Executive Order Counterplan NAUDL 2015-16
Answers
Index
Index
Summary
Glossary
1NC and Solvency
Putting together a 1nc
1nc - Immigration Solvency
1nc NSA/Surveillance Solvency
1nc War on Drugs Solvency
1nc Net Benefit
Immigration Solvency
NSA Solvency
General Solvency – Legal Strength
General Solvency – Causes Legislation
General Solvency – Perception
Answers to Congressional Solvency Deficit Arguments
Answers to Affirmative Arguments
Answers to Risks Roll Back
Answers to Need More Oversight
Answers to Mission Creep
Answers to “Permutation- Do Both”
Presidential Power Net Benefit
Plan Hurts Executive Power
Secrecy Proves the Need
Waiting on Congress Risks Conflict
Risks WMD conflicts
Answers to “Politics Links to the Counterplan too”
Affirmative Answers
Executive Orders can be rolled back
Executive Branch Needs More Oversight
Risk Mission Creep
Power doesn’t Trade-Off
Strong Executive Unnecessary
Summary
The Negative
This file is a generic counterplan that can be read against almost any affirmative on the topic. Instead of having congress or the courts ‘curtail’ domestic surveillance, the counterplan has the executive act alone to end the surveillance program that the affirmative is about.
To win the counterplan, one needs to focus on three important issues –
First, the plan and counterplan are different. If the 1ac plan text says congress or the courts then it is obviously a different action. However, many affirmatives choose not to say which branch of the United States does the 1ac. When this happens, it is important to argue that the 1ac, in order to be topical, must have an external branch of the government “curtail” the executive policy. Winning that argument distinguishes the plan from the counterplan.
Second, the counterplan has the same effect as the plan. This is what is often called the “solvency deficit” debate. Does the counterplan solve all of the same advantages, to the same degree, as the affirmative? The main arguments against the counterplan will be discussed below. However, the focus of debating the counterplan should be on winning that the executive acting alone (or unilaterally) is sufficient to solve the specific advantages the affirmative isolates.
Third, the counterplan needs to have a net benefit. There are two possibilities for the negative. First, the politics disad would be the most common net benefit. By acting alone, the counterplan argues, the President would be able to avoid a messy and drawn out fight with members of Congress. Therefore, the President will be able to spend his/her time fighting with Congress about more important issues. Second, the Presidential flexibility net benefit is also a possibility. Because the affirmative has another actor force the President’s position on a national security issue, it is seen as intervening into ‘presidential powers.’ Unchecked Presidential Powers are important for a successful and effective foreign policy.
The Affirmative
Beating the counterplan consists of winning one of the three arguments that are discussed above: the counterplan is no different than the plan, the counterplan doesn’t solve one or more of the advantages of the 1ac, or there is no net benefit to the counterplan.
The main “solvency deficit” arguments for the counterplan will center around the lack of ‘transparency’ or openness involved in executive actions. Unlike congress or the courts, when the Executive acts it is usually secretive. Most advocates for curtailing domestic surveillance make a strong argument in favor of openness. Because the counterplan has the executive act alone, that is not as open to public accountability.
Glossary
Executive – The President of the United States and all presidential level parts of the government. This is distinct from Congress and the Courts. It includes the military, the NSA, CIA, and all the cabinet level groups.
Executive Order –Laws written by the President without congressional votes. They are usually instructions given to executive level groups on how to implement laws, or change the way things are done. The NSA was started and acts based on authority given by an Executive Order 12,333 written by President Reagan.
Judicial – the courts. Usually, but not necessarily, the Supreme Court of the United States or the SCOTUS. Could include any number of lower federal or state courts.
Mission Creep – When the original plan for something gets broader and beyond what was originally intended. The best example is if your teacher tells you to clean up the classroom. After cleaning up the classroom you go outside and start cleaning up on the playground. In foreign policy, it happens when a directive to do something gets extended to other countries and groups. It is usually a way of describing the fear that the executive will take a small issue and expand it.
Oversight – being in charge of looking after what someone is doing. It’s like having a manager. In this literature, oversight usually refers to congress or public groups having the ability to check in on what executive groups like the NSA, Department of Justice [DOJ] or others are doing.
Permutation – a debate jargon phrase. It means that the affirmative gets to test whether the counterplan is competitive or not. A counterplan must be better than the plan and the plan added to the counterplan, otherwise the affirmative wins.
Presidential Power – the power of the presidency. Usually referred to as the Presidency’s ability to do things without having to answer to Congress or the other branches of congress.
