CP -- Courts

1NC

1NC -- CPThe United States federal judiciary ought to establish [plan].

Judicial action solves the case, spurs follow-on, and avoids. Dodson ’16 (Scott; 2016; J.D. from Duke University, B.A. in Biology from Rice University, Professor of Law at UC-Hastings College, Associate Dean for Research at UC-Hastings College; University of Pennsylvania Law Review, Vol. 164 “The Gravitational Force of Federal Law,” p. 703-753; RP)

D. Political Cover Compared to the justices on the Supreme Court, state judges are in a precarious position . State court opinions can be overturned by the Supreme Court, by federal law , or by state law. Most state constitutions are easier to amend than the U.S. Constitution, and some are notoriously easier.199 These situations present a substantial risk that a state judge’s decision will be nullified or , worse, reversed as wrongly

decided.200 Further, state court decisions on state-law matters tend to implicate state-law concerns that resonate with

state citizens and state officials. Even if not overturned, state court decisions may face intense criticism from these

constituencies. Were state judges to hold life tenure like federal judges, they might not care so tangibly about reactions to their decisions.

But state judges do not have such job security. Political and institutional conditions keep them close to state politics.201 Most state judges are elected by state voters; others are term appointed and reappointed by elected state officials.202 From a career standpoint, state judges may care very deeply about how their decisions are perceived . State judges have been voted off the bench because of the opinions they signed.203 Political and public backlash, then, is a real concern for many state judges.204 Following federal law and federal courts offers some

cover against potential backlash .205 Deciding an issue in tune with federal law allows state courts to shift responsibility to federal law or the U.S. Supreme Court.206 State law decisions that deviate from federal law are more likely to be overruled than those that conform to federal law.207 Part of the reason may be the belief among state courts

that the Supreme Court’s decision on an important or policy-laden matter of federal law can reflect public sentiment in a way

that gives state courts confronted with a similar issue comfort that their analogous resolution of state law will be politically safe. This explanation is especially powerful if the national sentiments reflected in the Supreme Court’s opinion are mirrored in

the particular state in which the state court sits. Another part of the reason may be the political cost of rejecting the Supreme Court’s view. In other words, even when the Supreme Court does not reflect public opinion —or at

least the public opinion of a particular state court’s state—the Supreme Court commands a level of gravitas that seems to

generate an expectation of following absent compelling reasons for deviation. If a dropped rock falls to the ground,

one needs no explanation, but if it defies gravity, one wonders what the hell is going on. Similarly, it is far easier for a state judge to tell voters that her opinion follows the reasoning of the Supreme Court than to try to explain why she diverged.208 These explanations seem to fit particularly well in certain matters of constitutional and statutory law. Recall the story of gay rights and Bowers v. Hardwick told in Part I.209 Following Bowers—a rights-restrictive decision holding a state statute criminalizing consensual, private, adult sodomy valid under the Due Process Clause of the U.S. Constitution210—many state courts interpreted their state constitutions

accordingly.211 Indeed, despite its nonpreemptive and narrow holding,212 Bowers was a major factor in the stagnation of gay rights over the next ten years.213 In 1996, Congress passed, and President Bill Clinton signed, the Defense of Marriage Act (DOMA), which defined marriage for purposes of federal law as between one man and one woman and allowed states to refuse to recognize same-sex marriages validated elsewhere.214 Immediately following the federal government’s lead, most states enacted mini-DOMAs restricting marriage under state law to opposite-sex couples.215 States that diverged by expanding gay rights under state law tended to be quickly reined in,216 and, until very recently, significant popular backlash, both generalized and targeted, to state advances of gay rights was a real threat.217 For example, in a widely reported retention election, three justices of the Iowa Supreme Court were voted down for retention primarily on the basis of an opinion they joined that required Iowa to recognize same-sex marriage. This was the first time an Iowa Supreme

Court justice had ever been rejected for retention.218 It was not until the Supreme Court decided United States v. Windsor,219 holding the federal Defense of Marriage Act unconstitutional under the Fifth Amendment, that states felt protected

enough to begin advancing gay-marriage equality with vigor.220 Windsor, of course, was purely an interpretation of federal law and went out of its way to note the federalism underpinnings that give states different prerogatives on defining

marriage.221 Yet even when not controlling, Supreme Court decisions offer states political cover . The Supreme Court of New Mexico, for example, relied on Windsor (and Romer, Lawrence, and Loving222) in construing its own state constitution to guarantee marriage equality.223 Those Supreme Court cases did not demand the result the state court reached—indeed, they expressly disavowed any

implications for it—but, as high-profile Supreme Court decisions, they no doubt gave the state court more security in reaching it. The same scenario plays out in matters of statutory law that focus on sensitive policy issues. As one commentator has argued,

Simply stated, a state judge, despite having the inherent authority to construe a state statute in a manner inconsistent with federal law,

may hesitate to announce to the world that a majority of the country’s highest court got the issue wrong, either because the judge wants to avoid charges of judicial activism or out of respect for the reputation of the Supreme Court.224 Procedure cases offer a counterpoint. Much of procedure is apolitical.225 Procedural choices often escape the attention of the lay public—and often of legislators. Rulemakers have, at least until very recently, been insulated from the kind of politics that dominate legislation.226 States were procedural leaders for centuries before the adoption of the 1938 Federal Rules of Civil Procedure, so political cover is not a strong impetus for state following of federal procedure.227 Of course, where federal procedure takes a decidedly provocative turn, such as through the revolutionary changes of 1938 or the widely maligned Twombly and Iqbal decisions, acceptance of those federal changes can offer political cover for states that follow them.228 Political cover may thus offer some explanatory value for the following of replica states or those that have adopted Twombly and Iqbal. In the run-of-the-mill procedure choices, however, there is far less political effect. Federal procedural law has no preemptive effect, and the Supreme Court cannot reverse a state court on an issue of state procedural law.229 Procedural choices do not often generate front-page news.230 I thus infer only weak explanatory power of political cover for the gravitational pull of federal procedure on states.

1NC -- Internal -- Climate ChangeThe United States federal judiciary ought to establish [plan] because [plan harms] violate due process.

That solidifies due process -- it models application of institutional trust that broadens court power -- key to climate suits which spur tidal judicial action down the road. Blumm and Wood ’17 [Michael and Mary; November 2; Professor of Law at Lewis and Clark Law School; Professor of Law at the University of Oregon; American University Law Review, Vol. 67; RP]

CONCLUSION The Juliana decision was a path-breaking one, finding the right to a stable climate system protected by constitutional due process , including the PTD.462 Key to the decision was a determination

lodging the right to a stable climate system in the due process clause of the Constitution.463 Such a fundamental

right imposes a standard of strict judicial scrutiny concerning the government’s fossil fuel policies that are the subject of the youths’ systemic challenge..464 Deciding that a fundamental right to a healthy atmosphere existed, given the stakes involved and the growing precedent in support, seemed no great reach from previously recognized fundamental rights to privacy, procreation, marriage, and interstate travel.465 The Juliana court’s determination that the Constitution proscribed the government’s interference with the youths’ PTD rights was also in keeping with

considerable international precedent .466 The court refrained from deciding whether the atmosphere was a public

trust resource—although it cited sufficient authority to do so467—but Judge Aiken did rule that the close

relationship between atmospheric GHG pollution and adverse effects on trust resources like oceans and navigable

waters could produce a PTD violation.468 In short, the court regarded the atmosphere as unquestionably

ancillary to traditional trust resources like the ocean and the territorial seas. The Juliana approach paralleled other courts’

protection of corollary resources and public access to them. For example, courts have secured public access to dry sand beaches, finding such access necessary to full enjoyment of the traditional public trust in tidelands.469 In the same vein, courts have protected non-navigable tributaries to navigable waters held in trust and have extended trust protection to groundwater with a hydrological connection

to surface trust waters.470 Judge Aiken closed her opinion by observing that federal courts “have been . . . overly deferential in the area of environmental law, and the world has suffered for it.”471 She paid tribute to Judge Alfred Goodwin’s decision in the Oregon beach case,472 which found a public right to access the beach based on customary rights,473 Judge Aiken

stated that the Juliana case had “strong echoes” of the public claims affirmed in that landmark case. 474 At a time in which the U.S.

Supreme Court seems prepared to reconsider its doctrine of judicial deference to administrative decision

making,475 the Juliana decision provided path-breaking reasoning for the imposition of a judicial check on

the political branches—at least where the survival interests of young people and future generations are at stake. It should not

surprise students of American legal history that the climate crisis worsened steadily for decades and entered its “eleventh

hour” before a court declared a due process liberty and public trust right to something so fundamental as a stable climate system—the necessity of which will become only more obvious as climate chaos takes its toll on human survival and civilization. Rights today widely recognized as fundamental—like First Amendment rights to religion

and speech—were not commonly recognized by the federal courts until more than a century-and-a-half after the

ratification of the First Amendment.476 As Justice Kennedy acknowledged, sometimes fundamental liberty rights are “not always see[n] . . . in our own times . . . ,” but the Framers “did not presume to know the extent of freedom in its all its dimensions, and so they entrusted to

future generations a charter of protecting the right of all persons to enjoy liberty as we learn its meaning.”477 The right to a stable

climate system, like the right to marry and the right to racial non-discrimination, if not originally among those rights the Framers thought were constitutionally protected, is certainly “deeply rooted in this Nation’s history and tradition” and “fundamental to

our scheme of ordered liberty.”478 And too, a stable climate system remains the linchpin to the full ecological endowment secured by the public trust principle. In addition to its effect in other courts, decisions like Juliana can serve broad educative functions in society, inspiring waves of change beyond the courthouse doors, similar to

the Supreme Court’s historic decision in Brown v. Board of Education, 479 ruling that racial discrimination in public education is unconstitutional. Although it took a decade, Brown led to the Civil Rights Act of 1964480 and the Voting Rights of 1965,481 which effectively ended U.S. de jure racial segregation that had persisted since before the nation’s inception. Someday, Juliana may be seen in the

same broad educative light as Brown. At the moment, however, the Juliana decision, resting as it does on constitutional

rights, seems to represent a judicial bulwark against a reckless ramp-up of fossil-fuel production in the

United States that could push the planet past irreversible tipping points. Perhaps the most important aspect of the

Juliana decision is that it took a courageous and historic step into what Professor Kysar has identified as a gulf between

normative law and climate catastrophe ,482 turning a judicial tide of other climate cases —cases that evaded the calls of justice through procedural maneuvers—to address the climate reality unflinchingly and to

accept the institutional “grace of responsibility” with exacting jurisprudential care and considerable doctrinal mooring.483 In this vein,

the Juliana opinion “demonstrate[s] the more dynamic , adaptive , and restless forms of jurisdictional assertion required in an age of unlimited harm .”484 Against a reality where “[t]oday’s political failures may

foreclose possible natural worlds,” threatening damage that is “ irreversible on any conceivable human

timescale ,” Juliana paves the way for courts faced with similar suits to require the political branches to take remedial action before the crisis spirals completely out of humanity’s control.485 These cases are, indeed, the “jurisdictional

struggles that define the boundary between legal order and catastrophic overturning.”486 Such judicial

intervention across the globe cannot happen a moment too soon .487

Staves off climate change -- it's existential and litigation is key to solve. Blumm and Wood ’17 [Michael and Mary; November 2; Professor of Law at Lewis and Clark Law School; Professor of Law at the University of Oregon; American University Law Review, Vol. 67; RP]

INTRODUCTION With no little irony, as humanity attempts to reverse course before plunging over a climate

cliff , the American public elected a president apparently bent on accelerating fossil fuel production . The year

2016 closed as the hottest year on record .2 Heated ocean waters threaten vast marine ecosystems worldwide.3 The Arctic sea ice hit its lowest recorded level .4 Scientists have warned that the massive West

Antarctic ice sheet may now be in a process of “ unstoppable ” disintegration that could ultimately cause ten feet

of sea level rise, enough to inundate coastal cities worldwide .5 The unprecedented urgency of greenhouse gas emission reduction arises out of nature’s “ tipping points ” — thresholds that can trigger dangerous

feedback processes, which would unleash irreversible, “runaway” heating capable of destroying the balance of the planet’s climate system.6 In what scientists warn is a last opportunity to avert such climate tipping points, the world must rapidly restrict fossil fuel production and switch to safe, renewable energy.7 Instead, President

Trump, who claimed that climate change was a hoax perpetrated by the Chinese,8 intends to spur production of $50 trillion worth

of shale, oil, coal, and natural gas.9 He ordered agencies to resurrect the Keystone and Dakota Access Pipelines.10 He aims to open public land to increased oil and gas drilling and coal production,11 rescind the Obama Administration’s Clean Power

Plan,12 and resume oil and gas leasing on the Arctic and mid-Atlantic continental shelves.13 Trump also announced American

withdrawal from the Paris climate agreement.14 He selected the CEO of ExxonMobil, Rex Tillerson, as Secretary of State and a

known climate-change denier, Scott Pruitt, to head the EPA.15 The cruel circumstance for young people is that actions taken during President Trump’s time in office may lock in a future of grave climate disruption within

their projected lifetimes. The scientific community has clearly warned that continued greenhouse gas (GHG)

emissions threaten irreversible atmospheric calamity . As author Fred Pearce stated, “Humanity faces a genuinely

new situation . . . a crisis for the entire life-support system of our civilization and our species.”16 Sea levels could rise and inundate coastal cities around the globe, creating a fundamentally “different planet”—one not hospitable to human survival .17 Dr. James Hansen, formerly the nation’s chief climate scientist at NASA, has

warned, “[F]ailure to act with all deliberate speed . . . functionally becomes a decision to eliminate the option of

preserving a habitable climate system.”18 Into this bleak and dangerous picture, groups of youth stepped forward to

defend the atmosphere from dangerous GHG emissions. In cases filed throughout the world over the past

few years,19 they have asked courts to force a government response to the climate crisis and reduce GHG

emissions.20 In late 2016, only two days after the election of President Trump, the children gained a remarkable victory in Juliana v. United States21 when the U.S. District Court for the District of Oregon issued a landmark opinion underscoring the validity of their claims, denying the government’s motion to dismiss and allowing the case to go forward to trial.22 As

the court recognized at the outset of its opinion, this was “no ordinary lawsuit.”23 For the past several decades, environmental lawsuits have relied largely on statutes or regulations. Juliana is instead a human rights case, challenging the government’s entire fossil fuel policy based on asserted constitutional rights to inherit a stable climate system.24 At a time of unprecedented climatic danger, the children pursued a litigation strategy born from matching the law with the existential threat they face. The Juliana plaintiffs charged that the

government’s fossil fuel policies violated their fundamental constitutional rights to life, liberty, and property, breached

the government’s constitutional public trust obligations, violated due process guarantees, and discriminated against them in violation of equal protection principles.25 The court aptly recognized the case as a “civil rights action”26—an action “of a different order than the typical environmental case”27—because it alleged that federal actions “have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.”28 Judge Ann Aiken’s decision broke new legal ground , deciding that the children have a

fundamental right to a climate system capable of sustaining human life.29 Judge Aiken concluded that the

right to a climate system capable of sustaining human life is protected against federal government interference by both the due process and equal protection clauses of the U.S. Constitution30 as well as the public trust

doctrine, which she found implicit in the due process clause and, indeed, implicit in sovereignty.31 The trial will focus on the issue of whether the government actually breached these constitutional rights.32 At a time when the political system seems prepared to shun

responsible climate action, the lawsuit may be the only legal mechanism that can “trump” the incumbent

administration. If upheld on appeal, the case could be a legal game-changer for climate crisis and , perhaps, for environmental law as a whole.

1NC -- Internal -- DemocracyThe United States federal judiciary ought to establish [plan] because [plan harms] violate due process.

That strengthens the due process standard and averts democratic collapse. Redish and Heins ’16 [Martin and Matthew; 2016; Professor of Law and Public Policy at the University of Northwestern; J.D. from the University of Northwestern, B.A. from the University of Southern California; William & Mary Law Review, “Premodern Constitutionalism,” https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3651&context=wmlr; RP]

The argument Kramer and others advance is not only normatively unpersuasive, it is also logically untenable in light of the structural Constitution and the basic premises of American constitutionalism. As we explained in

Part I, the traditionalist view understands the value of counter-majoritarian checking as a political mechanism for enshrining skeptical optimism, which can be readily deduced from the Constitution’s structural design. Our

constitutionalism is thus principally concerned with facilitating democracy while promoting rule of law values and protecting minorities.296 The reality is that any argument that temporary majorities or the governmental bodies that are directly accountable to those majorities are either more capable or more suitable arbiters of constitutional meaning ignores the careful framework for promoting these values that was etched into our supreme law at the constitutional

convention. Our proclaimed unflagging commitment to due process of law, the existence of a supreme document ratified

by super-majoritarian movement and subject to formal alteration only through a super-majoritarian process, and our provision of a

politically insulated judiciary are all brightly flashing signals that our system understands the importance of speed bumps to slow majorities down. Popular constitutionalism seems to forget – or intentionally ignore – all of this. 297 Mark Tushnet’s case against judicial supremacy directly takes on Larry Alexander’s and Frederick Schauer’s defense of judicial review.298

Alexander and Schauer assert that without judicial supremacy we would have a system of interpretive anarchy on

our hands.299 The role of the Supreme Court, say Alexander and Schauer, is to provide a single authoritative interpreter to which others must defer, to serve the settlement function of the law. 300 Tushnet responds that when it

declares that Congress has overstepped its bounds, the Court justifies its behavior using the self-interestedness

of the Congress: Congress is self-interested when it defines the scope of its own power. Members of Congress

have an interest in maximizing their own power by expanding their sphere of power and responsibilities. Any decision [Congress] make[s], no matter how fully deliberated, will be shaped, and perhaps distorted , by this self-interest. 301 But this is an objection equally available to those who would question the Court’s version of judicial supremacy, because the judiciary is just as apt to act self-interestedly and expand its own power.302 This position runs directly contrary to the basic principles underlying the structural

Constitution. Tushnet’s argument essentially ignores the fact that the judiciary was built to be (1) limited in active power, and (2) counter-majoritarian , staffed by insulated judges with salary and tenure protections. With the exception of

issues surrounding its own powers, the judiciary is uniquely positioned to serve as the neutral adjudicator that can

settle disputes as to the boundaries between executive and legislative, as well as federal and state branches. More importantly,

if the judiciary were not tasked with settling the boundaries of majoritarian power, there would be no counter-majoritarian

check at all , and the Constitution would essentially be meaningless . And even as to its own power, the

Court’s authority – unlike that of Congress or the President – is confined to a passive role , awaiting cases to adjudicate.303 It

therefore makes sense to give the Court final say as to its own constitutional power in order to protect its counter-

majoritarian role.304 Under a regime of judicial supremacy, the judiciary is no more capable of aggrandizement than is Congress. Professor Tushnet looks to City of Boerne v. Flores to show how the Court gives deference to Congress and assumes laws are constitutional because Congress has a duty to support the

Constitution, but the Court does not give deference to congressional redefinitions of its own power because Congress is self-interested.305 But, he argues, the Court is no less self-interested because every institution with both power and the ability to

aggrandize it will seek to expand or enhance that power.306 Both of Professor Tushnet’s proof points are flawed. The Court is no

more empowered to engage in self-aggrandizement than is Congress, considering that Congress is

arguably capable of simply stripping the federal courts of jurisdiction (within constitutional limits) whenever it chooses.307 Why would it be, under Tushnet’s theory, that the Framers would devise a constitutional system in which the Congress could be trusted to determine the scope of its own power, disregarding judicial pronouncements of the limits of that power, and then could strip the courts of

jurisdiction to hear any challenges to such self-aggrandizement? Tushnet has effectively written Article III out of the Constitution. And although he focuses his attention on the fact that the Court is no more a single authoritative interpreter than is Congress

or maybe even less singular, because each individual voice is so much more meaningful on the Court 308Tushnet forgets that Congress represents hundreds of millions of people and is, at some level, subject to their momentary preferences. What makes the Court uniquely capable of serving as the final voice of constitutional interpretation – the single

authoritative interpreter that Alexander and Schauer describe and that the Framers envisioned – is that it is

insulated from such political pressure.309 Arguing that judicial supremacy distorts legislation, Professor Tushnet suggests

that without it, Congress would act more responsibly in interpreting and abiding by the Constitution.310 For example, in the

context of flag burning, he contends that judicial supremacy problematically prevented Congress from doing what

its members and the people wanted – namely, passing an effective law against the burning of the American flag.311 But that is exactly the point . Presumably by the exact same reasoning, it could have been argued that during the McCarthy era, the judiciary

should not have been allowed to prevent the majority from doing what it wanted to do namely, suppress left-wing dissenters. The entire purpose of our structural Constitution is to embed Founding-era American skeptical optimism and force the majority , if it wishes to circumvent those fundamental truths, to garner enough super-majoritarian support to change them. If the American people are so concerned with flag burning, it is a good thing to require them to amend the Constitution formally, by means of the prescribed super-majoritarian process 312 to render constitutional those state or

federal laws that ban it. If burning the flag is a method of expression, and laws forbidding it are contrary to the First Amendment because of their communicative impact, the people may amend the Constitution to declare that flag-burning laws are an exception to the Amendment’s general coverage.313 Tushnet believes that lawmakers may apply their own conception of the Constitution if they are conscientious and if their

interpretation is reasonable, 314 but this begs the question: Who is to decide whether a lawmaker has conscientiously

considered and reasonably interpreted the Constitution? The lawmaker himself? Our constitutional democracy cannot survive such constant , momentary, self-interested reinterpretation . Tushnet says it is wrong to assume that

members of Congress are inherently incapable of interpreting the Constitution.315 But the traditionalist view of American

constitutionalism in no way stands for the position that Congress is incapable of properly exercising interpretive authority. To the contrary, we both hope and assume that Congress is doing just that in deciding whether

to enact legislation. The Constitution does not in any way prohibit the majoritarian branches from ever

exercising interpretive authority; in fact, as Professor Paulsen discusses with great alacrity, each and every politically accountable

member of the federal government takes an oath to support the Constitution .316 Congress might be

undereducated about the Constitution, and it might be that Congress would improve without the judiciary as a backstop, especially if given the same kind of institutional support that the executive receives in its endeavors of constitutional interpretation, such as the Solicitor

General’s Office and the Department of Justice’s Office of Legal Counsel. 317 But this misses the point entirely. The problem is not that Congress is bad at constitutional interpretation – it is that because of its inherently majoritarian nature,

Congress is structurally incapable of effectively policing majoritarian threats to the values and dictates

embodied in the counter-majoritarian Constitution. This is especially true when Congress itself creates those threats. Thus, our structural Constitution does not envision Congress as the final interpreter, and for good reason. The people’s

elected representatives exist to advance the current and future interests of their constituents; the courts exist to

ensure that those current and future legislative and policy choices adhere to foundational principles embodied in the nation’s counter-majoritarian supreme law.

Extinction. Hadley ’17 [Stephen; March 21; Chair of the Board of Directors at the United States Institute of Peace, former director of the National Security Council, J.D. from Yale University; United States Institute of Peace, “America’s Role in the World,” https://www.usip.org/publications/2017/03/americas-role-world; RP]

Over the past seventy years, Democratic and Republican administrations alike have understood that American security and prosperity at home are linked to economic and political health abroad, and that America does better

when other countries have the incentive and the capacity to work alongside us in tackling global challenges . This is why we constructed a system of international institutions and security alliances after World War II. They provided a framework for advancing economic openness and political freedom in the years that followed.

The international order America built and led has not been perfect, but it has coincided with a period of security and prosperity unmatched in human history. And while many nations benefited from the investments America made in global security and prosperity, none benefited more than the United States.

Yet today, the value of America’s global engagement is under question. A substantial number of Americans feel that

their lives and livelihoods have been threatened rather than enhanced by it. They view international trade as having shuttered the factories at which they worked, immigrants as threatening their standard of living or safety, and globalization as undermining American culture.

This popular dissatisfaction needs to be understood and acknowledged. Washington needs to ensure that the

benefits of America’s international engagement are shared by all of our citizens. But we also need to be

clear about the consequences of disengagement . For while it is comforting to believe that we can wall ourselves off from

the ailments of the world, history teaches us that whenever problems abroad are allowed to fester and grow, sooner or

later, they come home to America.

Isolationism and retreat do not work ; we know because we have tried them before. We also know, from recent

experience, that if America recedes from the global stage, people in Africa, Asia, Europe, Latin America, and

the Middle East will increasingly look elsewhere for inspiration and guidance – whether to authoritarianism or extremist ideology .

In our opinion, such a shift would be harmful to the interests of those populations, but it would be harmful above all to the

interests of the United States, because our security and our prosperity depend on having friends abroad that share our values – including our belief in the rule of law , freedom of movement, and access to markets.

Neither Russia nor China proclaim the same loyalty to those principles as we do. Were they to fill a vacuum left by the U nited States, it could very well mark a return to a balance of power system, where the

world’s major powers competed militarily for territory and spheres of influence at great human and

financial cost. This is a world to which none of us should want to return.

America’s continued global leadership cannot be taken for granted, but a retreat into isolationism is not preordained. We have an opportunity – and, in our view, an obligation – to defend those aspects of the international system that work in the twenty-first century, and to adapt those that do not.

In doing so, we should acknowledge that the existing order is in need of revision and refurbishment. The international system was designed for a different era, and it requires a renewal of purpose and a reform of its

structures. Its mission should more clearly extend beyond preventing war in Europe to include stabilizing other strategic regions that affect our well-being. Its approach should reflect the fact that long-term stability depends on

well-governed states whose leaders are seen as legitimate by their people. And its structure must be adapted to the realities of a world in which power is more diffuse, so other countries can take on a greater role commensurate with the contributions they make and the responsibilities they assume.

China, Russia, and other countries should understand that there is a larger place for them at the decision-making table, provided they are constructive and respect the interests of other nations. And they need to

understand that there will be costs if they do not .

For this and other reasons, U.S. military power will remain vital in a renewed international order. We appreciate this committee’s efforts to ensure that our military remains the best-trained, best-equipped, and best-

led force on earth. Given the variety of threats facing our country, it makes sense to continue upgrading and

enhancing our country’s military capabilities and deterrent power. But we strongly believe that it would be a mistake to increase defense spending at the expense of other critical investments in national security – especially

those in diplomacy , development, democracy , and peacebuilding .

We know from experience that force, and the credible possibility of its use, are essential to defend our vital

interests and keep America safe. But as one of us has said in the past, force alone can be a blunt instrument , and there are many problems it cannot solve. The military leaders who so frequently testify before this committee would be

the first to tell you that they cannot succeed in their missions without the vital capabilities that our civilian agencies

bring to the table. Gutting these capabilities will put an unacceptable burden on our men and women in uniform, and would make America less safe. We need to fund these other civilian elements of American power as robustly as we do the military element. We recognize that government can always be made more efficient and effective, but the best way to accomplish that goal is to build a budget based on a sound strategy. This administration first needs to take the time to staff the Departments and agencies, and to develop a national security strategy. As members of the legislative branch, it is your responsibility to ensure that every dollar is spent wisely, but it also your responsibility to protect our national security institutions from arbitrary and senseless cuts.

The Middle East Strategy Task Force

No region has seen more death and suffering or presented more challenges to the international order than

the Middle East , with outcomes that have frustrated both Democratic and Republican administrations. The Middle East is

likely to be an important test case in the coming years – the region in which the international order gets

rejuvenated for a new era or ceases to function entirely .

From 2015 to 2016, we served as Co-Chairs of the Atlantic Council’s Middle East Strategy Task Force, which sought to understand better the

underlying challenges in the region and to articulate a long-term strategy for meeting them. Our goal was not to develop a new U.S.

strategy, but to understand the role that the U.S. can play in supporting a larger international effort led by the region itself.

One of our initial insights was that we face not just a crisis in the Middle East, but from the Middle East having global

impact. The roots of this crisis lie in a long history of poor governance in many states in the region. The Arab Spring was a consequence of the dissatisfaction of increasingly connected and empowered citizens with a number of

political leaders who ruled ineptly and often corruptly. Where leaders sought to quash these popular protests by force, the result in most cases was civil war .

The four civil wars raging in the Middle East – in Syria, Iraq, Libya, and Yemen – have had destabilizing consequences for the region and beyond. They have produced the ungoverned spaces and grievances that have

allowed terrorist groups to direct or inspire attacks in the West. They have also created the greatest

worldwide refugee crisis since the Second World War, the devastating human cost of which has been coupled with profound effects on our own domestic politics and those of Europe.

The challenges we face in the Middle East bear some resemblance to those of post-war Europe. Countries torn apart by war will need to determine the new shape of their governments, and how those governments interact with their

people. The entire state system will need to be shored up so that countries are less prone to subversion,

supported by effective regional institutions to mediate conflicts and prevent them from spiraling into all-out war .

But there are also important differences between the modern Middle East and post-war Europe. There is no magnanimous victor in the mold of the Allies, with the will and capability to reshape the region from the outside. New global and political realities mean that no Marshall Plan is in the offing for the rebuilding of the Middle East. The American people have no appetite for this, and the people of the region, too, are tired of being beholden to outside powers. The Middle East must chart its own vision for the future.

There is reason for hope. The fact is that now, more than any time in the Middle East’s modern history, the region has significant capabilities and resources of its own to define and work toward this vision and secure better opportunities for its

people. And more than ever, there are also indications that people and some governments in the Middle East have the will to take on the region’s hard challenges.

Although not always evident at first glance, there are promising developments happening in the Middle East, even in the most unexpected places. In Saudi Arabia, female entrepreneurs are founding startup companies at a rate three times that of women in Silicon Valley, as they begin to claim their rightful place in Saudi civic life. In Egypt, the social enterprise Nafham is using technological solutions to address the problem of overcrowding in Egyptian schools. And in Jordan, Syrian refugees are using innovative 3D printing technology to help develop more affordable prosthetic limb components for friends and neighbors who bear the physical scars of Bashar Assad’s war on his own people. The region’s vast population of educated youth, commonly understood to be a liability, can in fact be a tremendous asset.

Some governments are beginning to understand that their future depends on promoting these efforts and

partnering with their people to build a common future. Tunisia is showing that revolution need not result in either chaos

or authoritarianism , but can begin a transition to an inclusive, democratic future. The UAE has led the way for

positive economic and social reforms and Saudi Arabia has now adopted its own vision for the future. Jordan is making its own efforts. These can be examples for other countries in the region.

Renewed and enhanced American leadership is needed in the Middle East. But not to impose our will militarily or otherwise. Instead, America has a clear interest in supporting and accelerating the positive

changes that are already happening. The goal of our strategy in the region should be to help the Middle East move from the current vicious cycle in which it finds itself to a more virtuous one -- one in which the Middle East no longer

spawns violence and refugees, is not a drain on international resources , and does not through its instability

and political vacuums aggravate great power competition .

With this goal in mind, US foreign policy toward the Middle East should be informed by a set of guiding principles that represent the new reality of the region since 2011.

First, the old order is gone and is not coming back. Stability will not be achieved until a new regional order takes shape. The region should assume the principal responsibility for defining this new order, which should offer the people of the region the prospect of a stable and prosperous future free from both terrorist violence and government oppression.

Second, disengagement is not a practical solution for the West. Disengagement will only allow the region’s

problems to spread and deepen unchecked, creating further threats . Instead, it is in the interest of the United States and others to help the Middle East achieve a more peaceful vision. But their role must be different from

what it has been in the past. Rather than dictating from the outside how countries should behave, they should support and

facilitate the positive efforts that some people and governments in the region are beginning to take.

1NC -- Internal -- RacismThe United States federal judiciary ought to establish [plan] because [plan harms] violate reasonable suspicion.

That sets a precedent to nullify discriminatory laws across the nation. Olsen ’16 (Gunar; 1/25/16; Political Science major at Fordham University, citing a body of Supreme Court case law and administrative rulemaking; Huffington Post, “How the Supreme Court Authorized Racial Profiling,” https://www.huffingtonpost.com/gunar-olsen/how-the-supreme-court-aut_b_9061838.html; RP)

Terry v. Ohio (1968) The Supreme Court’s first step to sanction racial profiling was Terry v. Ohio , 392 U.S. 1 (1968),

an 8-1 ruling that developed the “reasonable suspicion” standard (also known as the “stop-and-frisk” rule). The Court,

whose opinion was delivered by the usually astute Chief Justice Earl Warren, held that the Fourth Amendment’s prohibition on

“unreasonable searches and seizures” is not violated when a police officer has “reasonable suspicion” “in light of his

experience” that a crime has been committed. By opening the door to greater law enforcement discretion with respect to

whom to stop and search, the Supreme Court in Terry gave its first approval of racial profiling . Several studies show that police officers perceive young black boys as violent and older than they actually are. One study from 2007 found

that officers display a “robust racial bias in response speed” in a simulated shooting exercise of black and white targets. So

when police officers are given greater discretion “in light of their experience” as Terry offered them, it’s no surprise that they disproportionately target black people . (That’s in addition to police departments institutionally over-policing poor communities of color compared to their presence in white communities.) Since Terry, police departments ‒ and the Burger, Rehnquist, and Roberts Courts ‒ have interpreted Warren’s decision as carte blanche for police officers, so much so that UNLV constitutional

law professor Thomas B. McAffee described Terry‘s long-term impact on the Fourth Amendment as “truly disastrous.” “The Terry stop-and-frisk doctrine has lent itself too readily to supporting law enforcement efforts rooted in stereotypical

generalizations and racial profiling,” he wrote in the Nevada Law Journal. United States v. Brignoni-Ponce (1975) United States v. Brignoni-Ponce, 422 U.S. 873 (1975) might seem on the surface to be an anti-racist decision, a good step in Fourth Amendment law. The Court ruled against law enforcement on the grounds that it violated the Fourth Amendment for stopping a vehicle solely

on the basis that the driver looked Mexican. But while the Court acknowledged that, by itself, “apparent Mexican ancestry” does not justify

reasonable suspicion that occupants of a vehicle are undocumented drug smugglers, it did rule unanimously that “Mexican appearance” is a “relevant factor.” Ostensibly to help law enforcement justify a stop, Justice Lewis F. Powell offered several

reasons sufficient for reasonable suspicion to stop a car near the border with Mexico: “previous experience with alien traffic,”

a “heavily loaded” vehicle, a vehicle with “an extraordinary number of passengers,” and finally ‒ the part that justifies racial profiling ‒ “the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut.” In

other words, a police officer can racially profile a motorist if that officer finds an additional reason to make a stop,

effectively deeming race acceptable for reasonable suspicion. As Michelle Alexander wrote in The New Jim Crow, “Because the Supreme Court has authorized the police to use race as a factor when making decisions regarding whom to

stop and search, police departments believe racial profiling exists only when race is the sole factor.” The Court in Brignoni-Ponce neglected to recognize what Kevin R. Johnson, a public interest law professor at UC Davis, pointed out in the Georgetown Law Journal: “In fact, people from Mexico run the gamut in terms of phenotypes, with there being persons of both fair and dark complexions of

Mexican ancestry. Nevertheless, stereotypes of ‘Mexican appearance’ persist, and the Brignoni-Ponce Court ultimately appears to have sanctioned reliance on such stereotypes by the Border Patrol.” Whren v. United States (1996) In Whren v. United States, 517 U.S. 806

(1996), the Supreme Court unanimously sanctioned racial profiling by allowing police officers to make “pretext stops,”

wherein an officer pulls over a motorist for a traffic violation with the specific intention of hunting for drugs. “It does not matter, the

Court declared, why the police are stopping motorists under the Fourth Amendment, so long as some kind of traffic

violation gives them an excuse. The fact that the Fourth Amendment was specifically designed to prevent arbitrary stops and searches was deemed unpersuasive,” Alexander wrote of the decision. But approving pretext

stops wasn’t even the most dangerous legal precedent set in Whren. The Court barred victims of a pretext stop from challenging the admission of evidence on Fourth Amendment grounds , thus ignoring Whren’s argument that police officers may decide which motorists to stop based on factors that should be constitutionally impermissible, such as race. Justice Antonin Scalia ruled, “We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth

Amendment. Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.” Scalia’s ruling left people of color with “an onerous evidentiary burden,” Johnson wrote. The responsibility for proving racism was once

again placed on the oppressed. Pointing out that the Court “failed to cite any cases supporting its conclusion that the Equal Protection Clause offered the exclusive constitutional remedy (or, at least, that it offered a remedy where the Fourth Amendment did not),” Johnson noted how difficult it is to prove discrimination under the Equal Protection Clause:

The Fourth Amendment’s exclusionary rule bars the use of unlawfully seized evidence against a defendant; there is no counterpart in the Equal Protection Clause of the Fourteenth Amendment. The inability to exclude the fruits of a stop

based on impermissible factors under the Equal Protection Clause make any such claim of limited utility to criminal

defendants like Whren and Brown, who wanted to avoid conviction and imprisonment, not to recover damages in a

civil action for a violation of their constitutional rights. By ruling that the Fourth Amendment offered no protection against a racially motivated traffic stop, the Court gave law enforcement officials its approval to racially profile motorists and “closed the courthouse doors to claims of racial bias,” Alexander wrote. The law is supposed to protect the rights of

individuals against state abuse. But these cases show how the law can be manipulated by those who wield power to uphold a system of racial hierarchy.

