
opposition in Congress and to some degree in the courts. But they can turn divided government to their advantage
by seeking judicial confirmation of executive prerogative. The judges in place might be sympathetic to such claims
for doctrinal and political reasons. They will have "inherited from affiliated administrations" (p. 169) doctrines
supporting executive authority. And, though Whittington doesn't make this point explicitly, they may see the
preemptive president as an accident, soon to be replaced by an affiliated one whose exercises of presidential power
they will want to endorse. Finally, preemptive presidents need to get their authority from somewhere when they
face congressional opposition, as they will. They don't have much of their own, but they can try "to borrow from the
authority of the courts in order to hold off their political adversaries" (p. 195). One final point before I move to
some speculations about the future of judicial supremacy. Whittington emphasizes the growth of judicial supremacy
during the twentieth century, both in terms of the judges' self-understanding and, perhaps more importantly, in
terms of the degree of political commitment to judicial supremacy (p. 25). He suggests that
politicians have
had increasingly strong reasons to support the Supreme Court. The reconstructive
presidency of Ronald Reagan was less ambitious than that of Franklin Roosevelt (p. 232), assuring the American
people that Reagan's policies would strengthen rather than destroy the social safety nets that Roosevelt and Lyndon
Johnson's regimes had created. Even a reconstructive president could hope that the Supreme Court would assist in
articulating regime principles in the way the Court ordinarily does for affiliated presidents. Further, drawing again on
Skowronek's account of the [*349] ways in which regimes leave a residue even after they have been displaced,
Whittington describes the doctrinal thickening that occurred during the twentieth century with respect to essentially
every possible ideological and political commitment a President could have (p. 283). Doctrinal thickening means
that every member of a ruling coalition will have some basis in constitutional law for its assertions that the
Constitution requires satisfaction of its policy preferences, and that the Court cannot possibly satisfy all the
demands on it. n20 So, for the future, we might expect Presidents to have increasingly ambivalent views about the
In the twenty-first century, the Supreme Court will be useful and annoying
to every President - useful because the Court can do some policy work that
Presidents would rather not expend time and political capital on , and annoying because
Supreme Court.
the Court's failure to satisfy all the demands emanating from a President's political supporters will put pressure on
the President to do something about the Court.
(--) Turn: the plan bolsters political capital by allowing

politicians to blame the court:
Keith E. Whittington, 2007 politics at Princeton University, (Political
Foundations of Judicial Supremacy, p. 137-39)
Independent and active judicial review generates position-taking
opportunities by reducing the policy responsibility of the elected officials.
They may vote in favor of a bill that they personally dislike secure in the
knowledge that it will never be implemented . State statutes regulating abortion after the Roe
decision, for example, were often pure symbolism, though they could also play a more productive role in
the
judicial backstop allows legislators to focus on some dimensions of the proposed
policy (the most optimistic and politically popular) while downplaying others (the
constitutionally subversive and treacherous). Legislators even gain a political
windfall when the courts actually act to strike down the popular law. The
visibility of the exercise of judicial review creates another opportunity for
legislators to publicize their position on the issue, this time by bewailing the
Courts actions .
pressing the Court to refine its doctrine or in filling in the lacuna left by judicial decisions. More subtly,
(--) Court action doesnt link to politics- individual rulings

dont draw attention
Gregory Caldeira, 1986 Professor of Political Science, Ohio State
University, [The American Political Science Review, Vol. 80, No. 4 (Dec., pp.
1209-1226; Neither the Purse Nor the Sword: Dynamics of Public Confidence
in the Supreme Court; Jstor]
In previous work on support for institutions and leaders, scholars have demonstrated the
crucial effects of discrete political events and circumstances on the rise and decline of public
confidence. For example, Mueller (1973) persuasively argues that crises in foreign affairs result in "rallyingaround-the-flag" and a subsequent increase in the popularity of the incumbent chief executive (cf. Parker,
events normally associated with the Court seldom

cause a splash of the dimensions of the Mayaguez incident or the Cuban missile crisis, Particular
decisions sometimes do gain a fair amount of attention in the elite media of
communications, but few single cases -with the exception of a bombshell such as Dred Scott- have
sufficient weight to shift public attitudes one way or the other . Even if we could
isolate a number of crises or landmark decisions, the polling organizations have not gathered
data on support for the Court often enough to permit a precise reading on the influence of
salient events.
1977). Unfortunately for the purposes of analysis,
1ar: Politics: Decisions Announced in May

(--) The plan wouldnt be announced until May at the earliest
after their politics scenariothis isnt FIAT gimmickrythis is
normal means for the courts.
(--) You should prefer normal means to immediacy:
A) Most real world: teaches real world decision making skills
B) Rewards topic specific education specific to the branch of
government
C) Least distortion of the lit baseboth sides can debate it.
(--) Supreme Court announces decisions in May & June
Supreme Court of the United States, 7/25/2012 (The Court and
Its Procedures,
http://www.supremecourt.gov/about/procedures.aspx, Accessed 7/25/2012,
rwg)
The Court maintains this schedule each Term until all cases ready for submission
have been heard and decided. In May and June the Court sits only to announce
orders and opinions. The Court recesses at the end of June, but the work of the Justices is unceasing.
During the summer they continue to analyze new petitions for review, consider motions and applications, and must
make preparations for cases scheduled for fall argument.
(--) Decisions never leak before they are announced:

Sam Baker, 7/4/2012 (staff writer, Supreme Court healthcare ruling leaks
have DC buzzing: Who is the culprit?
http://thehill.com/blogs/healthwatch/legal-challenges/236197-supreme-courttalk-has-dc-buzzing-who-is-the-leaker, rwg)
The justices themselves were implicated in the speculation because clerks would
have more to lose by talking to the press. A decision has never leaked before the
court announced it publicly ; the explanation for that fact is that justices have
nothing to gain and clerks would be throwing away promising careers by leaking.
1ar: Blame Deflection

(--) They dont have a link and we only have a risk of a turn
extend our Tushnet evidencepoliticians can use the court to
prevent themselves from expending political capital, extend
our Wittington evidence, politicians can look good by posturing
in opposition to the court.
(--) Blame deflection: Democrats will blame Bushs Court
KatherinePerine,2008staffatCQPolitics,6/12/2008,CongressUnlikelytoTrytoCounterSupremeCourt
DetaineeRuling,CQPolitics,p.http://www.cqpolitics.com/wmspage.cfm?docID=news000002896528&cpage=2)
Thursdaysdecision,fromaSupremeCourt
dominatedbyRepublicanappointees ,givesDemocrats
further cover againstGOPsniping.Thisissomethingthatthecourthasdecided,andveryoftenthecourt

gives political cover to Congress ,saidRossK.Baker,aRutgersUniversitypoliticalscience
professor.YoucansimplypointtoaSupremeCourtdecisionandsay,Thedevilmademedoit
(--) Courts provide political cover to politicians:

Dallas Morning News 8/19/05
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
A court finding against the state would put

the ball back in the hands of lawmakers, who have tended to put off dealing with
out and leave school finance to the Legislature.
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."
(--) Politicians will use the counterplan to deflect blame

Alison M. Martens, 2007 political science at University of Louisville,
2007 (Perspectives on Politics 5.3)
The outline of this revised research agenda, begins by looking at a 1993 article
written by Mark Graber challenging the countermajoritarian difficulty paradigm.
Graber's observations point to the importance of studying systemic
transformations, such as the evolution of judicial supremacy. Using historical case
studies on abortion, the Dred Scott controversy, and anti-trust issues to study
perceived incidents of judicial independence, he contends that scholars who seek
to justify independent judicial policymaking, even in the face of believed
democratic deficiencies, misunderstand and inaccurately represent the
relationships between justices and elected officials. By looking at the dialogues
between these parties it becomes apparent that judicial independence, when it
actually occurs, is often exercised at the invitation of elected officials, and in the
absence of any expressed majoritarian choice, in order to resolve political
controversies that elected officials cannot or do not want to resolve themselves.
Hence the counter-majoritarian difficulty can be more appropriately characterized
as the non-majoritarian difficulty. 33
According to Graber, where crosscutting issues divide a lawmaking majority an

invitation is often tacitly but consciously issued to the Court by political elites to
resolve the political controversy that they themselves are unwilling or unable to
address, thereby foisting disruptive political debates off on the Supreme Court.
34
Graber writes that elected officials encourage or tacitly support judicial
policymaking both as a means of avoiding political responsibility for making
tough decisions and as a means of pursuing controversial policy goals that they
cannot publicly advance through open legislative and electoral politics. 35
Furthermore, political and electoral advantages can accrue by ducking these
tough questions and sending them on to be settled by the Court. Graber explains
that elites (including the executive) can benefit from passing the political
buck to the Court in multiple ways. Party activists can be redirected to focus on
legal action in the courts, thereby reducing pressure on mainstream politicians
who wish to maintain a more politically viable moderate stance. Voters can be
redirected to focus any ire they might have over policy outcomes on the Court.
Politicians can take responsive positions on judicial decisions that may make for a
good sound bite but really require no politically accountable action on their part.
Finally, political compromise between the legislature and the executive might be
had under the table of Court policymaking. 36 This is an impressive set of political
benefits that can stem from a practice of judicial supremacy that creates a Court
equipped with the interpretive authority and legitimacy to make controversial
public policies. Graber's article, then, highlights the perversion of political
accountability that can possibly occur where everyone in the system, the public
included, accepts and expects interpretive authority to reside with the courts.
1ar: Individual Decisions Dont Matter

(--) Extend our Caldeira evidence: individual decisions rarely
make a splashtheres no way a decision about surveillance
will turn everyone away from the courts if decisions like
abortion and gun control havent
(--) Popular respect for the Court shields it from partisan
politics on individual issues:
Gregory Caldeira, 1998 Prof of Political Science at The Ohio State
University, [Co-written by Vanessa A. Baird, James L. Gibson; On the
Legitimacy of National High Courts The American Political Science Review,
Vol. 92, No. 2 (Jun., ), pp. 343-358; Jstor]
The purpose of this research is to examine theories of diffuse support and institutional legitimacy by testing
hypotheses about the interrelationships among the salience of courts, satisfaction with court outputs, and
diffuse support for national high courts. Like our predecessors, we are constrained by essentially crosssectional data; unlike them, we analyze mass attitudes toward high courts in eighteen countries. Because our
sample includes many countries with newly formed high courts, our cross-sectional data support several
longitudinal inferences, using the age of the judicial institution as an independent variable. We discover that
the U.S. Supreme Court is not unique in the esteem in which it is held and, like
other courts, it profits from a tendency of people to credit it for pleasing
decisions but not to penalize it for displeasing ones. Generally, older courts more
successfully link specific and diffuse support, most likely due to satisfying successive,
nonoverlapping constituencies.
Court Politics Answers2ac