Rolled Back – When a law gets overturned. A common phrase within literature about Executive Orders because president’s can easily pass new executive orders overturning older ones. When Obama was elected he “rolled back” several executive orders that Bush implemented during his Presidency.
Solvency Deficit – Debate Jargon. A way of saying that the counterplan does not “solve” for all of the advantages of the affirmative – or at least does not solve them as well. So, for example, if the plan saves 100 lives and the counterplan only saves 10, then the affirmative would argue that there is a “solvency deficit” of 90 lives. It is rarely as clean cut as 100 vs 10. However, it is a way of taking about which of the two actions [plan or counterplan] is superior.
Statutory – an act of congress. Written into “statute.” Legislation is often called statutory, executive orders are not.
Unilateral – When an actor acts by his or herself and without others. In this instance, an executive order is the president acting “unilaterally.” If the President and Congress acted together then it would not be “unilateral.” The phrase will often also appear in foreign policy literature about the United States acting unilaterally [without other countries] as opposed to “multi-laterally” or with many other countries together.
Zero-Sum – When two things trade off with each other they are called ‘zero sum.’ So, for example, if I have 2 apples and both Martin and Susan are asking for an apple, if I give one to Martin that is zero-sum with giving it to Susan. I can’t give them both the same apple. So, my supply of apples is ‘zero-sum.’ The phrase appears in this file in relation to the power between the president and congress. If one acts, then the other loses power. It is called, “zero-sum” power. When something is “not zero sum” it means that increasing it for one does not decrease if for another.
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Executive Order Counterplan NAUDL 2015-16
1NC and Solvency
Putting together a 1nc
A standard Counterplan 1nc includes:
-Text – the statement or plan of action for the counterplan.
-Solvency – usually a piece of evidence or explanation of what the counterplan solves.
-Net Benefit – the reason to prefer the counterplan over the plan – usually this is either a disad that links to the plan and not the counterplan OR a reason the counterplan is good.
STEP ONE - Writing the text –
First, take the 1nc plan text, and change the parts that are about Congress, the Courts, or the US federal government into “The President of the United States should . . .”
Second, change verb from “curtail” or “restrict” to “stop.”
Example Text – if the plan says, “The United States federal government should end mass data surveillance of its citizens.
Then, the counterplan should say, “The President of the United States should stop the mass data surveillance of its citizens.”
STEP TWO – reading the right solvency card[s]. If you are debating an aff about drug policy, then you should read the drug policy solvency card. The solvency evidence should be specific to the 1ac you are debating.
STEP THREE – read the 1nc net benefit. [this is optional, you could obviously read the counterplan without the Presidential Flexibility net benefit].
Final Product:
So, your 1nc should be: Text, specific solvency card, net benefit cards
1nc - Immigration Solvency
Executive authority to change immigration laws – opponents are wrong
Gorod, appellate counsel at Constitutional Accountability Center, 15
[Brianne Gorod, 2 – 19 – 15, President Obama’s Unproductive Statements About His Productive Immigration Policy,
The president’s comments may have been motivated more by his sense of immigration politics than his views on immigration law—reports in 2014 indicated that Obama was “dial[ing] down the partisan rhetoric on immigration ... [to] give House Republicans some breathing room to try to pass legislation”—but they nonetheless fueled detractors. Some on the right argued that the president didn’t have the authority to take executive action on immigration; when Obama ultimately did take action, they maintained he was simply doing so in order to achieve unilaterally what he could not achieve by working with Congress. Indeed, in the decision out of Texas, the district judge wrote, “The Government must concede that there is no specific law or statute that authorizes [Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)]. In fact, the president announced that it was the failure of Congress to pass such a law that prompted him ... to ‘change the law.’” (The judge formally based his decision to halt implementation not on the substance of the executive action, but on the government’s failure to comply with certain procedural requirements he felt were warranted.)
But President Obama’s opponents are as wrong now as he was then: He does have the authority to take executive action on immigration action, and that executive action isn’t a response to congressional inaction at all. Rather, it’s a response to congressional action—actions by past Congresses that have passed immigration laws that it is now the responsibility of the executive branch to enforce. There’s nothing novel about this. Presidents are always asked to exercise discretion in determining how best to implement laws passed by Congress (a responsibility and power often referred to as “prosecutorial discretion”), and that’s exactly what the Framers of our Constitution intended. When the Framers drafted the Constitution, their views on the presidency were shaped not only by their experiences under British rule, but also by their experiences under the Articles of Confederation, the precursor to the Constitution. The Articles lasted just eight years, and one of the central weaknesses that led to its failure was the absence of a strong executive branch capable of enforcing the nation’s laws.