2NC Overview

2NC -- CircumventionLack of the counterplan creates judicial dis-uniformity between the states and the fed -- that causes circumvention and turns implementation. Logan ’14 (Wayne; November 2014; Gary & Sallyn Pajcic Professor of Law at the Florida State University College of Law; Florida State University College of Law Scholarship Repository, “A House Divided: When State and Lower Federal Courts Disagree on Federal Constitutional Rights,” https://ir.law.fsu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1160&context=articles; RP)

When operationalized, state and lower federal court power to disagree gives rise to a considerable number of intrastate criminal procedure conflicts . With respect to Fourth Amendment limits on the search authority of

police, conflicts exist on such basic questions as what qualifies as a “search”133 and whether the Court’s recent decision in Arizona v. Gant, 134 limiting police authority to search a car’s interior when an arrestee has been secured, extends to the non-auto context.135 Conflicts

also exist on whether police can: • conduct a warrantless safety “sweep” of a home in situations other than when an in-home arrest occurs136 enter a home without a warrant based on the “community caretaking” doctrine137 or to preserve evidence regarding an individual suspected of driving while intoxicated138 • perform a protective frisk for weapons in a consensual encounter lacking in any evidence of

unlawful activity by the seized individual139 • enter a home without a warrant or probable case when acting to address an emergency or safety concern of an inhabitant140 • search a container when, acting on consent provided by one with apparent authority, uncertainty arises over the container’s ownership141 enter, without a search warrant, the common area of an apartment or other multi-dwelling unit to conduct an investigation142 • conduct a pat-down search of all companions of arrestees (the “automatic companion” rule)143 • search a non-occupant visitor’s belongings pursuant to a search warrant for a home144 • enter a suspect’s home without probable cause to believe that the suspect is at home when executing an arrest warrant.145 Fourth Amendment doctrine on the power of law enforcement to seize individuals is marked by similar conflicts, with differences existing on whether police can: • stop an individual based on reasonable suspicion that they have committed a past misdemeanor (versus a past felony)146 • enter a home without a warrant in “hot pursuit” to arrest a fleeing misdemeanant (as opposed to a felon)147 • search or arrest a motorist after a canine alerts to the presence of drugs in his car, when the ensuing search yields no drugs148 • conduct an auto checkpoint, resulting in discovery of criminal activity, without authorization by an elected official149 • retain a motorist’s license without qualifying as a seizure.150 Intrastate disputes also exist on basic questions of Fourth Amendment standing to challenge conduct by law enforcement.151 State and lower federal courts within the same federal circuit also differ on Fifth and Sixth Amendment questions. For example, with the Fifth Amendment, they disagree on the application of the “question first, Mirandize later” test announced by the Court in Missouri v. Seibert, 152 splitting over whether the plurality’s multi-factor test or Justice Kennedy’s concurring opinion (requiring subjective intent by police to avoid Miranda) is the rule.153 They also disagree on whether a Terry stop154 or handcuffing during the execution of a search warrant155 qualifies as “custody” sufficient to trigger Miranda requirements. In the Sixth Amendment context, conflict exists on questions such as the factors used to determine when an individual becomes a “government

agent” sufficient to trigger the Amendment’s protections.156 The conflicts noted above highlight the long-ignored but quite

extensive empiric reality of state-federal constitutional disuniformity within individual states. They also, as

discussed next, have a variety of important real-world consequences. 1. Rule of Law Perhaps most significant, the conflicts undercut basic rule of law expectations. Allowing the content of national constitutional law to depend on the

uniform worn by a particular government agent or whether a case is filed in state or federal court is at odds with the

core expectation of horizontal consistency in the law’s content and application.157 As Professor Daniel Meador has observed: One of the most basic features of law is that it embodies a set of rules and principles applicable to everyone in like manner throughout the jurisdiction it

purports to govern. A judicial system that produces legal doctrine differi ng because of the happenstance of the

place of litigation and of the particular judges sitting on the case is hostile to the reign of law .158 Concern over rights inconsistency, it might be offered, is unwarranted given the constitutional variation that already exists as a result of state court power to interpret state constitutions more generously than the federal constitution.159 Here, however, courts disagree over rights contained (or not) in the same constitution, one that controls in state and federal courts and regardless of whether the action of state or federal law enforcement

agents is challenged.160 Under such circumstances, as the Supreme Court has warned, individuals “cannot know the scope of [their] constitutional protection.”161 They lack advance knowledge of their liberty and privacy rights and the parameters of government power to investigate and intrude on their lives.162 State-federal court conflicts, moreover, have an impact that is greater than the sum of their individual parts. They create what is effectively a constitutional prism in a state,163 and perhaps even several states within a given circuit when state courts themselves differ with

one another and their circuit,164 magnifying in corresponding degree concern over governmental consistency and evenhandedness.165 Of no less practical importance, intrastate variation creates the risk of forum shopping by

government prosecutors . When a state and federal court adopt different positions it can be outcome- determinative whether (i) state/ local police or federal agents develop the case against a suspect166 and (ii) in an

instance of concurrent criminal jurisdiction, whether a matter is filed in state or federal court.167 Faced with the prospect of

having evidence suppressed in one court but not another, governments have a powerful incentive to seek out more advantageous doctrine,168 aggravating law-avoidance already occurring when cases “go federal” in an effort

to avoid application of a more generous state constitutional right.169 To the extent that such strategic behavior undermines perception of government (writ large) cutting square corners,170 the procedural justice literature suggests an attendant decrease in the public’s sense of governmental legitimacy and its willingness to be law-abiding.171 2. Civil Rights Litigation The conflicts can also affect civil rights litigation. Under § 1983, officers enjoy personal qualified immunity from damage suits except when they violate “clearly established” constitutional law and are “plainly incompetent.”172 Although it was long the case that a state-federal conflict put law enforcement in the unenviable position of facing monetary liability for complying with a

position adopted by their employer-government’s court,173 recent Supreme Court precedent has clarified that when a conflict exists and an officer acts in accord with her jurisdiction’s doctrinal position, clearly established law cannot be said to have been violated.174 The newly clarified position, however, comes at a cost: a right, recognized by either state or federal court, goes unenforced.175 Conflict can also have a critical impact on less core yet still

important matters in civil rights litigation. A prime example lays in varied judicial positions on whether a particular government actor qualifies as a “state” agent sufficient to bar suit under the Eleventh Amendment.176 The California Supreme Court, for instance, has held that a county sheriff is a state agent for purposes of § 1983, barring suit;177 the Ninth Circuit disagrees, and so will entertain a claim against a county

sheriff.178 Because federal civil rights claims can be filed in state or federal court,179 the specter of forum shopping again looms , this time among plaintiffs (not prosecutors). 3. “Good Faith” and the Exclusionary Rule Finally,

variability can affect trial court decisions on the exclusion of evidence, in particular, application of the exclusionary rule’s “good faith” exception, which protects police acting with an objectively “reasonable goodfaith belief” that their conduct is lawful.180 Recently, in Davis v. United States, 181 the Supreme Court held that the exception applies when police comply with settled doctrine, even when the doctrine is later overturned by the Court.182 In Davis, Alabama police relied on Eleventh Circuit caselaw based on accepted Supreme Court doctrine affording them a per se right to search the interior of a car incident to the lawful arrest of the driver,183 a position disavowed by the Court after the search of Davis’s car.184 According to the majority, the officer at the time of the search reasonably relied upon and acted in a manner consistent with Supreme Court (and Eleventh Circuit) doctrine, removing any deterrence function served by the exclusionary rule.185 The reliance question, however, is less clear when settled U.S. Supreme Court doctrine is not involved. What should the outcome be when the Court has not definitively spoken on the propriety of particular police conduct, and a state court has approved the conduct while its federal circuit has not (or vice versa), and the Court later condemns the conduct? Presumably, akin to the § 1983 context just discussed, agents acting in a manner consistent with a position adopted by their government’s courts would be able to invoke the good faith exception. But if this is so

then again the forum-filing decision of prosecutors can drive outcomes . In light of the discord, a preferred outcome, suggested during the Davis oral argument by Justice Sotomayor vis-a-` vis federal circuit splits,186 might be for the doctrinal uncertainty to bar

application of the good faith exception. However, at present no such policy prevails, leaving outcomes to again vary with prosecutorial will.

The existence of contrary federal precedent causes conflicting state rulings and circumvention that prevent solvency. Nash ’16 (Jonathan; 2/4/16; Professor of Law at Emory University, specializing in the judiciary and constitutional law; The Hill, “Supreme Court reaffirms supremacy over state courts, and why that matters now,” http://thehill.com/blogs/pundits-blog/the-judiciary/268193-supreme-court-reaffirms-supremacy-over-state-courts-and-why; RP)

Last week, the Supreme Court in James v. City of Boise unanimously and summarily reversed a decision by the

Idaho Supreme Court wherein the state high court asserted that the U.S. Supreme Court lacked the power to limit state court power to award attorney's fees to a prevailing party on a federal claim. At first blush, the U.S. Supreme Court's opinion might seem of little interest and practical importance: The Idaho Supreme Court was plainly wrong, and the point at issue seems narrow.

Examination of the state supreme court's opinion highlights that the state court was urging a particular limitation on the U.S. Supreme Court's power to limit the state judiciaries' discretion, especially based upon cases appealed from lower federal courts (and not state courts). Seen in this light, the Supreme Court's decision in James has ramifications for another state judiciary that has asserted that it may not be bound by governing Supreme Court precedent:

Alabama Chief Justice Roy Moore's administrative order to the Alabama Probate Courts not to issue marriage certificates to same-sex couples, even in the wake of the Supreme Court's decision in Obergefell v. Hodges finding a constitutional right to same-sex marriage. James involved an action by a private citizen, Melene James, against members of the Boise Police Department and the city of Boise, Idaho. James brought suit in state court under a federal civil rights statute — Section 1983 of title 42 of the United States Code — that entitles a person to relief when a state actor violates his or her federal constitutional rights. The Idaho Supreme Court affirmed the state trial court's ruling against the plaintiff, including the award of attorney's fees in favor of the defendants. The U.S. Supreme Court concerned itself only with the attorney's fees portion of the state supreme court decision. A provision of federal law — Section 1988 of title 42 of the United States Code — authorizes the awarding of attorney's fees to prevailing parties in section 1983 cases. In a 1980 opinion, the U.S. Supreme Court interpreted Section 1988 to allow a defendant to collect attorney's fees only where the plaintiff's case was "frivolous, unreasonable, or without foundation." Nevertheless, the Idaho Supreme Court awarded attorney's fees without finding that the plaintiff's case was frivolous, unreasonable or without foundation. Indeed, the state high court expressly disclaimed the notion that the U.S. Supreme Court's interpretation of Section 1988 was binding on it, or more generally, on the Idaho state courts. The state court first observed that "[t]he statute does not contain any such limitation. It permits the

award of attorney fees to the prevailing party in the discretion of the court." The state high court noted that the Supreme Court's interpretation of Section 1988 arose out of "appeals from cases in federal district courts" as opposed to state courts, and then claimed: "Although the Supreme Court may have the authority to limit the discretion of lower federal courts, it does not

have the authority to limit the discretion of state courts where such limitation is not contained in the statute." The Idaho Supreme Court

thus acknowledged governing Supreme Court precedent, but concluded that it wasn't obligated to follow that precedent. At a broad level, the Idaho Supreme Court was plainly wrong . The Constitution declares federal law the supreme law of the land . And precedent going back two centuries makes clear that the U.S.

Supreme Court is the definitive expositor of that supreme law, and that its interpretations are binding on the courts of the various states. It is informative, however, to get a handle on exactly what the Idaho Supreme Court purported to hold.

As an initial matter, the Idaho Supreme Court certainly did not assert that it was not bound to follow governing federal statutes. The state court applied Section 1983, and purported to apply Section 1988's fee-shifting provision (though under its own

interpretation). Second, one might think that the state court took the position that the U.S. Supreme Court does not issue binding rulings on matters that go beyond the plain language of statutes . But other portions of the Idaho Supreme Court opinion make clear that that is not the case. The Idaho Supreme Court allowed the police officers to invoke "qualified immunity" — that is, to argue that they were immune from the plaintiff's lawsuit because they did not violate any of the plaintiff's constitutional rights that were "clearly established" at the time of the incident in question. But "qualified immunity" is not the product of any congressional statute; it is,

rather, a judge-made creation. Yet the Idaho Supreme Court does not hesitate to follow federal precedent — and, in particular, Supreme Court precedent — on qualified immunity. Third, one might think, more narrowly, that the Idaho Supreme Court meant to

challenge the U.S. Supreme Court's power to issue binding rulings on judicial discretion in the context of federal statutory regimes. Here, again, however, other portions of the Idaho Supreme Court opinion belie this understanding. A state officer may lay claim to qualified immunity if either (1) the officer did not in fact violate the plaintiff's constitutional rights, or (2) any such rights that may have been violated were not clearly established at the time of the alleged incent. In a 2009 case, Pearson v. Callahan, the U.S. Supreme Court held that lower courts have discretion to address first either of those two inquiries. Tellingly, the Idaho Supreme Court in James invoked Pearson v. Callahan specifically for the "discretion" to decide the case based upon the second inquiry. This leaves a reading of the Idaho Supreme Court's opinion that the U.S. Supreme Court did not effectively limit the state courts' discretion to award attorney's fees because the

U.S. Supreme Court announced its precedent in cases originating in the lower federal courts, not state courts. The state high court expressed a disagreement with the U.S. Supreme Court over the interpretation of the statute, and concluded that (since the

U.S. Supreme Court precedent was not binding) it would adhere to its own interpretation. This argument echoes a point made by Alabama Chief Justice Moore, who asserted that, insofar as the Supreme Court's Obergefell decision arose out of a regional

federal circuit, its scope did not necessarily extend beyond the states in that region. But this assertion is incorrect : Supreme Court holdings are binding on all lower courts , state and federal. The Supreme Court need not decide the same issue again and again with respect to each lower court. The Idaho Supreme Court opinion in James goes farther still,

suggesting that the U.S. Supreme Court lacks the power to limit the state courts' discretion to award attorney's fees. This argument seems to be grounded in the notion that state courts enjoy inherent power — not subject to U.S. Supreme Court regulation — to shift fees. Bolstering this view somewhat is some evidence that Congress enacted Section 1988 in response to a 1975 Supreme Court case — Alyeska Pipeline Service Co. v. Wilderness Society — holding that the federal courts lacked inherent authority to shift attorney's fees. The problem here is that Congress enacted section 1988 without limiting its application to the federal courts, and indeed the Idaho

Supreme Court acknowledged Section 1988's applicability in the case before it. This fallback on state judicial independence in the face of clearly applicable federal law again sounds akin to the argument advanced by Moore in his administrative

order. The Supreme Court in James repeated the sage point offered by famed Justice Joseph Story 200 years ago: If state courts were permitted to disregard the Court's rulings on federal law, "the laws, the treaties, and the Constitution, of the United States would

be different in different states; and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states." The Supreme Court is the final expositor of federal law , and the rule of law expects lower courts — state as well as federal — to recognize this, whether the lower court agrees with the Supreme Court's reasoning or not, and

whatever the magnitude of the issue.

2NC Perm

2NC -- AT: PDBLinks to politics – still has Congress and Trump act, which is the basis of our link argument on the DA. The Court has to act before congress to get shielding – simultaneous action doesn’t solve.Simmons ’95 (Courtney, Law clerk to the Honorable J. Michael Luttig, Circuit Judge on the United States Court of Appeals for the fourth Circuit, Emory Law Journal, Winter, 44 Emory L.J. 117)

Sometimes a legislative compromise entails a decision not to make a decision. Congress standing at a stalemate may choose not to prescribe

one side or the other, or an intermediate point. Rather, the legislature may allow the courts to make the ultimate determination . Judge Posner, in The Federal Courts, described this phenomenon: Often when there are political pressures to do something about a problem but the legislature cannot agree exactly what to do about it, it will pass a statute the effect (as well as the undisclosed purpose) of which is to dump the problem in the lap of the courts, taking advantage of the fact that the courts are a kind of political lightning rod.

Perm forces the court to rule on a moot issue – this makes the decision meaningless and means the CP can’t shield from politics because Congress is perceived as acting first.UPLR ‘2 – University of Pittsburgh Law Review 2 (Matthew T. King, “Towards a practical convergence,” Spring, 63 U. Pitt. L. Rev. 703)

The Court conceded that it would hear cases "when actual litigation brings to the court the question of the constitutionality of such legislation," but it will never simply test Congress's law-making savvy without an actual case or controversy. n39 Harking back to Taney, the Court relied on the execution of a [*710] timely, meaningful judgment as a primary factor in determining whether the case was legitimate. n40 Over time, the Court has molded the cases and controversies requirement of Article III into a doctrine of justiciability. The central guideline and goal of this doctrine is the ability of a court to provide a meaningful decision. While courts reserve the right to declare cases non-justiciable for general reasons, time has honed this jurisprudence into three specific arenas: ripeness, mootness, and standing. Ripeness means the case and facts at hand must be fully and actually developed. n41 If not, no real case or controversy exists and the matter is to be dismissed. In his full summation of rules against advisory opinions, Justice Brandeis stated that the "Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.'" n42 The next year, Anniston Manufacturing Co. called into question the constitutionality of numerous vital provisions of the 1936 Revenue Act. n43 Only the cotton taxes and procedures for recovery of monies under the Agricultural Adjustment Act pertained to Anniston, yet it challenged the Act generally. n44 In dismissing the case the Court specifically declined to rule on matters that had not yet created (and might never create) an aggrieved party. n45 The Court bolstered Anniston with Electric Bond & Share Co. v. S.E.C. n46 There, the Court refused to assess the validity of the entire Public Utility Holding Company Act when only three provisions applied to the companies bringing suit: n47 "defendants seek a judgment that each and every provision of the Act is unconstitutional. It presents a variety of hypothetical controversies which may never become [*711] real." n48 The Court would not decide the issues until they had ripened into a concrete set of

facts and parties. n49 Second is mootness , which requires that the case or facts have not yet run their course . n50 A moot case is essentially the opposite of an unripe case. n51 In United S tates v. Alaska Steamship Co., n52 steamship companies contested the Interstate Commerce Commission's authority to require two different forms for bills of lading for domestic

and export transportation. n53 After the suit was filed, Congress passed an act amending federal power

to regulate commerce and requiring a change in format for both types of bills. n54 Under the new circumstances, the issue became moot . n55 The Court described what a moot case is, and what it must do with one: Where by an

act of the parties, or a subsequent law, the existing controversy has come to an end, the case becomes moot and should be treated accordingly . However convenient it might be to have decided the question of the power of the Commission to require

the carries to comply with an order prescribing bills of lading, this court "is not empowered to decide moot questions or abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it. No stipulation of parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty, of the court in this regard." n56

It removes the controversy, which makes the case mootCLS 17 (Cornell Law School, https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/mootness, EM)A case initially presenting all the attributes necessary for federal court litigation may at some point lose some attribute of justiciability and become “moot.” The usual rule is that an actual controversy must exist at all stages of trial and appellate consideration and not simply at the date the action is initiated.588 “Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies. . . . Article III denies federal courts the power ‘to decide questions that cannot affect the rights of litigants in the case before them,’ . . . and confines them to resolving ‘real and substantial controvers[ies]

admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate. To sustain our jurisdiction in the present case, it is not enough that a dispute was very much alive when suit was filed, or when review was obtained in the Court of Appeals. .

. . The parties must continue to have a ‘personal stake in the outcome’ of the lawsuit.”589 Because, with the advent of declaratory judgments, it is open to the federal courts to “declare the rights and other legal relations” of the parties with res judicata effect,590 the question in cases alleged to be moot now seems largely if not exclusively to be decided in terms of whether an actual controversy continues to exist between the parties rather than in terms of any additional older concepts. 591 So long as concrete, adverse legal interests between the parties continue, a case is not made moot by intervening actions that cast doubt on the practical enforceability of a final judicial order. 592

Cases may become moot because of a change in the law ,593 or in the status of the parties,594 or because of some act of one of the parties which dissolves the controversy.595 But the Court has developed several exceptions. Thus, in criminal cases, although the sentence of the convicted appellant has been served, the case “is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.”596 The “mere possibility” of such a consequence, even a “remote” one, is enough to find that one who has served his sentence has retained the requisite personal stake giving his case “an adversary cast and making it justiciable.”597 This exception has its counterpart in civil litigation in which a lower court judgment may still have certain present or future adverse effects on the challenging party. 598

Courts wont review moot cases - assumes waiver and forfeiture Lueck 5 (Dennis served as the Managing Editor of the Villanova Law Review, and graduated with a JD from Villanova Law School. “The Third Circuit Adopts the Relation-Back Doctrine to Prevent Defendants from Picking off Representative Plaintiffs of Putative Class Actions in Weiss v. Regal Collections” https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1242&context=vlr//Go Hornets)

C. Class Certification and Mootness: The Article III Case or Controversy Requirement The United States Constitution requires that there be a case or controversy in order for a federal court to possess subject matter jurisdiction over an action.3 9 Thus, when an individual ceases to have a "personal stake" in the litigation, there is no longer a case or controversy, and the court is deprived of subject matter jurisdiction. 40 <INSERT FOOTNOTE 40> 40. See County

of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (noting that when controversies causing case are no longer at issue case becomes moot and must be dismissed because court no longer has subject matter jurisdiction). <END FOOTNOTE 40> This is commonly referred to as a moot case. 41

Whenever a case is deemed moot, the court must dismiss the action , regardless of whether the parties motion for dismissal . 42

Mootness DA – the perm is legally impossible. Watson ‘91 — Corey C. Watson, former clerk for the Ninth Circuit Court of Appeals, magna cum laude graduate of Northwestern University School of Law, and a former associate editor of Northwestern's Law Review, 1991 (“Mootness and the Constitution,” Northwestern University Law Review, (86 Nw. U.L. Rev. 143), Fall, Available Online to Subscribing Institutions via Lexis-Nexis)

A case becomes "moot" when "its factual or legal context changes in such a way that a justiciable question no longer is before the court ." n32 [*147] Defining mootness as the absence of a justiciable issue, however, merely raises the question of what is meant by the term "justiciability." n33 The Supreme Court has distinguished a justiciable controversy "from one that is academic or moot." n34 Accordingly, a justiciable controversy is one that is "definite and concrete, touching the legal relations of parties having

adverse legal interests." n35 The controversy must be " real and substantial [,] . . . admitting of specific relief through a

decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts ." n36 The rule that a court will not decide a moot case is recognized in virtually every American jurisdiction. n37 With the concepts of mootness and justiciability so loosely formulated, some scholars have attempted to

understand mootness jurisprudence by cataloguing the various circumstances which render a case moot. n38 A case may become moot because the alleged wrong passes and cannot be expected to recur; n39 because a defendant pays money owed [*148] and no

longer wishes to appeal; n40 because a criminal defendant dies while appealing his case; n41 because the law under which the suit was brought has since changed ; n42 or because a party is no longer affected by the challenged statute. n43

2NC -- AT: PDCP1 -- “Enact” -- excludes court action. Court of Appeals of Arizona 20. [Brief filed on Court Listener; 3/19/20; “Netherlands v. Md Helicopters, 1 CA-CV 19-0019 (Ariz. Ct. App. 2020),” https://www.courtlistener.com/opinion/4737531/netherlands-v-md-helicopters/; DS]

MD Helicopters’ argument regarding the meaning of the terms “enact” and “adopt” is similarly unpersuasive on

the question of whether A.R.S. § 12-3252(B)(2) refers only to acts of a foreign country’s legislative body, and not of its courts as well. The common usage of the term “enact” does not generally include the actions of a court . See, e.g., 2015 Ariz. Sess. Laws, ch. 170, § 1 (1st Reg. Sess.) (“Be it enacted by the Legislature of the State of Arizona . . . .” (emphasis added)); Cronin v. Sheldon, 195

Ariz. 531, 537 (1999) (“[T]he legislature has the authority to enact laws .”). But the term “adopt” is not nearly so limited.

Courts make law through the adoption of rules or common-law principles. See, e.g., Carrow Co. v. Lusby, 167 Ariz. 18, 24 (1990) (“We adopt the modern common law view that an owner of livestock owes a duty of ordinary care to motorists traveling on a public highway in open range.” (emphasis added)); Judson C. Ball Revocable Tr. v. Phoenix Orchard Grp. I, L.P., 235 Ariz. 519, 523–24, 11, 16 (App. 2018) (Finding Delaware courts’ decision to “adopt” rule of standing for shareholder suits “as a matter of common law” persuasive and deciding

to “adopt” that rule as well). Executive agencies are also frequently empowered by the legislature to “adopt” rules and regulations. See, e.g., A.R.S. § 23-361 (Industrial Commission “may adopt such rules and regulations as necessary” to

administer and enforce statutes governing the payment of wages (emphasis added)). And the use of both the terms “enact” and “adopt” must be read to contemplate different things , or one term will be rendered superfluous . See Cont’l Bank, 131 Ariz. at 8.

2 -- “Should” -- mandates immediacy. Summers ’94 [Edward; November 8; Justice of the Oklahoma Supreme Court; Oklahoma State Courts Network, “Kelsey v. Dollarsaver Food Warehouse of Durant,” https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=20287#marker3fn13; RP]

4 The legal question to be resolved by the court is whether the word "should" 13 in the May 18 order connotes

futurity or may be deemed a ruling in praesenti .14 The answer to this query is not to be divined from

rules of grammar ;15 it must be governed by the age-old practice culture of legal professionals and its immemorial language usage. To determine if the omission (from the critical May 18 entry) of the turgid phrase, "and the same hereby is", (1) makes it an in futuro ruling - i.e., an expression of what the judge will or would do at a later stage - or (2) constitutes an in in praesenti resolution of a disputed law issue, the trial judge's intent must be garnered from the four corners of the entire record.16

Footnote 13:

13 "Should" not only is used as a "present indicative" synonymous with ought but also is the past tense of "shall" with various shades of meaning not always easy to analyze. See 57 C.J. Shall § 9, Judgments § 121 (1932). O. JESPERSEN, GROWTH AND STRUCTURE OF THE ENGLISH LANGUAGE (1984); St. Louis & S.F.R. Co. v. Brown, 45 Okl. 143, 144 P. 1075, 1080-81 (1914). For a more detailed explanation, see the Partridge quotation infra note 15.

Certain contexts mandate a construction of the term "should" as more than merely indicating preference or

desirability . Brown, supra at 1080-81 (jury instructions stating that jurors "should" reduce the amount of damages in proportion to the amount of contributory negligence of the plaintiff was held to imply an obligation and to be more than advisory); Carrigan v. California Horse Racing Board, 60 Wash. App. 79, 802 P.2d 813 (1990) (one of the Rules of Appellate Procedure requiring that a party "should devote a section of the brief to the request for the fee or expenses" was interpreted to mean that a party is under an obligation to include the requested

segment); State v. Rack, 318 S.W.2d 211, 215 (Mo. 1958) ("should" would mean the same as "shall" or " must " when used in an instruction to the jury which tells the triers they "should disregard false testimony").

Footnote 14:

14 In praesenti means literally " at the present time ." BLACK'S LAW DICTIONARY 792 (6th Ed. 1990). In legal parlance the phrase denotes that which in law is presently or immediately effective , as opposed to something that will or would become effective in the future [in futurol]. See Van Wyck v. Knevals, 106 U.S. 360, 365, 1 S.Ct. 336, 337, 27

L.Ed. 201 (1882).

The counterplan is non-immediate. US Courts ’17 (United States Courts; Updated annually, 2017; Official federal court proceedings, citing the Supreme Court of the United States; US Courts, “Supreme Court Procedures,” http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1; RP)

Opinions All opinions of the Court are, typically, handed down by the last day of the Court's term (the day in late June/early July when the Court recesses for the summer). With the exception of this deadline, there are no rules concerning when

decisions must be released. Typically, decisions that are unanimous are released sooner than those that have

concurring and dissenting opinions. While some unanimous decisions are handed down as early as December,

some controversial opinions , even if heard in October, may not be handed down until the last day of the

term. A majority of Justices must agree to all of the contents of the Court's opinion before it is publicly delivered. Justices do this by "signing onto" the opinion. The Justice in charge of writing the opinion must be careful to take into consideration the comments and concerns of the others who voted in the majority. If this does not happen, there may not be enough Justices to maintain the majority. On rare occasions in close cases, a dissenting opinion later becomes the majority opinion because one or more Justices switch their votes after reading the drafts of the

majority and dissenting opinions. No opinion is considered the official opinion of the Court until it is delivered in open Court (or at least made available to the public). On days when the Court is hearing oral arguments, decisions may be handed down before the

arguments are heard. During the months of May and June , the Court meets at 10 a.m. every Monday to release opinions. During the last week of the term, additional days may be designated as "opinion days."

3 -- Normal means -- that’s Congress or the executive -- courts deliberately avoid criminal justice rulings. Waters ’18 [Michael; July 9; Contributor, citing a study published conducted by Northwestern law professor Tonja Jacobi and Minnesota Court of Appeals law clerk Ross Berlin; The Outline, “The Supreme Court’s silence on criminal justice issues,” https://theoutline.com/post/5232/supreme-court-criminal-justice-mass-incarceration; RP]

President Trump’s nominee to replace retiring Justice Anthony Kennedy is set to perpetuate the Supreme Court’s irrelevance on criminal justice cases .

A study last month from Northwestern law professor Tonja Jacobi and Minnesota Court of Appeals law clerk Ross Berlin argues that

since the 1970s, the Court has “ sidestepped ” profound criminal justice issues like stop-and-frisk, mass incarceration sentencing, unfair plea deals, and police shootings.

In part, that's because criminal justice is among the issues the Court’s liberals have ignored in order to

pander to swing vote Anthony Kennedy, as UCLA law professor Jon D. Michaels argued in a Los Angeles Times op-ed Monday.

“ For years , progressive justices have tacked to the center , principally to win over Kennedy . In the

process, they’ve often abandoned left- liberal constitutional theories,” Michaels claimed.

Much is uncertain about how the new justice will view policing and sentencing cases, but the study's lead author Tonja Jacobi told The

Outline that though Kennedy’s replacement “could appear to be a little more moderate on these issues” than Kennedy, “I don't expect

it to be a significant turn toward broader criminal procedure rights generally,” she said.

The problem is not that the Supreme Court doesn’t address criminal justice issues at all , but that it

addresses them in limited ways that don’t align with how most people experience the criminal justice system. Most of the Supreme Court’s focus has been on criminal trials — even though only about 1 percent of criminal justice cases actually end in a trial.

As an example, stop-and-frisk is one of the most pervasive uses of police force and, like most police tactics, it disproportionately targets communities of color. But the Supreme Court has weighed in on the issue only to ask whether evidence found from stops and frisks can be used

at trial. On the larger issue of whether police have the right to conduct searches that target black and Latinx people even when it

doesn’t end in a criminal charge, the Supreme Court has remained silent .

The scope of its rulings on stop-and-frisk is limited to the rare instances in which the person being

searched is actually charged with a crime, well below 12 percent of all stops and frisks.

“The multidecade battle between the liberal and conservative justices over whether [allowing evidence found from

random searches] should be further restricted or fully expanded is irrelevant to the overwhelming majority of people affected by illegal police encounters, who are typically not prosecuted,” Jacobi and Berlin write.

Some prosecutors offer predatory plea deals to people charged with crimes, believing they can scare them. The justices have done little to place limits on what plea deals prosecutors can offer — even though, as the authors write, “almost all criminal cases are resolved via pleas,” not trials.

The Supreme Court, too, has not weighed in on harsh sentences , especially for minor drug crimes, that have led to the imprisonment of 2.3 million Americans. Almost all of the Court’s sentencing cases have revolved around the death penalty — an important issue, but one that directly impacts only about 20 to 50 people each year and that “has no measurable effect on the United States’ anomalous mass-incarceration problem.”

In his LA Times op-ed, Michaels offers a solution to the Court's relevance woes: fiery , progressive dissents that broaden the discussion on these issues and trailblaze the path for future liberals on the Court .

4 -- It’s a PIC -- courts alone are less than “federal government.”Arthur Miller 86. Distinguished Visiting Professor of Law – Emory University. Summer 1986. “Congress, the Constitution, and First Use of Nuclear Weapons.” Review of Politics. Vol. 48, No. 3.

Three other points merit mention in this discussion of collective decision-making. First, both the formal and the secret constitutions allocate power over foreign relations and defense to the

central government, to, that is, the United States of America visualized as a single entity. What, however, is "the" United States? The question has never been definitively answered; and indeed has seldom been asked in judicial opinion or scholarly discourse.42 Asked another way, the question is this: Where does sovereignty lie in the American polity? The formal constitution is supposedly based on popular sovereignty, with ultimate power resting in the people. That, however, is far from accurate. Proof positive that sovereignty lies in the "state" came when General Robert E. Lee surrendered at Appomattox: "the people" of the South were not to be permitted to exercise their "sovereignty." The powers of the national government are supposedly only those delegated to it, either expressly or impliedly. But that is scarcely accurate, as 200 years of constitutional development attest. The Framers of the formal constitution established a governmental system that, as Justice Robert Jackson commented, would ensure that the dispersed powers of the federal government would be integrated into a

workable government. "Separateness but interdependence, autonomy but reciprocity" was the constitutional command.43 The meaning is unmistakable: "the" United States is a single metaphysical entity , encompassing state, society, and government in one artificial being. These terms are

not synonymous. The state is the fundamental entity; government its apparatus; and society is composed of the individuals and groups governed. Much like the business corporation, the state-"the" United States-is an artificial construct, more a method than a thing. It exists in constitutional theory-in, for example, the state secrets privilege in litigation-even though judges and commentators alike often confuse the term with government and with society. A legal fiction that by itself can do no act, speak no work, and think no thought, the state (like the corporation) has "no anatomical parts to be kicked or consigned to the calaboose; no soul for whose salvation the parson may struggle; no body to be roasted in hell or purged for celestial enjoyment." 44

Despite loose language to the contrary from executive branch lawyers and even the Supreme Court, "the" state or "the" government-or

"the" United States-is not to be equated with the executive branch. Nor with any one branch , for that matter; each branch is

part of an indivisible whole .

And less than “the,” which denotes a holistic function. Webster’s 5 (Merriam Webster’s Online Dictionary, http://www.m-w.com/cgi-bin/dictionary)

4 -- used as a function word before a noun or a substantivized adjective to indicate reference to a group as a whole

2NC -- AT: PDCP -- Enact“Enact” is legislative.Hodge and Elridge 14. [Michael and Scott; attorneys at Miller, Canfield, Paddock, and Stone, P.L.C.; “Michigan Coalitions of State Employee Unions,” https://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/Documents/2014-2015/147758/20140520_s147758_59_01_147758acmcsc.pdf;

Further, when the constitution discusses the power to enact laws , it refers to the central power of the

Legislature , which is limited. See In re Brewster Street Housing Site, 291 Mich 313, 333; 289 NW 493 (1939) ("The Constitution of the

State of Michigan is not a grant of power to the Legislature, but is a limitation on its powers."). If the Commission had been given the power to "enact" laws, the constitution would have required numerous other clarifications of that power. Could "laws" enacted by the Commission embrace more than one object under Article 4, § 24? Could amendments to Commission "laws" be revised by reference to their titles under Article 4, § 25? Would Commission "laws" be subject to immediate effect only if approved by the Legislature under Article 4, § 27? Could the Legislature subsequently amend a Commission-enacted law? Could the Governor veto a

Commission-enacted law? Using a term like "enact" would raise many harmonization requirements in the constitution.

23 This makes sense when considering the everyday vernacular describing what a legislature does —

legislatures enact laws through a particular process . The Commission, of course, does not and need not

"enact" rules in that traditional sense for them to have constitutional significance . That the Commission

develops rules to govern within its sphere of authority differently than a legislature might "enact" a law should not undermine the force and effect (or constitutional significance) that those rules have within the classified civil service.

The only government-published definition agrees.Conyers 90. [Rep. John Conyers Jr.; 8/2/90; former member of the Government, Ways and Means, and Rules Committees; “Truth-in-Budgeting Reform Act of 1990,” https://www.congress.gov/bill/101st-congress/house-bill/5437/text; DS]

`(4) ENACT- The term `enact' means passage of a bill or resolution in identical form by both Houses , except a vetoed bill or resolution when the veto message is referred to committee in either House or when either House votes to sustain the veto.

Enact exclusively refers to legislative actions. Court of Appeals of Maryland 2k. [Montgomery County v. Anchor Inn Seafood Restaurant; September 2000; “BRIEF OF APPELLEES ANCHOR INN SEAFOOD RESTAURANT, ET AL,” http://www.esjpc.com/_pdf/MontgomeryCounty_v_AnchorInn.pdf; DS]

Fifth, the use of the word “enact” in the savings clause corroborates that only legislative actions are saved from preemption. It is common usage that laws are “enacted ” whereas regulations are

“adopted” or “promulgated.” See Black’s Law Dictionary , at 546 (defining “enact” as “1. To make into law by authoritative act; to pass . 2. (Of a statute) to provide .”).9 The General Assembly can be presumed to have understood that common usage of the word “enact” when it selected it to describe conduct by a “county” or “municipal corporation” creating a law or an ordinance. By contrast,

administrative entities are said to “adopt” regulations, and nobody is heard to say that the SEC or the FCC or the EPA “enacted a law today.” 10

Legal and common consensus agrees. Court of Appeals of Oregon 9. [Brief filed on Justia; 11/18/09; “Doe v. Medford School Dist. 549C,” https://law.justia.com/cases/oregon/court-of-appeals/2009/a137804.html; DS]

Thus, the term "ordinance" generally is employed to refer to something that a government entity "enacts." Both in its ordinary usage and in its more specific legal sense , the term " enact " refers to lawmaking . Webster's at 745

(defining "enact" to mean "to establish by legal and authoritative act * * * esp : to perform the last act of legislation upon

(a bill) that gives the validity of law"); Black's at 526 (defining the same term to mean "[t]o establish by law; to perform or effect; to decree").

It requires passage of legislation. Hunter 20. [Mike; 2/24/20; Attorney General of the state of Oklahoma; “A.G. Opinion,” http://www.oag.ok.gov/Websites/oag/images/AG%20Opinion%202020-1%20(V-15b).pdf; DS]

Under Oklahoma law, “[w]ords used in any statute are to be understood in their ordinary sense , except when a

contrary definition plainly appears[.J” 25 O.S.2011, § 1. “Enact” is ordinarily understood to mean to “ make into a law ; esp: to

perform the last act of legislation upon (a bill) that gives the validity of law,” while “enactment ” is simply “the act or action of enacting .” WEBSTER’S THIRD NEw INTERNATIONAL DICTIONARY 745 (3d ed. 2002) (emphasis added).3 The focus of this definition is the governmental action to pass a bill into law: the date of enactment is generally the date on which the “last act” necessary to pass legislation is taken.