(--) Non-unique: Obamacare decision has angered
conservatives:
Carol E. Lee, 6/25/2015 (staff writer, Obama Has a Good Week,
http://www.wsj.com/articles/obama-has-a-good-week-1435253458, Accessed
6/25/2015, rwg)
Tensions will continue between the two parties over health care . Whit Ayres, a GOP
pollster, said Thursdays ruling wouldn't alter the Republicans dim view of the
Affordable Care Act, but rather may strengthen their resolve to repeal the law. This
will simply increase the interest among Republicans in finding a preferable
alternative to Obamacare, he said. It doesnt change the fundamental Republican argument.
(--) Turn: Winners win for the Courtscontroversial decisions

enhance the courts legitimacy:
David Law, 2009 (Professor of Law and Professor of Political Science,
Washington University in St. Louis, Georgetown Law Journal, March 2009, 97
Geo. L.J. 723; A Theory of Judicial Power and Judicial Review, Lexis, rwg)
Part IV of this Article discusses a counterintuitive implication of a coordination-based account of judicial power.
Conventional wisdom suggests that courts secure compliance with their decisions
by drawing upon their store of legitimacy, which is undermined by decisions that are
unpopular, controversial, or lack intellectual integrity. n25 Part IV argues that
precisely the opposite is true : an unpopular or unpersuasive decision can, in fact,
enhance a court's power in future cases , as long as it is obeyed. Widespread
compliance with a decision that is controversial, unpopular, or unpersuasive serves only to
strengthen the widely held expectation that others comply with judicial decisions.
This expectation, in turn, is self-fulfilling : those who expect others to comply with a court's decisions
will find it strategically prudent to comply themselves, and the aggregate result will, in fact, be widespread
compliance. Part IV illustrates these strategic insights--and the Supreme Court's apparent grasp of them--by
contrasting [*734] Bush v. Gore n26 with Brown v. Board of Education n27 and Cooper v. Aaron. n28
(--) Non-unique: gay marriage ruling has angered

conservatives:
Fox News, 6/26/2015 (Supreme Court: Same-sex couples can marry in all 50
states, http://www.foxnews.com/politics/2015/06/26/supreme-court-same-sexcouples-can-marry-in-all-50-states/, Accessed 6/26/2015, rwg)
Roberts wrote: "If you are among the many Americans -- of whatever sexual
orientation -- who favor expanding same-sex marriage, by all means celebrate
today's decision. ... But do not celebrate the Constitution. It had nothing to do with it." Each of the four
dissenting justices also wrote a separate dissent. Prominent social conservatives, meanwhile,
blasted the decision. Tony Perkins, head of the Family Research Council, said it puts
the government on a "collision course with America's cherished religious freedoms."
(--) No internal link: Capital doesnt tradeoff between issues-Redish and Cisar, 1991 prof law @ Northwestern and Law clerk to US Court of Appeals, 1991
Law Clerk to
Chief Judge William Bauer, United States Court of Appeals, Seventh Circuit, Dec 1991,
CONSTITUTIONAL PERSPECTIVES: ARTICLE: "IF ANGELS WERE TO GOVERN" *: THE NEED
(MARTIN H. REDISH, prof law and public policy @ Northwestern; ELIZABETH J. CISAR,
FOR PRAGMATIC FORMALISM IN SEPARATION OF POWERS THEORY. 41 Duke L.J. 449)
Choper's assumption that the judiciary's institutional capital is transferable from

structural cases to individual rights cases is no more credible. Common sense
should tell us that the public's reaction to controversial individual rights casesfor example, cases concerning abortion,240 school prayer,241 busing,242 or
criminal defendants' rights243- will be based largely, if not exclusively, on the
basis of its feelings concerning those particular issues. It is unreasonable to
assume that the public's acceptance or rejection of these individual rights
rulings would somehow be affected by anything the Court says about wholly
unrelated structural issues .
(--) Theory of institutional capital is wrongvotes are based on

ideology and not institutional capital:
Cross and Nelson, 2001 Biz Law @ UT and PoliSci @ Penn State,
(Frank B. Cross, Biz Law @ UT, Blake J. Nelson, Assis prof PoliSci @ Penn State, 2001, STRATEGIC
INSTITUTIONAL EFFECTS ON SUPREME COURT DECISIONMAKING 95 Nw. U.L. Rev. 1437)
judges make
decisions so as to advance their political or ideological [*1444] policy ends,
without regard to either the demands of the normative legal model or the concerns of other
institutions. n39 It is normative in that it assumes that judges are unconstrained and have singlepeaked utility functions. In this model, judges decide so as to advance their ideological
policy ends, without regard for the formal requirements of law (e.g., constraining precedents and text)
and without concern for the reaction of external entities. The political model may find support in
legal sources beyond the legal realists and the contemporary critical legal
theorists. n40 Supreme Court Justices are commonly characterized as "liberal" or
"conservative" - political terms describing the ideological import of their decisions.
Significantly, this model of decisionmaking does not necessitate an extremely
cynical view of judges, as the political model may reflect subconscious
psychology and cognitive dissonance. n41 With the growth of clerk populations, it is easy for "the
The normative political model, sometimes called the attitudinal model, contends that
appellate judge to determine a result based on personal notions of fairness and right, and then to leave to the
n42
The political model can be

descriptively accurate, even absent conscious judicial policymaking . In contrast to
staff attorney the task of constructing reasons to support that result."
the normative legal model, considerable empirical data supports the claims of the political model of judicial
decisionmaking.
Many studies have already been described in the legal literature . n43
Some prominent judges have taken issue with these studies and raised some methodological challenges,
though
the challenges are readily answered. n45 Perhaps
n44
[*1445] the most persuasive evidence

n46
can be found in a meta-analysis of studies on judicial decisionmaking conducted by Dan Pinello.

He
identified 140 research papers that empirically analyzed judicial decisionmaking by party affiliation. A majority
of these papers reported data in a manner that could be incorporated in his meta-analysis, and he found that
every study showed a positive association between judicial voting and

judicial ideology. n47 The studies together contained over 222,000 judicial votes,
virtually
and the judges' political party explained thirty-eight percent of the variance in their voting.
(--) No link: no one pays attention to the court:

Noah Feldman, 6/17/2012 ( professor of constitutional and international
law at Harvard, Supreme Courts Super Mondays Dont Serve Justice,
http://www.bloomberg.com/news/2012-06-17/supreme-court-s-supermondays-don-t-serve-justice.html, Accessed 7/28/2012, rwg)
The club of Supreme Court devotees (OK, junkies) likes to think of the first Monday in October as opening day, and
the last Monday in June as game seven of the World Series. But many years, the series is a dud. Most of the cases
are technical and unexciting, they enter the casebooks
notices.
with little fanfare , and the public barely
This year will be the exception that proves the rule.
(--) Individual decisions dont affect capital.

Gibson et al., 2003 PoliSci @ Wash U in St. Louis and Ohio State, 2003
James L. Gibson, PoliSci @ Wash U in St. Louis, Gregory A. Caldeira, PoliSci @ Ohio State, Lester
Kenyatta Spence, Poli Sci @ Wash U in St. Louis, Apr. 2003, Measuring Attitudes toward the
United States Supreme Court American Journal of Political Science, Vol. 47, No. 2 (Apr., 2003), pp.
354-367
Perhaps more important is the rather limited relationship between performance
evaluations and loyalty to the Supreme Court . These two types of attitudes are of course not
entirely unrelated, but commitments to the Supreme Court are not largely a function
of whether one is pleased with how it is doing its job. Even less influential are
perceptions of decisions in individual cases. When people have developed a "running tally"
about an institution-a sort of historical summary of the good and bad things an institution has done- it is
difficult for any given decision to have much incremental influence on that tally.
Insti- tutional loyalty is valuable to the Court precisely because it is so weakly
related to actions the Court takes at the moment.
(--) Judicial capital is resilient one controversial decision

wont destroy it.
Grosskopf and Mondak, 1998 (Anke Grosskopf, Assistant Prof of Political Science
@ Long
Island University, & Jeffrey Mondak, Professor of Political Science @ U of Illinois, 1998, Do attitudes
toward specific supreme court decisions matter? The impact of Webster and Texas v Johnson on Public
Confidence in the Supreme Court Political Research Quarterly, vol. 51 no 3 633-54 September1998)
Opinion about the Supreme Court may influence opinion about the Court's decisions, but is the opposite true?
it would be preferable if public reaction to

rulings did not shape subsequent levels of support for the Court . If opinion about the
Viewed from the perspective of the Court's justices,
Court were fully determined by early political socialization and deeply rooted attachments to democratic
values, then justices would be free to intervene in controversial policy questions without risk that doing so
a long tradition of scholarship argues

that the Supreme Court is esteemed partly because it commands a bedrock of public support,
or a reservoir of goodwill, which helps it to remain legitimate despite occasional critical reaction
to unpopular rulings (Murphy and Tanenhaus 1968; Easton 1965, 1975; Caldeira 1986; Caldeira and
Gibson 1992). The sources of this diffuse support are usually seen as rather stable and immune
from short-term influences, implying that evaluations of specific decisions are of little or no
broad importance. For instance, Caldeira and Gibson (1992) find that basic democratic values, not
would expend political capital. Consistent with this perspective,
reactions to decisions, act as the strongest determinants of institutional support.
1ar: Courts Politics AnswersNo Spillover