1nc NSA/Surveillance Solvency
Reductions in domestic surveillance should be done through executive orders – not curtailed by acts of congress or the courts.
E.F.F 2014 Electronic Frontier Foundation – Executive Director Cohn
[Cindy Cohn, Tell Obama: Stop Mass Surveillance Under Executive Order 12333,
The NSA relies on Executive Order 12333 to engage in mass surveillance of people around the world. But most people have never even heard of this presidential order. It’s time to respect the privacy rights of innocent people, regardless of their nationality. Tell Obama: amend Executive Order 12333 to prohibit mass surveillance.
Executive orders are legally binding orders given by the President of the United States which direct how government agencies should operate. Executive Order 12333 covers "most of what the NSA does" and is "the primary authority under which the country’s intelligence agencies conduct the majority of their operations."1 So while the U.S. Congress is considering bills to curtail mass telephone surveillance the NSA’s primary surveillance authority will be left unchallenged.
It’s time to change that.
Last July, former State Department chief John Napier Tye came forward with a damning account of Executive Order 12333, which he published in The Washington Post2. Thanks to his account and the reports of others who have spoken out candidly against surveillance under E.O. 12333, we know:
1. Executive Order 12333 is used to collect the content of your communications– including Internet communications like emails and text messages.
2. Executive Order 12333’s has no protections for non-U.S. persons, a fact that has been used to justify some of the NSA's most extreme violations of privacy, including the recording of an entire country's telephone conversations.3
3. Executive Order 12333 is used to collect information on U.S. persons who are not suspected of a crime. As Tye wrote, "It does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained."
4. No US court has seriously considered the legality and constitutionality of surveillance conducted under Executive Order 12333.
This executive order was signed by President Ronald Reagan in 1981, many years before the Internet was widely adopted as a tool for mass communication. A stroke of the U.S. President's pen over thirty years ago created the conditions that led to our global surveillance system. The present President could fix it just as easily.
1nc War on Drugs Solvency
Obama can reform drug policy through executive action
Tracy, Cannabis Consultant & Civil Liberties Activist, 2014
[Sam Tracy, Three Executive Actions Obama Can Take to Rein in the Drug War,
In his fifth State of the Union address, President Obama didn't hide his frustrations with one of the least productive Congresses in history. He focused his speech on changes he can make unilaterally, saying, "Some [of my proposals] require Congressional action, and I'm eager to work with all of you. But... wherever and whenever I can take steps without legislation to expand opportunity for more American families, that's what I'm going to do." Sadly, he didn't say a single word about one of the areas where he has the most authority to make positive change: drug policy. Here are three of the most important reforms Obama could make with a stroke of his pen.
1. Reschedule marijuana. Federal drug policy is determined largely by the Controlled Substances Act (CSA), which divides illegal drugs into five categories, or "schedules," of harmfulness. Marijuana remains in the most restrictive category, Schedule I, meaning it has a high potential for abuse and no accepted medical use in treatment. So, while a large majority of people -- including President Obama himself -- recognize that marijuana is safer than alcohol, the drug remains in the same legal category as heroin and LSD. Eighty percent of the public supports medical marijuana and 20 states have legalized its use, yet the federal government refuses to recognize that the drug has any medical benefits. This classification is why the federal government continues to raid medical marijuana facilities even when they're in full compliance with state law.
It doesn't have to be this way. As admitted by Attorney General Holder, President Obama has the power to reschedule marijuana without Congressional approval. The CSA states that any substance can be moved into another category by petitioning the Drug Enforcement Administration, a federal agency under the president's control. While this been tried many times in the past, including by Americans for Safe Access and governors Gregoire and Chafee, the DEA has denied every attempt. Obama can, and should, direct the agency to move marijuana at least to Schedule III, defined as having a lower potential for abuse and a currently accepted medical use (this category already includes Marinol, a synthetic form of the chemical THC found in marijuana). This simple change would allow states to legalize and regulate medical marijuana without any fear of federal intervention.
2. Replace DEA Administrator Michele Leonhart. One of the main causesof the DEA's obstinance is its leadership. As I've written before, Administrator Leonhart has lied to Congress and the American public on multiple occasions. Originally appointed by President George W. Bush, she has been an embarrassment for the Obama Administration for her refusal to admit that marijuana is less harmful than heroin. Even more nonsensically, she recently criticized the White House for flying a hemp American flag and allowing its unofficial softball team to play against a team of drug policy reformers (full disclosure: I'm a proud member of that team, the One Hitters, and we've beaten the White House both times we've played them).