2NC Solvency

SV -- CJRSCOTUS important in CJR. Smith ‘15

(Christopher E. Smith is Professor of Criminal Justice at Michigan State University (MSU). “The Impact of New Justices: The U.S. Supreme Court and Criminal Justice Policy” July 2015 REPUBLISHED modifications --original 1997. https://ideaexchange.uakron.edu/akronlawreview/vol30/iss1/3/)$

The Supreme Court is an important policy-making institution. In criminal justice,1 for example, the high court issues decisions affecting institutions, actors, and processes throughout the justice system, from police investigations2 through corrections and parole.3 The Court's policy decisions affecting criminal justice are produced by the votes of the nine justices who select, hear, decide, and issue opinions in cases. It is widely recognized, and probably axiomatic, that the Supreme Court's decision-making patterns are determined by the Court's membership at any given moment in history.4 When five or more justices support a specific outcome in a case, they can form a majority to produce a decision that shapes constitutional law and judicial policy making.5 When one or more members of that majority retires or dies, the potential exists for the Court's decisions to move in a new direction on that issue if new appointees possess different attitudes, values, or judicial philosophies than those possessed by their predecessors.6 Because each justice's voting behavior is shaped by his or her attitudes and values,7 the case outcomes and judicial policies produced by the Supreme Court are a product of the mix of attitudes and values represented among the justices at the moment a particular issue is presented to the Court. When the mix of justices changes, so, too, can the constitutional

rules that shape policy issues. In criminal justice, such rules affect police practices, conditions of confinement in jails and prisons, and other aspects of the criminal justice system .8

Court precedent matters for justice. Bader and Cleveland ‘11

(William D Bader is a lawyer serving Palmyra. DAVID R. CLEVELAND DEAN AND PROFESSOR OF LAW Valparaiso University . “Precedent and Justice” https://scholar.valpo.edu/law_fac_pubs/156/)$

Third, failure to see the precedential value of each of the federal courts' decisions allows for splits in the law, yielding different outcomes depending on the circuit in which the action is brought. If equality or fairness are touchstones of justice, such splits are fundamentally unjust. Though the Court denied certiorari in Smith v. United States, Justices Blackmun, O'Connor, and Souter warned, "[n]onpublication must not be a convenient means to prevent review. An unpublished opinion may have a lingering effect in the Circuit and surely is as important to the parties concerned as is a published opinion."114 Similarly, in St. Louis Southwestern Ry. Co. v. Bhd. of Ry. Airline and Steamship Clerks, Freight Handlers, Express & Station Emp., two Justices noted this threat to uniformity and dissented from denial of certiorari because Fifth Circuit unpublished decision created a split between the circuits on an "important question of federal law" that "could easily resultFifth, abandoning precedent , even for practical reasons, undermines the people's faith in judges and the judicial system. This harkens back to the issue of public perceptions of precedent as critical to equality, fairness, and justice. The judiciary is increasingly viewed as powerful and unaccountable., 119 and calls for judicial oversight, impeachment, and transparency seem to be on the rise. One reason for this, we propose, is that the judiciary (or at least that portion in favor of

precedent-free opinions) has viewed precedent as a tool for consciously shaping the law rather than an inherent part of how the law functions. 12° For an appellate court to make law that governs only that single instance and that they intend no one to rely upon in the future is contrary to the public's sense of justice. This perception is important for both public trust as well as to serve as example for, and backstop to, the actions of other government entities: Appellate justice should be a model for the government's dealings with citizens. Appellate courts are the most dignified and receptive authorities to which individuals can turn" .. If these courts do not deal justly with litigants, we cannot expect agencies

or bureaucracies of lesser sensitivity to legal rights to do so. It is therefore important that justice on appeal be visible to all. 121 If we believe that our courts are guardians of fairness and protection against all others (individuals, organizations, and even the other two branches of government), then they must operate in a principled fashion and not in a manner that can yield different outcomes for what

appear to be idiosyncratic reasons or no reason at all. By denying the precedential value of so many court decisions, we are making our legal system less effective, less consonant with public perception of justice, and, ultimately, less just. Loosing our courts from the dictates of precedent and rewriting precedent as a concept to be bestowed on opinions whose outcomes the court approves of has eroded our ability to create a just process or reach just outcomes. It harms individuals but it also

harms the public and the legal system as a whole. IV. CONCLUSION We firmly believe that precedent is the cornerstone of justice and that abandonment of precedent threatens to undermine both the perception and reality of justice in our legal system. Judge Richard S. Arnold expressed this belief with extraordinary courage and eloquence: It is often said among judges that the volume of appeals is so high that it is simply unrealistic to ascribe precedential value to every decision. We do not have time to do a decent enough job, the argument runs, when put in plain language, to justify treating every opinion as a precedent. If this is true, the judicial system is indeed in serious trouble, but the remedy is not to create an underground body of law good for one place and time only. The remedy, instead, is to create enough judgeships to handle the volume, or, if that is not practical, for each judge to take enough time to do a competent job with each case. If this means that backlogs will grow, the price must still be paid.122 We agree. It is said that hard cases, if we allow them to, make bad law.123 We have allowed for too long the hard case of volume pressures on the judiciary to make bad law in the form of nonprecedential decision-making. The idea that a common law court can issue a non-precedential decision has never been justified jurisprudentially, creates significant harms to litigants and the legal system, and tears the justice-seeking mechanism of precedent from the heart of the common law endeavor. The bench and bar should reaffirm our commitment to justice and our willingness to accord precedential value to every decision of our courts.

SV -- DNAThe Supreme Court would rule that current DNA searching violates Fourth Amendment rightsFord 18 – Matt Ford is an associate editor at The Atlantic. (“How the Supreme Court Could Rewrite the Rules for DNA Searches”, New Republic, 4-30-2018, https://newrepublic.com/article/148170/supreme-court-rewrite-rules-dna-searches, accessed 7-14-2020)// kel$

Several years ago, the Supreme Court considered the case of Alonzo Jay King Jr. Arrested in an assault in Maryland,

he ended up being charged and convicted in an unsolved rape case after a sample of his DNA , which police

collected while booking him, returned a match in a statewide database. King, who had been sentenced to life in prison, argued that the Maryland law allowing the warrantless , suspicionless collection of his DNA violated the Fourth Amendment . The justices narrowly ruled against him, drawing a sharp dissent from Justice Antonin Scalia, who criticized invasive genetic searches of people who would still be legally innocent. “Perhaps the construction of such a genetic panopticon is wise,” he wrote, joined by justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan from the court’s left. “But I doubt that the proud men who

wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.” Six years later, it turns out the American people may have built that genetic panopticon themselves, one self-swab at a time. California police used a commercial genealogy database to find the man they say is the Golden State Killer, a serial murderer and rapist who had eluded them

for decades. Now, an imminent Supreme Court ruling could rewrite how law enforcement uses these DNA searches . California law enforcement had long been stumped about the identity of the man who committed at least a dozen murders and more than 50 rapes in a spree of terror across the state in the 1970s and 1980s. That changed when investigators used a DNA sample from one of the crime scenes—“a never-touched DNA sample from a 37-year-old murder in Ventura County that was sitting in a freezer,” The New York Times reported—and submitted it to GEDmatch. The popular, no-frills site is run by two men in Florida and does not perform its own tests. Instead, it allows users to upload and compare DNA profiles created by other services, such as Ancestry and 23andMe. This open-source system allowed investigators to avoid the need for a warrant, which genealogy services typically demand before handing over

genetic information. Police submitted the sample to the website and performed what’s known as a familial DNA search. Since it’s unlikely that suspects would furnish their own DNA to a private company, investigators instead tried to find near-matches among family members to narrow down the circle of suspects. Officers then obtained a surreptitious second sample from their suspect to confirm the match.

That, in turn, led to the arrest of 72-year-old ex-cop Joseph DeAngelo last Thursday. Legal experts said that the break in a decades-old murder case showed the potential value for genetic searches when resolving long-cold cases or tracking down suspects for major crimes. At the same time, the episode highlights the limits of current legal protections when it comes to Americans’ genetic information.

“There is a tendency in such cases to minimize the privacy costs because the gains are so great,” Sonia Suter, a George Washington University law professor who specializes in bioethics, told me. “The values of privacy are always more amorphous and easily

discounted against concrete benefits of catching killers and rapists.” Like fingerprints in an earlier age, finding a DNA match is now considered the gold standard for criminal prosecutions in America . But the Golden State Killer case puts new attention on how samples are used and obtained in addition to what they tell us. “This isn’t really a DNA story,” Elizabeth Joh, a UC Davis law professor who studies the Fourth Amendment and technology, told me. “It’s a story about data.” She added that

the case underscored how Americans may not realize how new technologies can be used against them. “Do you

realize, for example, that when you upload your DNA, you’re potentially becoming a genetic informant on the rest of your family?” she explained. “And then if that’s the case, what if you’re the person who didn’t personally upload the DNA, but you discover that your family member has done that?”

Court ruling on evidence admissibility is effective and necessary. Moore ‘17

(Stephanie Damon-Moore Attorney At Law at Metropolitan Public Defender. Former Law Clerk United States Court of Appeals for the D.C. Circuit. “TRIAL JUDGES AND THE FORENSIC SCIENCE PROBLEM”

https://www.nyulawreview.org/issues/volume-92-number-5/trial-judges-and-the-forensic-science-problem/)$

Judges Although prosecutors lack structural incentives to police forensic evidence appropriately, and defense attorneys lack the resources and authority to do so, judges do not face either of these obstacles. As the neutral arbiter of the courtroom, the judge is tasked with ensuring the fairness and integrity of criminal proceedings. This nebulous expectation is concretized in the trial judge’s affirmative obligation to screen all expert evidence before it is presented at trial, known as the judicial gatekeeping function. All fifty states and the federal government are bound by rules of evidence that require judges to screen expert evidence before it is presented to a jury.96 For example, Federal Rule of Evidence 702 states that “[a] witness who is qualified as an expert . . . may testify in the form of an opinion or otherwise” only if certain criteria are met, including that “the testimony is based on sufficient facts or data,” that “the testimony is the product of reliable principles and methods,” and that those principles and methods were “reliably applied” in the case at bar.97 Although there’s no question that judges benefit from rigorous challenges to evidence by criminal defense attorneys,98 the fact remains that with or without a defense motion, judges are obligated to protect the jury from certain expert evidence.99 The majority of states and the federal government apply the admissibility test established by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 100 known as the Daubert test.101 Daubert superseded the longstanding test articulated in 1923 by the Court of Appeals of the District of Columbia in Frye v. United States. 102 The Frye standard asks simply whether the methods or principles in question “have gained general acceptance in the field in which it belongs,” known as the “general acceptance” test.103 In Daubert, the Court interpreted Rule 702 to mandate a judicial finding of “evidentiary reliability” for admittance.104 The Daubert opinion provides four factors for courts to consider in determining the reliability of expert evidence, including (1) whether the theory or technique at issue can be tested, (2) whether it has been subject to peer review and publication, (3) the known rate of error, and (4) whether the theory or technique is generally accepted in the relevant scientific community.105 The Court emphasized, however, that the test is “flexible”; these factors are neither mandatory nor are they necessarily exhaustive considerations.106 The Court has subsequently written that the Daubert factors “do not constitute a ‘definitive checklist or test’”107 and their applicability “depend[s] on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.”108 Because Daubert interprets Rule 702, which applies identically to civil and criminal cases, the case requires judges to apply the same “exacting standard[ ]”109 to expert proffers from any party. But the flexibility of the Daubert test makes it ripe for biased decisionmaking. Over the course of three cases, known as the “Daubert trilogy,”110 the Supreme Court granted trial judges discretion on three levels. First, it is up to the judge to decide what kind of procedure to follow when making an admissibility determination—for instance, whether to hold Daubert hearing as opposed to deciding the issue on paper.111 Second, which, if any, Daubert factors to consider is reserved to the judge’s discretion.112 And third, the ultimate decision of whether to admit the evidence is a matter of discretion.113 Recognizing the multiple layers of deference developed through the Daubert doctrine, Justice Scalia concurred in one of the trilogy cases with the sole purpose of cautioning that the discretion that trial judges enjoy “is not discretion to perform the function inadequately” but is only “discretion to choose among reasonable means of excluding expertise that is fausse and science that is junky.”114 In the aftermath of the Daubert trilogy, scholars predicted a sea change in the admission of forensic science.115 But within a few years, those predictions were replaced with observations that only prosecutors’ experts seemed to be evading review. A famous (or infamous) pair of rulings from the Eastern District of Pennsylvania in United States v. Llera Plaza116 illustrates both how Daubert can be applied to bar shoddy forensic evidence, and how forensic evidence makes it into court despite its shortcomings. In Llera Plaza I, Judge Louis Pollack applied the relatively new Daubert standard to fingerprint evidence proffered by the government, and found it lacking in all four factors. First, as to whether the technique “can be (and has been) tested,”117 Judge Pollack found that the methodology used by the FBI had not been subject to relevant testing, rejecting the government’s contention that “testing” included “‘adversarial’ courtroom testing.”118 Second, he considered whether fingerprinting had been subject to peer review, and concluded that because the only “peer review” came from the analysts themselves, who “tend to be skilled professionals who have learned their craft on the job and without concomitant advanced academic training,”119 the FBI’s methodology had not been subject to “peer review” in the scientific sense.120 Third, Judge Pollack found evidence regarding the error rate of fingerprint identification “unpersuasive, one way or another” and found that fingerprint comparison lacked “uniformly accepted ‘scientific’ standards.”121 Fourth, he found that because the field of fingerprint analysis is not itself a reliable field, general acceptance within the field of fingerprint examiners “by itself cannot sustain the government’s burden in making the case for admissibility of fingerprint testimony under [Rule] 702.”122 In sum, fingerprint analysis had not been tested, was not standardized, could not support claims of a low error rate, and was not generally accepted within a disinterested scientific community.123 Nevertheless, after finding fingerprint analysis lacking at every turn, Judge Pollack ruled that fingerprint examiners could testify, albeit cabining them to “descriptive, not judgmental” testimony.124 In so doing, he alluded to a consideration not sanctioned by the Daubert Court, namely the “century of judicial acquiescence in fingerprint identification” that would render total exclusion “unwarrantably heavy-handed.”125 Then, the plot thickened. Under protestations from the government that cabining expert testimony would “seriously compromise[ ]” the government’s “prosecutorial effectiveness,” Judge Pollack held another Daubert hearing and overturned his original ruling.126 In Llera Plaza II, the judge did not dispute the defense’s contention that no new factual or legal basis had emerged to justify the reconsideration, but simply lowered the bar for the FBI. For instance, instead of hewing to his original judgment that the government had not per suaded him that the error rate was acceptably low,127 Judge Pollack now held that “there is no evidence that the error rate of certified FBI fingerprint examiners is unacceptably high.”128 This way of looking at the error rate is all the more remarkable because under Rule 702 the burden is clearly on the government to show that the evidence is reliable by a preponderance of the evidence.129 Flipping this standard on its head, Judge Pollack concluded that he had not been “persuaded that courts should defer admission of testimony with respect to fingerprinting.”130 In short, under pressure from the DOJ and the FBI, Judge Pollack put the burden on the defense to show unreliability rather than holding the prosecution to its

burden of proving reliability. The layers of discretion baked into Daubert open the door for this kind of special treatment. For instance, in the Ninth Circuit’s Daubert opinion following remand from the Supreme Court, Chief Judge Kozinski offered additional factors for trial judges to consider in making Daubert rulings, and called it “very significant” whether the expert’s testimony “grow[s] naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.”131 And yet, with no explanation for the distinction, he dropped a footnote exempting “law enforcement” evidence from this consideration: There are, of course, exceptions. Fingerprint analysis, voice recognition, DNA fingerprinting and a variety of other scientific endeavors closely tied to law enforcement may indeed have the courtroom as a principal theatre of operations. As to such disciplines, the fact that the expert has developed an expertise principally for purposes of litigation will obviously not be a substantial consideration.132 Interestingly, Judge Kozinski has now joined the crusade against “voodoo science” proffered by prosecutors.133 But his 1995 opinion reflects the evidently popular sentiment that law enforcement evidence is somehow uniquely exempt from the rigorous screening that other evidence must pass through. Prosecutors, criminal defense attorneys, and trial judges are all complicit to some degree in the admission of shoddy forensic science evidence. Only trial judges, however, are explicitly tasked with keeping unreliable expert evidence out of the courtroom. The existence of this affirmative obligation, however, has not prevented unreliable evidence proffered by prosecution from being admitted in court and functioning as the basis for criminal convictions. The following Part attempts to make sense of this reality. III UNDERSTANDING THE

JUDICIAL FAILURE TO GATEKEEP As the preceding discussion shows, the forensic science problem is unlikely to be solved by either prosecutors or defense attorneys. That would seem to leave us with trial judges, and indeed Rule 702 and Daubert suggest that judges have the means to stop bad forensic evidence in its tracks. But judges and other commentators have suggested a number of reasons why judges do not step in to keep bad forensic expert evidence out of court. This section considers those arguments, and concludes that despite the obstacles in their paths, judges can and should take a leadership role in solving the forensic science problem.

SV -- DNA -- MechanismsDNA – Ethics committee mechDahl and Sætnan 09 – Johanne Yttri Dahl works in the Department of Sociology and Political Science at Norwegian University of Science and Technology, Ann Rudinow Sætnan works in the Department of Sociology and Political Science at Norwegian University of Science and Technology. (““It all happened so slowly” – On controlling function creep in forensic DNA databases”, ScienceDirect, September 2009, https://www.sciencedirect.com/science/article/pii/S1756061609000160#!, accessed 7-14-20)//kel$

Ethical issues that were not possible to foresee at the time of implementation are bound to arise. Rules and regulations may not cover such issues. One way of dealing with ethical issues as they arise may be to have an ethics committee to oversee the technology and its surrounding practices . Medical biobanks are subject to regulation by ethics committees. These evaluate research projects that propose to use data from the biobanks. They also evaluate data collection procedures, procedures for withdrawal of personal data, and individual cases of conflicts concerning biobanking practices. Additionally, ethics committees may give opinions on issues that are more a matter of

principle.16 The UK NDNAD has such a committee e the Ethics Group. The Ethics Group is relatively new (since 2007) and has so far had four meetings. From their published minutes17 we can see that they have discussed such matters as volunteer consent, causes and implications of ethnic imbalance in the NDNAD, and routines for handling applications to conduct research on the NDNAD. It is impossible to say what effects the implementation of the Ethics Group will have, but some critical issues have already been raised.

DNA – Control Committee Mech Dahl and Sætnan 09 – Johanne Yttri Dahl works in the Department of Sociology and Political Science at Norwegian University of Science and Technology, Ann Rudinow Sætnan works in the Department of Sociology and Political Science at Norwegian University of Science and Technology. (““It all happened so slowly” – On controlling function creep in forensic DNA databases”, ScienceDirect, September 2009, https://www.sciencedirect.com/science/article/pii/S1756061609000160#!, accessed 7-14-20)//kel$

While an ethics committee would consider the ethical issues of a DNA database with the intention of evaluating a need before it takes place, a control committee would be mandated to oversee that rules and regulations are upheld. While in Norway there is no control committee as such, in the UK there is the Custodian. The Custodian is entrusted with

maintaining and safeguarding the integrity of the NDNAD and developing policy (Nuffield, 2007: 93). Pfeffer’s point on the role of regulatory bodies would also apply to control committees e they might unleash functional expansion as much as rein it in . This can be an effect of externalizing responsibility for ethical and legal issues, as illustrated in the following interview excerpt. Having discussed moral issues with

the interviewer, a policeman said the following: ‘‘You have these big moral issues involved, but as a policeman I don’t think we can go too far, as long as we are correctly marshalling ourselves, as long as someone is looking at us to make sure we are doing it right . But

science will continue to grow, won’t it, and will give even better results of it. (.) I would have an outside body; the Majesty’s Inspectorate. They watch to make sure the police deal with things properly and fairly.’’ This policeman, who doesn’t see the possibility of the DNA database

going too far, claims that there should be a control committee to keep an eye so that the police do not misuse the DNA database. At the same time, it also shows that the existence of a control committee is felt to release the policeman from the responsibility to police himself.

DNA – Sanctions MechDahl and Sætnan 09 – Johanne Yttri Dahl works in the Department of Sociology and Political Science at Norwegian University of Science and Technology, Ann Rudinow Sætnan works in the Department of Sociology and Political Science at Norwegian University of Science and Technology. (““It all happened so slowly” – On controlling function creep in forensic DNA databases”, ScienceDirect, September 2009, https://www.sciencedirect.com/science/article/pii/S1756061609000160#!, accessed 7-14-20)//kel$

3.5. Sanctions One major problem with many laws and regulatory bodies is that they are ineffective in large part because they lack sanctions. For instance, in Norway there are many rules governing the collection of forensic evidence, yet even illegally collected evidence may be permitted in court . This openness for unlawfully

collected evidence also encompasses unlawful uses of DNA database information. Strandbakken, the leader of the

Norwegian White Paper committee on expansion of the DNA database, writes: ‘‘Even if a DNA-stain is collected contradictory to the Criminal Procedure Act, a Norwegian court will probably not exclude the evidence’ ’

(Strandbakken, 2007: 352, our translation). There have been a number of examples where Norwegian police have used,

if not illegal, then at least untraditional methods to obtain a DNA profile and search it against the DNA database. In one instance, a man the police suspected of a serious crime happened to drown, his body thereby arriving at the Institute of Forensic Medicine for an autopsy. This was very convenient for the police who, without asking consent of the next of kin, took a sample for comparison. This sample exonerated the man, but implicated his brother through familial similarities. Another suspect in the same case died of cancer. Here the police requested access to tissue samples at the hospital but were turned down. The case went all the way to the Supreme Court, which

ruled against the police request. This Supreme Court ruling casts the use of the drowning victim’s DNA in a critical light, but did not prevent the use of the evidence in court. Other creative collection methods have also been used. In one case police picked up cigarette butts from a person’s garden. In another a suspect was called in for questioning on an unrelated case, one in which he was not a suspect but a witness. In this relaxed atmosphere he was served a glass of water which then was used to obtain his DNA profile for use in the case in which he was a suspect (Strandbakken, 2007). Such creative, and some would say illegal, ways of working have however no formal

consequences for the police. J.Y. Dahl, A.R. Sætnan / International Journal of Law, Crime and Justice 37 (2009) 83e103 95 It is important that sanctions are clear and effective. Additionally, it should also be possible to apply these sanctions to both individuals and organizations that are caught misusing data.

DNA – PETs MechDahl and Sætnan 09 – Johanne Yttri Dahl works in the Department of Sociology and Political Science at Norwegian University of Science and Technology, Ann Rudinow Sætnan works in the Department of Sociology and Political Science at Norwegian University of Science and Technology. (““It all happened so slowly” – On controlling function creep in forensic DNA databases”, ScienceDirect, September 2009, https://www.sciencedirect.com/science/article/pii/S1756061609000160#!, accessed 7-14-20)//kel$

3.6. PETs Another way to back up intentions with enforcement is to inscribe (Akrich, 1992) the enforcement directly into the technology. In the case of DNA databases, privacy-enhancing technologies (PETs) might be built into the database software. For instance, in Norway suspects are first entered into an interim suspect database. If convicted, their profiles are moved to the permanent database. The Liberal party has proposed that juvenile offenders should be taken back off the permanent database if they are not convicted of another offence within a certain amount of time. This removal of first time offenders could be automated within the data program. There is some legal precedence for demanding the

inclusion of PETs within database software. In a recent case e I v Finland 18 e the European Court of Human Rights (ECHR) points to the state’s

responsibility to implement effective measures to preserve citizens privacy. The state is not only required to punish unauthorized access, or offer compensation for injuries as a result of unauthorized access. ‘‘What is required in this connection is practical and effective protection to exclude any possibility of unauthorized access occurring in the first place’’.19 For the health

sector, as this case was based on, this implies effective measures within the technical systems to protect a patient’s privacy.

SV -- PolicingCourt cases govern police conduct. Wyllie ’20

(Doug is the 2014 Western Publishing Association “Maggie Award” winner for Best Regularly Featured Digital Edition Column, and has authored more than 1,000 articles and tactical tips. Doug is a member of International Law Enforcement Educators and Trainers Association (ILEETA), an Associate Member of the California Peace Officers’ Association (CPOA), and a member of the Public Safety Writers Association (PSWA). “5 Supreme Court cases the police and the public should know” 2/20/20. https://www.policeone.com/law-enforcement-policies/articles/5-supreme-court-cases-the-police-and-the-public-should-know-CZ0QsFxmsG66A4rX/)$

In fact, the sheer volume of legal information police officers are required to know and be able to apply – sometimes in a split second – in the conduct of their job on a day-to-day basis is staggering. Every state and city has its own penal codes, which must be committed to memory and utilized in an infinite number of scenarios. Then there’s case law – court decisions – that govern police conduct. Court decisions may vary in different jurisdictions. Sometimes the Supreme Court decides to settle these differences. For example, Miranda warnings came from a Supreme Court decision: Miranda v. Arizona. Cops have to know their state and Supreme Court law and articulate how they apply the laws to the decisions they make out on the street. Here are five United States Supreme Court rulings that most cops know...and wish the American people did too. USE OF FORCE The Supreme Court has ruled on numerous occasions on police use of force as it relates to the Fourth Amendment, but the two most important cases are probably Graham and Garner. Let’s review both. 1. Graham v. Connor In Graham, the Supreme Court established what has become known as the “objectively reasonable standard” when it held that “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” When it comes to use of force cases, Graham is probably the most important, and yet following a high-profile use of force, this case is almost never mentioned – nor is it likely to be well understood – by the mainstream media. If we could change one thing in the minds of the press, the public and the politicians, it would likely be to give them a thorough education on Graham. I put Graham at number one for a reason. It’s time for police to take back the narrative. It is imperative that police go beyond simply including Graham in citizen academies. It has to be articulated in press conferences, PSAs and elsewhere. 2. Tennessee v. Garner In Garner, the court held that when a police officer is pursuing a fleeing suspect, he or she may NOT use deadly force to prevent escape “unless the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” This decision, which reversed a Tennessee statute that allowed the use of deadly force on any fleeing felon – even those who posed no imminent danger to anyone – has helped inform the creation of use of force policy across the country. Officers who use deadly force on a fleeing felon must be able to articulate probable cause that the subject posed a significant threat of death or serious physical injury at the time of the use of force. When there is media coverage of a video of a cop shooting someone in the back, police executives and experts need to explain why that officer might have reasonably believed that person posed a significant threat of death or serious physical injury. SEARCH AND SEIZURE The Fourth Amendment not only covers use-of-force cases such as those addressed in Graham and Garner. The Fourth Amendment also guarantees the right of the people “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...” Here are a few cases related to the search and seizure of those persons, houses, papers, and effects. 3. Terry v. Ohio In recent years, there has been much public outcry over what has become known as the practice of “stop and frisk.” People claim that such activities by police are illegal. Not so. If a police officer has a "reasonable suspicion" based on specific articulable facts that a person or persons has committed, is committing, or is about to commit a crime and “may be armed and presently dangerous,” police may stop them and perform a surface search – a frisk or pat-down. The Court has found that the Fourth Amendment is not violated by this conduct – it’s not unreasonable. Police – in their reports and statements to the media – need to be able to articulate specific facts justifying their stop and frisk under Terry so that such law enforcement efforts cannot be mischaracterized as “racial profiling.” The American people should know that when a cop performs a stop and frisk, it’s for a reason – they’re not doing it arbitrarily. 4. Weeks v. United States In this 1914 case, the Court established the "exclusionary rule" when it held that evidence seized by federal authorities in violation of an individual’s Fourth Amendment rights may not be used against them in criminal prosecution. Prior to that, the criminal justice system had sought to rely on disciplinary actions by police employers – or civil suits by suspects – as a disincentive for police misconduct. The Court decided this extra disincentive was necessary as the other disincentives did not appear to be effective. The decision also stated that federal authorities may not enlist the assistance of local police to secure warrantless evidence on their behalf and turn it over to them. This case was later augmented by the case of Silverthorne Lumber Co. v. United States in which the Court extended the basic principal of the exclusionary rule to the "fruits of the poisonous tree," and in Mapp v. Ohio the Court extended both concepts to the states under the due process protection of 14th Fourteenth Amendment. 5. Carroll v. United States In Carroll, the Court established the "automobile exception" to

Fourth Amendment protections against warrantless searches. In this Prohibition-era case, the Court noted the inherent difference between buildings and vehicles – buildings remain stationary while cars and other vehicles can be moved and hidden before a warrant can be issued. The Court held that if officers have probable cause that an automobile contains evidence of a crime, the vehicle in question can be searched without a warrant. Citizens can refuse to give consent to a search of their car, but if the officer has probable cause they can search it without

consent. CONCLUSION Case law on how police operate is continually decided – and revisited. When police operate within their understanding of the United States Constitution – as well as within their agency policies, procedures, training and tactics – the nation’s highest court largely sides with those officers who are charged with the heroic task of protecting life and property. A lot of police officers would be very pleased to hear that the public, the press and the politicians who decry police misconduct had suddenly become well-versed with these and other decisions. But that’s not going to happen on its own. Because these important decisions are misunderstood by the media and the public, it would behoove police to change that by educating them.

They control how police operate. Obasogie ’19

(Osagie K. Obasogie is the Haas Distinguished Chair and Professor of Bioethics at the University of California at Berkeley. “The Bad-Apple Myth of Policing.” 8/2/19. https://www.theatlantic.com/politics/archive/2019/08/how-courts-judge-police-use-force/594832/)$

Since the beginning of the Black Lives Matter movement, in 2013, stories concerning police use of force have been prominent in the news and

on social media. Much of the public conversation has focused on a collective exasperation: How is it that police can beat and kill men and women, many of them unarmed, yet rarely be held accountable? The answer lies in large part in the 1989 Graham decision. Graham brought a federal claim against the Charlotte police officers, under a civil-rights statute called 42 U.S.C. §1983, in the U.S. District Court for the Western District of North Carolina. He argued that the excessive use of force against him violated substantive due process, or his right to be free from such abuse under the Fourteenth Amendment—one of the Reconstruction amendments ratified after the Civil War to give African Americans full legal equality with whites. The trial court, as well as the Fourth Circuit Court of Appeals, sided with the officers. But, in deciding to review the case, the Supreme Court made a surprising move. Until that point, the legal standards through which federal courts reviewed claims of excessive force by state and local police were diverse. Many cases used substantive due process under the Fourteenth Amendment, following an earlier Second Circuit Court of Appeals decision in Johnson v. Glick, in which a detained man alleged that a correctional officer had assaulted him. This standard had been criticized, however, for emphasizing officers’ subjective mental state—that is, whether the force was applied in “good faith” or “maliciously and sadistically for the very

purpose of causing harm.” In the Graham decision, the Supreme Court held that substantive due process was not the applicable constitutional standard. Rather, the Court said the proper constitutional test was whether the action was “reasonable” under the Fourth Amendment, which prohibits unreasonable searches and seizures. (Use of force by the police during an arrest or investigative stop is understood to be a type of “seizure.”) The choice was significant. Turning away from the Fourteenth Amendment as a constitutional standard would come to represent a missed opportunity to situate excessive force in minority communities as a long-standing structural problem. The Fourth Amendment was developed at a time when slavery was condoned by the Constitution, and it is largely preoccupied with the relationship between individuals and the government. The Fourteenth Amendment, on the other hand, has its roots in the post–Civil War effort to extend legal equality to former slaves . Particularly through its clause guaranteeing equal protection of the law, it reflects an awareness of how racial groups, not just individuals, can face state persecution. (Although the Fourteenth Amendment’s due-process clause is what allows the Fourth Amendment to apply to state and local police, as opposed to only the federal government, the Graham decision nonetheless represents a significant retreat from the Fourteenth Amendment’s original purpose of protecting racial minorities from state violence and other inequities.) The Court’s decision to embrace a Fourth Amendment perspective that frames excessive force as an isolated interaction between police and individuals would impede federal courts’ ability to consider how race and

racism can influence an officer’s decision to use force. To be sure, before Graham, substantive-due-process claims concerning police violence focused largely on individual liberty rather than structural conditions. But shifting the constitutional standard for excessive force away from the Fourteenth Amendment would prove to hinder courts’ ability to consider such abuse as a problem tied to issues of equal protection and racial subordination—in turn limiting the types of claims that victims of police violence could successfully bring. The disproportionate policing of racial minorities and the state-sanctioned violence that often ensues (performed by officers of all racial backgrounds) had been a dire problem in communities of color, and would continue to be. Decades after the Graham decision, research would show that black men are three times more likely to be killed by the police than white men. Police violence would come to be understood as a major public-health issue. Moreover, in articulating the new standard for judging excessive-force cases, the Graham Court didn’t do much to describe what “reasonable” means. William Rehnquist, the chief justice at the time, provided a few guideposts, such as paying “careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” But he also wrote that reasonableness is difficult to describe, noting that “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” The vagueness of the standard for “what counts” as excessive force would have sweeping implications. Initially, some believed that its use would favor plaintiffs, because the “reasonableness” test seemed more objective. But this perspective would prove overly optimistic. It has provided limited tactical guidance for how police officers should treat people and how judges and juries should understand claims of police misconduct. Dethorne Graham saw this firsthand. Following the Supreme Court’s decision, his case went back to the trial court so that the jury could review the evidence under the new rules. Yet the jury concluded that the police

officers’ behavior toward him was “reasonable.” Subsequent decisions by the Supreme Court and lower federal courts have continued the Graham decision’s legacy of ambiguity in considering what constitutes “reasonable” force on the part of officers. Many police departments have also created their own set of administrative rules on when force is appropriate. But these policies sorely lack specificity. In a study forthcoming in the Cornell Law Review, for which I am the lead author, my co-author and I analyzed use-of-force policies from the 75 largest U.S. cities and showed that they regularly fail to provide meaningful instruction to police on when to use force, or how to do so in ways that increase the likelihood that people will survive. For example, only 31 percent of the policies required officers to exhaust alternatives before using deadly force, and only 17 percent had policies that instructed officers to use force that is proportional to a person’s resistance. Meanwhile, all of the policies we examined restate Graham’s reasonableness standard, many times directly citing the case. The vagueness of this standard creates wide discretion for police and few

protections for community members. Our examination of the case law also showed that when people file lawsuits alleging that police used excessive force, federal courts often reference or defer to police departments’ use-of-force policies as the appropriate legal interpretation of “reasonable .” For example, in a 2004 case before a federal district court in West Virginia, in which an officer fractured the leg of the plaintiff, Kevin Neiswonger, as he tried to restrain him, the court held that the officer “acted reasonably under the circumstances to protect both Mr. Neiswonger and himself, in accordance with the Morgantown City Police Department’s Use of Force Policy,” and thus “did not violate Mr. Neiswonger’s Fourth Amendment right to be free from unreasonable search and seizure.” In this case, as in many others, federal courts were influenced by the idea that as long as an officer’s behavior does not violate the use-of-force rules created by his own department, his actions are not unreasonable and therefore not unconstitutional. This suggests that the ongoing epidemic of police violence is not simply the result of what former Attorney General Jeff

Sessions once described as “individuals within a department that have done wrong.” Instead, by allowing police to largely define what constitutes excessive force, the Court has limited its own judicial oversight of the system, creating the conditions that allow police to use violence with impunity. As a result, the individual bias often found among police officers can quickly translate into violence against minority communities.

SV -- AT: CircumventionThe threat of judicial review solves. Rangappa 18 [Asha Rangappa is a senior lecturer at the Jackson Institute for Global Affairs at Yale University and a former special agent in the Counterintelligence Division of the FBI, February 20, 2018, https://www.politico.com/magazine/story/2018/02/20/how-trump-could-end-up-diminishing-his-own-power-217035]

In the coming weeks, President Donald Trump is going to find himself making a decision he’s bound to hate: Does he want to comply with Robert Mueller, or risk diminishing his own power? Here’s why this choice is inevitable. In the wake of his eight-count indictment against 13 Russian nationals and three Russian entities for election interference, special counsel Robert Mueller’s interest in interviewing Trump will take on a renewed importance. So far, all signs have pointed to Trump’s refusing the interview request, which would almost certainly force Mueller to issue a grand jury subpoena to compel the president to talk. If this comes to pass, and the president refuses to comply with such a subpoena, the country will be in uncharted constitutional territory, and the courts will need to intervene. But history shows that when courts intervene because a president is trying to shield his own conduct, the deck is stacked against him. If Trump isn’t careful, he will end up shrinking his own authority—and diminishing the presidency for years to come. When it comes to the separation of powers, the Constitution makes it look pretty simple: Congress makes the laws, the president enforces them and the judiciary adjudicates them. In reality, though, the lines between the branches are a little blurrier than they seem on paper. Writing in 1952, Supreme Court Justice Robert Jackson noted that presidential power sometimes lies in a “zone of twilight,” where the precise boundaries of Article II, which defines the president’s role, are unclear. In general, it’s in the interest of presidents to leave some of their authority in the gray area. This is because having a court decide where presidential power begins and ends leaves it set in stone , and applies to anyone who occupies the office in the future. In practice, presidents have typically tended to think of themselves not just as stewards for their party, but also of the presidency itself—preserving the full scope of its constitutional power for their successors is part of their job. For this reason, when questions arise about whether the president can or can’t do something, it’s better, from the presidential perspective, not to have the issue go to court. Sometimes this will be by getting Congress on board to authorize and fortify executive powers—think of the Authorization for the Use of Military Force, or the recently renewed Section 702 of FISA that permits the executive to conduct electronic surveillance on foreign targets. Other times, it might just be reluctant compliance , as when President Ronald Reagan handed over his personal diaries to Iran-Contra Independent Counsel Lawrence Walsh, or when President Bill Clinton agreed to give testimony to the grand jury in Independent Counsel Kenneth Starr’s Whitewater/Lewinsky investigation. Of course, courts can and do intervene when presidents attempt to extend their authority too far or refuse to negotiate on the parameters. The Supreme Court reined in President Harry Truman when he tried to use his war powers to take over domestic steel mills during the Korean War, and brushed back President George W. Bush when he established military tribunals to try suspected terrorists at Guantánamo Bay. The nature of our constitutional system presumes that the executive branch will try to overreach, and having the judiciary impose limits on the presidency is appropriate and necessary in these instances . When these cases are about contested policies, limits on presidential power can strengthen our constitutional democracy

overall by promoting the robust expression of checks and balances, encouraging collaboration with Congress, or reaffirming individual rights. However, when judicial limits on the president’s power arise over a dispute concerning his own alleged bad conduct, they weaken the presidency for the wrong reasons. In such situations, the president isn’t defending some larger goal in the national interest. Rather, he’s simply using it as a shield to avoid being held accountable for his personal behavior or criminal acts. The most famous example is President Richard Nixon, who claimed executive privilege to avoid providing incriminating information to Watergate special prosecutor Leon Jaworski. The resulting Supreme Court case, U.S. v. Nixon, dealt the presidency a blow by ruling that claims of executive privilege didn’t insulate him from having to turn over records that might have evidentiary value in a criminal proceeding. Similarly, Clinton’s attempt to use the same tactic to keep his aides from testifying before Starr’s grand jury failed, with a court deciding that “personal matters” did not fall within the scope of the privilege. These were the worst kind of cases to test the limits of presidential power, because they weren’t about the role of the presidency, but the individual occupying the office. This makes a difference. When presidents decide to litigate an issue to protect their policy decisions, they are more likely to act judiciously , and with an eye toward compromise , because they can see the larger implications for the legacy of their office. But when presidents are just trying to keep their own bad or illegal conduct from public view—or keep themselves out of jail—they end up placing the power of the presidency at risk unnecessarily, with no real benefits to the other branches, individual rights or the country generally if they lose. They offer courts a way to extend these decision to other contexts in the future, tying the president’s hands in ways we might not want.

It secures broad federal compliance. Grove ’18 (Tara Leigh Grove Professor of Law at William & Mary Law School, “The Power of “So-Called Judges”.” 2018. http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2926&context=facpubs)

THE STRENGTH OF THE NORM AT THE FEDERAL LEVEL Since the civil rights era, federal executive officials have consistently complied with federal court orders .22 One of the most instructive examples is the George W. Bush administration’s obedience in the wake of the September 11 terrorist attacks. The Bush administration made bold claims about the scope of executive authority in the war on terror—leading some scholars to worry that the administration might not obey a judicial order restricting its power.23 Yet when the Supreme Court held that Guantanamo Bay detainees could file federal habeas corpus petitions to challenge their confinement,24 President Bush announced: “We’ll abide by the Court’s decision. That doesn’t mean I have to agree with it.”25 Accordingly, the DOJ has a strong institutional incentive to push the rest of the federal executive branch to abide by federal court judgments. 31 These institutional incentives are bolstered by the culture among the attorneys at the DOJ. These attorneys were trained in a legal community that has long promoted compliance with federal court orders.32 Indeed, it likely does not occur to many lawyers at the DOJ that defiance is a viable, much less legal, option. Furthermore, the President himself may decide that there are political advantages to adhering to adverse federal court orders. Judicial review can, after all, be useful to politicians.33 When a federal court invalidates a controversial measure, politicians can claim credit for the measure—and blame “activist” judges for striking it down—while avoiding much of the political fallout from implementation. Thus, President Trump may have decided that compliance with the travel ban rulings offered the best of both worlds: he could claim credit for (what he describes as) a national security measure, while avoiding at least some of the political fallout.34 There are reasons to believe that

these political and institutional incentives have been working (at least thus far). Despite the President’s rhetoric denouncing specific judicial decisions, the Trump administration has thus far complied with every nationwide injunction against it—on topics ranging from the travel ban, to funding for sanctuary cities,35 to the rescission of the Deferred Action for Childhood Arrivals (DACA) program.36 These examples not only signal the current administration’s acceptance of the convention requiring compliance with federal court orders but also serve to reinforce and solidify that convention going forward. CONCLUSION I do not mean to suggest that we should be sanguine about the future of judicial independence. Rhetoric matters, and President Trump’s attacks on judges understandably sent a chill throughout the legal community. But actions matter, too. And it is crucial that, each time a federal judge has issued a nationwide injunction against the travel ban (and other executive actions), the

Trump administration has quickly complied, promising to challenge the order through the ordinary appellate review process.37 The

compliance of the executive branch—perhaps especially given the President’s strong rhetoric—itself

reinforces the convention. At least for now, it seems, even “so-called judges” have the power to order around the most powerful government in the world.