(--) Extend our Redish and Cisar evidencethe assumption that
institutional capital affects unrelated issues is falsejustices
decide based on their feelings on individual issuesnot the
overall reservoir of support it has.
(--) Capital doesnt spill over to other decisions.
Redish, 1997 Law @ Northwestern U, 1997
Martin Redish, Law @ Northwestern U, Summer 1997, Federalist Society Symposium: Washington, D.C.:
November 14 - November 16, 1996: Panel Three: Disciplining Congress: The Boundaries of Legislative
Power, 13 J. L. & Politics 585
The
limited pie
theory,
associated with Professor Choper,
n39
is
that the Supreme Court has
limited pie of
institutional capital, of institutional goodwill, and if it spends some of that on constitutional federalism, it will be deprived of its
opportunity to use that for where it really is needed - individual rights. The reason institutional capital is really needed in individual rights is [*604]
primarily that the states can protect themselves in the jungles of the political process, while individuals cannot. To that, my colleague Michael Perry
and others have added what implicitly underlies this: that individual rights are simply more important than constitutional federalism. n40 I like to
take the position that a true constitutional liberal should strongly believe in adherence to constitutional, not just political, limits on federalism,
because federalism serves an important function as a buffer between the government and the individual. The whole idea, the genius of the
structure set up by the Framers, was that the system of separation of powers, the system of federalism, and the system of individual rights would
all interlock as different fail-safe mechanisms. If federalism and separation of powers are working properly as divisions of government power,
tyranny would be prevented, and presumably the number of instances where individuals and government conflict over their rights would be
reduced. The story that best illustrates how constitutional federalism can protect against tyranny is the story that I gather is true about Mussolini
when he was given a copy of the National Recovery Act, which ultimately was held unconstitutional, and he looks at it and he says in Italian, "Ah,
now there's a dictator." And I think that illustrates how dangerous it is in terms of the values of our constitutional system to vest full power within
The limited pie theory, as a justification, makes no sense because it assumes

a kind of fungibility of institutional capital that just doesn't comport with reality .
How people feel about individual rights decisions will not be determined by whether the
Supreme Court has said anything about constitutional federalism. Reactions to Roe v. Wade
or Miranda v. Arizona are based on people's concerns about those decisions . What the
Supreme Court says or doesn't say about constitutional federalism will have little, if any, effect on reactions to
those decisions. [*605]
the federal government.
n41
n42
(--) Even if their overall theory is true, you cant apply it to

specific decisionsprefer our evidence for drawing this
distinction:
Grosskopf and Mondak, 1998 Profs of Poli Sci Long Island U and U of Illinois,
(Anke Grosskopf, Assistant Prof of Political Science @ Long Island University, & Jeffrey Mondak, Professor
of Political Science @ U of Illinois, 1998, Do attitudes toward specific supreme court decisions matter? The
impact of Webster and Texas v Johnson on Public Confidence in the Supreme Court Political Research
Quarterly, vol. 51 no 3 633-54 September1998)
the empirical record remains

unsatisfying. Tanenhaus and Murphy (1981) found that approval of Supreme Court rulings accounted for
Some evidence supports our political capital perspective, but
roughly 15 percent of the little variance in diffuse support they detected. However, due to the nine-year gap
between the waves of their panel survey, the authors could not attribute change in support to any specific
Caldeira (1986) showed that aggregate confidence in the Court varies in

response to judicial actions such as support for defendants' rights, but Caldeira also could not
trace this effect to specific decisions.
court rulings.
Spokeo Answers
(--) Spokeo wont winthe conservative court will decide in a
way that helps plaintiffs:
Ross Todd, 5/29/2015 (staff writer, Wave of Privacy Suits Peters Out,
http://www.therecorder.com/id=1202727906735/Wave-of-Privacy-Suits-Peters-Out,
Accessed 6/29/2015, rwg)
While the case has been read by lawyers such as Cooley's Rhodes as ripe for reversal by the Supreme Court,
some caution that it could be decided in a narrow way that punts on the standing
issue that Silicon Valley finds so vital, or that it could be decided in a way that
actually helps plaintiffs. The Supreme Court has reviewed the Fair Credit Reporting Act, or FCRA, multiple
times since it was passed in 1970, noted Georgetown's Vladeck. The harm that comes from incorrect revelations
such as the ones at issue in the case are baked into the law, not something that must be separately proven, he
The Ninth Circuit's unanimous ruling was authored by Diarmuid O'Scannlain, one of the
court's more conservative judges. Moreover, the Supreme Court might be disinclined to rule in a way
that plaintiffs lawyers predict would result in more privacy actions being filed in state court. " This court has at
least four self-identified conservative jurists ," said Kamber, the New York plaintiffs lawyer. "I'd be
surprised if those jurists would abdicate the express intentions of Congress" in passing
said.
the Class Action Fairness Act of 2005, which allowed defendants to remove state court class actions with more than
$5 million at stake to federal court. Even Cooley's Rhodes has come to a more cautious view of Spokeo.
Rhodes
said he could see some of the conservative justices on the court applying a
separation of powers analysis to the case. Congress did, after all, pass the FCRA with a private right to
sue and statutory damages embedded within it. "It's a conservative principle to defer to the
legislature," Rhodes said.
(--) Defense attorneys can successfully defend their clients vs.

class action lawsuits:
SAN FRANCISCO Michael Rhodes, the charismatic chair of Cooley's privacy and data protection practice, took the
stage at an awards dinner in late April with an extra bounce in his stepand a blunt prediction for his colleagues in
the plaintiffs privacy bar. "I suspect a lot of people, perhaps on the plaintiffs side, will be out of work within the
year," he said. Rhodes was referring mainly to the Supreme Court's decision earlier that same day to grant review
in Spokeo v. Robins, a case that has the potential to radically reshape privacy litigation. But his remarks also
growing confidence among defense lawyers that they have a grip on the
legal threat posed by suits that seek to hold companies accountable for improperly
collecting, selling off, rifling through or failing to protect customers' data . The Recorder
reflected
first used the phrase "privacy class action" 15 years ago to describe a new class of suits aimed at dot-com
companies. There have been plenty of ambitious predictions since. But though the legal theories have evolved,
there have been few big pay days and some signs that mainstream plaintiffs firms
are losing interest . After three boom years, privacy litigation filed in the Northern District
of California against Silicon Valley giants Apple Inc., Facebook Inc. and Google Inc. fell off dramatically
in 2013, according to a Recorder review of cases invoking the statutes most frequently used in privacy cases.
The search turned up just a single privacy suit against Apple, Facebook or Google filed in
2015.
(--) Plaintiffs rarely win major settlements in privacy claim

cases:
NO POT OF GOLD When plaintiffs firms first started pressing privacy claims in class
actions in the early 2000s, it was traditional powerhouse firms such as Bernstein Litowitz Berger
& Grossmann and now-defunct Milberg Weiss Bershad Hynes & Lerach that were testing the waters. But since the
practice has failed to yield the hefty damages awards more common in securities and mass torts
litigationand the attorney fees that come with themthe practice has largely fallen into the purview of specialty shops such as
Chicago's Edelson PC and New York-based KamberLaw. With the exception of Lieff Cabraser Heimann & Bernstein, few big plaintiffs
shops have planted a flag in the area of privacy, and some lawyers in smaller shops say privately that the cases have yet to
plaintiffs have won only a few eight-digit settlements,

let alone the nine- and 10-digit blockbusters hinted at in their complaints . In August 2013
generate much income for their firms. So far,
U.S. District Judge Richard Seeborg of the Northern District of California approved a $20 million deal that Facebook Inc. reached with
users whose images appeared without consent in its sponsored stories. Plaintiffs counsel, who asked for $7.5 million in fees, were
awarded about $4.7 million, which was less than the team said it would have collected billing at hourly rates. In January 2014,
comScore Inc. agreed to pay $14 million to Internet users who claimed the analytics company installed data tracking software on
their computers without consent. Plaintiffs counsel at Edelson were awarded $4.7 million. On the data breach front, Sony Computer
Entertainment America LLC agreed last June to give $14.5 million in games, online currency and identity theft reimbursement as a
result of a massive hack of credit and debit card information from its PlayStation Network. " There's
never going to
come to a day where you're going to see a privacy case worth as much as a mass
tort case or a large antitrust case," said Edelson name partner Jay Edelson, who was the subject of a New York
Times profile in April.
(--) Tech sector is resilient:

Robert Holmes, 9/22/2011 (4 Resilient Tech Stocks for a Tough Economy,
http://www.thestreet.com/story/11255985/1/4-resilient-tech-stocks-for-a-tougheconomy.html, Accessed 6/29/2015, rwg)
the 2008 stock-market crash showed that tech stocks are resilient . "There is
a lot more recurring revenue from companies, and tech companies are managed
In addition,
much more conservatively than in the past," he says. "What speaks to the conservatism is that
tech is the only sector of the S&P 500 with positive net cash on the balance sheets."
(--) Spokeo isnt key to privacy class action suits:

Still, defense firms that invested in privacy practices believe they have done so wisely, given the growing interest in
privacy from Congress, state legislatures and regulators, and the rise in data breach incidents, which are fueling
their own strain of litigation. "Spokeo may have an impact on certain class actions," said Keith
Eggleton of Wilson Sonsini Goodrich & Rosati, who has represented companies including Netflix in privacy cases,
"but
it won't fundamentally change the importance of privacy as a practice."
1ar: Robins will win

(--) Robins will win now:
Richard M. Re, 5/19/2015 (UCLA law faculty as Assistant Professor of Law,
http://prawfsblawg.blogs.com/prawfsblawg/2015/05/talking-about-standing-inzivotofsky-and-spokeo.html, Accessed 6/29/2015, rwg)
One straightforward possibility would be to read the Ninth Circuit as saying that the
violation of any statutory right creates standing . The Ninth Circuit opinion is so capacious that it
might well be read that way--indeed, you seem to read it precisely that way in the first paragraph of your last
comment--and that broad reading seems to have been the one advanced in the petition .
I think it is quite
plausible that the Court could adopt that reading , agree with the petitioner that CA9's broad
ruling was wrong, and remand. All in a good day's work. I do not see why you think that such a conventional way of
proceeding "would itself violate article III."
1ar: No Major Settlements

(--) Judges will dismiss major casesthey dont want Facebook
to go bankrupt:
Still, Edelson, who said high-profile data breaches and the Edward Snowden leaks have "had a profound effect on
The staggering statutory

damages at stake in some privacy cases has actually worked against plaintiffs , he
said. "Judges were looking for ways to dismiss them ," Edelson said, "because no one
wants Facebook to go bankrupt because of a privacy violation."
the judiciary," predicts a future where settlements routinely top $50 million.
Court Stripping Answers