Enforcement prevents circumvention. Dahlia Lithwick et al, Leon Neyfakh, and Mark Joseph Stern 1-30-17 -- Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus. Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus. Mark Joseph Stern covers courts and the law for Slate. (“Crisis Mode” http://www.slate.com/articles/news_and_politics/jurisprudence/2017/01/what_happens_if_donald_trump_refuses_a_federal_court_order.html) mba-alb

Last week, Donald Trump signed an executive order closing America’s borders to refugees from Syria and suspending entrance by citizens from seven majority-Muslim countries. In subsequent days, federal judges across the country responded to lawsuits stemming from the travel ban by ordering the Department of Homeland Security to immediately stop enforcing various aspects of the executive order .

In New York’s Eastern District, for instance, Judge Ann Donnelly issued an emergency stay blocking the deportation of people who were already in the process of traveling to the U.S. legally when the executive order went into effect. In the Central District of California, Judge Dolly M. Gee demanded the return of an individual who had already been deported as a result of the order. By Sunday, reports started coming out that some federal agents from Customs and Border Protection were disregarding the court orders, and continuing to enforce Trump’s travel ban in a way that violated instructions they’d been given by judges. Virginia Attorney General Mark Herring said in a radio interview Monday that his office was looking into reports that CBP agents at Dulles International Airport were blocking people who had been detained under Trump’s ban from speaking to lawyers, in direct violation of an

order issued Saturday night by Judge Leonie Brinkema in the Eastern District of Virginia. The situation has forced observers to reckon with a question that has little or no precedent in American history: What happens when the federal government or its agents refuse to honor a court order handed down by a federal judge ? By definition, it has to be different from what happens when, say, a state

lawmaker flouts the word of a federal judge, since in the past, such cases have involved the president himself sending in the U.S. Marshals to enforce the law. But who will be on what side if things escalate, and the executive

branch itself explicitly and continuously refuses to follow the rulings of the judiciary? At what point does the conflict turn into a full-blown constitutional crisis? We reached out to a number of eminent constitutional-law scholars and asked them to handicap what will happen next if it appears that the federal government is intent on ignoring the orders of the courts . Most agreed that there is no clear modern precedent for the federal

government deliberately defying a court order, and that if it turns out that is indeed what’s happening, we will be entering uncharted waters. But a few others offered some more specific guidance. “If the reports are true, there are

a couple paths to escalate,” said University of Chicago Law School professor William Baude. Before it gets to that point, though, attempts will have to be made by the judges in question to clarify what they intended with their orders and how exactly officials might be in violation of them. “Most likely,” Baude said, “there will be several rounds of brinksmanship before this rises to the level of a constitutional crisis.” Ari Ezra Waldman, the director of the Innovation Center for Law and Technology at New York Law School, said that if a judge were convinced there was evidence of noncompliance, she could issue a contempt order that imposed certain sanctions on the government. Theoretically, this could take the form of jail time or, less dramatically, fines leveled against individual officials. The process of figuring out who exactly would be held responsible for noncompliance would not be straightforward. “There would be a contempt hearing, and CBP would likely have to produce records of who up the chain of command is directing

them to act,” said Carolyn Shapiro, an associate professor of law and co-director of the Institute on the Supreme Court of the United States at the Illinois Institute of Technology Chicago-Kent College of Law. “If these violations are truly systemic, a judge would want to know who was doing what and where the officers on the ground got those instructions. And those higher-level people could be held in contempt .” According to Doug

Laycock, a professor at the University of Virginia School of Law, the likelihood that we would see fines or jail time even if a contempt order did come down is very slim—in large part because neither the judge, nor the government, has any interest in having the situation devolve to that point. “Judges are much more likely to threaten sanctions than to actually impose them,” Laycock wrote in an email.

What typically happens instead—and it’s worth noting that “typically” here refers to much less fraught circumstances than the ones we face today—is that the judge “tries to keep ramping up the pressure, but tries to avoid reaching the point where he has no choice but to send someone to jail.” That said, there are two special dimensions of the present situation that bear consideration, Laycock added. One is that no one really knows how Trump and his fundamentally unpredictable administration would behave in

response to a judicial contempt order. The other is that the court orders stemming from Trump’s travel ban offer the government “very little wiggle room,” meaning that the dance that usually follows a contempt order would be much more constrained than it usually is. As Laycock put it: “This is not like an injunction to reform a prison or desegregate a school system. Let

lawyers see the people you’re detaining at Dulles Airport has some unambiguous applications.” What

happens if Trump and his people simply decline to back down, even after a judge gives them an opportunity to comply? According to Waldman, that’s when a judge could call the U.S. Marshals in to enforce the order. In the case of Dulles, that could mean pitting U.S. Marshals against armed agents at airports. “This,” Waldman wrote, “is what sets us up for a darker, dangerous turn.” For now, our experts said, a confrontation of that nature is not an eventuality worth worrying about. For one thing, as Shapiro points out, both the court orders

handed down this weekend and any potential contempt orders would be appealable: If the government truly thinks it has grounds to appeal the various court orders they would presumably do so . That is the correct procedure—to appeal the [temporary restraining order] if they believe it’s incorrect—not to just violate it—or if they

believe they cannot comply, which is not plausible here, to ask for a stay pending appeal and only if absolutely necessary violate it—but also appeal. Secondly, there’s a small amount of comfort to be drawn from the fact that for all

his pugnacity and love of crisis, Trump does not yet enjoy total control of the executive branch. “The people currently in contempt are probably career people and Obama Administration holdovers,” said Laycock in his email. “The Trump people mostly aren’t in place yet.”

SV -- AT: Congressional BacklashCongress won’t risk confronting SCOTUS and repeat rulings solve – empirics.Dorf ‘11 (Michael C. Dorf, Robert S. Stevens Professor of Law at Cornell University Law School, Newt Gingrich Is Right That Judicial Supremacy Has Been Challenged Before, but Wrong to Try to Turn Back the Clock, DECEMBER 28, 2011, https://verdict.justia.com/2011/12/28/newt-gingrich-is-right-that-judicial-supremacy-has-been-challenged-before-but-wrong-to-try-to-turn-back-the-clock)

The rubber meets the road for departmentalists when political actors want to take the very action that the courts have already ruled unconstitutional. At that point, departmentalism can undermine judicial independence. To see

why, consider what happens when a state legislature, Congress, or the President attempts to act on a departmentalist view. Suppose that Congress disagrees with a Supreme Court ruling invalidating a law, as Congress disagreed with the 1989 ruling in Texas v. Johnson that the First Amendment’s protection for freedom of speech includes the right to burn an American flag. Congress responded by passing a new law banning flag burning, acting on its different interpretation of the First Amendment. One way we can understand the new federal law is as an effort by Congress to persuade the Court to change its mind . In this instance, the Court accepted the invitation to reconsider but then reaffirmed the Johnson holding in United States v. Eichman. Congress then took no for an answer and stopped enacting statutes that it knew would be struck down . Some members of Congress proposed amending the Constitution to ban flag-burning, but those efforts failed, even after they were repeatedly

renewed. Eventually, the issue died because Congress was not willing to insist on an all-out confrontation with the Court . According to Gingrich, Congress threw in the towel much too early. It could, he says, have summoned the Justices who voted in the majority in Johnson and Eichman to appear before Congress. It could have stripped the courts of jurisdiction to hear constitutional challenges to laws forbidding flag-burning. It could have impeached judges and Justices who did not bow to its will. And, even without impeachment, it could have abolished the judgeships and seats on the Supreme Court that were held by jurists who disagreed with Congress. A Gingrich campaign position paper argues that Congress should not be afraid to use these tools.

Congress complies. Daniel E. Walters 15. Regulation Fellow in the Penn Program on Regulation at the University of Pennsylvania Law School. 2016/2015. “The Judicial Role in Constraining Presidential Nonenforcement Discretion: The Virtues of an APA Approach.” University of Pennsylvania Law Review, vol. 164, pp. 1911–1948.

Another indirect inherent virtue of the possibility of judicial review under the APA is that it creates

incentives for Congress to assume responsibility for specifying the level of enforcement it desires. Under existing case law, it is clear that mandatory language in statutes will ordinarily carry the day in court even when resource allocation concerns are an issue.112 Although Congress may not be entirely aware of how clear this line of cases is,113 and even though Congress may ultimately still prefer to avoid mandatory language for political reasons, the nearly guaranteed judicial review when Congress uses mandatory language, such as "shall enforce" and the like, provides incentives for Congress to be specific in legislation.114 In the end, it seems that APA inaction

review could very well augment the political process controls that scholars such as Andrias, Love, and Garg advocate

for, using newer, untested institutions and processes.11 5 Thus, even if political process controls are the best way to constrain purposive presidential inaction, there is still a good case to be made that courts can reinforce these controls through the use of the APA.

SV -- AT: Court StrippingNo stripping and it doesn’t make the ruling moot. Devins ‘6 [Nel; May 2006; Professor of Law and Government at the College of William and Mary; Minnesota Law Review, “The Future of the Supreme Court: Institutional Reform and Beyond,” p. 1151; RP]

Fourth, jurisdiction-stripping measures do not nullify Supreme Court rulings (or, for that matter, any court ruling).

Consequently, since proponents of court-stripping cannot count on state courts to back their policy agenda,

these bills may not accomplish all that much.131 Accordingly, interest groups may be better off pursuing their substantive agenda through funding bans, constitutional amendments, the enactment of related legislation, and the

appointment of judges and Justices. Court-curbing measures, in contrast, seem more a rhetorical rallying call than

a roadmap for change. That the Roberts Court need not worry about jurisdiction-stripping legislation is important, but ultimately does not answer the question of whether the Court should fear Congress. Congress, after all, can slap the courts down in other

ways.132 Nevertheless, changes in Congress over the past twenty years suggest that the Roberts Court has less

reason to fear Congress than did the Warren or Burger Courts. As detailed in Part II, today's lawmakers are less engaged in constitutional matters and less interested in asserting their prerogative to independently interpret the

Constitution. Correspondingly, lawmakers place relatively more emphasis on expressing their opinions than on

advancing their policy preferences. Consequently, even though the Rehnquist Court invalidated more federal statutes than any other Supreme Court, Congress did not see the Court's federalism revival as a fundamental

challenge to congressional power J33 Lawmakers, instead, preferred to appeal to their base by speaking out on

divisive social issues – launching rhetorical attacks against lower federal courts and state courts.

Congress wouldn’t risk it -- backlash. Devins ‘6 [Nel; May 2006; Professor of Law and Government at the College of William and Mary; Minnesota Law Review, “The Future of the Supreme Court: Institutional Reform and Beyond,” p. 1151; RP]

Indeed, even if the social conservative agenda becomes the dominant agenda in Congress and the White

House, there is good reason to think that elected officials would steer away from jurisdiction-stripping measures. 19 First, median voters have historically backed judicial independence. For example, although most

Americans are disappointed with individual Supreme Court decisions, there is a " reservoir of support " for the power of the Court to independently interpret the Constitution_120 Consequently, even though some

Supreme Court decisions trigger a backlash by those who disagree with the Court's rulings, the American people nonetheless support judicial review and an independent judiciary.t21 Indeed, even President George W. Bush and Senate majority leader Bill

Frist backed "judicial independence" after the federal courts refused to challenge state court factfinding in the

Terri Schiavo case.t22

Lawmakers perceive a cost to themselves. Devins ‘6 [Nel; May 2006; Professor of Law and Government at the College of William and Mary; Minnesota Law Review, “The Future of the Supreme Court: Institutional Reform and Beyond,” p. 1151; RP]

Second, there is an additional cost to lawmakers who want to countermand the courts through coercive

court-curbing measures. Specifically, powerful interest groups sometimes see an independent judiciary as

a way to protect the legislative deals they make .t23 In particular, interest groups who invest in the legislative

process by securing legislation that favors their preferences may be at odds with the current legislature or executive (who

may prefer judicial interpretations that undermine the original intent of the law). Court-curbing measures "that impair the

functioning of the judiciary" are therefore disfavored because they "impose costs on all who use the courts,

including various politically effective groups and indeed the beneficiaries of whatever legislation the current legislature has enacted." 124

Empirics disprove stripping. Devins ‘6 [Nel; May 2006; Professor of Law and Government at the College of William and Mary; Minnesota Law Review, “The Future of the Supreme Court: Institutional Reform and Beyond,” p. 1151; RP]

Professor Devins argues that today's Supreme Court should not worry about upsetting political actors with its

decisions. Unlike the Warren Court era, for example, today's legislators are more focused on appeasing their

constituents , parties, and special-interest groups than on pushing for true change of the Supreme Court. He

argues that Court-curbing proposals are much less likely to succeed today than in the past because legislators

lack genuine interest in real reform . Because the Court and Congress are often in lockstep with respect to their

political views, the Court can be reasonably certain that few institution-altering proposals will actually be enacted into law. Professor Redish and his coauthor, Uma Amuluru, address the constitutionality of the Rules Enabling Act of 1934, which established

the Supreme Court's role in promulgating and amending the Federal Rules of Civil Procedure. Over time, they argue, experience has

demonstrated that it is often impossible to separate substantive issues from the procedural ones in matters of civil adjudication, and that procedural rules can undermine the policy judgments of Congress. Consequently, Redish and Amuluru conclude that the Rules Enabling Act may well constitute an unconstitutional delegation of lawmaking authority to the Supreme Court.

Any attacks will be symbolic. Devins ‘6 [Nel; May 2006; Professor of Law and Government at the College of William and Mary; Minnesota Law Review, “The Future of the Supreme Court: Institutional Reform and Beyond,” p. 1151; RP]

III. THE FUTURE OF JUDICIAL INDEPENDENCE Unlike the Warren era (where a potent coalition of lawmakers was truly upset with

Court decision making), today's Congress is not at all disappointed with Rehnquist Court decision making. Its

anticourt rhetoric, for reasons detailed in Part II, is tied to lawmaker incentives to strengthen ties with their political base .11s Unless and until the goals of social conservatives are also acceptable to majorities in both houses of Congress and the

White House, the current wave of attacks against the judiciary should be seen as symbolic politics.

SV -- AT: Executive BacklashTrump won’t challenge the judiciary. Date 18 [Senior White House Correspondent, HuffPost, Trump’s Claims Of Vast Power Could Be Heading Toward A Supreme Court Showdown, June 5th, https://www.huffingtonpost.com/entry/trump-power-supreme-court-showdown_us_5b16e958e4b09578259c7adc]

Thus far, Trump does not appear ready to directly challenge the power of the judiciary over him ― or at least his most talkative lawyer, former prosecutor Rudolph Giuliani, does not. When discussing a hypothetical subpoena by Mueller demanding that Trump appear before a grand jury, Giuliani said he would seek to quash it in court rather than just ignore it. Mueller would surely go to court to enforce an ignored subpoena, Giuliani said in a recent interview with HuffPost. And the special counsel could have the president held in contempt if Trump’s lawyers lost that dispute. “We want to avoid the argument that the president is operating above the law,” Giuliani said. Multiple legal scholars contend that Trump and his team are already arguing that he is above the law. In a 20-page letter sent to Mueller in January, Trump’s lawyers claimed that the president, as head of the executive branch, has the authority to end any investigation undertaken within that branch as well as to render them moot using his pardon power. Trump has personally expanded on that message in a number of Twitter statements in recent days. “The appointment of the Special Counsel is totally UNCONSTITUTIONAL!” Trump wrote Monday, shortly after tweeting, “I have the absolute right to PARDON myself.” What’s more, given Trump’s demonstrated willingness to ignore established guidelines of behavior in public office, critics worry that he might easily trigger a constitutional crisis if courts started to rule against him. Early last year, Trump said he had recently learned that conflict-of-interest laws did not apply to the president. Since then, he has continued to profit from his hotels and resorts, even from business clearly driven by his presidential position ― despite promises during the campaign that he would separate himself from his private company. What happens when Trump similarly realizes that nothing in the Constitution specifically requires him to accept a Supreme Court ruling he doesn’t like and that the high court’s authority largely flows from a 215-year-old precedent? “I don’t know what he would do,” said one former longtime Trump aide, who spoke on the condition of anonymity. “I just don’t know.” The White House did not respond to HuffPost’s queries about the matter. It was 1803 when Chief Justice John Marshall wrote the opinion giving the court the power it has today in the case of Marbury v. Madison. The Supreme Court ruled that James Madison, the secretary of state, acted illegally but that the law passed by Congress to remedy such situations was unconstitutional. In the process, the court established that it has the power to declare an act of another branch of government unconstitutional ― a precedent that the executive and legislative branches have honored ever since. Turberville has been relieved to see the Trump administration honoring adverse court rulings so far, but she said those decisions have all concerned his policies, such as banning visitors from predominantly Muslim nations. Trump could behave very differently, she said, if the ruling were to involve him personally ― upholding a subpoena requiring him to turn over business records, for example. President Richard Nixon complied with a Supreme Court ruling requiring him to turn over secretly recorded tapes of his White House conversations ― and ended up resigning just two weeks later. “The federal courts don’t have an army. They don’t have a police force to enforce their rulings,” Turberville said. Instead, she said, judges rely on people of good faith ― including officials in the other branches of government ― to honor established norms. “It is in the realm of possibility, hopefully not probability, that this president would seek to upend that. And then it would fall to Congress,” she said. “The only way to head off a constitutional crisis of this nature [would be] for

Congress to impeach him.” Tribe agreed that Congress could not tolerate such behavior by the president. “Even the Republicans in Congress who sit still as Trump gradually violates one constitutional norm after another may well rise up against outright defiance of a Supreme Court order,” he said. Norm Eisen, the top ethics lawyer in President Barack Obama’s White House and now a senior fellow at the Brookings Institution, said that while he’s not as confident as he would like to be that Trump would honor a court order, he does not believe that Giuliani is ready to take on two centuries of Supreme Court precedent. “I don’t think he’s ready to re-litigate Marbury,” Eisen said. For his part, Giuliani told HuffPost that he’s not. The lawyer said Trump could not be prosecuted for any crime while he remained president, even in an extreme hypothetical case such as if he had shot James Comey last year rather than just firing the FBI director. But had that actually happened, Trump would immediately have been impeached, Giuliani said ― and then added the country was lucky not to have had any truly violent presidents to test that theory. “Although, what if Aaron Burr had become president?” Giuliani joked. (Burr was Thomas Jefferson’s vice president in 1804 when he challenged Alexander Hamilton to a duel and killed him.) While Giuliani said that Trump has broad powers under the Constitution, he said the courts do as well. “I think ultimately we all agree that the Supreme Court interprets the Constitution ,” Giuliani said.

Executive agencies follow court decisions – they want to avoid conflict.Wheeler ‘8 (Darren A. Wheeler, Assistant Professor, Dept. of Political Science and Public Admin., The Univ. of North Florida, “ACTOR PREFERENCE AND THE IMPLEMENTATION OF INS v. CHADHA,” 2008, BYU JOURNAL OF PUBLIC LAW, (LEXIS) http://www.lexisnexis.com/lnacui2api/results/docview/docview.do docLinkInd=true&risb=21_T22334277369&format=GNBFI&sort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T22334277373&cisb=22_T22334277372&treeMax=true&treeWidth=0&csi=167225&docNo=3)

A handful of scholars have studied the relationship between courts and administrative agencies in the context of implementing judicial

decisions. n52 It is the duty of the legislative branch to pass laws and the job of the executive branch of government, often via executive agencies, to carry out those laws. Executive branch agencies often do this with a great deal of discretion. n53 Often it is the courts that determine when executive branch agencies have abused this discretion. n54 When courts rule on statutory or constitutional matters relating to executive agency actions, these agencies are expected to comply. n55 Although one might initially think that agencies automatically comply with court decisions, Martin Shapiro warns that "the student of judicial-administrative politics must be prepared for a world of mutual influences rather than sovereign commands." n56 Shapiro notes that courts typically allow agencies to do as they please

and that when they do act they are only one political actor among many. n57 Furthermore, while courts and agencies influence each other, they rarely press their claims in an effort to force confrontation. James Spriggs argues that general absence of executive agency defiance of Supreme Court decisions is a result of the highly interdependent relationship between the two. n58 These actors must deal with each other on a repeated basis, so it is in the interest of both to maintain a non-confrontational relationship . n59 Because of

this desire for inter-branch comity, the study of the relationship between courts and administrative agencies is mostly a study of marginal cases. n60 Despite this generally non-confrontational relationship, tension can result when court opinions run contrary to an agency's mission or goals. n61 As early as 1970, Stephen Wasby hypothesized that "compliance is more a function of norms in affected organizations than it is of Supreme Court rulings." n62 Agency goals and preferences can [*91] color responses to judicial decisions

SV -- AT: No Test CaseCourt can find a test case for anything.Adamany ‘90 [David, Professor @ Wayne State, The American Courts: A Critical Assessment, p. 9]

Since Congress adopted the Judges Bill of 1925, most cases on the appellate and miscellaneous dockets have been by writ of certiorari — a request for the justices to hear cases that they may, but are not required, to hear. Under Supreme Court Rule 17, which gives broad categories of cases that the Court may hear, at least four justices must agree to hear a case before it is considered by the Court. Some cases on the appellate docket have been “appeals by right,” certain cases involving the constitutionality of state or federal laws or state constitutional provisions. By law, the Court was required to hear these cases; but the justices developed broad discretion by rejecting cases that failed to pose

a substantial federal question as defined by the justices. In 1988, Congress revised the law virtually to eliminate appeals by right, thus giving the justices almost complete choice about what cases to decide. With more than 5.000 cases pending annually, the Supreme Court can almost always find a case to raise any policy issue that the justices wish to decide . Chief Justice Earl Warren apparently asked his law clerks to fmd a case on the Court’s docket that would allow the justices to overrule a previous decision holding that there was no right for the poor to have an attorney in every criminal trial. The clerks found such a case, and the Court used it to announce a new constitutional rule guaranteeing the right to counsel (Danelski and Danelski 1989, 508). The Court has sometimes gone to great lengths to find the issue it wants to decide. In the landmark case of Mapp v. Ohio (367 U.S. 617 [1961]), the Court held that illegally seized evidence could not be used in state criminal trials. But the dissenting justices accused the majority of “reaching out” to find that issue in the brief of amicus curiae, because the jurisdictional

statements, briefs, and oral arguments of the parties had all been devoted to First Amendment free speech issues. Where the Court cannot find an issue on its docket, it may order parties to argue an issue that the justices want to consider . Over the strong objection of four justices that the majority was raising “a question not presented” by the parties, five justices ordered the parties in Patterson v. McLean Credit Union (485 U.S. 617 [1988]) to rearue the case to determine whether the Court’s 1976 interpretation of a federal civil rights statute should be reconsidered and changed. The majority pointed out four previous cases within the past twenty years when the Court had also ordered reargument to determine whether an earlier decision should be reconsidered and changed.

2NC Net Benefit

2NC -- Climate ChangeIt causes extinction from oxygen, disease, ice melt, and cognitive failure. McKibben ’19 [Bill; April 9; Schumann Distinguished Scholar at Middlebury College, Fellow of the American Academy of Arts and Sciences; Rolling Stone, “This Is How Human Extinction Could Play Out,” https://www.rollingstone.com/politics/politics-features/bill-mckibben-falter-climate-change-817310/]

Oh, it could get very bad .

In 2015, a study in the Journal of Mathematical Biology pointed out that if the world’s oceans kept warm ing, by 2100 they

might become hot enough to “ stop oxygen production by phyto-plankton by disrupting the process of photosynthesis .” Given that two-thirds of the Earth’s oxygen comes from phytoplankton, that would “likely result in the mass mortality of animals and humans .”

A year later, above the Arctic Circle, in Siberia, a heat wave thawed a reindeer carcass that had been trapped in the permafrost. The exposed body released anthrax into nearby water and soil, infecting two thousand reindeer grazing nearby, and they in turn infected some humans; a

twelve-year-old boy died. As it turns out, permafrost is a “very good preserver of microbes and viruses , because it is cold,

there is no oxygen, and it is dark” — scientists have managed to revive an eight-million-year-old bacterium they found beneath the surface of

a glacier. Researchers believe there are fragments of the Spanish flu virus, smallpox , and bubonic plague buried in Siberia and Alaska.

Or consider this: as ice sheets melt , they take weight off land, and that can trigger earthquakes — seismic activity is already increasing in Greenland and Alaska. Meanwhile, the added weight of the new seawater starts to bend the Earth’s crust. “That will give you a massive increase in volcanic activity. It’ll activate faults to create earthquakes, submarine landslides, tsunamis, the whole lot,” explained the director of University College London’s Hazard Centre. Such a landslide happened in Scandinavia about eight thousand years ago, as the last Ice Age retreated and a Kentucky-size section of Norway’s continental shelf gave way, “plummeting down to the abyssal plain and

creating a series of titanic waves that roared forth with a vengeance,” wiping all signs of life from coastal Norway to Greenland and “drowning the Wales-sized landmass that once connected Britain to the Netherlands, Denmark, and Germany.” When the waves hit the Shetlands, they were sixty-five feet high.

There’s even this: if we keep rais ing carbon dioxide levels, we may not be able to think straight anymore. At a thousand parts per million (which is within the realm of possibility for 2100), human cognitive ability falls 21 percent. “The largest effects were seen for Crisis Response, Information Usage, and Strategy,” a Harvard study reported, which is too bad, as

those skills are what we seem to need most .

Turns all other impacts. Cribb ’17 [Julian; 2017; Principal of Julian Cribb & Associates, Fellow of the Australian Academy of Technological Sciences and Engineering, former Director of National Awareness at the Commonwealth Scientific and Industrial Research Organisation; Surviving the 21st Century, “The Baker,” Ch. 4, p. 91-93; DML]

This event, known as the Palaeocene-Eocene Thermal Maximum or PETM, happened only about ten million years after the dinosaurs were smashed by an asteroid impact. This ‘hyperthermal’ period took place quite suddenly (in geological terms)—in less than 2000

years—and lasted for about 170,000 years before the planet again cooled. The heat spike was accompanied by a major wipe-out of ocean life in particular, though most small land mammals survived. Investigating the records of old marine sediments Zeebe was able to show

there had been a sharp, 70 %, leap in atmospheric CO 2 concentrations at the time. However, he concluded there was only

sufficient carbon available to force the climate to warm by 1–3 °C and that some other mechanism must have been triggered by the

initial warming, which then drove the Earth’s temperature to fever pitch, up by another 4–6 °C (Zeebe et al. 2009). This process

is the ‘ runaway global warming ‘ which now menaces us.

The significance of PETM is that it appears that about the same volume of carbon was dumped by natural processes into the Earth’s

atmosphere and oceans as humans are currently dumping with the burning of fossil fuels and clearing of the

world’s forests—about 3 trillion tonnes in all—and it was this that triggered the hyperthermal surge in planetary heating.

As to the mechanism that could suddenly release a huge amount of extra carbon into the atmosphere and oceans and project global temperatures up by 6–9 °C, the most likely explanation is the one described at

the start of this chapter—the rapid melting and escape of billions of tonnes of frozen methane , CH 4 , currently locked in tundra and seabed sediments. This phenomenon, dubbed the “clathrate gun ” (Kennett et al. 2003), is now linked by scientists not only with the PETM event but also, according to palaeontologist Peter Ward, with the Great Death of the Permian, the worst annihilation in the history of life on Earth (Ward 2008). The significance of the clathrates is that they consist of methane, a gas that is 72 times more powerful than CO 2 as a climate forcing agent in the short run, and 25 times stronger over a century or so. The clathrates could be released by a process known as ‘ ocean overturning ’, a shift in global current patterns caused by moderate warming, which brings warmer water from the surface down into the depths, to melt the deposits of frozen gas. Unlocking several trillion tonnes of methane would cause global temperatures to rocket upwards sharply. Once such a process gets under way, most experts consider, warming will happen so fast it is doubtful if humans could do anything to stop it even if they instantly ceased all burning of fossil fuels.

This ‘ double whammy ’ of global warming caused by humans releasing three trillion tonnes of fossil carbon which then precipitates an uncontrollable second phase driven by the melting of all or part of the five trillion tonnes of natural methane deposits (Buff et &

Archer 2004) is the principal threat to civilisation in the twenty-first century and, combined with nuclear conflict (Chap. 4), to the

survival of the human species .

The IPCC’s fifth report states that the melting of between 37 and 81 % of the world’s tundra permafrost is ‘virtually certain’ adding “There is a high risk of substantial carbon and methane emissions as a result of permafrost thawing ” ((IPCC 2014a), p. 74). This could involve the venting of as much as 920 billion tonnes of carbon. However, the Panel did not venture an estimate for methane emissions from the melting of the far larger seabed clathrates and a number of scientists have publicly criticised the world’s leading climate body for remaining so close-lipped about this mega-threat to human existence. The IPCC’s reticence is thought to be founded on a lack of adequate scientific data to make a pronouncement with confidence—and partly to fear of the mischief which the fossil fuels lobby would make of any premature estimates. However, it critics argue, by the time we know for sure that the Arctic and seabed methane is escaping in large volumes, it will be too late to do anything about it.

The difficulty is that no-one knows how quickly the Earth will heat up, as this depends on something that cannot be scientifically predicted: the

behaviour of the whole human species and the timeliness with which we act. Failure to abolish carbon emissions in time will make a 4–5 °C rise in temperature likely. As to what that may mean, here are some eminent opinions :

• Warming of 5 °C will mean the planet can support fewer than 1 billion people—Hans-Joachim Shellnhuber, Potsdam Institute for Climate Impact Research (Kanter 2009)

• With temperature increases of 4–7 °C billions of people will have to move and there will be very severe conflict—Nicholas Stern, London School of Economics (Kanter 2009)

• Food shortages, refugee crises, flooding of major cities and entire island nations, mass extinction of plants and animals, and a climate so drastically altered it may be dangerous for people to work or play outside during the hottest times of the year—IPCC Fifth Assessment (IPCC 2014b)

• Corn and soybean yields in the US may decrease by 63–82 %—Schlenker and Roberts, Arizona State University (Schlenker & Roberts 2009a)

• Up to 35% of the Earth’s species will be committed to extinction —Chris Thomas, University of Leeds (Thomas et al. 2004)

• Total polar melting combined with thermal expansion could involve sea levels eventually rising by 65 m (180 ft), i.e. to the 20th floor of

tall buildings, drowning most of the world’s coastal cities and displacing a third or more of the human population (Winkelmann et al. 2015)

• Intensified global instability , hunger , poverty and conflict . Food and water shortages , pandemic disease , disputes over refugees and resources , and destruction by natural disasters in regions across the globe—Chuck Hagel, US Secretary for Defence (Hagel 2014)

• “Almost inconceivable challenges as human society struggles to adapt… billions of people forced to relocate.… worsening tensions especially over resources… armed conflict is likely and nuclear war is possible”— Kurt Campbell, Center for Strategic and International Studies (Campell et al. 2007).

• “Unless we get control of (global warming), it will mean our extinction eventually”—Helen Berry, Canberra University (Snow & Hannam 2014).

2NC -- Climate Change -- AT: DefenseDefense is wrong -- it’s existential. Ng ’19 [Yew-Kwang; May 2019; Professor of Economics at Nanyang Technology University, Fellow of the Academy of Social Sciences in Australia and Member of the Advisory Board at the Global Priorities Institute at Oxford University, Ph.D. in Economics from Sydney University; Global Policy, “Keynote: Global Extinction and Animal Welfare: Two Priorities for Effective Altruism,” vol. 10, no. 2, p. 258-266; RP]

Catastrophic climate change

Though by no means certain, CCC causing global extinction is possible due to interrelated factors of non‐ linearity , cascading effects , positive feedbacks , multiplicative factors , critical thresholds and tipping points (e.g. Barnosky and Hadly, 2016; Belaia et al., 2017; Buldyrev et al., 2010; Grainger, 2017; Hansen and Sato, 2012; IPCC 2014; Kareiva and Carranza, 2018; Osmond and Klausmeier, 2017; Rothman, 2017; Schuur et al., 2015; Sims and Finnoff, 2016; Van Aalst, 2006).7

A possibly imminent tipping point could be in the form of ‘an abrupt ice sheet collapse [that] could cause a

rapid sea level rise’ (Baum et al., 2011, p. 399). There are many avenues for positive feedback in global warming, including:

the replacement of an ice sea by a liquid ocean surface from melting reduces the reflection and increases

the absorption of sunlight, leading to faster warming ;

the drying of forests from warming increases forest fires and the release of more carbon ; and

higher ocean temperatures may lead to the release of methane trapped under the ocean floor, producing

runaway global warming .

Though there are also avenues for negative feedback, the scientific consensus is for an overall net positive feedback (Roe and Baker, 2007).

Thus, the Global Challenges Foundation (2017, p. 25) concludes, ‘The world is currently completely unprepared to envisage, and even less deal with, the consequences of CCC’.

The threat of sea level rising‐ from global warming is well known, but there are also other likely and more

imminent threats to the survivability of mankind and other living things. For example, Sherwood and Huber (2010)

emphasize the adaptability limit to climate change due to heat stress from high environmental wet bulb ‐

temperature. They show that ‘even modest global warming could … expose large fractions of the [world] population to unprecedented heat stress’ p. 9552 and that with substantial global warming, ‘the area of land

rendered uninhabitable by heat stress would dwarf that affected by rising sea level’ p. 9555, making extinction

much more likely and the relatively moderate damages estimated by most integrated assessment models unreliably low .

While imminent extinction is very unlikely and may not come for a long time even under business as usual, the main point is that we cannot rule it out. Annan and Hargreaves (2011, pp. 434–435) may be right that there is ‘an upper 95 per cent probability limit for S [temperature

increase] … to lie close to 4°C, and certainly well below 6°C’. However, probabilities of 5 per cent, 0.5 per cent, 0.05 per cent or even 0.005 per cent of excessive warming and the resulting extinction probabilities cannot be ruled

out and are unacceptable . Even if there is only a 1 per cent probability that there is a time bomb in

the airplane, you probably want to change your flight. Extinction of the whole world is more important to avoid by literally a trillion times .

2NC -- Climate Change -- AT: InevitableAction mitigates the worst impact, every degree matters, and there’s no such thing as “irreversible” loops. Goodstein ’19 [Eban; June 2019; Director of the Center for Environmental Policy and the MBA Program in Sustainability at Bard College, Ph.D. in Economics from the University of Michigan, B.A. in Geology from Williams College; Lead The Change, “Too Late to Stop Global Warming? A Response to Franzen,” https://leadthechange.bard.edu/blog/too-late-to-stop-global-warming-a-response-to-franzen]

So do we need to look Greta Thunberg and our other children in the eyes and say, sorry, but you need to be realistic? That a transition to a 100% clean energy economy is just not going to happen fast enough? That the global economy

will soon collapse and billions of people will be homeless? Tell them, forget aggressive measures to cut emissions like the

Green New Deal, focus instead on social adaptation?

No .

Climate despair is gaining dangerous traction among people who understand the profound moment in which we are living.

But Franzen is wrong on the science , wrong on the impacts of two degree warming, and wrong on what it will take to stabilize the

climate. And this is precisely the wrong historical moment to abandon belief in a finer future. Climate solutions are now cheaper then fossil fuels, and getting cheaper . People are embracing programs and initiatives around environmental education. It

lies within our grasp to rewire the world with clean energy. Doing so in the next decade will deeply impact the lives not only of our children and grandchildren, but indeed, every human being and living creature who will walk the face of the planet, from now until the end of time.

Is it too Late to Stop Global Warming?

NASA scientist Jim Hansen introduced the “too late” language about climate change in 2005, arguing that “We have to stabilize emissions of carbon dioxide within a decade, or temperatures will warm by more than one degree [C].” We did not, and his prediction is now reality. Hansen also warned fifteen years ago, “we don’t have much time left”.

Last year, the IPCC set another guide-post. Holding temperatures to 1.5 degrees Celsius will require a clean energy transition to be far advanced

by 2030. And to keep temperatures to 2 degrees Celsius we have until 2050 to largely decarbonize the global economy. When scientists say “too late” on climate change, what they mean simply is that we have foreclose d any likelihood of staying

within a particular global warming temperature target .

If governments take no serious action at all in the coming few decades, then we are likely to wind up at between 3 and 5 degrees Celsius of heating. To put that last number in perspective, during the last Ice Age, when my hometown in New York

state was covered by hundreds of meters of ice, the world was only 5 degrees Celsius colder than it is now. Unchecked we are on track for

a warming that could easily hit Ice Age magnitude , only in the opposite direction , within the lifetime of my students.

So we do have a choice . Our action , or our inaction , will determine how much the world heats up . As

detailed below, it is absolutely not too late , and will not be for decades . We have to fight and win a war now

for clean energy, acting aggressively to hold global warming to the low end . A world that is 2 degrees hotter will be much, much better than one that is 3, 4 or 5. Every tenth of a degree will matter for our kids and grandkids.

No Runaway Greenhouse at 2 Degrees

So how can Franzen and others possibly say we should admit defeat? His main argument is that this possibility of

holding future heating to a range, from 2 to 5 degrees, does not really exist. Instead, we are already headed across a tipping point :

“Our atmosphere and oceans can absorb only so much heat before climate change, intensified by various feedback loops , spins

completely out of control. The consensus among scientists and policy-makers is that we’ll pass this point of no return if the global mean temperature rises by more than two degrees Celsius (maybe a little more, but also maybe a little less)… In the long run, it probably makes no difference how badly we overshoot two degrees; once the point of no return is passed, the world will become self-transforming.”

Here are the key lines: “The consensus among scientists and policy makers” is that above 2 degrees Celsius or a little more, the climate “spins

completely out of control”. This is just wrong , and Franzen provides no evidence to back up this extraordinary claim. Yes, positive feedback loops like widespread, fire-driven deforestation or massive methane releases could collectively drive the planetary

temperature upwards in an ever less controllable spiral. These are possibilities, risks we need to reduce. Indeed, the risks get higher the

more global warming pollution we emit, yet another critical reason to aggressively reduce it now. But I know of no scientific source — let alone a “consensus” —maintaining that such a “self-transforming” runaway greenhouse

scenario is inevitable or that it will be triggered at close to 2 degrees Celsius. Without this assertion,

Franzen’s “too late” argument falls apart . Four degrees will be far worse then three, which will be far

worse then two. So we have to fight like hell today for two or better .