(--) Congress wont strip the Courtsbills to limit the Courts
jurisdiction dont pass even when Congress is angry:
University, June 2003
http://arjournals.annualreviews.org/doi/full/10.1146/annurev.polisci.6.1
21901.085526;jsessionid=n1HzQqZJALRe, rwg]
For Dahl, of course, the challenge stems partly from the sheer volume of intervention in the current era. Just as
important,
the Court's active participation in policy making has continued for a long
period.
Dahl suggested that significant interventions occur chiefly in transitional periods, similar to what other
scholars have labeled realignments.The several decades since 1960 are too long to be labeled a transitional period.
On the other hand, this is an era in which partisan control of House, Senate, and presidency has been divided most
of the time. In such an era, it is difficult even to identify a law-making majority, let alone characterize the Court's
Congress can do more damage when it attacks the

Court itself. But Congress seldom uses its institutional powers against the Court in
significant ways. For example, the Court's size has not been changed since the
interventions in relation to that majority.
1860s. Over that period, its jurisdiction has never been cut back as a negative
response to its policies despite a long list of bills with that purpose .
(--) Supreme Court decisions are almost impossible to reverse:

Baxter, 2005 7/12/2005 (Tom, staff writer, Atlanta Journal-Constitution,
Lexis)
"Wars come and go, and the economy goes up and down, but a Supreme Court
justice serves, on average, 20 years," she said. "And once the court has made a
decision, getting it reversed is practically impossible."
(--) Justices will modify their behavior to avoid backlash from

other branches:
http://arjournals.annualreviews.org/doi/
full/10.1146/annurev.polisci.6.121901.085526;jsessionid=n1HzQqZJALR
e]
Another possibility is that the justices ordinarily give little attention to their political
environment but take protective action when their decisions have aroused
negative reactions from other policy makers. Justices might reason that it is a poor
strategy to depart from their most preferred positions to avoid the possibility of an
unfavorable response from the other branches. But when conflicts actually occur,
the justices retreat as a means to limit the damage .
What might be called crisis-driven strategy
is analogous to the "fire alarm" form of congressional oversight over the executive branch. Compared with routine
strategy, it would lead to more interventions and more confrontations, but some periods of intervention would end
abruptly as the justices responded to conflicts provoked by their decisions.
Hollow Hope DA Answers

(--) Non-unique: Housing decision was a big victory for civil
rights:
Lawrence Hurley, 6/25/2015 (staff writer, Supreme Court upholds broad
housing discrimination claims, http://www.reuters.com/article/2015/06/25/us-usacourt-discrimination-idUSKBN0P51UO20150625, Accessed 6/25/2015, rwg)
A divided U.S. Supreme Court on Thursday embraced a broad interpretation of
discrimination claims allowed under the landmark Fair Housing Act , a blow to lenders and
insurers that face such lawsuits and had urged the court to curb them. In a 5-4 decision in a major civil rights case
out of Texas, the court preserved a legal tool that has been used for decades to bring bias lawsuits over actions that
have a discriminatory effect even with no evidence of discriminatory intent.
The unexpected ruling was
a triumph for civil rights activists , who had feared the justices would rein in these lawsuits, and the
administration of President Barack Obama, which had asked the justices to allow such claims to continue.
(--) NO LINK: Courts arent flypaper for social movements:

movements have a realistic understanding of the power of the
Court:
Idit Kostiner, 2003 Jurisprudence and Social Policy Program, University of
California, 2003
[Evaluating Legality: Toward a Cultural Approach to the Study of Law and
Social
Change,
June,
http://www.blackwellsynergy.com/doi/full/10.1111/1540-5893.3702006]
Thus, a central finding in both McCann's and Silverstein's studies one crucial for supporting their model is that contrary to
activists for social change are not caught up within a mythic

perception of rights and legal institutions. Activists interviewed in these studies
instead express a sophisticated and disillusioned understanding of the role
of law. McCann and Silverstein suggest that activists use law not out of a mythic belief in its
power, but rather as an optimal strategy among "highly limited options available to them". This view
of law enables activists to use legal tactics strategically to promote their goals
Scheingold's argument,
without falling into a falsely conscious perception of law and without perpetuating
the hegemonic nature of legal institutions. Relying on Gramsci's theory of counterhegemony (1971) and on
Hunt's interpretation of this theory (1990), McCann argues that movement activists who struggle to promote social change often
have no other choice but to use existing institutions, since "all struggles commence on old ground"
(--) TURN: The Court creates social change by balancing legal

and policy considerations
Lawrence Baum, 2003 Department of Political Science, Ohio State University,
June 2003
01.085526;jsessionid=n1HzQqZJALRe]
Among students of judicial behavior, there is a lively debate over the justices' hierarchies of goals. The most
contentious issue is whether justices act almost exclusively on their interest in making good public policy or
whether they balance that interest against the goal of interpreting the law well. Most students of judicial behavior
explicitly or implicitly take the first position. The work of some political scientists challenges this position, explicitly
policy
considerations certainly play a powerful part in shaping the justices' choices.
or implicitly, in part by examining the legal frameworks in which decisions are made But
Moreover, their impact is likely to be especially strong in cases involving possible

interventions, cases that have high stakes for public policy. If justices balance legal
and policy considerations, their policy goals can be expected to have the greatest
impact when justices care most about the policy issues they face. In any event, adopting
the premise of policy-oriented behavior helps to illuminate the issues that I consider in this section.
(--) Brown proves: the law bolsters social change:

Onwuachi-Willig, 2005 Acting Professor of Law, University of California, Michigan
Law Review, May, 2005, 103 Mich. L. Rev. 1507, Lexis, rwg
Equally as important as Brown's moral victory was its impact on the Civil Rights
Movement and race relations in the United States. Indeed, two camps of scholars have explored
and articulated the importance of the decision on effecting social change. For some, such as Professor Mark
Brown had a direct and forceful impact on the success of the Civil Rights
Movement and landmark civil rights legislation enacted during the 1960s. n116
According to these scholars, Brown gave Blacks hope that racial equality would be achieved
and that the rights of Blacks would be recognized, thereby shaping and helping
to forge a more aggressive Civil Rights Movement, a movement that would
result in strong anti-discrimination statutes such as Title VII of the Civil Rights Act
and the Voting Rights Act of 1965. n117
Tushnet,
(--) Rosenberg is wrong: multiple reasons:

April 2005, 118 Harv. L. Rev. 1787; Lexis, rwg
n199. See, e.g., Neal Devins, Judicial Matters, 80 Cal. L. Rev. 1027, 1030 (1992)
(book review) (asserting that Rosenberg's book "deserves harsh criticism
because ... it endorses inconsistent measures of effective judicial action, focuses
on the Court in isolation rather than as part of a larger political culture, uses
presumptions hostile to the recognition of a broad judicial role , and
employs inadequate data and questionable portrayals of existing
research"); Peter H. Schuck, Public Law Litigation and Social Reform, 102 Yale L.J.
1763, 1771-72 (1993) (book review) (criticizing Rosenberg's theory for being
"radically indeterminate," for neglecting certain "dynamic effects unleashed by
many Court decisions," and for failing "to differentiate between constitutional and
statutory interpretation decisions").
(--) Judicial victories empower social movements:

California,
Social
Change,
June,
Based on these findings, McCann argues that sociolegal scholars should rethink their
critical view of the role of law in social change. He suggests that this critical view is
based on scholars' tendency to overdetermine legal norms and to identify them too
narrowly with formal legal institutions . He calls for a reconceptualization of law in more relational,
context-specific terms that would alter the ways of assessing the value of law in social reform. Accordingly, he
that judicial victories may be seen as more empowering for social
movements than critics often recognize. Moreover, McCann maintains that the
argues
focus on winning judicial remedies is highly misleading. He suggests that

movements may benefit from the use of legal tactics regardless of actual
success in courts due to the empowering effects of participation in legal
campaigns.
1ar: Brown v. Board ProvesCourt Creates Social

Change
(--) Brown fundamentally altered race relations in the country:
Onwuachi-Willig, 2005 Acting Professor of Law, University of California,
Michigan Law Review, May, 2005, 103 Mich. L. Rev. 1507, Lexis, rwg
the undeniable truth is
that Brown certainly helped to transform race relations in this country . n120 Whether
it ignited racial change because of a stronger belief that Blacks' rights and interests
would be acknowledged and protected or whether it effected change in a more
perverse manner by creating southern resistance that [*1533] invoked the
sympathies of northern Whites and politicians, Brown helped to change a nation. In
sum, the Brown decision was and is more than a symbol of racial equality. It was the
impetus of a movement that worked to change how Americans viewed and thought
about race and resulted in important legislation that helped to protect the civil
liberties of Blacks and other minorities, even though, as Bell points out, with dwindling force today.
Regardless of which camp one falls in, the direct or indirect Brown effect camp,
(--) Brown fundamentally altered social attitudes toward social

change:
As Zelma Henderson, one of the Topeka parents, proclaimed about the moral victory
of Brown, "When you get right down to it, the message of the Brown decision ... is
really that all human beings of all races are created equal... . We went to the
Supreme Court of the United States to affirm that fact, and we won." n128
Regardless of the status of minorities today, that moral victory was significant. As
Professor Dennis Hutchinson recently asserted, "[Brown] de-legitimized Jim
Crow. It said that the social attitude ... . this insulting, [*1535] demeaning,
humiliating attitude that ... white people have about black people - does not have
the official imprimatur of the law." n129
(--) Brown fundamentally mobilized racial change in the United

States:
Furthermore, there was a practical effect to Brown that was equally significant. As I
suggested earlier, had there not been Brown, would segregation have tumbled so
easily in other areas, such as with busing and other public accommodations? n130
Moreover, what would have happened if Whites, in their efforts to equalize schools under Bell's "separate but equal"
plan, had simply decided that their social interests in preventing race-mixing were much higher than their economic
interests in funding only one school? n131 Is this not what Bell astutely points out that many poor and working-class
The fact is that Brown gave society a goal

to strive for and set the stage for a movement that created racial change.
Brown was more than a legal decision; it was "a statement about the fundamental
moral basis of democracy." n132 In other words, what is important here is not whether "separate but
Whites have consistently done throughout history?
equal" could have been achieved (which I do not believe was possible), but rather, as Ted Shaw proclaimed,
whether we would have been "satisfied with that as a nation." n133 The answer for many of us is a clear,
resounding "No." Our ability to interact across racial lines allows us to learn about the differences in each other's
culture and history, and more importantly, about what we have in common, what are our shared experiences, and
what are our shared interests. It is only through this form of integration that true racial equality can be achieved.
n134 Indeed, the most recent debates regarding the Ten Percent Plan in the state of Texas reveal the ways in which
integration and the discovery of once concealed, common interests can lead to the unearthing of race and class
inequality.
1ar: Court Creates Social Change

(--) Studies arguing that the Court cant produce social change
ignore the effects of how participation in the process itself
activates leaders and bolsters movements:
California,
Social
Change,
June,
However, recent work on law and social change tempers this generalized assault on rights and provides a more
complex and nuanced description of the interplay between rights, political mobilization, and social change.
McCann's study of the pay equity movement

(1994) finds that legal norms and tactics have had a rather positive effect on the
movement. To understand this positive effect of law, McCann proposes that scholars re-envision law as
Following Scheingold's "politics of rights" (1974),
including more than formal legal norms or institutions. Drawing on legal consciousness literature, he suggests that
law should be understood as including the meanings that movement activists who use legal tactics assign to legal
Thus, while actual court decisions may have

minimal effect on progressive social reform, McCann's model to which he refers as
the "legal mobilization model "suggests that participation in legal processes may
have positive effects on social movement mobilization. Based on this model,
McCann finds that the use of legal tactics by the pay equity movement has been
valuable for elevating rights claims and thus for mobilizing the movement. In
particular, he finds that: Movement leaders effectively used successful legal actions
despite their doctrinal limitations to organize women workers in hundreds of
workplaces around the nation . A massive publicity campaign focusing on court victories initially put the
norms while participating in legal processes.
issue on the national agenda and alerted leaders that wage equity was "the working woman's issue of the 1980s."
Lawsuits were then filed on behalf of working women as the centerpiece of a successful union and movement
organizing strategy in scores of local venues around the nation Sustained legal action over time worked to render
employers vulnerable to challenge, to expand the resources available to working women, to provide them a unifying
claim of egalitarian rights, and to increase both their confidence and sophistication in advancing those claims.
(--) Animal rights movements prove: the use of legal tactics

bolsters social movements:
Idit Kostiner,2003 Jurisprudence and Social Policy Program, University of
California,
Social
Change,
June,
Silverstein (1996) has joined McCann in reacting against the critique of rights and litigation. Her study of the
animal rights movement is symbolically titled Unleashing Rights. She finds that the use of legal tactics
and of rights rhetoric by the animal rights movement has been useful in many ways.
For example, she suggests that litigation has been used to dramatize abuses of
animals, to embarrass particular institutional actors, and to win favorable media
attention. Silverstein concludes that despite their many constraints, both rights talk
and litigation are powerful resources for those who seek widespread and subtle
change, especially when used by strategically minded activists .
Legitimacy DA Answers
(--) No link: we dont overrule any prior precedentwe just
clarify the Katz decision.
(--) Non-unique: gay marriage ruling has angered
conservatives:
Fox News, 6/26/2015 (Supreme Court: Same-sex couples can marry in all 50
states, http://www.foxnews.com/politics/2015/06/26/supreme-court-same-sexcouples-can-marry-in-all-50-states/, Accessed 6/26/2015, rwg)
Roberts wrote: "If you are among the many Americans -- of whatever sexual
orientation -- who favor expanding same-sex marriage, by all means celebrate
today's decision. ... But do not celebrate the Constitution. It had nothing to do with it." Each of the four
dissenting justices also wrote a separate dissent. Prominent social conservatives, meanwhile,
blasted the decision. Tony Perkins, head of the Family Research Council, said it puts
the government on a "collision course with America's cherished religious freedoms."
(--) Non-unique: Supreme Court legitimacy low now:

Cathy Burke, 6/17/2015 (staff writer, Ginsburg Tops Survey of Favorite
SCOTUS Justices, http://www.newsmax.com/US/supreme-court-SCOTUS-rutherbader-ginsburg-clarence-thomas/2015/06/17/id/651056/, Accessed 6/25/2015, rwg)
the Supreme Court both collectively and most members individually
is just about as polarizing along party lines as anything else in Americans politics
these days," the PPP concludes. Other survey findings show: America overall has a dim view of
"Taken together, these findings show
the Supreme Court , with 35 percent favorability and its unfavorability at 41 percent
(--) Non-unique: King v. Burwell ruling shattered legitimacy:

Sutherland Institute, 6/25/2015 (U.S. Supreme Courts Obamacare
decision will have a big impact on Healthy Utah negotiations,
http://fox13now.com/2015/06/25/u-s-supreme-courts-obamacare-decision-will-havea-big-impact-on-healthy-utah-negotiations/, Accessed 6/26/2015, rwg)
Sutherland Institute: The U.S. Supreme Court had an opportunity today to reinforce that America is a nation
governed by laws, not by powerful men and women. Sadly, it chose to abdicate that principle in favor of legal
In the courts other major ruling on the ACA, NFIB v. Sebelius, the court stated
clearly it does not have the expertise to make judgments regarding public policy
but the King v. Burwell ruling relies wholly on judgments regarding public policy to
justify its conclusion that the plain language of Obamacare cannot mean what
plaintiffs argued it meant. Such clear contradictions in reasoning undermine the
sophistry.
credibility of the court for the average, commonsense people it relies upon for
legitimacy.
(--) Decisions dont affect legitimacy:

Harold Maass, 7/22/2013 (staff writer, How the Supreme Court got on
the bad side of everybody,http://theweek.com/article/index/247206/how-thesupreme-court-got-on-the-bad-side-of-everybody, Accessed 7/25/2013, rwg)
The real cause for the loss of public confidence in what remains the least political
branch of the federal government has less to do with specific decisions and more to
do with a general decline in trust for public institutions . .. The broader point that a poll like
this stands for becomes apparent when you take into account other polling that shows that Congress, the
almost any other public institution outside of the military and

police seem to have lost the trust of the public. In the long term, that's simply not healthy.
Presidency and, indeed,
[Outside the Beltway] Furthermore, the Supreme Court is in the unique position of having the last word on so many
issues that divide us. It's hardly a surprise that the justices take some of the blame when they take sides on issues
the public is still fiercely debating.
(--) Turn: Winners win for the Courtscontroversial decisions

enhance the courts legitimacy:
Part IV of this Article discusses a counterintuitive implication of a coordination-based account of judicial power.
Conventional wisdom suggests that courts secure compliance with their decisions
by drawing upon their store of legitimacy, which is undermined by decisions that are
unpopular, controversial, or lack intellectual integrity . n25 Part IV argues that
precisely the opposite is true : an unpopular or unpersuasive decision can, in fact,
enhance a court's power in future cases , as long as it is obeyed. Widespread
compliance with a decision that is controversial , unpopular, or unpersuasive serves only to
strengthen the widely held expectation that others comply with judicial decisions.
This expectation, in turn, is self-fulfilling : those who expect others to comply with a court's decisions
will find it strategically prudent to comply themselves, and the aggregate result will, in fact, be widespread
compliance. Part IV illustrates these strategic insights--and the Supreme Court's apparent grasp of them--by
contrasting [*734] Bush v. Gore n26 with Brown v. Board of Education n27 and Cooper v. Aaron. n28
(---) NO LINK: Court legitimacy is resilient: individual

decisions are largely irrelevant:
The Relationship Between Institutional Legitimacy and the Substantive Sociological Legitimacy of Judicial Decisions.
- Recent scholarship supports two interesting conclusions about the relationship between the institutional
legitimacy of the Supreme Court and the substantive sociological legitimacy of particular decisions. First,
although the Court's institutional legitimacy varies with public responses to

particular rulings, it does so less sharply than earlier, less sophisticated studies had
indicated. n183 For example, recent surveys show that Bush v. Gore has had almost
no impact on "diffuse support" for the Court, notwithstanding critics' predictions.
n184 The Court apparently possesses a reservoir of trust that is not easily
dissipated. n185
(---) NO LINK: Public doesnt pay enough attention to

constitutional interpretations to influence Court legitimacy:
Perhaps even more significant than what the recent studies establish, however, is something that poll-based
measures of diffuse support cannot capture. As I have suggested already,
the public's relative lack of
attentiveness makes it impossible to gauge the substantive sociological legitimacy

- in the strong sense of active endorsement - of controversial methods of
constitutional interpretation. If we focus on this concern, we will remain chronically uncertain about
judicial legitimacy in the sociological sense - even though other measures, including that of institutional legitimacy
(or diffuse support), would often support more affirmative judgments about the Court's sociological legitimacy.
(--) Individual decisions dont undermine legitimacy:

21901.085526;jsessionid=n1HzQqZJALRe, rwg]
Unpopular decisions may cost the Court a degree of public support in the short run,
but in the long run the Court's standing tends to hold up well . Thus, justices have
reason to think that even under relatively difficult conditions, they can engage in
policy interventions that they find appropriate without fear of serious consequences
Legitimacy DA AnswersExtensions: Controversial

Decisions Help the Court
(--) Controversial decisions enhance the courts power:
Indeed, the reflexive avoidance of politically divisive or controversial cases--via the political question doctrine, the
acte de government doctrine, and the like n233 --might actually prove a counterproductive choice of strategy for a
contrary to conventional wisdom,

controversial decisions have a tendency to enhance, rather than diminish, a court's
power, as long as they are obeyed . n234 Accordingly, a court that already commands
obedience and expects more of the same, such as the U nited States Supreme Court or
the German Bundesverfassungsgericht, has little to fear and perhaps even something to gain
from embracing controversy . By contrast, a court that lacks a similarly developed track record, such as
court keen to consolidate its power. This Article has argued that,
a newly established constitutional court in an emerging democracy, faces greater risk that its decisions will be
disobeyed and its reputation for obedience stillborn. Should it succeed in deciding such a case, however, it will
engender expectations of future obedience that boost its power in subsequent cases. If those gains seem more than
commensurate with the risks involved, adjudication becomes a prudent gamble. A truly strategic court, as opposed
to a merely timid one, will recognize that its political environment is characterized not merely by risks, but also by
rewards: nothing ventured, nothing gained.
Legitimacy DA AnswersIndividual Decisions Dont