2NC -- Climate Change -- AT: No SpilloverIt spurs legislative follow-on. Schiraldi ’11 [Michael; 2011; J.D. candidate at Villanova University; Villanova Environmental Law Journal, “Rising Temperatures, Political Questions, and Public Nuisances: The Second Circuit Weighs in on the Climate Change Debate in Connecticut v. American Electric Power Co.” No. 22]

Nevertheless, American Electric could provide a significant spur to comprehensive federal legislation regulating GHGs, particularly if more circuits choose to adopt the Second Circuit's political question analysis.

246 The threat of liability for carbon emissions through adverse federal district court decisions could

provide power and energy companies with a strong incentive to lobby Congress to enact a more uniform and predictable statute regulating GHG emissions.247 These industries have been instrumental in

obstructing the passage of climate change legislation through an intensive lobbying and public relations campaign.

A change in their cost-benefit analysis regarding carbon emissions regulation could substantially improve the chances that such legislation will be enacted.248

Even if lawsuits are ineffective, the perception of success creates deterrence. Abelkop ’14 [Adam; revised March 15; Doctoral Student in the School of Public and Environmental Affairs at Indiana University, J.D. from the University of Iowa; Social Science Research Network, “Tort Law as an Environmental Policy Instrument,” p. 391-392; RP]

Thus, micro-economic theories of tort law generally recognize the two primary functions of the liability establishment as

optimal deterrence of risky activity and corrective justice through compensation .44 Some scholars characterize these as “competing theories”45 and situate scholars into “camps.”46 Law and economics scholars as well as Progressive Realist

scholars emphasize the deterrence theory of tort law—that tort law is a public policy instrument that can be used to spread losses , compensate victims, and reach the efficient balance between risky activity and precautionary measures. 47 An opposing group of notable scholars maintains that tort law is primarily private law intended to provide victims of wrongful injury a means of redress.48 Ernest Weinrib, for example, rejects the deterrence theory on the basis that a plaintiff only has a cause of action for actual injuries suffered at the fault of the defendant, not risks taken by the defendant.49

The dominant position , however, seems to be the instrumentalist view, which emphasizes the general

deterrent effects of liability as public law.50 Actually, the classic response to Weinrib’s objection is to distinguish general from specific deterrence51—a distinction that originates in Guido Calabresi’s seminal work, The Cost of Accidents. 52 Specific deterrence refers to the extent that a sanction for a discouraged or prohibited activity deters future infractions by the defendant herself.53 The theory of general

deterrence, on the other hand, posits that sanctions exacted against one firm will generate “ spillover effects ” that encourage other similar companies to take precautionary measures in order to avoid

being sanctioned themselves.54 Liability standards, therefore, may reduce risks taken by firms even if those firms are never sued . Empirical literature on the effectiveness of tort law as a general deterrence mechanism is sparse, and much of the deterrence literature evaluates the effects of regulatory enforcement actions.55 The following subsections discuss the theoretical regulatory effects of the primary legal theories of liability.

Litigation alone causes market follow-on. Peel and Osofsky ’15 [Jacqueline and Hari; 2015; Professor of Law at the University of Melbourne, L.L.M. from New York University; Professor of Law at the University of Minnesota, J.D. from Yale University; Cambridge University Press, “Climate Change Litigation,” p. 51; RP]

The indirect pathways associated with changing norms and increasing costs often interact, as

worries about litigation and rising costs influence business norms. For example, lawsuits may provide

incentives for corporate actors to adopt more climate-friendly practices, whether to minimize the

potential for litigation against them or to avoid reputational damage to their business. Even for an energy company that is

not “in the crosshairs of the lawsuit or the litigation,” the necessity to report the occurrence of greenhouse -related

litigation to shareholders could provide a motivation for the adoption of cleaner energy strategies.

Discussing litigation risk and the link to cleaner energy profiles that could allow businesses to avoid

future litigation, a private attorney interviewed for the book described the effect as follows:

I don’t think it gets expressed in the actual statements issued to shareholders but it might be that, “while these lawsuits have targeted traditionally fossil-fuelled energy companies, because of our clean generating profile, we do not anticipate significant impacts associated with this litigation.” And basically what you’re saying is, no, we’re not in their crosshairs, we’re clean, we’ve made the right investment decisions.

In the private sector sphere, this effect may be augmented by the activities of attorneys and legal professional

organizations.85 Through the advice they provide to commercial clients, coupled with their generally risk-averse attitude, these practitioners and groups can play a substantial role in shaping the perception of and response to climate change litigation by other actors. In the same way, environmental groups are key communicators and mediators of the

effects of court decisions in the public sphere.86 Climate change litigation is often used by NGOs in conjunction with more

traditional campaigning techniques to raise the public profile of climate change, generate community

interest in action, and put pressure on businesses to alter “dirty” energy practices.

It overcomes polarization and causes industries and agencies alike to desire regulation. Kaswan ‘7 [Alice; December 3; Professor of Law at the University of San Francisco; USF Law Research Paper, “The Domestic Response to Global Climate Change: What Role for Federal, State, and Litigation Initiatives?” p. 100; RP]

Defenders of the common law also assert that the common law can be more responsive to changes in society that require new approaches .322 While legislatures are locked in political paralysis , the courts must respond to the cases before them. Although the principle of stare decisis is a guiding force, the courts nonetheless have the

power to evolve incrementally .323 Moreover, the doctrines are often flexible enough to respond to

changing circumstances without changing the doctrines themselves . To take nuisance law , for example,

the concept of what types of actions are “unreasonable” is capable of evolving as society evolves , without

requiring a fundamental doctrinal shift, and without requiring all of the necessary political stars to align .

Even if common law actions are not ideal, the ability of litigants to bring them might prompt an otherwise paralyzed legislature or administrative agency into action.324 Professor Kristen Engel has argued that common law

actions, particularly against out-of-state defendants, could trigger political pressure for a federal legislative response that would displace the common law actions.325 Industries that might otherwise oppose regulation might be more willing to support a legislative program if the alternative is piecemeal and unpredictable common law actions.326

2NC -- DemocracyDemocracy solves war. Reiter ’17 [Dan; January 2017; Professor at the Department of Political Science at Emory University, Ph.D. from the University of Michigan; Oxford Research Encyclopedia of Politics, “Is Democracy a Cause of Peace?” p. 11-12; RP]

This is not to take a maximalist position that quasi-experiments add nothing, or that adding variables is never advised. It does suggest, however, considering other means of assessing causation, in addition to the conventional approach of seeing if adding plausible exogenous variables renders the democracy-peace correlation to be statistically

insignificant. Scholars have explored other means of assessing causation in the democratic peace, and have

amassed three other types of evidence that support the conclusion that democracy causes peace : evidence demonstrating support for other empirical patterns suggested by democratic peace theory; evidence

produced using experimental methods; and evidence produced using case studies . The first type of evidence explores for the existence of other empirical patterns predicted by democratic peace theory. If a theory predicts the

existence of a variety of empirical patterns and these patterns are demonstrated through tests, we can be more

confident in the validity of the theory, and in turn that observed correlations are causal and not just

spurious. And, indeed, there is a wide array of quantitative empirical studies that provide support for various

assumptions or implications of democratic peace theory, especially for institutionalist accounts of the democratic

peace. Perhaps the central institutionalist explanation of the democratic peace proposes that elected leaders are motivated to avoid fighting wars, because the costs of wars will incite popular discontent in turn

threatening their hold on power. Studies have demonstrated a number of empirical patterns consistent with this view. Democracies fight shorter wars (Reiter & Stam, 2002, ch. 7). Democracies suffer fewer casualties when they fight

wars (Valentino et al., 2010), and when they fight, popular support for the leadership declines as casualties escalate (Mueller, 1973). The benefits of victorious wars may sometimes push democratic publics to accept the costs of war when they are confident of

victory, and accordingly democracies almost never start wars they go on to lose (Reiter & Stam, 2002). During war,

public support erodes as the perceived likelihood of victory declines (Gelpi et al., 2009). As the institutional explanation of

the democratic peace would predict, variations of institutional and leadership form within democracies also affects conflict behavior, as in general more constrained states are less conflict prone (Reiter & Tillman, 2002). Consistent with

the audience costs explanation, democracies can more effectively signal their resolve than at least some kinds of

autocratic states (Schultz, 2001; Weeks, 2014). There are also some studies supporting elements of the normative explanation. For example, some studies have found that democracies are especially likely to use mediation or binding arbitration to resolve interstate disputes (Dixon, 1993; Raymond, 1994, 1996). In total, though there are certainly

scholarly debates about some of these observed patterns,6 this collection of studies improves our confidence that democracy is causing peace in the manners described by democratic peace theory. The second type of evidence uses experimental methods . Some have proposed that experimental methods enjoy critical advantages over the analysis of

observational data in assessing causation. Experimental methods are able largely to skirt some of the biggest causal inference problems associated with quasi-experimental methods, such as biased samples and nonrandom assignments of treatment. That said, the limitation of experimental methods is that, especially in international relations, they can only be used to test some arguments, or some components of arguments. For example, regarding the democratic peace an experimenter cannot take a

set of states and then randomly assign some to be democratic and others to be non-democratic. That said, scholars have thus far been

able to conduct survey and laboratory experiments that have tested some elements of the democratic peace.

A number of surveys have found support for one of the core assertions of dyadic democratic peace

theory: that citizens of democracies are significantly less likely to support the use of force against democracies as compared to using force against non-democracies (Geva et al., 1993; Johns & Davies 2012; Lacina & Lee, 2013; Mintz & Nehemia, 1993; Rousseau, 2005, pp. 219–232; Tomz & Weeks, 2013) Other experiments have tested elements of the audience costs variant of the democratic peace, showing that the public does inflict audience costs on leaders who back down in a crisis (Horowitz &

Levendusky, 2012; Tomz, 2007; Trager & Vavreck, 2011). A third empirical means of demonstrating causation is to

engage in process tracing through case studies. Scholars have presented several individual case studies of the democratic peace in events such as 19th-century American diplomatic crises, the 1898 Fashoda Crisis, the onset

of World War II, the Spanish-American War, and many others (see Elman, 1997; Owen, 1997; Ray, 1995; Risse-Kappen,

1995; Rousseau, 2005; Schultz, 2001; for case studies presenting evidence against the democratic peace, see Layne, 1994). Some of these

case studies demonstrate specific parts of the causal logic of the democratic peace, such as the ability of democracies

to signal more effectively through invoking greater audience costs (Schultz, 2001), or the inability of elected leaders to manipulate public opinion or secretly drag their nations into wars the public would otherwise avoid

(Reiter, 2012A). Perhaps the most striking case study of democratic peace dynamics is the pacification of Western Europe after World War II, democracy helping to dissolve immediately and completely one of the most violent

interstate conflicts in modern history, the France-Germany rivalry (Russett & Oneal, 2001).

Autocracy causes it. Corr ’17 [Anders; May 21; Ph.D. in Government from Harvard University, M.A. in International Relations from Yale University; Forbes, “The New Cold War: Democracy Vs. Autocracy,” https://www.forbes.com/sites/anderscorr/2017/05/21/the-new-cold-war-democracy-vs-autocracy/#70d6b68a2fcd; RP]

Over the past 8 days, North Korea successfully tested two nuclear -capable missiles, making a mockery of President Trump's tough approach on North Korea. He has meanwhile opened his arms of friendship to Russia and China, the biggest global threats to democracy. His public excuse is the need to work with Russia on terrorism, and with China on North Korea. That help has not materialized, which will be a test of Trump's mettle. If he fails to take action

against North Korea, and leaves his many concessions to China in place, he got played. The North Korean launches are the latest in decades

of events that show an animosity of authoritarian rulers toward democracies . Shortly after the Soviet Union disintegrated in the 1990s, many U.S. analysts saw democracy and liberalism as triumphant over autocracy, and even presaged the “end of

history.” Russia and China were proceeding toward market liberalization and democratization. The democratic peace would soon take hold and the world would evolve in a utopic manner, they thought. But that

dream now seems far-flung, with low-grade Russian and Chinese offensives in Eastern Europe and Asia respectively. These offensives are calibrated in such a manner as to make territorial gains , while not provoking a military response. They utilize alliances with Iran and North Korea to encourage rogue state action that distracts global public attention from Chinese and Russian territorial offenses. Conversely, the United

States, Japan, South Korea, Australia, the European Union and others are in a relatively loose alliance based on the

common values of democracy, human rights, and freedom of speech. But the alliance is divided by the strong democratic desire for peace, and domestic elites with individual incentives to value trade and investment over the defense of values like democracy. It is subject to free riding, which President Trump has successfully pushed, including at an

upcoming meeting in Brussels on May 25. What could be called an autocratic bloc is provoking, through territorial

expansion and destabilizing nuclear development , an interrelated set of conflicts developing in the

direction of a New Cold War between auto cracies on one side, and democracies on the other. As with the old Cold War, the locus of the conflict is everywhere, including the South China Sea , East China Sea , North Korean and

Iranian nuclear and ballistic missile development , the Russian occupation of Crimea in Ukraine, Russia’s

attempt to reclaim influence in the former Soviet Union, including through occupation of part of Georgia, China’s attempt to push the U.S. out of Asia and claim it as a sphere of influence, the Arctic , space, undersea exploration, and Russian

and Chinese attempts to influence politicians and even voting outcomes in democratic countries. To institutionalize its growing power and leadership of autocratic countries, and many democratic hangers-on, China attempts to reform global governance not through democratization that might help countries like Japan, India, Brazil and Germany to positions of greater influence in places like the U.N. Security Council, but to uniquely reflect and

accommodate China’s own growing economic and military power. Democracies are being challenged worldwide by this autocratic bloc. If democracies do not have a clear-eyed understanding of the threat, and a grand

strategy to defeat or at least deflect the challenge, democracies will be weakened in such a way as to make future challenges even more difficult to overcome. The outcomes of the challenges that democracies face today will determine future

outcomes, in a process that is increasingly path dependent. Nowhere are the challenges and path dependence

greater than in defending democratic voting processes from autocratic influence, and in defending front-line democratic territory in places like Eastern Europe, the East China Sea, the South China Sea, the Himalayas, and Taiwan . Decisions on defensive actions or inactions by allied democracies on these fields of economic, diplomatic, and military battle

will profoundly affect the future of democracy, peace, and stability for decades , if not centuries, to come. Positive outcomes will require not just grand strategies by major powers, but comprehensive citizen involvement by people of many nations who care about a future that is democratic and at peace.

2NC -- Democracy -- AT: DefenseAmerican devolution into authoritarianism causes extinction. Orts ’18 [Eric; June 27; Guardsmark Professor in the Wharton School at the University of Pennsylvania; LinkedIn Pulse, “Foreign Affairs: Six Future Scenarios (and a Seventh),” https://www.linkedin.com/pulse/foreign-affairs-six-future-scenarios-seventh-eric-orts]

7. Fascist Nationalism. There is another possible future that the Foreign Affairs scenarios do not contemplate, and it’s a dark world

in which Trump, Putin, Xi, Erdogan, and others construct regimes that are authoritarian and nationalist . Fascism is possible in the United States and elsewhere if big business can be seduced by promises of riches in return for the institutional keys to

democracy. Perhaps Foreign Affairs editors are right to leave this dark world out, for it would be very dark: nationalist wars with risks of escalation into global nuclear conflict , further digital militarization (even Terminator- style scenarios of smart military robots ), and unchecked climate disasters .

The global challenges are quite large – and the six pieces do an outstanding job of presenting them. One must remain optimistic and engaged, hopeful that we can overcome the serious dangers of tribalism, nationalism, and new fascism. These "isms” of our time stand in the way of solving some of our biggest global problems, such as the

risks of thermonuclear war and global climate catastrophe .

2NC -- Democracy -- AT: No SpilloverEnforcing due process strictly spills over to reinvigorate the doctrine. Jackson ’11 (Jeffrey; January 2011; J.D. from Washburn University School of Law, LL.M. in Constitutional Law from Georgetown University Law Center, B.A. in Economics from Washburn University, Professor of Law at Washburn University; University of Richmond Law Review, Vol. 45, “PUTTING RATIONALITY BACK INTO THE RATIONAL BASIS TEST: SAVING SUBSTANTIVE DUE PROCESS AND REDEEMING THE PROMISE OF THE NINTH AMENDMENT,” http://lawreview.richmond.edu/files/2011/01/Jackson-452.pdf)

VI. CONCLUSION The Ninth Amendment requires that the rights "retained by the people" not be denied or disparaged." n331 The Supreme Court of the United States has chosen, for good or ill, to use substantive due process to protect those rights. While the

historical basis for doing so might be open for debate, the reality is an established fact. However, substantive due process, as

currently interpreted by the courts, is broken . Although the Supreme Court of the United States still professes to adhere to the

concepts of tiered scrutiny as set forth in Glucksberg, this adherence is one of convenience , and is abandoned in hard cases. While this is less of a problem for the Supreme Court, it is a problem of great concern for the lower courts, who

continue to attempt to faithfully apply Glucksberg. It is also a problem for the legitimacy of substantive due process as a

judicial doctrine, as a test with standards that are ignored at whim leaves the impression that there are really

no standards at all . The problem is the current interpretation of tiered scrutiny, [*548] which is based on a

strict scrutiny standard for fundamental rights that is very difficult to overcome, and a rational basis standard for

nonfundamental rights that is almost impossible to fail . It forces courts to face the prospect of classifying a right as fundamental, and thus taking it "outside the arena of public debate and legislative action," or applying a rational basis standard akin to no review at all. Under such circumstances, lower courts, who cannot creatively interpret their way around the test, too often fail to protect rights. While there are no shortage of opinions on ways to fix

substantive due process, from abandoning substantive due process in favor of a privileges or immunities analysis, to applying a

"presumption of liberty," to importing heightened scrutiny from equal protection analysis, all of these suffer from the same problem - there is little chance that the Court will abandon its current due process formulation, at least publicly.

There is another solution, however, that could be adopted by the Court with little change to the established

constitutional order. By adopting a stricter formulation of the rational basis test requiring that the law truly bear a

reasonable relation to its actual purpose, the all-or-nothing tendencies of the current test can be ameliorated, and rights can be protected to a greater extent than is possible under the current formulation. The use of a strengthened rational basis test would reduce pressure on courts in hard cases, and would further the legitimacy of substantive due process. Further, such a change could easily be accomplished without the necessity of

overhauling substantive due process and endangering the protection of those rights which have already been deemed fundamental. Rights are important. However, their protection is only as strong as the legitimacy of the doctrine that protects them. Applying Cleburne-style rational basis with teeth in place of the current rational basis standard yields a

standard that is actually useful, even in hard cases, which contributes to the legitimacy of substantive due process as a whole , and helps redeem the promise of the Ninth Amendment that the rights "retained by the people" will not be disparaged.

2NC -- RacismFailure to strengthen reasonable suspicion unleashes a wave of discrimination. Nance ’17 (Jason; 2017; Associate Professor of Law at the University of Florida Levin College of Law, Ph.D. and M.A. in Educational Administration from Ohio State University, J.D. from the University of Pennsylvania Law School; University of Florida Levin College of Law Scholarship Repository, “Student Surveillance, Racial Inequalities, and Implicit Racial Bias,” https://scholarship.law.ufl.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1793&amp;context=facultypub; RP)

A. The U.S. Supreme Court Has Weakened Students’ Fourth Amendment Rights An important driving force behind the proliferation of intense surveillance measures in schools is the decline of students’ Fourth Amendment rights . Over the last three decades, the U.S. Supreme Court has rendered a series of decisions that provided school officials with more discretion to promote orderly, safe environments.41 For example, the Court has held that school officials do not need to obtain a search warrant , meet the probable cause standard, or have an individualized suspicion that a student is involved in illicit activity before conducting a search.42 These decisions allow school

officials to legally create intense surveillance environments in their schools, even when those environments may not serve

students’ best interests.43 They also allow school officials to provide evidence of wrongdoing to prosecutors that they

obtained from searching students under circumstances that might have rendered that evidence inadmissible if it had been obtained under similar circumstances outside of the school context.44 The Court addressed students’ Fourth Amendment rights in schools for the first time in New Jersey v. T.L.O.45 There, after a teacher spotted two students smoking in the bathroom, the teacher promptly escorted the students to the principal’s office.46 T.L.O.’s companion admitted to a school official that she had been smoking, but T.L.O. denied the allegations.47 The school official demanded that T.L.O. hand over her purse and, after T.L.O. complied, the school official searched through its contents and uncovered a package of cigarettes, a small amount of marijuana, a substantial amount of one-dollar bills, a list of students who owed money to T.L.O, and two letters indicating that T.L.O. was dealing marijuana.48 When the state of New Jersey brought juvenile delinquency charges against T.L.O., T.L.O. moved to suppress the evidence the school official obtained, claiming that it resulted from an

unlawful search.49 After determining that students do indeed hold Fourth Amendment rights in schools,50 the Court concluded that the school official’s search complied with the Fourth Amendment.51 Although the Court acknowledged students’ legitimate expectations of privacy in the belongings they bring to school and in their persons,52 the Court held that these expectations of privacy must be balanced against educators’ need to maintain order and discipline

so that learning can take place.53 Accordingly, it held that school officials do not need to obtain a warrant before searching

a student.54 It further held that a school official’s suspicion of student wrongdoing does not need to rise to the level

of probable cause before she can conduct a search.55 Rather, a court should determine whether a search was reasonable under

the circumstances by applying a twofold inquiry: (1) “whether the . . . action was justified at its inception,” and (2) whether the search “was reasonably related in scope to the circumstances which justified the interference in the first

place.”56 The next U.S. Supreme Court decision to evaluate students’ Fourth Amendment rights, Vernonia School District 47J v. Acton, 57 involved a very different set of circumstances. Rather than examining the constitutionality of a search performed on an individual student, it

examined the legality of a school district’s random, suspicionless drug-testing program on students participating in interscholastic

sports programs.58 In a 6–3 decision authored by Justice Scalia, the Court declined to hold that individualized suspicion was essential to conduct a lawful search.59 Rather, the Court held that it must balance a search’s “intrusion on the

individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”60 It then set forth the following three factors for courts to consider: (1) “the scope of the legitimate expectation of privacy at issue;” (2) “the character of the intrusion that is complained of;” and (3) “the nature and immediacy of the governmental concern at issue . . . and the efficacy of this means for

meeting it.”61 Evaluating each of these factors, the Court first acknowledged that students retain an expectation of privacy

while at school, but explained that the scope of their Fourth Amendment rights is “different in public schools than elsewhere” because of “the schools’ custodial and tutelary responsibility for children.”62 The Court reasoned that because

students must submit to various physical examinations, including vision, hearing, dental, dermatological, and scoliosis

screenings, their expectations of privacy in schools, “[p]articularly with regard to medical examinations and procedures,” are reduced.63 Second, the Court concluded that the drug tests were minimally intrusive because drug testing resembled conditions that students often face when using public restrooms; their purpose was limited only to ascertain whether a student athlete was using drugs, and the test results were disclosed only to a limited number of school officials, not law enforcement officers.64 Third, the Court

concluded that the school district’s interest in deterring student drug use, especially among student athletes, was important in light of drugs’ physical, psychological, and addictive effects.65 The Court also concluded that the school district’s concern was immediate because “a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion . . . [which] was being fueled by

alcohol and drug abuse.”66 Thus, according to the Court, these considerations outweighed any privacy rights those students possessed.67 Seven years later, in Board of Education v. Earls, the Court again evaluated the constitutionality of a random, suspicionless drug-testing program.68 This drug-testing program, however, was broader than the drug-testing program in Acton because it

involved all students participating in extracurricular activities, not just those involved in student athletics.69 The United States Court of Appeals for the Tenth Circuit determined that the school district’s random, suspicionless drug-testing policy violated the Fourth Amendmen t because the school district had not demonstrated that there was an identifiable drug abuse problem among

students who participated in extracurricular activities.70 The U.S. Supreme Court, however, reversed the Tenth Circuit in a 5–4 decision authored by Justice Thomas.71 The Court evaluated the three factors outlined in Acton and largely reached the same conclusions.72

However, the Court’s holding was broader than its holding in Acton. While the Court noted that the school district “presented specific evidence of drug use,”73 it also held that it was unnecessary for the school district to provide evidence of a drug abuse problem before

imposing a suspicionless drug-testing policy.74 The Court reasoned that the school district’s program complied with Fourth

Amendment jurisprudence because “the nationwide drug epidemic makes the war against drugs a pressing

concern in every school.” 75 These decisions have paved the way for school officials to legally employ an array of search practices , including performing random, suspicionless searches of students in forms other than random

drug tests.76 For example, based on this precedent, lower courts have justified the use of metal detectors in schools77 and searching through students’ lockers.78 Moreover, there are no protections against school officials’ use of a combination of security measures , such as relying on metal detectors, random sweeps, locked gates, law enforcement officers, and surveillance cameras together, even when their combined use may create an intense, prison-like environment that arguably is highly-intrusive, undignified, and inconsistent with a healthy learning atmosphere.79

It codifies discrimination, systemic racism, and poverty -- outweighs. Nance ’17 (Jason; 2017; Associate Professor of Law at the University of Florida Levin College of Law, Ph.D. and M.A. in Educational Administration from Ohio State University, J.D. from the University of Pennsylvania Law School; University of Florida Levin College of Law Scholarship Repository, “Student Surveillance, Racial Inequalities, and Implicit Racial Bias,” https://scholarship.law.ufl.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1793&amp;context=facultypub; RP)

II. EDUCATIONAL AND SOCIOLOGICAL HARMS OF STRICT SECURITY MEASURES Few maintain that relying on strict security measures is ideal, but many will argue that our children’s safety is paramount and overrides any concerns the use of these measures creates.108 No one can credibly argue that creating safe school environments is unimportant.109 But a difficult truth we must all accept is that it is impossible to protect all students at all times and in all places, including while they are at school.110 Further, as explained above, highly publicized acts of school violence often distort our perceptions of the realities of school safety.111 In contrast to these perceptions, empirical data suggest that schools are among the safest places for children to be.112 Obviously there are some schools that experience serious safety and disciplinary concerns that school officials must address, and perhaps it may be appropriate to implement tighter security measures under certain circumstances.

However, over-reliance on punitive, intense surveillance measures to create safe and orderly schools is inconsistent with sound educational and sociological policy and science that suggest otherwise, especially when schools serving primarily minority students are more inclined to apply such measures.113 Indeed, over-reliance on such

measures is particularly troublesome because school officials can better promote safe and orderly learning climates by adopting alternative, softer, evidence-based measures that have proven to be effective in all types of school environments.114 A. Over-Reliance on Strict Security Measures May Harm Students’ Interests Empirical evidence suggests that over-reliance on

strict security measures may harm students’ interests in at least two major ways. The first way is that over-reliance on these measures

may contribute to poor learning environments that lead to poor student outcomes .115 Education policy experts understand that trust and cooperation among members of the school community are fundamental to positive learning outcomes, school safety,

and healthy learning climates.116 Optimal learning conditions for students include experiencing positive relationships with teachers and other students, being treated fairly and with kindness and respect, feeling a sense of belonging in the school community, and having a positive self-image.117 Linda Darling-Hammond maintains that even in challenging environments, schools in which students thrive have “organizational structures that create more coherence and a ‘communal’ orientation, in which staff see themselves as part of a family and work together to create a caring environment.”118 Indeed, researchers have discovered that teachers who communicate warmly, demonstrate that they care deeply about their students, treat their students fairly, and have high expectations, instill higher levels of trust, positive behavior,

and achievement outcomes.119 However, scholars also maintain that intense surveillance environments in schools disrupt

feelings of trust, cooperation, and respect among members of the community by sending a clear signal to students that they are dangerous , violent, and prone to illegal activity.120 Paul Hirschfield observes that strict security measures create social barriers between students, teachers, and school officials, and are “a frequent cause of disunity or discord within the school community.”121 Martin Gardner worries that generalized searches convey a message to each student that, “[i]n a very real sense,”

each “stands accused [and] has become a ‘suspect,’” which is especially troublesome “given the special relationship of trust which supposedly exists between student and teacher.”122 Gardner continues: Surely a student even indirectly accused by his teacher as a possible thief or drug user suffers a greater indignity and loss of self-esteem by being subjected to a generalized search than does an airline

passenger passing through a metal detector or a driver [through] a checkpoint. Far from “morally neutral,” school searches are instead

particularly rife with moral overtones.123 Jen Weiss conducted an ethnographic study and found that intense surveillance methods

caused students to distrust and avoid school officials.124 Instead of instilling a greater sense of safety, students felt a heightened sense of danger and disillusion.125 Donna Lieberman testified that intense surveillance measures are antithetical to educational environments that promote educational and social growth in youth.126 According to Lieberman, these measures “foster

environments where children perceive that they are being treated as criminals; where they are diminished by such

perceptions; and where they, consequentially, cultivate negative attitudes toward their schools.”127 Timothy Servoss observes that high-security schools require “passivity and compliance” from students to function in their intended manner, but such

an environment often leads to conflict because many students are not passive or blindly compliant.128 He reasons that if students feel powerless and stifled, they become frustrated and lose motivation to exhibit socially acceptable behavior and adhere to school

norms.129 Importantly, studies examining the social costs incurred in communities whose members are subject to intense surveillance and the threat of government punishment have parallel findings. Tom Tyler, who has studied and written

extensively about trust, legitimacy, and voluntary compliance with laws and authority, maintains that intense surveillance environments harm social climates.130 According to Tyler, intense surveillance measures imply distrust, which decreases community members’ capacity to feel positively about themselves and their communities as a whole.131 He maintains that intense surveillance environments cause community members to perceive unjustified intrusions into their privacy as unfair, making them resentful and less willing

to obey the law.132 Accordingly, regardless of whether intense surveillance methods are effective in the short term, they produce unintended social costs—such as distrust, paranoia, and loss of respect for governmental authority—which weaken individuals’ resolve to cooperate with government officials, willingly obey laws, and participate in political processes.133 Apart from contributing to poor

learning climates, over-reliance on strict security measures may harm students’ interests in a second significant way. Intense

surveillance methods often are a component of a more complex phenomenon frequently referred to as the school-to-prison pipeline.134 Many school officials use intense surveillance methods in conjunction with zerotolerance policies and other harsh disciplinary measures in their efforts to maintain orderly environments.135 When schools rely on intense surveillance methods and zero-tolerance policies

in tandem, school officials automatically suspend , expel, or refer students to law enforcement when they discover students carrying items they are not permitted to bring to school, regardless of the surrounding circumstances, seriousness of the offense, or situational context.136 For example, a recent Minnesota Supreme Court decision, In re Expulsion of A.D., describes a student who was expelled from school for accidentally carrying a three-inch folding pocketknife in her purse.137 During a random, suspicionless search for controlled substances, a school liaison officer searched through A.D.’s locker and found a pocketknife in A.D.’s purse hanging inside.138 When the school principal and officer confronted A.D., A.D. explained that she had used the pocketknife at her boyfriend’s family farm to cut twine on hay bales the previous weekend and had forgotten to remove it from her purse.139 Even though the school principal believed that A.D. was telling the truth, she expelled A.D. for the remainder of the school year for violating the school district’s weapons policy.140 Empirical evidence reveals the association between the use of security measures and student exclusion. Timothy Servoss and Jeremy Finn analyzed school-level data from several national education databases and found that higher levels of security and surveillance in schools were positively associated with higher student suspension rates.141 Even more troubling, these researchers discovered that school security levels were positively associated with greater disparities in suspension rates among similarly situated African-American and white

students.142 Specifically, in high-security schools, the odds of an African-American student being suspended from the

classroom were 2.7 times higher than for a white student.143 These exclusionary practices frequently lead to poor outcomes, including an increased likelihood that more students will become involved in the justice system either immediately or in the future.144 For example, not only do excluded students miss classroom instruction and possibly fall behind academically,

but exclusion also may stigmatize them , promote school avoidance, and preclude access to needed resources .145

Students who eventually return to school but are behind academically can become disengaged and exhibit disruptive

behavior because they are frustrated or embarrassed by their inability to meet academic expectations.146 In fact, empirical evidence demonstrates that excluding students from school significantly decreases the likelihood that they will graduate from high

school.147 Not graduating from high school leads to many other problems, including unemployment, poverty, and bad health.148 Failure to finish high school also is positively related to future involvement in the criminal justice system.149 Furthermore, excluding a student from school increases the likelihood of immediate involvement in the juvenile justice system.150 Tony Fabelo and his colleagues conducted a longitudinal study of Texas students and found that when a school suspended or expelled a student

for a discretionary offense, the student’s chances of being involved in the juvenile justice system within the subsequent

year nearly tripled.151 In addition, they found that with each subsequent exclusionary punishment the student received,

the odds of involvement with the juvenile justice system increased even more.152

2NC -- Racism -- AT: No SpilloverIt creates a domino effect throughout the Fourth Amendment. Lynch ‘6 (Matthew; January 2006; B.A. from the University of Wisconsin, J.D. Candidate at The University of Iowa College of Law; Iowa Law Review, “Mere Platitudes: The Domino Effect of School-Search Cases on the Fourth Amendment Rights of Every American,” http://heinonline.org/HOL/LandingPage?handle=hein.journals/ilr91&amp;div=26&amp;id=&amp;page=; RP)

ABSTRACT: Many scholars bemoan recent court decisions that all but abolish the Fourth Amendment in public schools. Both scholars and dissenting judges largely confine these protests to the impact upon students and rights within the schoolhouse

gate, perhaps because courts themselves purport to limit their decisions to the school context. This Note looks critically at recent school-search jurisprudence with a different concern: that diluting the Fourth Amendment rights of students in public

schools dilutes the Fourth Amendment rights of all Americans . It explores the interactions between school-

search cases and other search cases and argues that these interactions produce a " Domino Effect "; as courts revise legal

standards and show great deference for school searches in an effort to uphold them, the effects reverberate throughout Fourth Amendment law . Tipping one domino of students' Fourth Amendment rights sets off a chain reaction that travels far beyond the schoolhouse gate. This Note further

argues that these school search programs condition new generations of Americans to expect incursions on privacy , thus "de-legitimizing" privacy expectations for everyone --a dangerous prospect in an era when emerging technology and new global threats squeeze Fourth Amendment rights from all sides. I. INTRODUCTION In 1943, America was a nation in crisis. Only two years removed from a devastating surprise attack, the country's soldiers were involved in heavy combat on multiple fronts. Domestic fears led to the detention of thousands of Americans with ethnic ties to the aggressors. In the midst of this atmosphere of crisis and patriotism, the Supreme Court showed the courage to strike down a state regulation requiring students to salute the American flag: "That [Boards of Education] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." (1) Writing for the majority in that case, Justice Robert Jackson refused to permit the dilution of students' First Amendment rights and warned of the dangers of weakening any constitutional rights in schools. (2) Jackson would undoubtedly show dismay at the state of students' rights

today, and students' Fourth Amendment (3) rights may be the weakest of all . In a growing number of schools,

students wishing to participate in extracurricular activities must submit to random drug testing . (4)

Drug-sniffing dogs roam the classrooms . (5) Police officers wander the hallways. (6) Government

authorities wishing to conduct physical searches of students and their belongings can do so with little suspicion, (7) and sometimes none at all. (8) Several commentators bemoan this overreaction to the perceived crisis in American schools, labeling the schools "police state[s]" (9) that are "far adrift from the constitutional harbor" (10) and the searches "a perversion of students' Fourth Amendment rights." (11) These commentators generally focus their analyses on the threats that recent cases and developments pose to students' Fourth Amendment rights. (12) This Note takes a different course. It looks critically at recent school-search jurisprudence through the

lens of Justice Jackson's primary concern: that diluting the constitutional rights of students may dilute the constitutional

rights of all Americans. It explores the impact of such dilutions of students' Fourth Amendment rights and argues

that they produce a "Domino Effect"; as courts revise legal standards for school searches in an effort to uphold them, the effects of these revisions reverberate throughout Fourth Amendment law . When one domino of Fourth Amendment rights falls for students, it sets off a chain reaction of failing dominoes that

travels far beyond the schoolhouse gate . Part II provides a brief introduction to the differences between Fourth Amendment rights in schools and society generally. It lays out traditional Fourth Amendment requirements and outlines the lengths to which courts are willing to bend traditional Fourth Amendment doctrines to accommodate school searches. Part III shows the Domino Effect in operation, exploring the entanglement of Fourth Amendment rights in schools and Fourth Amendment rights in other contexts. It examines the judicial promise to separate the two contextual groups into different doctrines that demand different protections, then details the ways in

which courts break this promise. Specifically, it shows that courts borrow the framework , tests , facts , rationales , and legal conclusions of school-search cases to justify searches elsewhere . Part IV explains the broader structure and dangers of the Domino Effect. It separates the Domino Effect's invasion on the Fourth Amendment into three fronts, all of which function

simultaneously to lower Fourth Amendment rights of all citizens. First, giving schools great leeway to implement invasive search programs leads courts to uphold similar programs in other contexts as "constitutional by analogy ." (13) Second, the balancing test required in school-search cases demands that courts characterize

privacy interests as minimal in order to uphold the searches. Once courts minimize students' privacy interests

in a particular search, they tend to minimize the privacy interests of others subjected to a similar kind of search. Third, the search programs act to condition young Americans' subjective expectations of privacy in certain types of

searches, thus making them less likely to find future intrusions unreasonable . This Note concludes with a message of

fear--and hope. It argues that world events and technological advances raise the Fourth Amendment stakes, simultaneously creating the greatest dangers from the Domino Effect and the greatest temptations to give in to it . Yet the courts can make a stand on school searches and halt the Domino Effect in its tracks if they show the same foresight that Justice Jackson possessed in 1943. The courts must recognize that infringements on students' Fourth Amendment rights present unique dangers to the Fourth Amendment rights of all Americans--and they must take action before more dominoes fall . II. ONE FOURTH AMENDMENT BEYOND THE SCHOOLHOUSE GATE, ANOTHER WITHIN IT Sixty-two years ago, the Supreme Court boldly declared that school boards have "important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights." (14) Thirty-six years ago, it assured students that they do not "shed their constitutional rights ... at the schoolhouse gate." (15) But only ten years ago, the Court added a bold asterisk to these statements. (16) In Vernonia School District 47J v. Acton, Justice Scalia wrote that "Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere." (17) Over the past ten years, courts hearing Fourth Amendment cases involving students have taken this statement to heart. (18) To understand how far these courts have gone in limiting the Fourth Amendment privacy of public school students, it is important to first understand the nature of Fourth Amendment privacy in general. A. SEARCHES UNDER THE FOURTH AMENDMENT I. Pre-T.L.O. Principles The Fourth Amendment bars "governmental officials," (19) defined as "civil as well as criminal authorities," (20) from performing "unreasonable" searches and seizures. (21) If a court deems a search unreasonable (and therefore, unlawful), the Fourth Amendment requires the exclusion of evidence obtained in the unlawful search from a subsequent criminal proceeding. (22) The Supreme Court has held that the passage of the Fourteenth Amendment made Fourth Amendment limits applicable to state and local officials, (23) thus creating a constitutional floor of protection from unreasonable searches by officials at all levels of government. Not all actions that meet the dictionary definition of "search" (24) match the Supreme Court's definition for purposes of the Fourth Amendment. In Katz v. United States, (25) Justice Harlan wrote a concurring opinion stating that a search only takes place when the government invades some "reasonable expectation of privacy." (26) The Supreme Court later adopted and refined this test, holding that the government must have infringed some "legitimate expectation of privacy" to have conducted a search under the Fourth Amendment. (27) Once a court determines that a search occurred, it then decides whether that search conformed to the requirements of the Fourth Amendment. The Framers' conception of those requirements is subject to strong debate. Some modern commentators argue that the Framers believed that warrantless searches were almost always unreasonable, (28) while others contend that warrants were ultimately inconsequential to reasonableness at the time of the framing. (29) Regardless of the disagreement over the importance of warrants, however, commentators are all but universal in their agreement that general searches--searches not grounded in some kind of individualized suspicion--were the primary evil the Framers sought to address through the Fourth Amendment. (30) The courts have adopted a middle ground in determining the reasonableness of a search by law enforcement officers. By default, a reasonable search requires a warrant. (31) This represents the zenith of Fourth Amendment protection, because officers must show probable cause (32) to a "neutral and detached magistrate" before they can obtain a warrant to search. (33) The warrant requirement is far from absolute, however, and the Supreme Court has allowed many exceptions in a variety of contexts. (34) These exceptions fall into two broad categories: those that require probable cause and those that do not. The first category removes the protection of judicial approval before a search, but it still requires an officer to have probable cause; if there is no probable cause, then the search is unreasonable. (35) Many searches fall into this category of exceptions to the warrant requirement, including searches incident to arrest, (36) searches conducted under exigent circumstances, (37) and searches of vehicles. (38) The second broad category of exceptions to the warrant requirement, the exceptions that do not require probable cause, applies to some searches that are "minimally intrusive" (39) or prompted by concerns beyond normal law enforcement. (40) This category allows officers to satisfy reasonableness in one of two ways, both of which remove probable cause altogether from the reasonableness analysis. The first, growing from the Supreme Court's 1968 decision in Terry v. Ohio, (41) applies a test of "reasonableness in all the circumstances." (42) In Terry, the Court required reasonableness in two prongs: the search had to be "justified at its inception" (i.e., the officers had to have "reasonable suspicion" that the search would turn up contraband or evidence of a crime (43) and "reasonably related in scope to the circumstances which justified the interference in the first place." (44) Thus, while these searches drop the absolute of probable cause from the reasonableness calculus, they retain a less-demanding absolute of "reasonable suspicion." (45) The second method of satisfying the Fourth Amendment without showing probable cause stems from the Supreme Court's 1967 decision in Camara v. Municipal Court, (46) which applies to general regulatory searches with "standardized procedures involving neutral criteria." (47) Rather than relying upon any absolutes, courts evaluate these searches with a balancing test that weighs the "intrusion on the individual's Fourth Amendment interests against [a search's] promotion

of legitimate governmental interests." (48) Under this balancing test, the requisite suspicion may vary depending upon "the nature of the

search." (49) Justice Harry Blackmun explained and expanded upon this more relaxed standard in his concurrence to New

Jersey v. T.L.O., (50) a school-search case. He characterized the rulings in Terry and a handful of other Fourth Amendment

cases (51) as creating a probable-cause exception for "special needs" (52) situations that make "the warrant

and probable-cause requirement impracticable." (53) 2. The Fourth Amendment After T.L.O.: The "Special Needs" Exception

and Its Dangers The Court ran with Blackmun's formulation of a "special needs" exception, quickly using it to establish yet

another subcategory of searches. (54) These so-called "special needs" searches eliminate all absolutes from the reasonableness

balancing test. They do not demand warrants, probable cause , or even reasonable suspicion for a constitutional search; the search may be one that usually requires higher levels of protection; and the purpose of the search may intersect with law enforcement. (55) The primary limit is that the government may not justify the search solely based on law enforcement; the Supreme Court distinguishes between "special" and normal needs by looking to whether there are larger concerns "than crime detection" (56) or whether the "purpose ... actually served [by the search] 'is ultimately indistinguishable from the general interest in crime control.'" (57) The apparent function of the "special needs" exception is to serve as the last resort for constitutionality under the Fourth Amendment, a catch-all category of exceptions to the usual warrant and probable-cause requirements. Although the balancing test of individual rights against government interests technically remains, the weight of the "government interests" side of the scale grows exponentially when the "special needs" exception is invoked. One commentator observed that "[w]hen the Supreme Court defines the governmental function as so exceptionally important that special needs ... justify inspection schemes normally vulnerable to the Fourth Amendment, it reduces the resulting balancing test to one in name only." (58)

The Court has found the "special needs" exception to be a convenient lifeboat for rescuing laws that would face eradication under the usual Fourth Amendment analysis, primarily those authorizing general, suspicionless searches of certain groups. (59) Recent "special needs" cases show that government interests rise to the level of "special needs" when three conditions converge. First, there is a serious social problem in some context, (60) or at least the threat of one. (61) Second, the government has an interest in dispensing with the warrant and probable-cause requirements. This occurs when the situation poses an immediate threat to safety, (62) the inexperience of searching officials makes it difficult for them to recognize and follow probable-cause requirements, (63) or the "'the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search." (64) Third, the purpose of the law and

its means of achieving this purpose go beyond basic law enforcement. (65) The first factor--the existence or threat of a serious social problem-often colors the rest of the "special needs" analysis, (66) and thus the growing perception of crises in America takes on particular importance here . There has been no shortage of crises lately, and many of them--

from terrorism, drug abuse, drunk driving and urban violence, to illegal Internet downloading--lend themselves to greater

government searches in reaction . All of these crimes carry increased emotional impact when they threaten children. Thus, it should come as little surprise that the case that first described the "special needs" exception was the first Supreme Court case to apply the Fourth Amendment in the school setting : New Jersey v. T.L.O . (67)

Since the mid-1990s, and particularly after the tragic 1999 school shootings at Columbine High School, school districts have exploded with policy responses to these perceived crises. (68) From 1999 to 2001 alone, the number of

school districts requiring drug testing for athletes nearly doubled . (69) Broader drug-testing programs for

students in any extracurricular activities increased nearly six-fold . (70) In the 1999-2000 school year, shortly after Columbine and

before many schools had the opportunity to put new programs in place, 21% of schools performed drug sweeps (usually using

trained dogs) and 23% employed police or security officers within the school, (71) up from 10% just three years earlier . (72) B. THE FOURTH AMENDMENT IN PUBLIC SCHOOLS: APPLYING THE "SPECIAL NEEDS" EXECUTION Justice Scalia's observation that "Fourth Amendment rights ... are different in public schools than elsewhere" (73) was no exaggeration, at least after T.L.O. established that schools have a "special need" in performing their "heightened obligation to safeguard students." (74) The perception of crises in public schools remains consistent throughout the opinions in school-search cases, (75) leading one judge to go so far as to proclaim that "our [public] schools

are going to hell in a handbasket." (76) These perceived crises and "special needs" lead courts to give great deference to state officials who conduct searches of students, whether such searches are individualized or general, and this deference pervades all factors of the Fourth Amendment search tests . Regarding the first factor of the

"special needs" analysis (the existence or threat of a serious social problem), courts tend to presume that there is a crisis, often a

drug or violence crisis, (77) even when there is little evidence to support this presumption. (78) Indeed, there is

often reliable evidence to the contrary . (79)

2NC -- AT: Links to ElectionsSCOTUS is insulated. Azari ’16 (Julia; 2/17/16; Ph.D., M.A., and M.Phil. in Political Science from Yale University, B.A. in Political Science from the University of Illinois, Associate Professor of Political Science and International Affairs at Marquette University; FiveThirtyEight, “The Supreme Court Fight Probably Won’t Define The Election For Voters,” http://fivethirtyeight.com/features/the-supreme-court-fight-probably-wont-define-the-election-for-voters/; RP)

Since Justice Antonin Scalia’s death over the weekend, one of the big debates has been over how the fight to confirm a new Supreme Court justice will reshape the 2016 presidential election. Although some pundits and scholars have, fittingly, written elegant and well-argued pieces about how the election will become a referendum on the Supreme Court and the issues the court is likely to examine in the coming years

(abortion, voting rights, campaign finance, state redistricting rules), the actual impact on voting of a protracted fight that fails to

fill the Supreme Court vacancy may be marginal — at least in the general election (the primaries may be a different story). For starters,

research shows that the Supreme Court is a well-respected institution but not very important for most voters . The

contemporary classic work on Americans’ political knowledge, “What Americans Know About Politics and Why It Matters,” reports that few citizens can name more than one Supreme Court justice. A 2012 survey found that two-thirds couldn’t even name one.1 So most people aren’t paying attention to the court . Also, voting has become polarized and predictable — leaving few voters to be swayed by a fight over the court. Political scientists (and economists) have known for some time that the two-party vote can be predicted pretty accurately using the “fundamentals” — economic performance, whether the

nation is at war, and the popularity and duration of the White House incumbent. The high levels of polarization in the electorate

make persuasion difficult. Some of the contentious issues taken up by the court have cut across party lines in

the past — immigration, campaign finance, even abortion. But this is increasingly uncommon in American politics. Party conflict defines disagreements about economic, racial and cultural issues. So, it’s unlikely that campaign messages about

abortion, voting rights and affirmative action would change voters’ minds in November. The Supreme Court fight might provide fodder for some dramatic campaign commercials, but their impact will probably be limited . Party labels tend to

shape how people vote, and there’s mounting evidence that partisan attachments lead citizens to evaluate the same information — the economy, the government’s performance on foreign policy — differently. A 2014 study of whether citizens perceive court decisions as

legitimate found that political ideology was an important factor shaping attitudes about the court. In other words, those who are paying attention to the Supreme Court are generally already set in their partisan attitudes. It’s possible that a dramatic general election campaign contest over the court could indirectly contribute to turnout; committed partisans could be motivated to mobilize others, and there’s some evidence that competitive elections in a highly polarized political environment boost turnout. However, comparisons across different countries also show that people are more likely to vote when they can trace their vote choice to a clear outcome. This is sometimes used to explain the difference between turnout in presidential and midterm years: You cast a vote for president, and either that candidate becomes president or he or she doesn’t. You cast a vote for your member of Congress, but the real prize is majority control — which is not what

voters see on the ballot. For voters who are less attentive to political details, something is lost in translation . And so it

may be for the idea of voting in a presidential election to shape the Supreme Court. Those who are less politically engaged are less likely to follow or understand court politics. Voters who see the big picture have probably already made up their minds about how they’ll vote in 2016.

It won’t be tied to Trump. Liptak & Flegenheimer ’17 (Adam & Matt; 3/21/17; J.D. from Yale University, political journalist; Reporter for the New York Times; NYT, “Gorsuch Says He’d Rule Against Trump if Law Required It,” https://www.nytimes.com/2017/03/21/us/politics/supreme-court-justice-confirmation-neil-gorsuch.html)

Judge Neil M. Gorsuch, President Trump’s Supreme Court nominee, sought to assure the Senate and the nation on Tuesday that

he would be a fair-minded and independent justice . He said he would not hesitate to rule against Mr.

Trump if the law required it, and he repeated his earlier private criticism of Mr. Trump’s attacks on judges who had ruled against the administration. “When anyone criticizes the honesty or integrity or motives of a federal judge,” Judge Gorsuch said at his confirmation hearing, “I find that disheartening and demoralizing.” Asked if

that general statement applied to Mr. Trump, Judge Gorsuch said, “ Anyone is anyone .” By turns expansive and evasive, Judge Gorsuch discussed legal doctrines at length, but refused to take positions on specific issues. He asserted, as have previous Supreme Court nominees, that it would be unfair to future litigants for him to announce his views on issues that could come before the court. Judge Gorsuch’s style was folksy, earnest, learned and emphatic, and he easily dodged questions from members of the Senate Judiciary Committee that he was not inclined to answer. But he spoke forcefully about his devotion to the rule of law. His exchanges with Democratic senators were sometimes tense and testy. Yet through every planned line of attack — from his record on workers’ rights to his skepticism of the power of regulatory agencies — Judge Gorsuch emerged with few scratches. Senator Lindsey Graham of South Carolina said he was at ease with President Trump's nomination of Judge Gorsuch. “Quite frankly, I was quite worried about who he’d pick," Mr. Graham said. "Maybe somebody on TV.” In response to questions from Senator Patrick J. Leahy, Democrat of Vermont, Judge Gorsuch expressed admiration for Judge Merrick B. Garland, President Barack Obama’s nominee for the same Supreme Court vacancy created by the death of Justice Antonin Scalia. He is “an outstanding judge,” Judge Gorsuch said. “Whenever I see his name attached to an opinion, it’s one I read with special care,” Judge Gorsuch said. But he refused to say whether Senate Republicans had mistreated Judge Garland by refusing to consider his nomination for the better part of a year. “I can’t get involved in politics,” Judge Gorsuch said. “There’s judicial canons that prevent me from doing that. And I think it would be very imprudent of judges to start commenting on political disputes.” Mr. Leahy had no such qualms. “I think it was shameful,” he said of the Republicans’ gambit. “I think it has severely damaged the reputation of the committee. I think it has severely damaged the

reputation of the senators who concurred with that.” On other questions, Judge Gorsuch was less reserved. He did not hesitate, for

instance, when asked to declare his independence from Mr. Trump. “Specifically tell us whether you’d have any trouble ruling against the president who appointed you,” Senator Charles E. Grassley, the Iowa

Republican who leads the Judiciary Committee, instructed him. “That’s a softball, Mr. Chairman,” Judge Gorsuch said. “ I have no difficulty ruling against or for any party, other than based on what the law and the facts and the particular case

require.”

Trump distances himself. Brennan Center 17 [Brennan Center for Justice, “In His Own Words: The President's Attacks on the Courts,” June 5, 2017, https://www.brennancenter.org/analysis/his-own-words-presidents-attacks-courts] *All tweets omitted

Donald Trump has displayed a troubling pattern of attacking judges and the courts for rulings he disagrees with — a pattern that began during his presidential campaign (and even before), and has continued into his presidency. This threatens our entire system of government. The courts are bulwarks of our Constitution and laws, and they depend on the public to respect their judgments and on officials to obey and enforce their decisions. Fear of personal attacks, public backlash, or enforcement failures should not color judicial decision-making, and public officials have a responsibility to respect courts and judicial decisions. Separation of powers is not a threat to democracy; it is the essence of democracy. Collected below are examples of Trump’s public statements attacking individual judges and questioning the constitutional authority of the judiciary, including his statements on Twitter. It will be updated with new statements. Carter

Page FISA Application On July 22, 2018, the Trump Administration released a previously classified Foreign Intelligence Surveillance Act

(FISA) warrant application regarding Trump’s former foreign policy campaign adviser, Carter Page. Organizations like Judicial Watch had sued for its disclosure. Trump took the release as an opportunity to falsely claim the Page surveillance precipitated special counsel Robert Mueller’s investigation, to argue that the wiretap application relied too heavily on the unverified Steele dossier, and to argue that Mueller’s investigation must end. In a series of tweets, Trump first claimed that the Department of Justice and FBI “misled the courts”:

Then Trump used the words of conservative writer Andrew McCarthy to directly attack the judges who authorized the FISA application:

Attacks on the Judiciary Following DACA Ruling On Tuesday, January 9th, 2018, District Court Judge William Alsup temporarily blocked the Trump administration from ending the Deferred Action for Childhood Arrivals (DACA) program, maintaining protections for 'Dreamers.' The Trump administration appealed Alsup's decision. Following Alsup's ruling, Trump tweeted:

Critique of the Bergdahl Ruling Bowe Bergdahl, a former U.S. Army soldier, walked away from his unit and was captured by the Taliban in 2009. From 2009 to 2014, he was held captive by the Taliban. In 2014, the Obama administration brokered a prisoner exchange, and ultimately, the Taliban released Bergdahl in exchange for five Guantanamo Bay detainees. Trump, while on the campaign trail, repeatedly critiqued the exchange.

In one speech, Trump argued, "So we get a traitor named Bergdahl—a dirty rotten traitor—who, by the way, when he deserted, 6 young, beautiful people were killed trying to find him, and you don’t even hear about them anymore. Someone said the other day, well, he has some psychological problems – well, you know, in the old days, bing, bong—when we were strong, when we were strong. So we get Bergdahl, a traitor, and they get 5 of the people that they most wanted anywhere in the world, 5 killers that are right now back on the battlefield, doing a job. That’s the kind of deals we make." Following these comments, Bergdahl's lawyers filed a motion in 2016 to dismiss the charges pending against him, arguing that Trump's comments precluded Bergdahl from receiving a fair trial. This motion was rejected. Ultimately, Bergdahl

pleaded guilty to charges of desertion and misbehavior in October of 2017; on November 3, 2017, Bergdahl was sentenced to a dishonorable discharge, a reduced rank, and a monthly fine, but did not receive a prison sentence. In response, Trump tweeted,

Attacks on the Judicial System in Response to Terrorist Attacks On Tuesday, October 31st, 2017, a terrorist attack in Manhattan led to eight

deaths and several serious injuries. The suspect said he drew inspiration from ISIS. On November 1st, 2017, Donald Trump made the

following statement in response, calling the courts a "joke" and a "laughingstock." Trump also said he would "certainly consider" sending the suspect to the U.S. military prison in Guantánamo Bay. Trump stated: "That was a horrible event, and we have to stop it, and we have to stop it cold. We also have to come up with punishment that’s far quicker and far greater than the punishment these animals are getting

right now. They’ll go through court for years. And at the end, they’ll be — who knows what happens. We need quick justice and we need strong justice — much quicker and much stronger than we have right now. Because what we have right now is a joke and it’s a laughingstock. And no wonder so much of this stuff takes place. And I think I can speak for plenty of other countries, too, that are in the same situation." Trump followed this statement with a Tweet:

Trump then switched from advocating the suspect be sent to Guantánamo Bay, to advocating he receive the death penalty.

Attacks on Courts, and Judges Personally, for Staying Immigration Executive Orders On Friday, February 3, 2017, Washington U.S. District Court Judge James Robart issued a decision temporarily staying enforcement of Donald Trump’s January 27 executive orderlimiting immigration from seven predominantly Muslim countries and halting the admission of refugees from anywhere. On February 9, the Ninth Circuit denied the government's request for a stay of the district court's order. Trump issued a revised version of the immigration executive order on March 6, 2017, which narrowed the scope to six countries and exempted green card and visa holders, among other changes. On March 15, 2017, a federal judge in Hawaii temporarily blocked enforcement of the order nationwide, followed by a March 16 order by a

federal judge in Maryland. On May 26, the Fourth Circuit, sitting en banc, upheld the stay of the travel ban. Trump has made a series of tweets and public statements attacking the deciding judges personally , questioning the authority of federal courts to review his orders, suggesting the court is biased, and suggesting that the judges and court system would be to blame for future terrorist attacks. Comments Concerning March 6 Executive Order On June 3, 2017 and again on June 5, 2017, following a terrorist attack in London over the weekend, the President tweeted the following statements:

2NC -- AT: Links to PoliticsCourts are immune to political blowback. Mazzone 18 - Albert E. Jenner, Jr. Professor of Law, University of Illinois at Urbana-Champaign (“Above Politics: Congress and the Supreme Court

in 2017,” Chicago-Kent Law Review Vol 93 Iss 2 Art 5, Aug 9 2018, https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=4207&context=cklawreview, jwg)

Absent, too, in the modern Congress is any real sense that the Supreme Court can be brought to heel : say, by constitutional amendment , by stripping the Court of funding, by hauling in members of the Court to justify their rulings before congressional investigatory committees, by appointing special counsels to review and report back on what the Court does, by impeaching the Justices (or locking them up), or by simply ignoring or defying judicial rulings. Perhaps the Court does not rule in ways that offend enough members of Congress ( or their constituents ) for them to invest the energy—and political capital —required to generate these sorts of measures . Perhaps, instead, members of Congress do not consider such measures appropriate in our constitutional system. In either case, modesty on the part of Congress is the result, even in an era when a single party controls both the Congress and the White House. The lesson for the Court is that so long as it continues doing—more or less—what is has done in

recent years, it has very little to fear from the Congress . CONCLUSION After President Trump nominated Neil Gorsuch to fill the vacancy on the Supreme Court left by the death of Justice Scalia, fifteen House Republicans sponsored a Resolution that “the House firmly supports the nomination of Neil Gorsuch to the Supreme Court” and “the Senate should hold a swift confirmation of this nomination.”229 The proposed resolution died, without further action, in the Committee on the Judiciary. While Gorsuch was, of course, confirmed, the failure of the Republican-controlled House to pass a simple resolution supporting the nomination is telling. After an election season in which the Supreme Court figured very prominently, aside from the Senate’s confirmation of a new Justice, Congress in 2017 accomplished nothing with respect to the Supreme Court. Various bills and resolutions—some sponsored by Republicans, others by Democrats, and some garnering bipartisan support—targeted statutory and constitutional rulings by the Court and sought also to impose new regulations upon the Court’s activities. Even the most modest of these proposals failed to advance through the legislative process and become law. We like to think that the Supreme Court, guided

solely by the rule of law, is above politics. The experience of 2017 suggests that the Court

may also be above politics in the quite different sense that its rulings and activities are largely immune to political response and redress .

Courts shield. Chemerinsky ’17 (Erwin; 4/1/17; Professor of Law at UC-Berkeley, J.D. from Harvard Law School, B.S. from Northwestern University, author of ten books and specialist in judicial affairs; William & Mary Law Review, “In Defense of Judicial Supremacy,” https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=3801&amp;context=facpubs; RP)

Accordingly, in deciding who should be the authoritative interpreter of the Constitution, the answer is the branch of government that can best enforce the Constitution's limits against the desires of political majorities . By this criterion, the federal

judiciary is the obvious choice . It is the institution most insulated from political pressures .2 Article III of the

Constitution provides that federal court judges have life tenure unless impeached and that their salary may not be decreased during their terms of office.28 Unlike legislators or the President, they never face reelection . 29

Furthermore, the method of federal judicial selection reinforces its antimajoritarian character. Unlike the House of Representatives, whose members are elected at the same time, or the Senate, where one-third of the members are chosen in each election,

the President appoints the Court's members one at a time , as vacancies arise . 30 “Generally, no single administration is able to appoint a majority of the Court or the federal judiciary. The result is that the Court reflects many political views , not just the one that dominates at a particular time. Other reasons exist, too, why the judiciary is the branch of government that is best suited to enforce the Constitution and should be deemed its

authoritative interpreter. First, the judiciary is the only institution obligated to hear the complaints of a single person. For the most part, the federal judiciary's jurisdiction is mandatory . Although the Supreme Court can choose which cases to hear, a lower federal court must (with relatively rare exceptions)" rule on every case properly filed with it.32 Long ago, Chief Justice Marshall wrote, "It is most true that this Court will not take jurisdiction if it should not

but it is equally true that it must take jurisdiction if it should. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given."

Decision-making structure prevents political pressure. Chemerinsky ’17 (Erwin; 4/1/17; Professor of Law at UC-Berkeley, J.D. from Harvard Law School, B.S. from Northwestern University, author of ten books and specialist in judicial affairs; William & Mary Law Review, “In Defense of Judicial Supremacy,” https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=3801&amp;context=facpubs; RP)

Third, as the branch most insulated from day-to-day politics , the judiciary is the branch most willing to enforce the Constitution in the face of strong pressures from political majorities . 42 Even if the legislature and executive were to listen to all claims and respond on the merits, they are still less likely to uphold the Constitution against the intense opposition of their

constituents. This insulation is what moved Alexis de Tocqueville to remark that "the power vested in the American courts of justice of

pronouncing a statute to be unconstitutional forms one of the most powerful barriers that have ever been devised against the tyranny of political assemblies."4 3 The argument is not that legislators act in bad faith and disregard their oath to uphold

the Constitution, although this sometimes happens. Rather, it is that constitutional interpretation inherently requires choices as to what

the Constitution should mean-how its abstract values should be applied in specific situations. These choices are best made by an institution whose primary commitment is to the Constitution, not to gaining reelection . Professor Owen Fiss observed that "[1]egislatures ... are not ideologically committed or institutionally suited to search for the meaning of constitutional values, but

instead see their primary function in terms of registering the actual, occurrent preferences of the people."4 4 The people can trust the judiciary much more to decide , for instance, whether the Constitution should protect the speech activities of a politically

unpopular group like the Nazi Party.4 5 Because the Court is committed to upholding the First Amendment and is

not faced with intense pressure from constituents , it is also in a better position to decide whether the right of privacy

includes the right of a woman to decide whether to have an abortion or whether school prayer violates the Constitution." The best institution for interpreting the Constitution is thus not the one that most reflects the majority's current preferences . Constitutional interpretation is best done by a relatively politically insulated body. Professor Harry

Wellington explained: If a society were to design an institution which had the job of finding the society's set of moral principles and determining how they bear in concrete situations, that institution would be sharply different from one charged

with proposing policies. The latter institution would be constructed with the understanding that it was to respond to the

people's exercise of political power . The former would be insulated from such pressure . It would provide an

environment conducive to rumination, reflection, and analysis.47 Constitutional interpretation is a process of deciding what values

are so fundamental that they should be safeguarded from political majorities.4 8 It makes little sense to entrust these

decisions to those same political majorities. The judiciary's insulation and commitment to decisions based on the

merits make it far better suited for this task.4 9 Professor Alexander Bickel remarked: [C]ourts have certain capacities

for dealing with matters of principle that legislatures and executives do not possess. Judges have, or should have, the

leisure, the training , and the insulation to follow the ways of the scholar in pursuing the ends of government. This is crucial in sorting out the enduring values of a society.' Constitutional interpretation requires an institution to serve as

the nation's moral conscience -an institution responsible for identifying values so important that they should not be sacrificed and

reminding the country when its own most cherished values are being violated. At times, the Supreme Court has functioned in exactly this way: as a moral conscience holding the nation to its highest values." We should trust the legislature least when the question is the constitutionality of a statute it has enacted. Allowing the same body to

both enact laws and determine their constitutionality is no way to protect constitutional values. Review by another branch of government creates a necessary check on the majority .52 The executive veto provides something of a check, but Congress can override a veto." Moreover, the President is electorally accountable, at least in his first term, and may feel the same

pressures as Congress.54 The judiciary is most detached from both the enactment of laws and the implementation of policies.

Courts absorb blame – studies and empirics. Martens ‘7 (Alison; 2007; Professor of Political Science at the University of Louisville; Perspectives on Politics, Vol. 5, Issue 3 “Reconsidering Judicial Supremacy: From the Counter-Majoritarian Difficulty to Constitutional Transformations,” p. 447-459)

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 [are] 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.

Courts will proactively assume responsibility. Whittington ‘5 (Keith; 2005; Professor of Politics at Princeton University; The American Political Science Review, Vol. 99 “Interpose Your Friendly Hand: Political Supports for the Exercise of Judicial Review by the United States Supreme Court,” p. 583)

There are some issues that politicians cannot easily handle . For individual legislators, their constituents may be sharply divided on a given issue or overwhelmingly hostile to a policy that the legislator would nonetheless like to see adopted. Party leaders, including presidents and legislative leaders, must similarly sometimes manage deeply divided or cross-

pressured coalitions. When faced with such issues, elected officials may actively seek to turn over controversial political questions to the courts so as to circumvent a paralyzed legislature and avoid the political fallout that would come with taking direct action themselves. As Mark Graber (1993) has detailed in cases such as slavery and abortion, elected officials may prefer judicial resolution of disruptive political issues to direct legislative action, especially when the courts are believed to be sympathetic to the politician's own substantive preferences but even when the attitude of the courts is uncertain or unfavorable (see also, Lovell 2003). Even when politicians do not invite judicial intervention, strategically minded courts will take into account not only the policy preferences of

well-positioned policymakers but also the willingness of those potential policymakers to act if doing so means that

they must assume responsibility for policy outcomes. For cross-pressured politicians and coalition leaders, shifting blame for controversial decisions to the Court and obscuring their own relationship to those decisions may preserve electoral support and coalition unity without threatening active judicial review (Arnold 1990; Fiorina 1986;

Weaver 1986). The conditions for the exercise of judicial review may be relatively favorable when judicial invalidations

of legislative policy can be managed to the electoral benefit of most legislators. In the cases considered previously, fractious coalitions produced legislation that presidents and party leaders deplored but were unwilling to block. Divisions within the governing coalition can also prevent legislative action that political leaders want taken, as illustrated in the following case.

Courts take the blame for backlash. Ward ‘9 (Artemus; 2009; Professor at Northern Illinois University; Book, Political Foundations of Judicial Supremacy, Congress and The Presidency, p. 119)

After the old order has collapse the once- united, new-regime coalition begins to fracture as original commitments are extended to new issues. In chapter 3 Whittington combines Skowronek's articulation and disjunctive categories into the overarching "affiliated" presidencies as both seek to elaborate the regime begun under reconstructive leaders. By this point in the ascendant regime, Bourts are staffed by justices from the dominant ruling coalition via the appointment process - and Whittington spends time on appointment politics here and more fully in chapter 4.

Perhaps counter-intuitively, affiliated political actors - including presidents - encourage Courts to exercise vetoes and

operate in issue areas of relatively low political salience. Of course, this "activism" is never used against the affiliated president per se.

Instead, affiliated Courts correct for the overreaching of those who operate outside the preferred constitutional

vision, which are often state and local governments who need to be brought into line with nationally dominant constitutional commitments.

Whittington explains why it is easier for affilitated judges , rather than affiliated presidents, to rein in outliers and conduct constitutional maintenance. The latter are saddled with controlling opposition political figures, satisfying short-term political demands, and navigating intraregime gridlock and political thickets. Furthermore, because of their electoral accountability, politicians engage in position-taking, credit-claiming, and blame-avoidance behavior. By contrast, their

judicial counterparts are relatively sheltered from political pressures and have more straightforward decisional

processes. Activist Courts can take the blame for advancing and legitimizing constitutional commitments that might have electoral costs . In short, a division of labor exists between politicians and judges affiliated with the dominant regime.

They’ll strategically wait to avoid affecting politics. Mondack ’92 (Jeffery; 1992; Assistant Professor of Politics at the University of Pittsburgh; American Political Quarterly, “Institutional legitimacy, policy legitimacy, and the Supreme Court,”)

The process described by the political capital hypothesis acts as expected in the laboratory, and the logic of the link between institutional and policy legitimacy has thus gained strong empirical corroboration. However, the dynamic's pervasiveness defies precise estimation due to the limitations of available public opinion data. Still, the results reported here are provocative. First, this view of legitimation may apply to institutions beyond the Supreme Court. Consequently, efforts to use this theory in the study of other institutions may yield evidence supportive

of a general process. A second concern is how the Court responds to its institutional limits. Specifically, strategy within the Court can be considered from the context of legitimacy . For example, what tactics may the Court employ to

reduce the erosion of political capital? By releasing controversial rulings at the end of a term , for instance,

the Court may afford itself a healing period , a time to repair damaged credibility prior to the next round of

efforts at conferring policy legitimacy. This suggests a third issue, the manner in which institutional approval is replenished. Does institutional support return to some equilibrium once dispute surrounding a particular ruling fades, or must the Court release popular edicts to offset the effects of its controversial actions?

Aff -- Courts CP

2AC

2AC -- AT: Courts CPPerm -- do the counterplan. Courts can “enact”.Wall 7. [J. R. N.; 10/07; dissertation submitted in partial fulfillment of the degree of Bachelor of Laws at the University of Otago – Te Whare Wanaga o Otago; “PROSPECTIVE OVERRULING – IT’S ABOUT TIME,” https://www.otago.ac.nz/law/research/journals/otago036272.pdf; DS]

The purpose of this dissertation is two-fold: to identify a problem in the common law and propose a possible solution. I shall argue in Part A

that when a court overturns a prior precedent the court enacts retrospective law 2. In Part B I shall assess the cogency of ‘prospective overruling’ as a solution to this problem. My primary question is whether prospective overruling solves the problem of providing both certainty and fairness in common law adjudication.

I recognise that the use of the term enact in reference to judge-made law is unorthodox since the term is

usually reserved for legislation. However, as will be discussed in Chapter 3, I contend that the courts fulfill a quasi- legislative function , and hence I contend that it is appropriate to use the term enact when describing judge-made law.

No solvency -- circumvention and non-enforcement. Michael Heise, Professor of Law, Case Western Reserve University, “The Courts, Educational Policy, and Unintended Consequences”, Cornell Journal of Law and Public Policy Volume 11 Issue 3 Summer 2002, http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1042&context=cjlpp

3. Structural Barriers That courts sometimes struggle in the educational policy setting should not surprise. Courts are

structurally ill-equipped to make the sometimes delicate policy tradeoffs incident to the school finance enterprise. Formal litigation, designed to resolve legal disputes in an adversarial manner, was never meant to serve as a dispassionate, thoughtful, deliberate forum to consider and weigh competing policy and funding objectives and goals.141 The adversarial setting is a blunt instrument and ill-suited to generate the political

consensus that is often necessary to carry out policy decisions . This is not to say that the legislative process is

perfect. Clearly, it is not. Rather, the smaller point is that, at least at a general level, despite their defects, the political processes, legislative and, to a lesser extent, executive branches remain comparatively better structured than courts to set and implement general school finance policy. 142 In this regard, New Jersey's three-decade-long school finance litigation

spectacle provides one vivid example of the difficulties with translating judicial victories into educational victories, especially where strong political consensus is lacking. 143 On the one hand, litigants succeeded in raising New Jersey's per-pupil spending level to among the nation's highest.144 On the other hand , despite increased

spending, student achievement levels in New Jersey's urban districts continue to lag behind national averages . 145 Moreover, in response to the "forced exchange" between New Jersey taxpayers and schools, New Jersey voters in 1990 directed their anger over a tax increase, partly a result of the court decisions, toward Gov. Jim Florio by denying him a second

term in office. 146 The school finance area in particular is fraught with peril for many. The overwhelming majority of judges (and their clerks) are not trained as policy analysts and thus possess little expertise

in school finance minutiae. School finance litigation frequently forces judges into unfamiliar technical

and policy terrain . For example, in the most recent chapter of the decade-long DeRolph litigation, the Ohio Supreme Court all but admitted that its understanding of the state's complicated school funding formula in a recent decision was flawed. 147 Judges' struggles with the asserted relation between educational spending and student achievement also

inform. Despite decades of attention, scholars continue to explore the precise relation between educational resources and achievement. Complicated debates continue to smolder in the academic literature. 148 Despite significant social scientific uncertainty surrounding the nature and contour of the relation between resources and achievement, many court opinions demonstrate judges' willingness to assume clarity where

none exists, at least among social scientists. 149 Another worrisome aspect of courts' involvement in education policymaking is their seeming inability to disengage from judicial supervision once begun . The nation's

experience with school desegregation aptly illustrates this point. Although almost fifty years have passed since the Brown decision, federal courts remain embroiled in many desegregation plans.150 As litigants continue to squabble about what it means for a school district to be "unitary" or "fully integrated," the direct and indirect costs associated with school desegregation plans

mount. Analogous battles over school finance issues promise to become just as contentious and

prolonged.

Congress overrules. Friedman ‘1- [Leon, professor of constitutional law at the Hofstra University School of Law, “Overruling the Court” http://prospect.org/article/overruling-court] December 1, 2001//ad

One of the myths of our political system is that the Supreme Court has the last word on the scope and meaning of federal law. But time and time again, Congress has shown its dissatisfaction with Supreme Court interpretations of laws it passes--by amending or re-enacting the legislation to clarify its original intent and overrule a contrary Court construction. The Supreme Court often insists that Congress cannot really "overrule" its decisions on what a law means: The justices' interpretation has to be correct since the Constitution gives final say to the highest court in the

land. But Congress certainly has the power to pass a new or revised law that "changes" or "reverses" the meaning or scope of the law as interpreted by the Court, and the legislative history of the new law usually states that it was intended to "overrule" a specific Court decision. Often the reversal is in highly technical areas, such as the statute of limitations in securities-fraud cases, the jurisdiction of tribal courts on Indian reservations, or the power of state courts to order denaturalization of citizens.

But in the last 20 years, a main target of congressional "overruling" has been the Supreme Court's decisions in the area of civil rights . In 1982, for example, Congress amended the Voting Rights Act of 1965 to overrule a narrow Supreme Court holding in Mobile v. Bolden, a 1980 decision that addressed whether intentional discrimination must be shown before the act could be invoked. In 1988, Congress overruled another Supreme Court decision (in the 1984 case Grove City College v. Bell) by passing the Civil Rights Restoration Act, which broadened the coverage of Title VI of the Civil Rights Act of 1964. The legislative history of that law specifically recited that "certain aspects of recent decisions and opinions of the Supreme Court have unduly narrowed or cast doubt upon" a number of federal civil rights

statutes and that "legislative action is necessary to restore the prior consistent and long-standing executive branch interpretations" of those laws. And in 1991, Congress passed a broad, new Civil Rights Act that specifically reversed no fewer than five Supreme Court cases decided in 1989--decisions that severely restricted and limited workers' rights under federal antidiscrimination laws. Led by Massachusetts Democrat Edward Kennedy in the Senate and New York Republican Hamilton Fish, Jr., in the House, Congress acted to undo those rulings, as well as make other changes to federal law that strengthened the weapons available to workers against discrimination. Despite partisan contention over the language of certain provisions (which led to last-minute-compromise language), President George Bush the elder supported the changes. The new law recited in its preamble that its purpose was "to respond to recent decisions of the Supreme

Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination." Given the current supreme Court's track record in civil rights cases , there can be no doubt that

congressional remediation is again necessary . In a series of cases over the past two years, the Court has been giving

narrow readings to various federal civil rights laws. And once again, an attentive Congress can and should overrule the Court's decisions if the legislators care about fairness in the operation of government and in the workplace.

And it causes court stripping. Crabb 12 (Barbara, United States District Judge, Western District of Wisconsin., Wisconsin Law Review, “ADDRESS: ROBERT W. KASTENMEIER LECTURE: BRIDGING THE DIVIDE BETWEEN CONGRESS AND THE COURTS,” 2012 Wis. L. Rev. 871, lexis)

[*878] These major changes in court administration put the judicial branch on a firmer footing than it had been in the

nineteenth century and gave it a larger measure of autonomy, but they did not change the basic relationship between the two branches. The judiciary remained dependent on Congress for the confirmation of new judges, the creation of new judgeships, funding for courthouses, their basic budgets, and procedural rules, just as it is today. The courts still have no independent source of funding. They have no right to be heard on congressional decisions to expand or restrict the scope of the courts' jurisdiction or to enact laws that will increase the courts' workload. In other

words, when it comes to matters affecting institutional independence, the judiciary has no constitutional protection and its power is limited to persuasion. If Congress wanted to, it could retaliate against the

courts by cutting the courts' funding ; disestablishing individual courts ; adding or taking away Justices from the Supreme Court; imposing crippling restrictions on the operations of the courts ; narrowing their jurisdiction; impeaching individual judges and Justices; and refusing to confirm nominees to fill judicial vacancies. The framers set up what could well be a recipe for disaster : giving

the judiciary the last word on the law, with the inevitable controversies that authority will provoke, and then giving it no institutional protection . It is a little like giving a person a very old and very unpredictable gun for personal

security. If used properly, the gun may perform its intended function, but it's just as possible that it will inflict great damage on its owner. Making the judiciary the final arbiter on the meaning of the law, with the authority to declare a law or practice unconstitutional gives it power, but a power that can be explosive and set off backlashes of varying proportions . By no means is it a power that can ward off encroachment by the other branches. When an entity has little power in a relationship, it behooves it to assess the sticking points between it and

its protagonist, husband carefully what little power it possesses , employ diplomacy, look for areas in which the interests of

both parties are in alignment, and seek ways to enhance what little power of persuasion it has.