Matter
(--) Courts legitimacy is resilient: Unpopular decisions dont
undermine Court legitimacy:
John C. Yoo, 2001 Professor of law at the University of California, 2001,
[The University of Chicago Law Review, In defense of the courts legitimacy,
rwg]
One way, then, to judge whether Bush v Gore has undermined the Court's institutional legitimacy in American
Studies have shown that public

support for the Court and its role in society run high, even though many have little
knowledge about the Court's day-to-day activities .14 While this is not the place to conduct a
society would be to examine public attitudes toward the Court.
detailed study,15 we may perhaps draw some initial conclusions from recent Gallup polling data. Over the last
decade, poll respondents have usually held more confidence in the Supreme Court than in the other two branches
of government.16 In June 2000, 47 percent of those polled said that they held either a "great deal" or "quite a lot"
Even in
light of the usual caveats surrounding the use of polling data, the resiliency in the
Court's public support has been relatively deep and wide ,18 even as it has rendered
a series of controversial decisions ranging from affirmative action to abortion to civil
rights to religion.
of confidence in the Supreme Court, versus 42 percent for the presidency and 24 percent for Congress.17
(--) Overruling doesnt cost capital overruling bad decisions

boosts capital.
Linton, 1993 assoc general counsel Americans United for Life, 1993
(Paul Benjamin Linton, Associate General Counsel for Litigation, Americans United for Life, 1993,
PLANNED PARENTHOOD V. CASEY: THE FLIGHT FROM REASON IN THE SUPREME COURT 13
St. Louis U. Pub. L. Rev. 15)
The Court describes this first circumstance as "hypothetical." n272 The distinct
impression left by this passage is that decisions of the Supreme Court overruling earlier
decisions on matters of constitutional interpretation are rare and thus should not be
too readily emulated, lest the "legitimacy" of the Court be called into question. But this
impression is wrong. On more than 200 occasions, the Court has overturned previous
decisions, and in nearly three-fourths of those cases, the Court overruled because the
earlier decision had wrongly interpreted the Constitution. n273 What does this
remarkable track re [*75] cord of "judicial correction" mean? At the very least,
that the "legitimacy" of the Court is not affected by its acknowledgement of prior error,
even when that error involved an intepretation of the Constitution. Indeed, as in Brown
and West Coast Hotel, the Court has often enhanced its credibility by overruling
decisions that were wrong when originally decided. One more overruling decision, if
otherwise appropriate, could not reasonably be expected to damage that credibility.
(--) Even after controversial decisions, public opinion will

always swing back in favor of the Court.
John C. Yoo, 2001 Professor of law at the University of California, 2001,
[The University of Chicago Law Review, In defense of the courts legitimacy,
p. 75, rwg]
A second way to approach the question of legitimacy would be to compare Bush v
Gore to other historical periods in which the Court's authority has come into
question. If the Court's actions today were similar in significant ways to earlier moments of challenge to judicial
legitimacy, then we might predict that the changes in the immediate polling data may augur a more sustained
Evaluating Bush v Gore in light of earlier historical periods, however,

suggests that any sustained assault on the Court's legitimacy is unlikely to arise.
attack on the Court.
(--) Individual decisions wont undermine Court legitimacy:

Uhlmann, 2003 professor of government at Claremont Graduate
University, October ( Michael M., The Supreme Court Rules
ww.orthodoxytoday.org/ articles2/UhlmannSupremeCourt.shtm)
The Court has acquired substantial power over our political culture. The public, which knows little about
the technical details or philosophical implications of constitutional doctrine, knows that much . And so do the
Justices. The remarkable thing about Roe v. Wade is not only the substance of the rule it announced, but the fact that the Court felt so little
But for all the controversy generated by the

abortion decisions, the public is generally not disposed to chasten the Court for its excesses on that or any
other subject. The modern Court has tutored the public well on how it ought to think about judicial power and the Constitution. And its
compunction about imposing a new and radical rule upon the entire nation.
central teaching, as I say, is not about the permanent principles that justify representative government but about the inevitability of, indeed the
duty to, change.
Counterplan Answers
Congress CP Answers
1) Agent counterplans are bad:
A) They steal the entire AFFthey get back 8 minutes of
arguments with a 10 second plan text.
B) Creates a strategy skew cant argue against ourselves.
C) Voting issue for fairness & education.
2) Doesnt solve the Fourth Amendment: Fourth Amendment
jurisprudence is on the brink of collapseonly the courts
can solve:
Recent cases demonstrate that our Fourth Amendment jurisprudence is on the
verge of collapse and will only survive if courts reclaim the original meaning and
language of the Constitution. The next paradigm shift must include a departure from
Katz's use of privacy language, and focus instead on the right of the People to be secure. Fundamental to the
modern conception of personal security, and indeed one of the basic precepts of the Founding Fathers, is the idea
that the government does not ensure the security of the People, but rather that the government embodies the
interest against which the People must be protected. Reclaiming the original language of the Constitution by
substituting a right to personal security for a reasonable expectation of privacy will simultaneously dispel the false
notion that the Fourth Amendment protects individual interests in opposition to collective interests, and reaffirm the
idea that only by protecting individual security will we increase our collective personal and national security.
3) Doesnt solve the presidential powers advantageextend

our Casey evidence that the courts are key
Congressional legislation will fail.
4) Doesnt solve democracy advantage because it isnt
modeledextend our Krotoszynski evidence that the US
Supreme Court is uniquely modeled.
5) PERMUTE: DO BOTHCONGRESSIONAL AND COURT LED
SOCIAL CHANGE IS THE BEST OPTION:
Araiza, 2005 Professor of Law @ Loyola Law School, 2005 (William, Tulane Law
Review, February 2005, 79 Tul. L. Rev. 519; Lexis)
Still, it is worth considering Brown's at best partial success and wondering whether
integration would have been more successful if Congress had more
aggressively assisted the Court. n110 Indeed, the steps Congress did take - most
notably the conditioning of federal education funds on desegregation - helped
quicken the pace of change . n111 This is not to say that integration would have
occurred immediately, peacefully, and comprehensively had the effort been led by
Congress . The anti-Brown rhetoric of segregationists, criticizing Brown as a judicial
usurpation, n112 was largely opportunistic - that is, much, if not most, of that
opposition was based on the rejection of integration itself, not the fact that
integration was being "illegitimately" imposed by courts.
(---) Court will check the Congressblocks solvency:

Araiza, 2005 Professor of Law @ Loyola Law School, 2005 (William, Tulane Law
Review, February 2005, 79 Tul. L. Rev. 519; Lexis)
Yet congressional action is impeded by the very text that it could potentially
rejuvenate. The fact that Congress's power is limited to "enforcing" the Equal
Protection Clause means that that power is necessarily tied to the meaning of that
provision. By itself this requirement is unremarkable: all it means is that when Congress seeks [*524] to
enforce the Equal Protection Clause, its action must have some link to the meaning of equal protection. But
because the Fourteenth Amendment also includes a judicially enforceable
component , questions about the acceptable range of congressional action
inevitably require consideration of how the courts have understood that guarantee.
In turn, if the meaning of the Amendment is thought to depend solely and completely on what the Court says the
lack of clarity in the Court's

equal protection jurisprudence necessarily infects, and thus impedes,
congressional attempts to breathe new life into it .
Clause means - in other words, if we adopt a juricentric model - then
Cong CP--1ar: PERMUTATION SOLVES BEST

(--) Permutation is the best option: best preserves
constitutionalism and rights:
Robert C. Post and Reva B. Siegal, June 8, 2003 [The Yale Law Journal,
Legislative Constitutionalism and Section Five Power: Policentric
Interpretation of the Family and Medical Leave Act, p. 112]
Congresss political responsiveness makes it the object of
social movement mobilization and a unique register of the nations evolving
constitutional understandings. The policentric model of Section 5 power holds that
Congress and the Court may each consider and incorporate the others views, while
retaining autonomy in judgment, so that the Court remains free to strike down any law that it believes
threatens individual liberties or impairs structural values such as separation of powers or federalism. The
policentric model thus preserves both the nations rich legacy of legislative
constitutionalism and the judicially enforced rights on which we have come to
depend.
As this history demonstrates,
Lower Courts CP Answers2ac

(--) Doesnt capture our Supreme Court solvency: Doesnt
solve our modeling advantageonly the Supreme Court is
modeledextend 1ac evidence.
(--) Supreme Court is more visible and outweighs
Rosenberg 91 (Gerald N., Associate Professor in Political Science @ U of
Chicago, The Hollow Hope: Can Courts Bring About Social Change?)
Like the Congress and the presidency, the
supreme court, while not the only institution of its kind in the American Political system, is the most
visible and important one . It sits atop a hierachal structure, and decisions of lower courts involving
significant social reform seldom escape its scrutiny. Also, because it is the most authoritative US court, it is the
most concerned with public policy. Hypotheses that concern the courts and social reform must first deal
with the Supreme court and then turn to the ramifications of its decisions elsewhere in the judiciary
In order to proceed, while not ignoring state and lower federal courts, I will concentrate on the US Supreme Court/
(--) FIAT Abuse: all the district courts wouldnt take the same
action at the same time
A) Utopian: all 13 district courts wouldnt take the
same action at the same time
B) Distorts the literature base: makes it impossible to
generate offense vs. the CP
C) Voting issue: Fairness & Educationdebate has been
fundamentally altered by introduction of the
illegitimate Counterplan.
(--) Lack of federal court uniformity dooms non-judicial
enforcement
Caminker 94
Evan H., Professor of Law @ UCLA, April, 46 Stan. L. Rev. 817
The executive branch enforces public law. If the judiciary does not interpret and implement
federal laws uniformly , the executive branch may have a difficult time determining its enforcement options
and obligations. As a result, administrators of federal law confront the problems of unpredictability discussed above. And even if administrators could
foresee each particular rule applicable in each divergent case, the disuniformity would still hamper the
executive branch's ability to plan and implement effective enforcement strategies in many contexts. 144 Thus
rational and efficient administration of public law often requires federal courts to interpret federal law
Administration of public law.
uniformly .
(--) Permute: Have the Supreme Court do the plan and all the
lower courts followguarantees double-solvency, shields the
link to the DA.
(--) Turn: Rule of Law
A) Lower court underruling devastates rule of law
Bhagwat 2000
Ashutosh, Professor of Law @ University of California, Hastings College of Law; J.D. from UChicago; 80 B.U.L. Rev. 967
a lower court might engage in purely predictive reasoning and refuse to follow a precedent that the court
believes the Supreme Court would not follow today based on the court's assessment of the views of individual
justices, even if the decision has not been undermined by what Michael Dorf describes as "impersonal sources of law" - i.e., subsequent opinions. 28 Such an approach is defensible, and
indeed has been ably advocated by Evan Caminker; n29but Michael Dorf has presented a convincing, if not definitive argumet for why such purely predictive reasoning
undermines values associated with the rule of law . 30 It is therefore also not surprising or problematic that
the Supreme Court should reject such purely predictive "underruling."
Second,
B) Commitment to the rule of law is vital in preventing global