No precedent or spillover -- backlash, narrowing, and empirics. Robinson, 7 - Assistant Professor of Law, Emory School of Law; J.D., Harvard Law School (Kimberly, “The Case for a Collaborative Enforcement Model for a Federal Right to Education”, University of California, Davis Law Review [Vol. 40:1653, https://lawreview.law.ucdavis.edu/issues/40/5/articles/DavisVol40No5_Robinson.pdf

When court decisions move beyond the current political consensus, they can spark substantial

backlash and resistance that may undermine the social and policy agenda the decision sought to advance. For instance,

some contend that Brown I galvanized the intense resistance to school integration that raged throughout the South following the decision thereby undermining the political movement for integration that had gained support before Brown I. 415 The nation’s experience with desegregation

accomplished much by way of ending state-sponsored segregation, but ultimately many whites fled the inner city schools to avoid integration and schools, in turn, began resegregating.416 A collaborative, legislative approach developed after educating the nation about the critical need for

remedying educational inequities might avoid some of the backlash that court-defined approaches sometimes engender and experience greater success in bringing about lasting change .417 Moreover, congressional expression of the will of citizenry may represent the only effective counterbalance to state and local interests that would seek to maintain the status quo.418 When a democratically elected body determines that the country must undertake substantial

education reform to address harmful inequities, state and local governments, and ultimately the American public, may find a federal right to education more palatable. Additionally, when a democratic process defines the right to education, the citizenry through the legislature may revisit and refine the adopted approach to address shortcomings and incorporate insights from experience and new research.419 If courts define and enforce a federal right to education, they could deny the public the opportunity to shape the right to education and how the right should evolve over time.420 A collaborative approach to a federal right to education would also preserve more state and local control over education than a litigation-centered approach. Although the legislation would include substantial incentives for states to participate, states would retain the freedom to reject federal money and its accompanying pressures to provide the federal right to education.421 In addition, when the national oversight panel identifies concerns about the provision of the federal right, the panel would exercise restraint by solely issuing recommendations on potential reforms while leaving states the authority to determine how to respond to these concerns.422 This flexibility preserves the ability of states to experiment in

education.423 While some may respond that courts in school finance litigation typically give state governments the opportunity to determine how they will remedy state constitutional violations and engage in a dialogue with the courts about the most effective approach,424 courts in those cases retain the authority to prescribe how the state will address the violation.425 Under the collaborative approach proposed here, the panel would lack this authority. Defining and implementing a federal right to education through Congress and an executive panel also

represents a superior approach to litigation because courts and judges lack the in-depth knowledge about education that effective judgments will require. For example, the Court acknowledged its lack of expertise to decide complex issues of education policy in Rodriguez.426 While courts have decided many more school finance cases since Rodriguez, the school finance decisions reflect a vast array of opinions on how to develop an effective and fair school finance system427 and the Court’s acknowledgment in Rodriguez suggests federal judges may not possess the proficiency to select among these options. More importantly, while some courts have determined what outcomes education systems should achieve to satisfy adequacy requirements, “often the question of outcomes and always the question of ‘adequacy of what’ and ‘how much’ are left to legislatures and governors to determine.”428 Thus, it appears unlikely that the Court will determine that its expertise on these issues has increased enough for it to render final decisions on these complex matters.429 In contrast, under the enforcement model proposed in this Article, federal involvement in the right to education would rely upon the expertise of education experts to assess and propose modifications for education systems. Some might question why this Article’s proposal excludes judicial enforcement from the development and enforcement of a federal right to education.430 The courts have and will continue to play an important role in the social and constitutional order within the United States.431 Nevertheless, scholars debate the ability of courts to influence and accomplish social change.432 For example, Gerald Rosenberg contends

that before the legislative and executive branch instituted reform, court decisions such as Brown had “ virtually no direct effect” on ending segregation and little indirect effect on the civil rights movement, while at the same time the decision sparked a violent backlash against civil rights .433 He

relies upon these findings and his examination of other cases to conclude that the constraints of courts make them “virtually powerless to produce change.”434 Others challenge Rosenberg’s methodology and findings and find that Brown substantially influenced social change and that the courts can and have played a key role in influencing and effectuating change.435 Tomiko Brown-Nagin argues that legal claims can be a helpful component of a political plan to accomplish social change once social movements have established a foundation for the change.436 This Article draws upon Rosenberg’s work and other scholarly literature on some of the institutional limitations of courts solely to supplement the primary reasons noted above for recommending that Congress and a congressionally appointed panel rather than the courts should define and enforce a federal right to education.437

1AR Overview

OV -- AT: CircumventionCongress supersedes the courts and enforces. Economist ’15 (Economist; 7/28/15; “Can Congress over-ride a Supreme Court decision?”; https://www.economist.com/blogs/democracyinamerica/2015/07/rights-and-legislation; accessed 10/13/17)

Is Mr Santorum at all accurate in believing that Congress—as an extension of the “final say” of the American people—has the power to overturn the Supreme Court ? As it happens, yes . Congress can indeed expand rights beyond those recognised by the Supreme Court , as it did in reaction to Employment Division v Smith

when it passed the Religious Freedom Restoration Act in 1993. And if the constitution does not safeguard a certain right, Congress can create or amend laws to ensure such protection itself. For example in 1976 the court ruled in General Electric v Gilbert that pregnant women could be discriminated against in the workplace, as such discrimination was neither unconstitutional nor legislated against. So Congress came back two years

later with the Pregnancy Discrimination Act, thereby legally adding this protectio n . When the court put sharp limits on bosses' liability for under-paying female employees, Justice Ruth Bader Ginsburg noted in her dissent that "the Legislature may act to

correct this". It did: Congress passed the Lily Ledbetter Fair Pay Act of 2009. Indeed, lawmakers regularly craft laws in response to narrow or undesired rulings based on existing statutes, as Matthew R. Christiansen and William N. Eskridge

junior show in a recent study in the Texas Law Review. But Congress is not entitled to scale back on rights the Supreme Court

says are protected by the constitution.

Congressional enforcement is better. Boyce ‘12 (Duke University School of Law, J.D. expected May 2012; American University, M.A.T. 2009; Davidson College, B.A. 2007. “THE OBSOLESCENCE OF SAN ANTONIO V. RODRIGUEZ IN THE WAKE OF THE FEDERAL GOVERNMENT’S QUEST TO LEAVE NO CHILD BEHIND” http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1527&context=dlj//SG)

2. Congressional Superiority. Not only is Congress able to provide equivalent remedies, but in many ways, the protection available under NCLB

is superior to the protection the Court could provide by recognizing a fundamental right to education. To begin with, Congress’s ability to enforce both the right and its remedies is far superior to the Supreme Court’s . As the

states’ lethargic reaction to Brown illustrated, the Court has very little leverage actually to induce states to take action.255 Congress, by contrast, has the power of the purse and can employ this formidable bargaining chip as a means of ensuring state compliance.256 In accordance with this principle, NCLB establishes harsh sanctions for states that violate students’ implicit rights to education. The secretary of education is authorized to withhold all federal funding from states that fail to establish challenging standards or rigorous statewide assessments.257 Institutional-competence considerations similarly weigh in favor of a legislatively enforced right to education. Since the

federal judiciary’s first foray into public education in Brown, the Court has repeatedly insisted that it is ill equipped to correct problems in American schools.258 Judges lack both the administrative capacity to evaluate potential educational reforms and the training to make critical policy decisions .259 Consequently, judicial inquiries are usually limited to comparing concrete, tangible factors like physical facilities, instructional materials, and budgets,260 and their remedies are necessarily couched in abstract directives.261 Congress, by contrast, can delve into the minutiae by consulting experts and holding legislative hearings, and it therefore regularly makes policy decisions with confidence.262 Congress’s institutional competence is also superior in terms of regulatory power. Because Congress can delegate enforcement responsibilities to the Department of Education, it can regulate schools’ observance of students’ rights in a manner the Court cannot. Whereas the Court must rely on individuals

to bring a case or controversy, Congress, in conjunction with the Department of Education, can constantly police violations and

exact immediate corrective action. This ability, in turn, largely eliminates the sometimes-insurmountable issues of litigation costs and unequal access to the American court system. Because Congress and the Department of Education serve as constant watchdogs, they are able to intervene on behalf of many students who otherwise would probably be unable to vindicate their rights.

2AC Perm

PDCP -- AT: EnactCourts can “enact”.Wall 7. [J. R. N.; 10/07; dissertation submitted in partial fulfillment of the degree of Bachelor of Laws at the University of Otago – Te Whare Wanaga o Otago; “PROSPECTIVE OVERRULING – IT’S ABOUT TIME,” https://www.otago.ac.nz/law/research/journals/otago036272.pdf; DS]

The purpose of this dissertation is two-fold: to identify a problem in the common law and propose a possible solution. I shall argue in Part A

that when a court overturns a prior precedent the court enacts retrospective law 2. In Part B I shall assess the cogency of ‘prospective overruling’ as a solution to this problem. My primary question is whether prospective overruling solves the problem of providing both certainty and fairness in common law adjudication.

I recognise that the use of the term enact in reference to judge-made law is unorthodox since the term is

usually reserved for legislation. However, as will be discussed in Chapter 3, I contend that the courts fulfill a quasi- legislative function , and hence I contend that it is appropriate to use the term enact when describing judge-made law.

PDCP -- AT: Should“Should” doesn’t imply immediate obligation -- it’s flexible. Dvorsky ’15 (George; 12/14/15; B.A. in History and Political Science from Western University, media specialist and legal analyst; Gizmodo, “A Single Typo Nearly Killed the Paris Climate Accord,” http://gizmodo.com/a-single-typo-nearly-killed-the-paris-climate-accord-1747908970)

Hours before the historic Paris climate accord was to be ratified in a final vote, someone noticed that a word had been

changed in the final draft of the text—a single word that threatened to derail the entire deal. As reported in the Washington

Post, someone changed the word “should” to “shall.” Now, it seems like a little thing, but given that the words were in reference to sweeping new legal and financial obligations, it mattered. A lot. When it comes to legally binding terminology , there’s a big difference between “should” and “shall.” Whereas “should” is a kind of wishy- washy call to action, the word “shall” implies an obligation, and this is why Secretary of State John Kerry could not abide

the unexpected change. The New York Times reports: Throughout the process, the longer and less binding “should” was a deliberate part of the international agreement, put there to establish that the richest countries, including the United States, felt

obligated to pony up money to help poor countries adapt to climate change and make the transition to sustainable energy systems. “Shall” meant something altogether different , American officials said. When “shall” was spotted in the document on Saturday, Secretary of State John Kerry called his French counterpart and made it clear that unless a switch was made, France could not count on American support for the agreement. “I said: ‘We cannot do this and we will not do this. And either it changes, or President Obama and the United States will not be able to support this agreement,’ ” Mr. Kerry told reporters after delegates had accepted the deal by consensus Saturday night, amid

cheering and the celebratory stamping of feet. Thankfully, cooler heads prevailed, and within hours the wording within the 31-page

text was reverted back to the original “should.” A subsequent vote affirmed the Paris Accord, and all was saved. No one knows if the typo was an honest mistake, or someone’s deliberate attempt to give the accord an entirely new meaning. But as Kerry said afterward, “It was a mistake. I am convinced.”

PDCP -- AT: The“The” is a function word that signifies a particular noun. Merriam-Webster ‘N.D. [Merriam-Webster; No listed date, updated online; Online dictionary; Merriam-Webster, “the,” https://www.merriam-webster.com/dictionary/the; RP]

a —used as a function word to indicate that a following noun or noun equivalent is definite or has been

previously specified by context or by circumstance put the cat out b —used as a function word to indicate that a

following noun or noun equivalent is a unique or a particular member of its class the President the Lord c —used as a function word before nouns that designate natural phenomena or points of the compass the night is cold d —used as a function word before a

noun denoting time to indicate reference to what is present or immediate or is under consideration in the future

PDCP -- AT: USFGThe “United States federal government” is the three branches. U.S. Legal ’16 [U.S. Legal; 2016; Organization offering legal assistance and attorney access; U.S. Legal, “United States Federal Government Law and Legal Definition,” https://definitions.uslegal.com/u/united-states-federal-government/; RP]

The United States Federal Government is established by the US Constitution . The Federal Government shares

sovereignty over the U nited Sates with the individual governments of the States of US. The Federal

government has three branches : i) the legislature , which is the US Congress, ii) Executive, comprised of the President and Vice

president of the US and iii) Judiciary. The US Constitution prescribes a system of separation of powers and ‘checks and

balances’ for the smooth functioning of all the three branches of the Federal Government. The US Constitution limits the powers of the

Federal Government to the powers assigned to it; all powers not expressly assigned to the Federal Government are reserved to the States or to the people .

2AC Solvency

SD -- CircumventionCourts are circumvented and have no enforcement power. Michael J. Glennon 14, I-law prof at Tufts, National Security and Double Government, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf

The courts, which Hamilton called the “least dangerous” branch, 243 pose the least danger to the silent transfer of power from

the nation’s Madisonian institutions to the Trumanite network . Federal judicial appointees are selected, and vetted along the way, by those whose cases they will later hear: the Trumanites and their associates in the White House and Justice Department. Before an individual is named to the federal bench, a careful investigation takes place to ensure that that individual is dependable. What this means, in practice, is that appointees end up as trusted friends of the Trumanites in matters touching upon national security .

Presidents do not appoint individuals who are hostile to the Trumanites, nor does the Senate confirm them. The deck is stacked from the start against challenges to Trumanite policies . Judicial nominees

often come from the ranks of prosecutors, law enforcement, and national security officials, and they have often participated in the same sorts of activities the lawfulness of which they will later be asked to adjudicate.244 A prominent example was former Chief Justice William Rehnquist.245 Before his 1971 appointment to the Supreme Court by President Richard Nixon, Justice Rehnquist served as Assistant Attorney General for the Office of Legal Counsel (“OLC”) under Attorney General John Mitchell.246 In that capacity, Rehnquist participated directly in military surveillance of domestic political groups, including the preparation of a memorandum for Mitchell in 1969 dealing with the Army’s role in the collection of intelligence on civilians in the United States.247 He also “played a critical role in drafting the 1969 presidential order that established the division of responsibility between the military and the Justice Department for gathering of intelligence concerning during civil disturbances.”248 He testified before the Senate Judiciary Committee’s Subcommittee on Constitutional Rights in March 1971 that there were no serious constitutional problems with respect to collecting data or keeping under surveillance persons who are merely exercising their right of a peaceful assembly or petition to redress a grievance.249 After his confirmation hearings to become Chief Justice, however, he wrote in August 1986 in response to written questions from Senator Mathias that he could not recall participating in the formulation of policy concerning the military surveillance of civilian activities.250 The Senate confirmed his appointment by a vote of sixty-eight to twenty-six on December 10, 1971.251 Shortly thereafter, the Court began considering Laird v. Tatum, 252 a case involving the lawfulness of Army surveillance of civilians who were engaged in political activities critical of the government.253 Justice Rehnquist declined to recuse himself, and the case was decided five to four.254 The result was that the case was not sent back to the trial court to determine, as the Court of Appeals had ordered, the nature and extent of military surveillance of civilian groups.255 Instead, Justice Rehnquist’s vote most likely prevented the discovery of his own prior role and that of his Justice Department colleagues in developing the Nixon Administration’s military surveillance policy.256 Justice Rehnquist’s case is but one example of the symbiosis that binds the courts to the Trumanite network. Justice Rehnquist was not the only member of the judiciary with Trumanite links. Other

potential appointees had ample opportunity to prove their reliability. Justice Antonin Scalia, before his appointment to the Supreme Court,

also served as Assistant Attorney General for OLC and also was appointed initially by President Nixon.257 During his tenure

from 1974 to 1977 at OLC, Scalia later recalled, it fell to him to pass upon the legality of proposed covert operations by the intelligence community: “believe it or not, for a brief period of time, all covert actions had to be approved by me.”258 He attended daily meetings in the White House Situation Room with Director of Central Intelligence William

Colby and other top intelligence officials and decided what classified documents should be made available to Congress.259 He was the legal point-person in dealing with congressional requests for information on intelligence matters; on behalf of the Ford Administration he asserted executive privilege before a House investigating committee when it recommended that Henry Kissinger be cited for contempt of Congress for failing to produce classified documents concerning U.S. covert operations abroad .260

Justice Samuel Alito is a former captain in the Army Signal Corps, which manages classified communication systems for the military. He later became an Assistant U.S. Attorney, prosecuting drug and organized crime cases, and then an assistant to Attorney General Ed Meese before moving to OLC. There he worked, as he put it, to “increase the power of the executive to shape the law.”261 He was nominated to be a federal court of appeals judge in

1990 by President (and former Director of Central Intelligence) George H. W. Bush. Once confirmed, Judge Alito established his reliability by voting against the daughters of civilians killed in a military plane crash to uphold the government’s

refusal to show a federal judge the official accident report, on grounds of the state secrets privilege.262 Chief Justice John

Roberts was a law clerk for Justice Rehnquist.263 In that capacity he reportedly264 contributed significantly to the preparation of Rehnquist’s opinion in Dames & Moore v. Regan, 265 in which the Court upheld the Executive’s power to extinguish pending law suits by

Americans seeking compensation from Iran for property seized by the Iranian government.266 He moved on to the Justice Department and then President Reagan’s White House Office of General Counsel, where he drafted a letter for the President responding to retired Justice Arthur Goldberg, who had written Reagan that the U.S. invasion of Grenada was of doubtful constitutionality.267 Roberts wrote in the reply that the President had “inherent authority in international affairs to defend American lives and interests and, as Commander-in-Chief, to use the military when necessary in discharging these responsibilities .”268 Roberts’s memos, Charlie Savage has

reported, “regularly took more extreme positions on presidential power than many of his colleagues .”269

Appointed to the U.S. Court of Appeals for the District of Columbia in 2003,270 Roberts, like Alito, further confirmed his reliability. He

voted to uphold the system of military tribunals established by the Bush Administration271 (which the Supreme Court

overturned in Hamdan v. Rumsfeld, 272 a decision in which Roberts recused himself)273 and to uphold the power of the President, pursuant to statute, to prevent the courts from hearing certain lawsuits (in that case, brought by members of the U.S. military who had been captured and tortured during the Gulf War).274 It might be thought that these and other similarly inclined judges who adhere to views congenial to the Trumanite network have been appointed not because of Trumanite links but because of their

judicial philosophy and particular interpretation of the Constitution—because they simply believe in a strong Executive Branch, a

viewpoint that appointing Presidents have found attractive. Justice Scalia seemingly falls into this category.275 As Assistant Attorney General

he testified twice before Congress in opposition to legislation that would have limited the President’s power to enter into sole executive agreements.276 In judicial opinions and speeches before his appointment to

the Supreme Court he frequently expressed opposition to judicial involvement in national security disputes . “[J]udges know little” 277 about such issues, as he wrote in one such case decided while he was a member of the U.S. Court of Appeals for the District of Columbia.278 He argued again for deference in another national security case that came before that court that raised claims of “summary execution, murder, abduction, torture, rape, wounding, and the destruction of private property and public facilities.”279 It was brought by plaintiffs that included twelve members of Congress, who argued violations of the Constitution, War Powers Resolution,280 and the Boland Amendments281 (which cut off funds for the activities at issue).282 Judge Scalia refused to hear arguments on the merits; where a policy had been approved by "the President, the Secretary of State, the Secretary of Defense, and the Director of the CIA," he wrote, discretionary relief is inappropriate.283 After his appointment to the Supreme Court, Justice Scalia supported the executive oriented approach to treaty interpretation that the Reagan Administration relied upon in arguing that deployment of a space-based anti-ballistic missile ("ABM") system would not violate the ABM treaty (referring in his opinion to various Washington Post articles on the controversy).284 Later, in Rasul v. Bush,2*5 the Court's majority held that federal district courts may exercise jurisdiction under the federal habeas statute to hear claims by foreign nationals detained by the United States. Justice Scalia dissented, denouncing the majority for "judicial adventurism of the worst sort."286 In Hamdan v. Rumsfeld?*1 the majority held that a military commission established by the Executive lacked power to try the defendant; Justice Scalia dissented again, insisting that that conclusion was "patently erroneous."288 In Boumediene v. Bush,2*9 the majority held that the defendant, a foreign national, had a constitutional privilege of habeas corpus; again Justice Scalia dissented. It came as no surprise when Justice Scalia expressed concern in a 2013 speech that the lawfulness of NSA surveillance could ultimately be decided by judges—"the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against

which the wiretapping is directed."290 When the Trumanites' actions are at issue, submissiveness, not second-guessing, is the appropriate judicial posture. It is of course true that Justice Scalia and other such judges were and are

appointed because of their judicial philosophy. The cause of their beliefs, however, is as irrelevant as it is unknowable;

whatever the cause, the effect is the same—they are reliable supporters of the Trumanites. People tend to end up in organizations with missions compatible with their larger worldview, just as people once in an organization tend to adopt a worldview supportive of their organization’s mission . Position and judicial philosophy both are indicia of reliability. The question is not why a potential judicial appointee will come down the right way. The question is whether the appointee might reasonably be expected to do so. It might also be argued that these justices were not sufficient in

number ever to comprise a majority on the Supreme Court. In an era of increasingly close decisions, however, one or two votes can be decisive, and it must be remembered that this cursory review embraces only the Supreme Court; numerous district and appellate court judges with ties to the Trumanite network also adjudicate national security cases . This group includes, most prominently, the closest that the nation has to a national security court 291—the eleven

members of the Foreign Intelligence Surveillance Court. The court, or FISC as it is commonly called, was established in 1978 to grant

warrants for the electronic surveillance of suspected foreign intelligence agents operating in the United States.292 Each judge is selected by the Chief Justice of the Supreme Court from the pool of sitting federal judges.293 They are appointed for a maximum term of seven years; no further confirmation proceedings take place, either in the Senate or the Executive Branch.294 The Chief Justice also selects a Chief Judge from

among the court’s eleven judges.295 All eleven of the sitting judges on the FISC were selected by Chief Justice John

Roberts; ten of the eleven were initially appointed to the federal bench by Republican presidents .296 A

study by the New York Times concluded that since Roberts began making appointments to the court, 50% have been former Executive Branch officials.297 Normally, of course, courts proceed in public, hear arguments from opposing counsel, and

issue opinions that are available for public scrutiny. Not so with the FISC. All of its proceedings are closed to the public.298

The adversarial system integral to American jurisprudence is absent. Only government lawyers appear as counsel, unanswered by any real or potential adverse party .299 The FISC has pioneered a two-tiered legal system, one comprised of public law, the other of secret law. FISC opinions—even redacted portions of opinions that address only the FISC’s interpretation of the constitutional rights of privacy, due process, or protection against unreasonable

search or seizure—are rarely available to the public.300 Nancy Gertner, a former federal judge in Massachusetts, summed up the

court: “The judges that are assigned to this court are judges that are not likely to rock the boat . . . . All of the structural pressures that keep a judge independent are missing there. It’s one-sided, secret, and the judges are chosen in a selection process by one man.”301 The Chief Judge of the FISC candidly described its fecklessness.

“The FISC is forced to rely upon the accuracy of the information that is provided to the Court ,” said Chief

Judge Reggie B. Walton. “The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.”302 The NSA’s

own record proved him correct; an internal NSA audit revealed that it had broken privacy rules or overstepped its legal authority thousands of times since 2008.303 The judiciary, in short, does not have the foremost predicate needed for

Madisonian equilibrium: “a will of its own.”304 Whatever the court, judges normally are able to find what appear to the

unschooled to be sensible, settled grounds for tossing out challenges to the Trumanites’ projects . Dismissal of those challenges is couched in arcane doctrine that harks back to early precedent, invoking implicitly the courts’ mystical pedigree and an aura of politics-transcending impartiality . But challenges to the Trumanites’ projects regularly get dismissed before the plaintiff ever has a chance to argue the merits either before the courts or, sometimes more importantly, the court of public opinion. Try challenging the Trumanites’ refusal to make public their budget 305 on the theory that the Constitution does, after all, require “a regular statement and account of the receipts and expenditures of all public money”;306 or the membership of Members of Congress in the military reserve 307 on the theory that the Constitution does, after all, prohibit Senators and Representatives from holding “any office under the United States”;308 or the collection of

phone records of the sort given by Verizon to the NSA on the theory that the law authorizing the collection is unconstitutional.309 Sorry, no standing , case dismissed .310 Try challenging the domestic surveillance of civilians by the U.S. Army311 on the theory that it chills the constitutionally protected right to free assembly,312 or the President’s claim that he can go to war without congressional approval

313 on the theory that it is for Congress to declare war.314 Sorry, not ripe for review , case dismissed .315 Try challenging the introduction of the armed forces into hostilities in violation of the War Powers Resolution.316 Sorry, political question, non-justiciable , case dismissed .317 Try challenging the Trumanites’ refusal to turn over relevant and material evidence about an Air Force plane accident that killed three crew members through negligence,318

or about racial discrimination against CIA employees,319 or about an “extraordinary rendition” involving unlawful detention and torture.320 Sorry, state secrets privilege , case dismissed .321 Sometimes the courts have no plausible way of avoiding the merits of national security challenges. Still, the Trumanites win . The courts

eighty years ago devised a doctrine—the "non-delegation doctrine"—that forbids the delegation of legislative power by Congress to

administrative agencies.322 Since that time it has rarely been enforced, and never has the Court struck down any delegation of national security authority to the Trumanite apparatus .323 Rather, judges stretch to find "implied" congressional approval of Trumanite initiatives. Congressional silence , as construed by the

courts, constitutes acquiescence .324 Even if that hurdle can be overcome, the evidence necessary to

succeed is difficult to get; as noted earlier,325 the most expert and informed witnesses all have signed nondisclosure agreements , which prohibit any discussion of "classifiable" information without pre- publication review by the Trumanites. As early as 1988, over three million present and former federal employees had been

required to sign such agreements as a condition of employment.326 Millions more have since become bound to submit their writings for editing and redaction before going to press. And as the ultimate trump card, the Trumanites are cloaked in, as the Supreme Court put it, "the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress."327 The basis of their power, the Court found, is, indeed, not even the Constitution itself; the basis of Trumanile power is external sovereignly—the membership of the United States in the community of nations, which confers extra-constitutional authority upon those

charged with exercising it.32s As is true with respect to the other Madisonian institutions, there are, of course, instances in which the judiciary has poached on the Trumanites' domain. The courts rebuffed an assertion of the commander-in chief power in ordering President Truman to relinquish control of the steel mills following their seizure during the Korean War.329 Over the Trumanites' objections, the courts permitted publication of the Pentagon Papers that revealed duplicity, bad faith, and ineptitude in the conduct of the Vietnam War.330 The Supreme Court did overturn military commissions set up to try enemy combatants for war crimes,331 and two years later

found that Guantanamo detainees had unlawfully been denied habeas corpus rights.332 Personnel does sometimes matter. Enough apparent counterexamples exist to preserve the facade . Yet the larger picture remains valid .

Through the long list of military conflicts initiated without congressional approval—Grenada, Panama, Kosovo,

and, most recently, Libya—the courts have never stopped a war, with one minor (and temporary) exception . In 1973, Justice William O. Douglas did issue an order to halt the bombing of Cambodia 333—which lasted a full nine hours, until the full Supreme Court overturned it.-34 The Court's "lawless" reversal was effected through an extraordinary telephone poll of its members conducted by Justice Thurgood Marshall. "[S]ome Nixon men." Douglas believed, "put the pressure on Marshall to cut the corners ."135 Seldom do judges call out even large-scale constitutional violations that could risk getting on the wrong side of an angry public, as American citizens of Japanese ethnicity discovered during World War II .-36 Whatever the cosmetic effect, the four cases representing the Supreme Court's supposed "push-back" against the War on Terror during the Bush Administration freed, at best, a tiny handful of detainees .337 As of 2010 fewer than 4% of releases from Guantanamo followed a judicial release order.338 A still-unknown number of individuals, numbering at least in the dozens, fared no better. These individuals were detained indefinitely— without charges, based on secret evidence, sometimes without counsel—as "material witnesses" following 9/11.339 One can barely find a case in which anyone claiming to have suffered even the gravest injury as the result of the Bush-Obama counterterrorism policies has been permitted to litigate that claim on the merits—let alone to recover damages. The Justice Department's seizure of Associated Press

("AP") records was carried out pursuant to judicially-approved subpoenas, in secret, without any chance for the AP to be heard.340 The FISC 341 has barely pretended to engage in real judicial review. Between 1979 and 2011, the court received 32,093 requests for warrants. It granted 32,087 of those requests, and it turned down eleven.342 In 2012, the court received 1,789 requests for electronic surveillance, one of which was withdrawn. All others were approved.343 The occasional counterexample notwithstanding, the courts cannot seriously be considered a check on America's Trumanite network .

The government can use conflicting statutes as a justification for avoidance. Scheppele 12 — Kim Lane Scheppele, Professor of Sociology and Public Affairs and Director of the Program in Law and Public Affairs at Princeton, 2012 (“The New Judicial Deference,” Boston University Law Review, Vol 92, January, Available Online at

http://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/SCHEPPELE.pdf, Accessed 06-06-2015)

A gap between law on the books and law in action is commonplace , and in fact, its examination forms one of

the key pillars of the law and society movement.348 To law and society scholars, the formal sources of law virtually always deviate from law as practiced because of inconsistent enforcement, interpretive differences, strategic ignorance, practical limitations, the avoidance of formality, or outright flouting . Laws against murder do not prevent murders from happening,349 just as constitutional provisions against forced confessions do not always protect those held in custody from being beaten secretly into submission.350 Everyone is supposed to have her day in court, but nearly all cases – both civil and criminal – settle, often by agreeing to a fiction that is not true – that a lesser included offense was all that really happened in the events that led up to a plea bargain or that no one was responsible for anything in a settlement that nonetheless transfers money from the defendant to the claimant.351 Someone may settle out of court for an agreed-upon amount, but then she never gets what was

promised her.352 Gaps between law on the books and law in action happen all the time. But the new judicial deference is different. New judicial deference occurs not when there is a gap between the law as announced by one set of actors

(legislators and judges) and the law as carried out by another (citizens, lawyers, prosecutors, and police). Instead, new judicial deference occurs when a single judicial opinion pulls in both directions at once . In these cases,

law on the books is not different from law in action. Law on the books is different from law on the books. Courts say one thing and permit another thing to be done, and they do both within the four corners of the same judgment. Our review of the 9/11 cases has emphasized that inspiring rhetoric has generally been paired with incomplete detail about what should happen next. As a result, actors to whom the opinions were directed had to work out new solutions within very general outlines. Because opinions in these high-profile detention cases spectacularly lacked any detail that would have provided logical remedies to follow easily, those who won their cases had to start out on

a new road full of uncertainties and novel hurdles while the government against which the decisions ran could find endless ways to block speedy resolution of the issues . In designing a gap between right and remedy, the

post-9/11 cases are not alone. In other highly contested, high-visibility cases, courts have used this strategy before. Take, for example, abortion cases. In Roe v. Wade, 353 the Court created what appeared to be an expansive right, but then in subsequent cases permitted so many regulations about parental consent, waiting times, clinic

requirements, and appropriate medical procedures that, in practice, abortion providers found it very difficult to maintain easy access to abortion services.354 Moreover, abortion services in the United States can be expensive because they are often not covered by insurance.355 The much-trumpeted general right was not backed up by easy access to abortion services. This gap occurred not because reality fell short of a legal promise (the usual law and society problem) but instead because the apparently general right was whittled

away by restrictive laws that were in practice inconsistent with the practical realization of the general right.356 Both the right and the restrictions were built into doctrine. By contrast, in Germany, where the Federal Constitutional Court found that a woman’s general right to obtain an abortion was far more limited as a matter of doctrine,357 it has been easier – at least in many parts of the country – to get abortions because the procedure was at that time covered by the public health system, with widespread availability of facilities and (until recently) little cost to the woman.358 These, too, are specified in doctrine, softening the harsh effects of the main decision that allowed a balancing of women’s rights and fetal rights. Gaps between the expansive rights outlined in a judicial opinion and the limitations on that right permitted in practice by the same judicial opinion are not the usual fare in court decisions, but they are also not completely new. While a more systematic study would have to be done to see whether this strategy is used by judges more frequently in highly visible and socially contested

areas of jurisprudence than in other settings, “splitting the difference” between uncompromising sides might seem to judges to be particularly attractive in hot-button political settings . The new judicial deference means that both sides win – with one side getting the right in theory while the other side gets the reality on the ground , each authorized by different aspects of the same judicial decision. By contrast,

garden-variety gaps between law in the books and law in action are caused by resistance, evasion, and bureaucratic blocks. New deference builds the conflicts into the legal doctrine.

They can’t enforce anything. Michael Heise, Professor of Law, Case Western Reserve University, “The Courts, Educational Policy, and Unintended Consequences”, Cornell Journal of Law and Public Policy Volume 11 Issue 3 Summer 2002, http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1042&context=cjlpp

3. Structural Barriers That courts sometimes struggle in the educational policy setting should not surprise. Courts are

structurally ill-equipped to make the sometimes delicate policy tradeoffs incident to the school finance enterprise. Formal litigation, designed to resolve legal disputes in an adversarial manner, was never meant to serve as a dispassionate, thoughtful, deliberate forum to consider and weigh competing policy and funding objectives and goals.141 The adversarial setting is a blunt instrument and ill-suited to generate the political

consensus that is often necessary to carry out policy decisions . This is not to say that the legislative process is

perfect. Clearly, it is not. Rather, the smaller point is that, at least at a general level, despite their defects, the political processes, legislative and, to a lesser extent, executive branches remain comparatively better structured than courts to set and implement general school finance policy. 142 In this regard, New Jersey's three-decade-long school finance litigation

spectacle provides one vivid example of the difficulties with translating judicial victories into educational victories, especially where strong political consensus is lacking. 143 On the one hand, litigants succeeded in raising New Jersey's per-pupil spending level to among the nation's highest.144 On the other hand , despite increased

spending, student achievement levels in New Jersey's urban districts continue to lag behind national averages . 145 Moreover, in response to the "forced exchange" between New Jersey taxpayers and schools, New Jersey voters in 1990 directed their anger over a tax increase, partly a result of the court decisions, toward Gov. Jim Florio by denying him a second

term in office. 146 The school finance area in particular is fraught with peril for many. The overwhelming majority of judges (and their clerks) are not trained as policy analysts and thus possess little expertise

in school finance minutiae. School finance litigation frequently forces judges into unfamiliar technical and policy terrain . For example, in the most recent chapter of the decade-long DeRolph litigation, the Ohio Supreme Court all but admitted that its understanding of the state's complicated school funding formula in a recent decision was flawed. 147 Judges' struggles with the asserted relation between educational spending and student achievement also inform. Despite decades of attention, scholars continue to explore the precise relation between educational resources and achievement. Complicated debates continue to smolder in the academic literature. 148 Despite significant social scientific uncertainty surrounding the nature and contour of the relation between resources and achievement, many court opinions demonstrate judges' willingness to assume clarity where

none exists, at least among social scientists. 149 Another worrisome aspect of courts' involvement in education policymaking is their seeming inability to disengage from judicial supervision once begun . The nation's

experience with school desegregation aptly illustrates this point. Although almost fifty years have passed since the Brown decision, federal courts remain embroiled in many desegregation plans.150 As litigants continue to squabble about what it means for a school district to be "unitary" or "fully integrated," the direct and indirect costs associated with school desegregation plans

mount. Analogous battles over school finance issues promise to become just as contentious and prolonged.

Empirics prove. Robinson ‘7 (Kimberly Jenkins; Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School; 2007; “The Case for a Collaborative Enforcement Model for a Federal Right to Education”; http://scholarship.richmond.edu/law-faculty-publications/519/; UC Davis Law Review, Vol. 40; accessed 10/12/17)

Some might question why this Article’s proposal excludes judicial enforcement from the development and enforcement of a federal right to education.430 The courts have and will continue to play an important role in the social and constitutional order within the United States.431

Nevertheless, scholars debate the ability of courts to influence and accomplish social change .432 For example,

Gerald Rosenberg contends that before the legislative and executive branch instituted reform, court decisions such as Brown had “virtually no direct effect ” on ending segregation and little indirect effect on the civil rights movement, while at the same time the decision sparked a violent backlash against civil rights.433 He relies upon these findings and his examination of other cases to conclude that the constraints of courts make them

“virtually powerless to produce change .”434 Others challenge Rosenberg’s methodology and findings and find that Brown ubstantially influenced social change and that the courts can and have played a key role in influencing and effectuating change.435 Tomiko Brown-Nagin argues that legal claims can be a helpful component of a political plan to accomplish social change once social movements have established a foundation for the change.436 This Article draws upon Rosenberg’s work and other scholarly literature on some of the institutional limitations of courts solely to supplement the primary reasons noted above for recommending that Congress and a congressionally appointed panel rather than the courts should define and enforce a federal right to education.437

SD -- Congress OverrulesCongress overrules. Mikva & Bleich ‘91 – Abner J. Mikva was an American politician, federal judge, lawyer, law professor, and former White House Counsel. He was a member of the Democratic Party. Jeff Bleich is an American lawyer and diplomat from California, and a partner at the law firm of Dentons in San Francisco (California Law Review, vol. 79, no. 3, 1991, pp. 729–750 (740-743), “When Congress Overrules the Court”, JSTOR, www.jstor.org/stable/3480833)//dnarayan

1. Civil Rights The Civil Rights Act of 1990 was drafted in direct response to a flurry of recent Supreme Court opinions, and in the wake of several recent instances in which the Congress overruled Supreme Court deci- sions narrowing the scope of antidiscrimination remedies. These overrul- ings provide a useful backdrop for evaluating the Civil Rights Act of 1990. Between 1982 and 1988, Congress overruled seven Supreme Court decisions concerning interpretation of antidiscrimination provisions; in each instance, Congress increased the ability of plaintiffs to bring and prevail in suits compared to the rights recognized by the Court . In 1982, Congress overruled City of Mobile v. Bolden, 58 which required proof of an intent to discriminate in order to establish a violation of the 1965 Voting Rights Act.59 Congress then overruled two 1984 decisions: Smith v. Robinson, 6 which held that parents were not entitled to recover attorney's fees in actions to enforce the Education for All Handicapped Children Act,61 and Grove City College v. Bell, 62 which held that title IX's ban on sex discrimination in federally funded schools applied only to the funded programs rather than to the entire school . Congress also overruled United States Department of Transportation v. Paralyzed Veterans of America, 63 which held that laws prohibiting discrimination against handicapped

persons were inapplicable to commercial airlines. Congress has since passed new bills expressly overruling two more deci- sions that limited access to age-discrimination and disability-discrimina- tion remedies.6 The direct impetus for the Civil Rights Act of 1990, however, came from a series of decisions in 1989. In the first six months of that year, the Supreme Court issued four separate decisions in which it interpreted the Constitution and federal statutes in a manner that circumscribed meas- ures established to secure equal treatment under the law."6 These deci- sions narrowed the interpretation of title VII of the Civil Rights Act of 1964, as well as the equal protection clause of the fourteenth amendment of the Constitution, and the venerable section 1981 of the Civil Rights Act of 1871. In the first of these cases, City of Richmond v. J.A. Croson Co., 66 the Court held that affirmative action policies were subject to strict scrutiny. Applying that standard, the Court struck down a "set-aside" provision which required that minority contractors receive a fixed percentage of the value of contracts awarded by the city government.67 A few months later, the Court issued three more decisions in close succession, further limiting race-conscious remedial measures. In Wards Cove Packing Co. v. Atonio, 68 the Court appeared to reverse its long standing interpretation of the burden of proof in title VII cases. The Court held that the employee must always ultimately bear that burden in claims of discrimi- nation-rejecting the notion that the employer must prove a business necessity once a prima facie case is presented.69 Likewise, in Martin v. Wilks,70 the Court expanded the ability of nonparties to challenge affirm- ative action remedies. The Court permitted white firefighters to contest a negotiated consent decree entered into between black firefighters and the city of Birmingham eight years earlier.71 Further, in Patterson v. McLean Credit Union,72 the Court read section 1981 of the Civil Rights Act narrowly, concluding that the section only prohibited race-based 2 denials of employment, not denials of promotion.73 Finally, in Lorance v. AT&T Technologies, 74 a less publicized decision, the Court held that the plaintiffs were time-barred from challenging a discriminatory seniority system, even though the system did not affect them until three years later.75 Just as the New Deal Congress reacted quickly to the wave of invali- dations in the early

1930s, the 101st Congress responded swiftly to the Court's limitation of federal affirmative action measures. The Civil Rights Act's sponsors openly acknowledged that the amendments were developed in reaction to the Court's affirmative action decisions and were designed not only to overrule the Court, but also to stretch affirmative action policies still further.76 The bill,77 which passed both houses of Congress but was vetoed by President Bush, would have overruled Wards Cove by allowing plaintiffs to carry their burden of proof by offering precisely the type of evidence that was deemed insufficient by the Court. Plaintiffs could prove employment discrimination by establishing a statistically significant dis- parity and a group of "employment practices" that may have resulted in this discrepancy, without identifying which specific practice caused which portion of the discrepancy. A second provision would have reversed the Court's decision in Martin v. Wilks. That provision would prevent employees who had had an opportunity to object to a consent decree during its adoption from challenging that decree later, unless they sought review on behalf of the parties to the decree. Finally, the pro- posed amendments would have reversed Patterson by expressly incorpo- rating into title VII

protection against discrimination in promotion decisions as well as hiring decisions. The Civil Rights Act of 1990 did not stop there; it went beyond the Court's rulings and developed a momentum of its own. The Act, for the first

time, would have allowed victims of sexual, religious, or ethnic dis- crimination on the job to sue for compensatory and punitive damages under title VII. This provision, as well as several others,78 would thus have increased the number and scope of race-conscious remedies avail- able to civil rights plaintiffs. The parallel to the "hot oil" case is clear: where Congress does not feel the Court has treated its enactments with proper sensitivity, it can-and likely will-write those enactments more broadly the second time around.