nuclear conflict
Rhyne 58
(Charles, fmr president @ American Bar Association, "Law Day Speech for Voice of America," 5/1/1958, http://www.abanet.org/publiced/lawday/rhyne58.html)
The tremendous yearning of all peoples for peace can only be answered by the use of law to replace weapons
in resolving international disputes . We in our country sincerely believe that mankind's best hope for preventing the tragic
consequences of nuclear-satellite-missile warfare is to persuade the nations of the entire world to submit all
disputes to tribunals of justice for all adjudication under the rule of law. We lawyers of America would like to join lawyers from every
nation in the world in fashioning an international code of law so appealing that sentiment will compel its general acceptance.
Man's relation to man is the most neglected field of study, exploration and development in the world community. It is also the most critical. The
most important basic fact of our generation is that the rapid advance of knowledge in science and technology has forced increased international
relationships in a shrunken and indivisible world. Men must either live together in peace or in modern war we will surely die together. History
teaches that the rule of law has enabled mankind to live together peacefully within nations and it is clear that
this same rule of law offers our best hope as a mechanism to achieve and maintain peace between nations.
(--) The Supreme Court will overrule the counterplan

Bhagwat 2000
In cases like Rodriguez de Quijas, Agostini, and State Oil v. Kahn, the
Court indicates an unwillingness to share its power to

make new law, which is an aspect of the judicial power, with other courts within the federal judiciary . Instead,
the Court is seeking to concentrate the authority to make and change the law into its own hands. 59
This is not surprising; it is after all a basic assumption of our Constitution, as noted by Madison in Federalist No. 51, that [*978] government
officials will seek to expand their own power. 60 The accumulation of power in the hands of the Court, at the expense of the lower federal
judiciary, is also not a new phenomenon. Edward Purcell recently explained that, as early as 1928, Felix Frankfurter predicted, described, and
extolled this development, in part because of Frankfurter's explicit hostility (common among progressives at that time) to the lower federal
judiciary. 61 In recent years, however, this process appears to have escalated and changed in nature. Instead of viewing
the exercise of the judicial power as a cooperative venture in reasoned decision-making and precedentbuilding, where there is value to be gained from participation by all levels of the judiciary, the Court
increasingly seems to see it as an exercise of raw power , so that any sharing of that power is necessarily at
the expense of the Court's own authority.
(--) Turn: Court Clog

A) Breaking the judicial chain of command floods the courts
Martin Shapiro 2003 James W. and Isobel Coffroth Professor of Law University of California, Berkeley 03
https://web.princeton.edu/sites/jmadison/events/archives/ShapiroTalk.pdf.
Stare decisis or precedential reasoning and

explanation is central to the economies of all judiciaries organized hier-archically and even most of those that are
not. If lower courts did not follow the previous decisions of higher courts, the certainty of law, which is one
reason we choose to live by rules in the first place, would be undermined. Even more importantly the failure of lower
courts to practice vertical stare decisis would result in far more cases being pushed on to the highest court
than any highest court could handle. Thus even in legal systems in which the highest court is vested with the sole jurisdiction over
What judges do do is arrive at incremental, highly reiterative policy guesses .
certain legal issues, as with the preliminary ruling system of the European Court of Justice and the Kelsenian jurisdictional arrangements of
continental constitutional courts, decision making under the constraints of vertical stare decisis tends to migrate
downward to lower courts. For otherwise the highest court would have to take case after case after case
after case deciding exactly the same thing in exactly the same way rather than issuing commanding
precedents. Whatever its virtues or vices vertical stare decisis is a necessity of judicial economy.
B) Court clog undermines the ability to fight terrorism

Goldman 8 Russell, What's Clogging the Courts? Ask America's Busiest Judge, http://abcnews.go.com/print?id=5429227
The number of immigration trials have spiked since 2005, a result of a federal program called Operation Streamline that puts illegal immigrants
on a fast track to prosecution, detention and deportation. In the first seven months of 2008, the government reported 38,443 new immigration
prosecutions. The Transactional Records Access Clearinghouse, a data research organization at Syracuse University, estimates there will be
65,902 immigration cases this year, a 65 percent increase over last year and a 216 percent increase over 2003. For the Department of Homeland
Security, Operation Streamline is an indispensable tool needed to secure the border. In the past year, the government says, the deterrent of prison
time has dramatically decreased the number of the people trying to cross the border from Mexico. Critics, however, contend that the
increased number of cases strain an already burdened judicial system, depriving lawyers and judges of
ample time to hear cases and denying defendants the right to a fair trial. They also contend that resources
have been diverted from pursuing offenders more dangerous than the typical migrant worker and that prosecutors
cannot use their own discretion in choosing which violators to go after. "I'm all for national security and
border security," said Brack, who was appointed to the bench in 2003 by President Bush. "The people I generally see are
humble people who have no criminal offenses other than coming back and forth to pick chili. We're
spending a lot of time catching these folks when we could concentrate on those penetrating our
border to do us harm."
C) Terrorism Causes Extinction

Sid-Ahmed, 2004 political analyst 04 (Mohamed, Managing Editor for Al-Ahali, Extinction! August 26-September 1, Issue no. 705,
http://weekly.ahram.org.eg/2004/705/op5.htm)
What would be the consequences of a nuclear attack by terrorists? Even if it fails, it would further exacerbate
the negative features of the new and frightening world in which we are now living. Societies would close in on themselves,
police measures would be stepped up at the expense of human rights, tensions between civilisations and religions would rise
and ethnic conflicts would proliferate. It would also speed up the arms race and develop the awareness that a different
type of world order is imperative if humankind is to survive. But the still more critical scenario is if the attack succeeds. This could
lead to a third world war, from which no one will emerge victorious. Unlike a conventional war which ends when one side
triumphs over another, this war will be without winners and losers. When nuclear pollution infects the whole planet, we will all
be losers.
Lower Courts: Links to Legitimacy DA

(--) Lower court diversion undermines legitimacy
Caminker 94
Evan H., Professor of Law @ UCLA, April, 46 Stan. L. Rev. 817
Uniformity of federal law interpretation across the nation ought to be considered equally important in
preserving courts' perceived legitimacy. If federal law means one thing to one court but something else to
another, the public might think either or both courts unprincipled or incompetent, or that the process of
interpretation necessarily is indeterminate. Each of these alternatives subverts the courts' efforts to make their legal rulings appear
objective and principled. 152 Of course, perceived legitimacy is not measurable and is likely affected by a number of variables besides divergent
interpretations by autonomous courts. 153 But at the margin, respect for judicial authority would likely suffer if persistent
interpretive conflicts among the federal courts led the public [*854] to believe that interpretation is
inherently arbitrary and unprincipled. Put succinctly, internal consistency strengthens external
credibility.
1AR Lower Courts CPSolvency Extensions

(_) Well win a solvency deficit here
1. The Supreme Court will overrule the CPthats Bhagwat
2. Lack of federal court uniformity dooms non-judicial
enforcementeven if they FIAT uniformityit wont be
perceived as uniformdooming the solvency of the
counterplan.
3. They cant solve any of caseLower courts cant strike down
the embargothe executive will ignore the lower courts.
1ar: Solvency ExtensionsNo Trickle-Up

(--) Lower Courts wont cause a Supreme Court Decision
Bhagwat 2000
Rehnquist has questioned the value of percolation, n68ad a number of

academic commentators have agreed, suggesting implicitly (or explicitly) that the lower courts have little to
contribute to the Supreme Court's decision-making. 69 Furthermore, Evan Caminker has made the argument, with which I agree, that Supreme Court
Justices rarely even read lower court opinions anymore (if they ever did), thereby reducing the value of any
percolation. 70 [*980] And even after the Court has resolved a problem, and adopted a doctrinal rule, the Justices also seem to completely lack the
institutional capacity to observe the actual operation of various doctrinal formulations in the lower courts ,
and so to make practical assessments of their "workability and desirability." 71 There are many complex reasons for these developments, including growing caseloads in the
lower courts, which limit the Court's ability to keep track of lower court decisions, and the explosion in the
filing of amicus briefs that makes lower court opinions a less important source of data and legal arguments. 72
The results are nevertheless clear - a growing isolation of the Supreme Court from the rest of the
judiciary.
In recent years, however, no less a figure than Chief Justice
1ar Extensions: Roll Back

(--) Empirically, when lower courts overstep Supreme Court
precedent there is a sharp rebuke
Alford 2006
Roger, Professor of Law @ Pepperdine, Lower Courts and Reliance on Foreign Authority, http://lawofnations.blogspot.com/2006/01/lower-courts-and-reliance-on-foreign.html
One of the issues rarely addressed in the debate on reliance on foreign authority to interpret constitutional
guarantees is what attitude lower courts should take with respect to the question. As most scholars know, the Missouri
Supreme Court in Roper v. Simmons relied on foreign authority in flagrantly departing from Supreme Court precedent in Stanford
to hold that the juvenile death penalty was cruel and unusual punishment. That approach led to a "no comment" from the Supreme Court
in Roper, but a sharp rebuke from Justice Scalia. In dissent Justice Scalia noted: "To add insult to injury, the Court affirms the Missouri
Supreme Court without even admonishing that court for its flagrant disregard of our precedent in Stanford. Until today, we have always
held that 'it is this Court's prerogative alone to overrule one of its precedents.' ... Today, however, the Court silently
approves a state-court decision that blatantly rejected controlling precedent." Last week the Ninth Circuit in Allen v. Ornoski was faced with a
death penalty claim by Clarence Ray Allen, an inmate in his seventies who has been on death row for over twenty years. He argued, among other
things, "that execution of an elderly person does not comport with 'evolving standards of decency,' in that the execution 'offends humanity,'
provides no deterrence value, does not serve any retributive purpose, and violates the norms of domestic and international law." The Ninth
Circuit, per Clinton-appointee Judge Wardlaw, rejected the international argument out of hand: "While international norms may also
be instructive in this analysis, in light of the nonexistence of domestic authority supporting Allen's claim, and the lack of definitive international
authority provided by Allen, we, as an intermediate court, decline to consider the asserted practices of foreign jurisdictions." Allen suggests that
lower courts should be more cautious than the Supreme Court in relying on foreign authority, particularly
where that authority is not clear and definitive. I am not aware of any empirical studies analyzing how lower courts have
handled the question of reliance on foreign authority in constitutional adjudication. It would be worth the time to make such inquiries. Nor am I
aware of other lower courts that have expressed the need for greater caution on this question. But I can appreciate the concern because obviously
adherence to and departure from precedent is of greater moment for lower courts than the Supreme Court.
1ar: Ext. Rule of Law DA

(--) Extend our Bhagwat evidencelower court refusal to follow
Supreme Court precedent undermines the rule of law.
(--) Unique link. Lower courts shouldnt overturn higher courts.
Any deviation immediately destroys judicial legitimacy and the
rule of law.
Mortimer Sellers, Fall 2006 (Student note, 54 Am. J. Comp. L. 67, LEGAL HISTORY AND LEGAL THEORY: The Doctrine of Precedent in the United States of
America)
The use of precedent by courts in the United States of America should be viewed as a tradition or a practice, rather than a legal doctrine in the strictest sense of the
word, because it is so deeply embedded in the culture of the legal profession and the judiciary that it takes place without much reflection by judges. In its simplest and
the doctrine of stare decisis requires all tribunals of inferior jurisdiction to follow the
precedents of courts of superior jurisdiction, to accept the law as declared by superior courts, and not to
attempt to overrule their decisions. American lawyers have come to believe that "the slightest deviation from this
rigid rule would destroy the sanctity of the judicial practice. There would be no finality or
stability in the law and the court system would be chaotic in its operation and unstable and inconsistent in
its decisions." This strict rule of stare decisis, which governs lower courts in all common-law, statutory and constitutional cases, does not clarify the
most important sense,
n159
n160
circumstances in which courts may overrule their own previous decisions, or deviate from their own precedents. Americans have never wandered very far down the
Benthamite road of extreme stare decisis, which once bound English common-law courts to respect their own erroneous or unreasonable precedents. n161 Perhaps this
distinction between English and American practice arose in part from amorphousness [*87] of the English Constitution, which leaves Parliament free to correct any
perceived errors of the judiciary, n162 but the more fundamental difference follows from the American view of law as intimately connected to reason, not a command,
but truth as revealed by experience. "It is more important that the Court should be right upon later and more elaborate consideration of the cases than consistent with
previous declarations. Those doctrines only will eventually stand which bear the strictest examination and the test of experience." n163
State Courts CP Answers

(--) No jurisidiction over federal surveillance policymeans
they solve none of the AFF.
(--) Doesnt capture our Supreme Court solvency
Doesnt solve modeling: thats the 1ac evidence.
(--) State courts cant solve the AFFjudicial and political
hostility at the local level:
Michelle Wilde Anderson, 2010 (Assistant Professor of Law @ UC
Berkeley Law School, MAPPED OUT OF LOCAL DEMOCRACY, Stanford Law
Review, April 2010, Lexis/Nexis, rwg)
What to do with today's lost neighborhoods? It is the late dawn of the twenty-first
century, when integration is stronger and civil rights laws are weaker, when local
government budgets are dwarfed by demands. Suing local governments or lobbying
them, two of the most important strategies of twentieth-century advocacy for social
justice, have been weakened by judicial and political hostility to redistributive
claims. Yet state and local government law retains malleability and promise. Laws governing the allocation of
power among local agencies exert significant influence over unincorporated urban areas in particular and spatial
polarization by race and class more generally.
(--) FIAT Abuse: all 50 state courts wouldnt take the same
A) Utopian: all 50 state courts wouldnt take the same
B) Distorts the literature base: makes it impossible to
generate offense vs. the CP
C) Voting issue: debate has already been irreparably
altered.
(--) Supreme Court is necessary to solve for the statesstates
will interpret their constitutions the way the Supreme Court
does:
Bill Swinford, 1994 (Assistant Professor of Political Science, University of
Richmond, Temple Law Review, SHEDDING THE DOCTRINAL SECURITY
BLANKET: HOW STATE SUPREME COURTS INTERPRET THEIR STATE
CONSTITUTIONS IN THE SHADOW OF RODRIGUEZ, 67 Temp. L. Rev. 981;
Lexis, rwg)
State courts often interpret language in state constitutions in order to grant
protection to rights and privileges that is broader than that afforded by the Supreme
Court under the United States Constitution. n1 However, state courts tend to be
guided (if not controlled) by United States Supreme Court interpretations of
analogous language in the United States Constitution . n2 In other words, state
courts have traditionally used Supreme Court precedents as "doctrinal security
blankets," looking to Court precedent for legal support for decisions on state
constitutional questions, even when there is no legal necessity for doing so.
(--) States wont depart from federal standardsthe

counterplan cant solve on its own:
Bill Swinford, 1994 (Assistant Professor of Political Science, University of
Richmond, Temple Law Review, SHEDDING THE DOCTRINAL SECURITY
BLANKET: HOW STATE SUPREME COURTS INTERPRET THEIR STATE
CONSTITUTIONS IN THE SHADOW OF RODRIGUEZ, 67 Temp. L. Rev. 981;
Lexis, rwg)
The adjudication of claims under state constitutions involving equal protection of
the law provides a prominent example of the growing pains faced by state courts.
n7 As in other areas, state courts in the 1970s and 1980s began hearing more equal
protection claims on the basis of state constitutional language alone. But the lack of
independent state-level doctrine in this area, combined with the legal tradition of
deference to the United States Supreme Court, made it difficult, for those state
courts who desired to do so, to depart from federal standards for equal protection .
n8
CP Competing Off Plan Certainty 2ac

(--) Perm- do the CP--Should means ought to
Sudison, 7/18/2006
(http://sudison.blogspot.com/2006_07_01_archive.html)
Shall 'shall' describes something that is mandatory . If a
requirement uses 'shall', then that requirement _will_ be satisfied without fail.
Noncompliance is not allowed. Failure to comply with one single 'shall' is sufficient reason to reject the
entire product. Indeed, it must be rejected under these circumstances. Examples: # "Requirements shall make
use of the word 'shall' only where compliance is mandatory." This is a good example. # "C++ code shall have
comments every 5th line." This is a bad example. Using 'shall' here is too strong. Should
'should' is
weaker.
It describes something that might not be satisfied in the final product,

but that is desirable enough that any noncompliance shall be explicitly justified. Any
use of 'should' should be examined carefully, as it probably means that something is not being stated clearly. If a
'should' can be replaced by a 'shall', or can be discarded entirely, so much the better.
(--) None of their evidence assumes the courtno reason to

believe the court conditions rulings or consults on issues
before it rules.
(--) Any condition means its try or die for the AFF: any risk of
not solving triggers the democracy impact for extinction, the
internet impact of extinction, and the nuclear war off pres
powers.
(--) CP that compete on the certainty of the plan are badA) Infinite possible conditions- kills predictability and
competitive equity
B) Kills aff ground- no literature for the aff in the context of
the CP- kills competitive equity
C. Hurts plan focus- trades off with specifics about the policykills topic education which can only happen this year
D. Literature doesnt check- we cant be prepared to find
nonexistent literature on all their conditions

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Contents

IMPStrong Courts Check Pres Powers................................................................1

Justice Scalia, on the other hand, noted that, "this

If we expect to restore significance to the promise of the Fourth Amendment,

the legislative branch to successfully restrain the executive. The Constitution's

The NSA's spying program constrains one of humanity's most

And now is key: several democracies worldwide are

Today analysts and the

Democracies solve for human survival:

Developing standards for surveillance restores trust in

The guidelines should cover direct surveillance,

And the Fourth Amendment is key: it is the most vital element

must be adhered in todays modern society. A persons right to

the notion of individual privacy continues to be the most vital

component of individual freedom and democracy, making the protections offered by

US democratic law is modeled internationally and sets the

States public law in general,

Advantage 2: The Internet

power and freedom of the net .

I worry that the damage is done.

The chilling effect is real and spreading: websites are shutting

How much of what we value

The internet solves multiple scenarios for extinction:

But were luckier than our predecessors because we command a

The internet will predict natural disasters

We are witnessing the downfall of

the internet carried news about the fire more quickly

We need expand human capital. Most of the

The new human capital will serve us well when we

The internet is key to the economy:

US economic decline causes global great power wars

the U.S. economy collapses

oil could collapse to $3 per

Asia would be at Chinas mercy. And

all of the worlds seven billion people would

Advantage 3: Imperial Presidency

n238 In In re Application of F.B.I., the FISA

Nonetheless, there must be a balance between the

The presidencys powers are massively expanding now and

now live under a third constitution,

Unrestrained presidential powers risk nuclear war:

Yet, in what is probably the most dangerous governmental power ever

them is safe with unchecked power.

But in the meantime the spectre of single-minded power

FYI on What the Plan Does

Bulk collection of Internet metadata does not currently

INH: Need to Update the Law in digital age

outside of the home and into "public."

SOLV--AT: Law is Indeterminate

the use of specific

(--) Breaking away from the reasonable expectation of privacy

(--) Courts will follow precedentthey feel an overwhelming

- those who maintain that

SOLV--Court Should Reconcile Fourth Amendment

SOLV--AT: Rollback/Wont Be Enforced

statutory override cannot cure all that ails the

inert to respond to an objectionable judicial interpretation . n54 Indeed, there is little

(--) Strike down efforts in Congress failcant get enough

even decisions that strike down

federal laws may enjoy majority support .

The line of decisions since 1995 that has limited the

In that situation, any significant

action to counter the Court's policies has been exceedingly unlikely .

(--) Other branches will complyfear of public backlash