They’ll fight a contrary decision. Friedman ‘1- [Leon, professor of constitutional law at the Hofstra University School of Law, “Overruling the Court” http://prospect.org/article/overruling-court] December 1, 2001//ad

One of the myths of our political system is that the Supreme Court has the last word on the scope and meaning of federal law. But time and time again, Congress has shown its dissatisfaction with Supreme Court interpretations of laws it passes--by amending or re-enacting the legislation to clarify its original intent and overrule a contrary Court construction. The Supreme Court often insists that Congress cannot really "overrule" its decisions on what a law means: The justices' interpretation has to be correct since the Constitution gives final say to the highest court in the

land. But Congress certainly has the power to pass a new or revised law that "changes" or "reverses" the meaning or scope of the law as interpreted by the Court, and the legislative history of the new law usually states that it was intended to "overrule" a specific Court decision. Often the reversal is in highly technical areas, such as the statute of limitations in securities-fraud cases, the jurisdiction of tribal courts on Indian reservations, or the power of state courts to order denaturalization of citizens.

But in the last 20 years, a main target of congressional "overruling" has been the Supreme Court's decisions in the area of civil rights . In 1982, for example, Congress amended the Voting Rights Act of 1965 to overrule a narrow Supreme Court holding in Mobile v. Bolden, a 1980 decision that addressed whether intentional discrimination must be shown before the act could be invoked. In 1988, Congress overruled another Supreme Court decision (in the 1984 case Grove City College v. Bell) by passing the Civil Rights Restoration Act, which broadened the coverage of Title VI of the Civil Rights Act of 1964. The legislative history of that law specifically recited that "certain aspects of recent decisions and opinions of the Supreme Court have unduly narrowed or cast doubt upon" a number of federal civil rights

statutes and that "legislative action is necessary to restore the prior consistent and long-standing executive branch interpretations" of those laws. And in 1991, Congress passed a broad, new Civil Rights Act that specifically reversed no fewer than five Supreme Court cases decided in 1989--decisions that severely restricted and limited workers' rights under federal antidiscrimination laws. Led by Massachusetts Democrat Edward Kennedy in the Senate and New York Republican Hamilton Fish, Jr., in the House, Congress acted to undo those rulings, as well as make other changes to federal law that strengthened the weapons available to workers against discrimination. Despite partisan contention over the language of certain provisions (which led to last-minute-compromise language), President George Bush the elder supported the changes. The new law recited in its preamble that its purpose was "to respond to recent decisions of the Supreme

Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination." Given the current supreme Court's track record in civil rights cases , there can be no doubt that

congressional remediation is again necessary . In a series of cases over the past two years, the Court has been giving

narrow readings to various federal civil rights laws. And once again, an attentive Congress can and should overrule the Court's decisions if the legislators care about fairness in the operation of government and in the workplace.

SD -- Courts FailCourts fail – local resistance, lack of expertise, no culture shifting and empiricsRobinson, 7 - Assistant Professor of Law, Emory School of Law; J.D., Harvard Law School (Kimberly, “The Case for a Collaborative Enforcement Model for a Federal Right to Education”, University of California, Davis Law Review [Vol. 40:1653, https://lawreview.law.ucdavis.edu/issues/40/5/articles/DavisVol40No5_Robinson.pdf

When court decisions move beyond the current political consensus, they can spark substantial

backlash and resistance that may undermine the social and policy agenda the decision sought to advance. For instance,

some contend that Brown I galvanized the intense resistance to school integration that raged throughout the South following the decision thereby undermining the political movement for integration that had gained support before Brown I. 415 The nation’s experience with desegregation

accomplished much by way of ending state-sponsored segregation, but ultimately many whites fled the inner city schools to avoid integration and schools, in turn, began resegregating.416 A collaborative, legislative approach developed after educating the nation about the critical need for

remedying educational inequities might avoid some of the backlash that court-defined approaches sometimes engender and experience greater success in bringing about lasting change .417 Moreover, congressional expression of the will of citizenry may represent the only effective counterbalance to state and local interests that would seek to maintain the status quo.418 When a democratically elected body determines that the country must undertake substantial

education reform to address harmful inequities, state and local governments, and ultimately the American public, may find a federal right to education more palatable. Additionally, when a democratic process defines the right to education, the citizenry through the legislature may revisit and refine the adopted approach to address shortcomings and incorporate insights from experience and new research.419 If courts define and enforce a federal right to education, they could deny the public the opportunity to shape the right to education and how the right should evolve over time.420 A collaborative approach to a federal right to education would also preserve more state and local control over education than a litigation-centered approach. Although the legislation would include substantial incentives for states to participate, states would retain the freedom to reject federal money and its accompanying pressures to provide the federal right to education.421 In addition, when the national oversight panel identifies concerns about the provision of the federal right, the panel would exercise restraint by solely issuing recommendations on potential reforms while leaving states the authority to determine how to respond to these concerns.422 This flexibility preserves the ability of states to experiment in education.423 While some may respond that courts in school finance litigation typically give state governments the opportunity to determine how they will remedy state constitutional violations and engage in a dialogue with the courts about the most effective approach,424 courts in those cases retain the authority to prescribe how the state will address the violation.425 Under the collaborative approach proposed here, the panel would lack this authority. Defining and implementing a federal right to education through Congress and an executive panel also

represents a superior approach to litigation because courts and judges lack the in-depth knowledge about education that effective judgments will require. For example, the Court acknowledged its lack of expertise to decide complex issues of education policy in Rodriguez.426 While courts have decided many more school finance cases since Rodriguez, the school finance decisions reflect a vast array of opinions on how to develop an effective and fair school finance system427 and the Court’s acknowledgment in Rodriguez suggests federal judges may not possess the proficiency to select among these options. More importantly, while some courts have determined what outcomes education systems should achieve to satisfy adequacy requirements, “often the question of outcomes and always the question of ‘adequacy of what’ and ‘how much’ are left to legislatures and governors to determine.”428 Thus, it appears unlikely that the Court will determine that its expertise on these issues has increased enough for it to render final decisions on these complex matters.429 In contrast, under the enforcement model proposed in this Article, federal involvement in the right to education would rely upon the expertise of education experts to assess and propose modifications for education systems. Some might question why this Article’s proposal excludes judicial enforcement from the development and enforcement of a federal right to education.430 The courts have and will continue to play an important role in the social and constitutional order within the United States.431 Nevertheless, scholars debate the ability of courts to influence and accomplish social change.432 For example, Gerald Rosenberg contends

that before the legislative and executive branch instituted reform, court decisions such as Brown had “ virtually no direct effect” on ending segregation and little indirect effect on the civil rights movement, while at the same time the decision sparked a violent backlash against civil rights .433 He

relies upon these findings and his examination of other cases to conclude that the constraints of courts make them “virtually powerless to produce change.”434 Others challenge Rosenberg’s methodology and findings and find that Brown substantially influenced social change and that the courts can and have played a key role in influencing and effectuating change.435 Tomiko Brown-Nagin argues that legal claims can be a helpful component of a political plan to accomplish social change once social movements have established a foundation for the change.436 This Article draws upon Rosenberg’s work and other scholarly literature on some of the institutional limitations of courts solely to supplement the primary reasons noted above for recommending that Congress and a congressionally appointed panel rather than the courts should define and enforce a federal right to education.437

Courts limit litigation—this prevents stakeholder buy in that dooms implementation. David Mayrowetz 07, UI Chicago education policy professor, 12-6-2007, ““But We're in a Court of Law. We're Not in a Legislature.” Educational Poliy, Volume: 22 issue: 3, page(s): 379-421

To what might we attribute these mixed results after the ruling? The court monitor believes that “the enormity [of the task facing the defendants] may not have

been anticipated when the settlement agreement and implementation plan were developed” (Monitor’s Brief, 2003), and we agree. However, we also suggest that the lack of participation of groups representing special educators, child study team members, and those who prepare them, could have contributed to the limited successful implementation because it distracted the entire enterprise. If the court had allowed more fulsome participation from as many interested and affected persons and groups as possible, especially “those individuals and groups responsible for or in a position to disrupt implementation” (Sturm, 1991, p. 1396), its energies may not been caught up in fighting ISBE’s attempts to create a politically palatable solution on the teacher certification issue . Broad and open participation as envisioned by Sturm, however, runs against traditional judicial practices and procedures, which seek efficient resolution of disputes by strictly controlling participation . In Corey H., the court recognized the theoretical value of participation but did not fully escape the limiting procedures of traditional litigation. It turned a deaf ear to the vehement objections raised by a variety of interested persons and groups at the fairness hearing. Rather than invite those opponents to participate in further negotiations over the provisions of the settlement agreement, as some commentators suggest courts should do in public law litigation (Fiss, 1979), the court simply noted their objections and approved the agreement negotiated by the parties. Absent active involvement in the judicial process, the opponents of the settlement agreement resisted it vigorously and significantly delayed its implementation . It

appears that with the court’s attention on fighting with ISBE and the keeping the nonparties at bay, insufficient energy went into examining reform at the school

level. Unfortunately, the special interest groups representing teachers did not attempt to engage the policy making process in the courts until a very late stage. At that point, the court was unwilling to open the door to their participation. We recognize that the court was in a difficult position, especially because ISBE did not stage an adequate defense and they were reluctant not only to admit liability but also to remedy their wrongdoing. The court did make some efforts to allow nonparty opponents to air their

concerns. However, the end result of the policy-making process, especially with regard to the certification issue, was the perception that the court imposed its will on teachers and legislators, rather than working with them.

SD -- Court StrippingCounterplan causes court stripping. Crabb 12 (Barbara, United States District Judge, Western District of Wisconsin., Wisconsin Law Review, “ADDRESS: ROBERT W. KASTENMEIER LECTURE: BRIDGING THE DIVIDE BETWEEN CONGRESS AND THE COURTS,” 2012 Wis. L. Rev. 871, lexis)

[*878] These major changes in court administration put the judicial branch on a firmer footing than it had been in the

nineteenth century and gave it a larger measure of autonomy, but they did not change the basic relationship between the two branches. The judiciary remained dependent on Congress for the confirmation of new judges, the creation of new judgeships, funding for courthouses, their basic budgets, and procedural rules, just as it is today. The courts still have no independent source of funding. They have no right to be heard on congressional decisions to expand or restrict the scope of the courts' jurisdiction or to enact laws that will increase the courts' workload. In other

words, when it comes to matters affecting institutional independence, the judiciary has no constitutional protection and its power is limited to persuasion. If Congress wanted to, it could retaliate against the

courts by cutting the courts' funding ; disestablishing individual courts ; adding or taking away Justices from the Supreme Court; imposing crippling restrictions on the operations of the courts ; narrowing their jurisdiction; impeaching individual judges and Justices; and refusing to confirm nominees to fill judicial vacancies. The framers set up what could well be a recipe for disaster : giving

the judiciary the last word on the law, with the inevitable controversies that authority will provoke, and then giving it no institutional protection . It is a little like giving a person a very old and very unpredictable gun for personal

security. If used properly, the gun may perform its intended function, but it's just as possible that it will inflict great damage on its owner. Making the judiciary the final arbiter on the meaning of the law, with the authority to declare a law or practice unconstitutional gives it power, but a power that can be explosive and set off backlashes of varying proportions . By no means is it a power that can ward off encroachment by the other branches. When an entity has little power in a relationship, it behooves it to assess the sticking points between it and

its protagonist, husband carefully what little power it possesses , employ diplomacy, look for areas in which the interests of

both parties are in alignment, and seek ways to enhance what little power of persuasion it has.

Controversial decisions spark court stripping initiativesKatz 9 (Martin J. – Interim Dean and Associate Professor of Law, University of Denver College of Law; Yale Law School, J.D, “GUANTANAMO, BOUMEDIENE, AND JURISDICTION-STRIPPING: THE IMPERIAL PRESIDENT MEETS THE IMPERIAL COURT”, Constitutional Commentary, Summer, 25 Const. Commentary 377, lexis)

Ever since the Supreme Court declared that it had the power to review acts of Congress and the President for constitutionality more than 200 years ago, n5 legal thinkers have wondered whether Congress could control this power by restricting the jurisdiction of the federal courts . The question has tended to

come up most visibly in two contexts. n6 First, in the wake of controversial federal court decisions , opponents

have occasionally proposed laws to strip the federal courts of jurisdiction to hear the type of case that had been at issue (presumably with the idea that state courts will ignore or refuse to apply the controversial precedent). n7 For example, after the Supreme Court decided Roe v. Wade, providing constitutional protection for a right to abortion, some legislators proposed legislation that would strip the federal courts of jurisdiction to hear those cases. n8 Similar legislation has been proposed in

[*380] response to decisions on school busing, loyalty oaths, school prayer, reapportionment, and the pledge of allegiance. n9 Notably, in this context, while the constitutionality of such legislation has been hotly debated, such legislation has rarely if ever been passed - perhaps as a result of Congressional doubt regarding the constitutionality, or at least the wisdom, of such legislation. n10

Controversial constitutional rulings cause significant Congressional backlash – constitutional amendments can be passed to overturn themMiller 9 (Mark - Professor of Political Science, Adjunct Professor of History, Director of Law and Society Program, at Clark University, ‘Constitutionalism and Democracy : View of the Courts from the Hill : Interactions Between Congress and the Federal Judiciary.” University of Virginia Press, 2009, proquest)

In theory, when the Supreme Court or another federal court issues a constitutionally based decision, the only way for Congress to overturn that decision is through

a constitutional amendment. In fact, a variety of amendments to the Constitution have been enacted mainly to overturn Supreme Court decisions, including the Eleventh Amendment, the Civil War amendments (the Thirteenth,

Fourteenth, and Fifteenth), the Sixteenth Amendment, and the Twenty-Sixth Amendment. In addition, a variety of constitutional amendments designed to overturn specific Supreme Court decisions have been proposed but never ratified. For example, there have been efforts to pass constitutional amendments prohibiting abortion, prohibiting flag burning, allowing prayer in schools, and prohibiting gay marriage. To date, none of these proposed amendments have received the two-thirds vote in both houses of Congress necessary to send them to the states for ratification.

Even when Congress enacts a constitutional amendment, however, the inter-institutional conversation does not end. As Comiskey has noted, “Because the courts can rule on disputes over the meaning of an amendment’s terms, amendments do not always end the constitutional dialogue on the subjects they address” (2008, 207). Some of the most persistent proposals for constitutional amendment proposals have been aimed at prohibiting burning of the American flag as a form of political protest. Votes on proposed constitutional amendments to prohibit flag burning have been taken nearly every year since the Supreme Court’s decisions in Texas v. Johnson (1989) and United States v. Eichman (1990) allowing it. Almost every year since these cases were handed down, one house of Congress has gotten the necessary two-thirds vote to pass the proposed amendment, but the other house has failed to reach that threshold. Thus the proposed amendment has never been sent to the states for ratification

because it has never gotten the necessary vote in both houses of Congress at the same time. In reality, Congress can also take statutory steps to reverse the policy announced by the Court, if not the constitutional decision itself . Davidson notes that

the same partisan and ideological fights that Congress engages in over a wide variety of policy issues clearly spill over into issues of constitutional interpretation. “Partisan and ideological allegiances are as divisive as ever,” he writes, “and are especially salient in congressional responses to pressing constitutional questions” (1993, 118). But one Democratic member of Congress warned that Congress should not rush to overturn constitutionally based decisions of the

Supreme Court. This member said to me, “The President has said that he has an equal role in interpreting the Constitution with Congress and the Supreme Court, but that is not true. Congress and the President must follow the Supreme Court in constitutionally based cases because the job of the courts is to interpret the

Constitution. We can’t just ignore court rulings on the Constitution like the President has tried to do.” Of the twenty-three Supreme Court decisions studied by Robert Dahl (1957), in effect seventeen were reversed by Congress. Likewise, Joseph Ignagni and James Meernik (1994) found that in the years 1954– 90 Congress had in effect reversed the policy direction in thirteen of the sixty-five decisions they studied. For example, in 1978 the Supreme Court ruled that the Fourth Amendment did not protect the offices of a newspaper from police searches if the police had a search warrant. Congress responded by passing legislation granting additional protections to newspapers (see Peretti 1999, 142). Using a different methodology, Pickerill (2004, 41) found that in almost half of the cases he studied, Congress acted to save statutes found to be unconstitutional by the courts. Pickerill argues that although at times Congress will directly confront the Court’s constitutionally based decisions, “it is much more common for Congress to amend legislation in a manner that makes clear concessions to the Court’s decision” (2004, 49).

They can do it indirectly. Shay and Kalb 7 (Giovanna – Assistant Professor at Western New England College School of Law, and Johanna – Yale Law School, J.D. 2006, “MORE STORIES OF JURISDICTION-STRIPPING AND EXECUTIVE POWER: INTERPRETING THE PRISON LITIGATION REFORM ACT (PLRA)”, 2007, 29 Cardozo L. Rev. 291, lexis)

Cases like Minix provide sufficient cause for concern , n39 but the significance of the PLRA decisions extends beyond their

immediate impact on prison litigation. John Boston, the foremost practitioner expert on PLRA doctrine, has described the PLRA as "the new face of court stripping," because it limits review through "new standards and [*297] ... procedures ," rather

than explicitly drawing "lines and erecting walls." n40 In so doing, the PLRA cases demonstrate yet another form of jurisdiction-stripping , contributing to the overall shift of power to the executive that we currently see

in other contexts, including in the "War on Terror" on all its fronts . n41

That lets Congress remove the applicability of landmark rulings. Barrett 8 (Amy – Associate Professor of Law, Notre Dame Law School, “Stare Decisis And Nonjudicial Actors: Introduction”, Notre Dame Law Review, May, 83 Notre Dame L. Rev. 1147, lexis)

V. Court Packing, Jurisdiction Stripping, and Other Indirect Attacks With some frequency, nonjudicial actors have registered disagreement with Supreme Court

opinions indirectly, by launching an institutional attack on the Court. Jurisdiction-stripping legislation is a common instance of this kind of attack. When the Supreme Court hands down a controversial decision , opponents of it often respond with a proposal to

modify the Court's jurisdiction so as to remove future similar cases from the Court's docket (and, for that matter, all federal dockets), typically leaving their resolution to the state courts. n98 Jurisdiction-stripping measures have been introduced on any number of topics, including school prayer, abortion, busing, and affirmative action. n99 Most of the time, these proposals

die in Congress. n100 Very [*1166] occasionally, they do become law - as did the Detainee Treatment Act of 2005, n101 which, in response

to the Court's decision in Rasul v. Bush, n102 forbids any federal court to hear a petition for a writ of habeas corpus filed by an enemy combatant held at Guantanamo Bay. n103

Congress will literally control the court. IU News Room 6 (4/6/2006, Indiana University News Room, “Congressional control over the courts? History says no, but it could happen,” http://newsinfo.iu.edu/news-archive/3254.html)

BLOOMINGTON, Ind. -- Despite regular confrontations with the courts throughout American history, Congress has rarely used its powers to control the federal judiciary. But that tradition may be changing, according to an Indiana University Bloomington law professor. An intensifying partisan divide over the future of America's judicial system , which

threatens to undermine public confidence in our courts and the rule of law, is jeopardizing the longstanding balance between the courts and Congress, argues Charles Geyh in his debut book, When Courts and Congress Collide: The Struggle for Control of America's Judicial System

(University of Michigan Press, 2006). History has shown that congressional proposals to control the decisions judges make by impeaching them, taking away their jurisdiction, holding their budgets hostage or "un-making" their courts rarely succeed, said Geyh, a professor of law and Charles L. Whistler faculty fellow at the IU School of Law-Bloomington.

Yet he believes that the recent round of attacks on courts -- from Congress, pundits and evangelical conservatives -- has increased the possibility that current proposals to control the federal judiciary might actually succeed . "There's this confluence of events -- you might call it a perfect storm of factors -- where you have a deeply polarized public, an evangelical right sharpening the divide over moral issues that ultimately the courts will have to decide, and a new way of looking at judges as being controlled by their political preferences," Geyh said. "In this environment, it may prove extremely difficult to preserve a system where we give judges breathing room and latitude to decide cases without legislative interference ."

While Congress has long been willing to influence judicial decision-making indirectly by blocking the appointments of ideologically unacceptable nominees, it has, with rare exceptions, resisted employing more direct methods of control. So why hasn't Congress made good on its threats to strip federal judges of their autonomy? Geyh believes the answer lies in a custom of respect for the judiciary's independence that Congress has honored for two centuries. This custom is grounded in the belief that judges will usually decide cases based on the facts and the law and seek immunity from political and other pressures that could corrupt their impartial judgment, he said. More recently, though, scholars and policy makers have challenged that belief and argued that "independent" judges routinely

disregard the law and decide cases in light of their personal politics. This ongoing campaign against "judicial activism" and "legislating from the bench" has eroded public confidence in the courts , Geyh said. Along with an escalating battle between

the nation's political parties for control of judicial appointments, it has created a potentially destabilizing environment that threatens to jeopardize the "dynamic equilibrium" between Congress and the courts . "If you

already believe that judges aren't following the law and are guided by their political preferences, then why even have independent judges?" Geyh asks. "Why not just control them?"

SD -- DNASupreme court will be unwilling to enforce the ruling and will use “alternative facts” to still allow DNA searches. Balko 19 – Radley Balko is an American journalist, author, blogger, and speaker who writes about criminal justice. (“The criminal justice system also has an ‘alternative facts’ problem”, Washington Post, 1-31-19, https://www.washingtonpost.com/opinions/2019/01/31/criminal-justice-system-also-has-an-alternative-facts-problem/, accessed 7-14-20)//kel$

In the past year, Vox, the Nation and NBC News have published lengthy treatises on the basic problem: Many of the forensic disciplines used in courtrooms across the United States are unreliable and entirely subjective , using methods unsupported by scientific research. Forensic malfeasance has even crept into the plots of TV police and legal dramas. The crisis in expert testimony seems to be resonating just about everywhere except for the one place it’s most crucial: in courtrooms. But the problem is bigger than forensics and junk

science. It isn’t that the courts have been duped by phony expertise or quackery; it’s that the criminal justice system has

evolved to disregard its own mistakes. Courts rarely correct themselves, even when they get something fundamentally wrong. And because they make their own rules, there’s no one to tell them to get it right. Last year, reporter Pamela Coloff published a piece in ProPublica and the New York Times Magazine about Joe Bryan, a Texas man

convicted partly because of blood-spatter testimony given by a detective. That officer had all of 40 hours of training in blood-spatter analysis, a field of forensics that, even when done properly, has been questioned by the NAS and other authoritative groups.

The detective himself has since admitted that his testimony was mistaken, and the Texas Forensic Science

Commission determined that his testimony in Bryan’s trial was “not accurate or scientifically supported.” Yet none of this was enough to overturn Bryan’s guilty verdict. In December, a Texas judge denied his request for a new trial. In 2017, some reform advocates hoped the Supreme Court would fix a long-standing error when it considered a case about barring sex offenders from using social media. In the majority opinion in McKune v. Lile, Justice Anthony M. Kennedy repeated a claim from a pop psychology magazine that the recidivism rate for sex offenders was “frighteningly high,” as high as 80 percent. It’s nowhere near that high. In fact, people convicted of sex crimes reoffend at a lower rate than any other class of criminals. Kennedy’s claim has been repeated by more than 90 courts across the country in opinions upholding various types of post-incarceration punishment for sex offenders, including indefinite detention and living restrictions that force them sleep under bridges. The court has had a number of chances to correct Kennedy’s mistake. It hasn’t. In the 2017 case, the court struck down the social media ban but left Kennedy’s error intact. The majority opinion’s author? Kennedy.

I’ve written about similar mistakes of fact the court has made over the years. The Supreme Court has created an alternate universe in which prosecutors are regularly disciplined by bar associations , police officers are regularly disciplined for violating constitutional rights, and police officers are inundated with roadside ambushes and “split-second

decisions” about whether to use force. Despite ample evidence and decades of research showing that eyewitness testimony is inherently

flawed, often manipulated by law enforcement, the leading cause of wrongful convictions and could be made much more reliable

with some easy fixes, as recently as 2012, the Supreme Court continued to uphold that “the safeguards generally applicable in criminal trials” are sufficient to prevent misidentification. In 2015, the court refused to consider a challenge to a Louisiana law that prohibited defense lawyers from even mentioning research on problems with eyewitness testimony.

SD -- AT: PrecedentLitigation doesn’t work. Robinson ‘7 (Kimberly Jenkins; Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School; 2007; “The Case for a Collaborative Enforcement Model for a Federal Right to Education”; http://scholarship.richmond.edu/law-faculty-publications/519/; UC Davis Law Review, Vol. 40; accessed 10/12/17)

Litigation also oftentimes involves an inadequate forum for assessing the alternative approaches to a social

problem and the costs associated with each approach.441 Courts’ difficulty in gathering and assessing the relevance

of facts outside of the litigation, and the fact that the case before the court may not represent the predominant manner in which the

problem exists, renders the courts’ lack of expertise on education matters even more troubling.442 Courts also lack the tools to orchestrate political compromises that include people outside of the litigation who may be

necessary for effective change to occur.443 Furthermore, when courts become deeply involved in budgetary issues, their

inability to ensure additional expenditures , which remain in the province of the legislature, can encourage agreeing to expenditures at a low level, which would undermine addressing educational inequities in a manner that

empowers children to reach their full potential.444 The existence of one panel that reviews all of the state reports also has advantages over a litigation-centered approach. Some states provide substandard educational opportunities when compared

to most states, but these substantial interstate disparities typically fly under the radar of reform efforts while inflicting

a disproportionate harm on disadvantaged students.445 Having one panel examine interstate disparities would be superior to federal courts conducting such comparisons because the courts could reach conflicting conclusions regarding when states must remedy such disparities. A single panel also could develop benchmarks to guide state remedies of shortcomings and then consistently apply those benchmarks to determine when to strongly encourage a state to improve its educational opportunities in a way that moves the state closer to the national norm. Even if the U.S. Department of Education developed such benchmarks

for courts to apply, a single panel will apply those benchmarks more consistently than federal courts throughout the nation.446 Furthermore, if courts served as the primary implementation mechanism, the Supreme Court would conduct the final review of these decisions. However, in Rodriguez, the Supreme Court already rejected the possibility of becoming the overseer of the education system of all fifty states.447

One decision doesn’t set a sufficient precedent. Devins 9 — Neal Devins, Professor of Law and Government at the College of William and Mary, 2009 (“Presidential Unilateralism and Political Polarization: Why Today 's Congress Lacks the Will and the Way to Stop Presidential Initiatives,” Willamette Law Review, Vol 45 No 3, Spring, Available Online at http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1025&context=facpubs, Accessed 06-06-2015)

Before turning to Part I, let me clarify two points that underlie the analysis that is to follow. First, the focus of this essay is the President's power to advance favored policy initiatives. I do not consider the separate question of presidential power over the administrative state. More to the point, if the President does not express a strong policy preference or, alternatively, delegates decision making authority to agency heads, it may be that agency heads will not look to the White House for policy direction. Agency heads, instead, may focus on their own personal agenda or the agendas of congressional committees, interest groups, or careerists in their agency. For reasons I will detail in Part III of this essay, however, Presidents increasingly seek to rein in agency direction-by appointing presidential loyalists and by

making use of regulatory review procedures and pre-enforcement directives such as signing statements. Second, in saying that presidential power is largely defined by the dance that takes place between Congress and the White House , I do not mean to suggest

that the courts have no role to play in the separation of powers. My point, instead, is that court decisions are of limited reach . They

typically settle a case; they rarely establish precedents that define subsequent bargaining between

the executive and Congress. In case studies of Supreme Court rulings on the legislative veto, executive privilege, and war powers, Lou Fisher and I (both individually and collectively) have demonstrated the limited reach of Supreme Court decisions . In this essay, I will make limited reference to those writings-but I will not try to establish a point that I have made several times before.

Precedents mean nothing. McGuire, 2005

Kevin McGuire, associate professor of Political Science at UNC, and Michael MacKuen, professor of Political Science at UNC, ‘5, “Precedent and Preferences on the U.S. Supreme Court,” http://www.unc.edu/~kmcguire/papers/precedent.pdf

An alternative approach examines the alteration of precedent, analyzing when and why the Supreme Court overturns its past policies. If stare decisis genuinely constrained the members of the Court, then they should be unwilling to reconsider precedents, even those with which they may personally disagree. It turns out, however, that precedents are quite vulnerable, especially those that conflict with the policy dispositions of the justices (see, e.g., Brenner and Spaeth 1995; Segal and Howard 2000). Again, the evidence supports the attitudinal, rather than the legal model . No doubt the best evidence on the importance of stare decisis measures the degree to which justices who oppose a newly established precedent modify their behavior by accepting the authority of that precedent in subsequent cases (Spaeth and Segal 1999). In landmark decisions (i.e., cases for which there are no genuine precedents), the members of the Court are not bound by the dictates of stare decisis and are free to follow their preferences. If the justices were truly affected by precedent, then they would adjust accordingly, supporting the application of that new precedent in later litigation. By this standard, precedent does not exert much influence; it turns out that, across the Court’s entire history, the justices have rarely modified their behavior after the Court adopts new policies with which they disagree. This is quite powerful; it convincingly demonstrates that individual justices see little need to support the decisions of their brethren, even when there are strong legal reasons for doing so. Given the choice between a disagreeable principle and their own attitudinal inclinations, most members of the Court simply stand by their preferences.

2AC Net Benefit

NB -- Links to ElectionsTrump ties himself to the courts. Davis ’17 (Julie; 1/31/17; political analyst; The New York Times; “Trump Nominates Neil Gorsuch to the Supreme Court”; https://www.nytimes.com/2017/01/31/us/politics/supreme-court-nominee-trump.html?mtrref=www.google.com; DT)

WASHINGTON — President Trump on Tuesday nominated Judge Neil M. Gorsuch to the Supreme Court, elevating a conservative in the mold of Justice Antonin Scalia to succeed the late jurist and touching off a brutal,

partisan showdown at the start of his presidency over the ideological bent of the nation’s highest court. Mr.

Trump announced his selection during a much-anticipated evening ceremony that unfolded in prime time at the

White House. He described Judge Gorsuch, a federal appeals court judge based in Denver, as “a man who our country really

needs, and needs badly, to ensure the rule of law and the rule of justice.” “Judge Gorsuch has outstanding legal skills, a

brilliant mind, tremendous discipline and has earned bipartisan support,” Mr. Trump said, standing beside the judge and his wife, Louise, as

White House officials and Republican lawmakers looked on. “It is an extraordinary résumé — as good as it gets.” But Democrats —

embittered by Republican refusals for nearly a year to consider President Barack Obama’s choice to succeed Justice Scalia, and inflamed by Mr. Trump’s aggressive moves at the start of his tenure — promised a showdown over Judge Gorsuch’s

confirmation. Joined by liberal groups that plotted for weeks to fight Mr. Trump’s eventual nominee , leading Democrats signaled they would work to turn the Supreme Court dispute into a referendum on the president , and what they contend is his disregard for legal norms and the Constitution. Conservatives and business groups cheered Judge Gorsuch, calling his record distinguished and his qualifications unparalleled. The announcement came at a particularly tumultuous moment in an extraordinarily chaotic beginning to Mr. Trump’s presidency. Just a day earlier, he dismissed the acting attorney general for refusing to defend his hard-line immigration order that started a furor across the United States over what critics condemned as a visa ban against Muslims.

He takes credit. Carter ’17 Brandon Carter 17, 5-1-2017, "Trump on Gorsuch: 'Every 5-4 decision is because of me'," TheHill, http://thehill.com/homenews/administration/331346-trump-on-gorsuch-every-5-4-decision-is-because-of-me

President Trump says he has personally swung the Supreme Court with his appointment of Justice Neil Gorsuch. “Every 5-4 decision is because of me ,” Trump told the Washington Examiner in an interview published Monday, adding

that “could go on for 40 years” since Gorsuch “is a young man.” At age 49, Gorsuch is now the youngest justice on the high court. Trump’s successful nomination and confirmation of Gorsuch is seen as the biggest success of his first 100 days in office, fulfilling a campaign promise to voters to fill the seat of former Justice Antonin Scalia. Trump made the appointment of a new conservative justice one of the main promises of his campaign. A new ad released Monday touted Trump’s placement of Gorsuch on the bench with a narrator saying, "A respected Supreme Court justice: confirmed." Trump touted his first 100 days as “about the most successful in our country’s history” in his weekly address last week.

The counterplan energizes Trump supporters. Michael Dorf, 9/24/07, Find Law, “the supreme court and the butterfly effect,” http://supreme.findlaw.com/legal-commentary/the-supreme-court-and-the-butterfly-effect.html, mm

Critics of liberal judicial activism by the Supreme Court sometimes argue that decisions like Roe v. Wade are not

only illegitimate but actually counterproductive. When the Justices constrain the options of elected officials on morally divisive

questions, the argument goes, they lull supporters of the Court's substantive decisions--abortion rights supporters, in the Roe

example--into a false sense of security that the right they back is protected. Opponents, meanwhile, become energized , seeking radical changes to the constitutional order. On this view, the growth of the national political power of the religious right over the last three decades was fueled by Supreme Court decisions on abortion, school prayer,

gay rights, and other hot-button issues. Had the Court not constitutionalized , and thus nationalized, such questions, the old New Deal coalition might have held together: Socially conservative but poor Southern Whites and Catholic "Reagan Democrats" could have voted for economically- progressive Democrats at the national level, even as they continued to support social conservatives at the state level, because the federal government would have had little to say about the key social questions.

Court decisions massively mobilize opposition voters while lowering turnout among the beneficiaries of the decision Shauna Shames, 2005, Conference paper presented at the Midwest Political Science Association, “Mobilizing Against Backlash: Analyzing Interest Group Reaction to Roe v. Wade through Direct Mail Solicitations,” https://scholar.harvard.edu/shaunashames/files/shames_mobiliz_backlash_mpsa_paper_2005.pdf, mm

The theory and results of this study offer an enlarged understanding of the impact of Supreme Court decisions. Like a major action by the President or Executive Branch, or like an important bill from Congress, a Supreme Court decision draws a political line in the sand around which interests groups organize . Any major governmental action creates room for either new actors to enter or the old actors to move in new and different ways. In this paper, I have suggested that Roe v. Wade had both effects; it catalyzed the formation of new interest groups as well as forcing the existing groups on both sides to respond to it in new ways. As such, it was a shift in the political opportunity structure for both pro-life and prochoice groups that I argue constituted a critical

juncture in the history of abortion mobilization. The quantitative and qualitative data presented here reveal that there are important connections between Supreme Court decisions on abortion and the ways in which certain interest groups (NOW on the pro-choice side, and AHCDL, ALL, and CWA on the pro-life side) mobilize support for their cause and their group. Both the pro-choice and the pro-life groups in this study constantly and consistently reference the Supreme Court in their direct mail, their own appeals to members and potential members to raise money, support, and awareness. These references were not randomly distributed throughout the population of direct mail letters: they were specific to the abortion issue. For this issue, in the NOW direct mail, we saw that letters were more likely to reference the Supreme Court and less likely to mention the other two branches of national government. The regression analyses demonstrated that certain characteristics of each letter had significant effects on whether it mentioned a specific Supreme Court case – these characteristics included size (longer letters being more likely to mention a specific case), NOW Entity sending the letter (the PAC and Foundation were less likely to do so), and the topic of the letter (those addressing abortion were much more likely, those focusing on economic issues or the other branches of government less so). This study is part of a larger work-in-progress – I plan to collect full data for the pro-life groups mentioned above, as well as data for additional groups on the pro-choice side, to provide a fuller

explication of the ideas and data presented here. These findings point to some clear correlations that I plan to test further in future iterations of the project. In essence, this study lays out the bare bones of the argument. Whether you were the leader or activist with a pro-life or pro-choice bent, Roe and the subsequent abortion cases that followed it (especially Webster and Casey) changed the political

landscape in which you could operate. For the losing side especially (the pro-life side after Roe and the prochoice side after

Webster), the Court decision provided the impetus for vastly different mobilization possibilities – and much better chances of receiving a good response from those you wish to mobilize (something of an “awakening-the-sleeping-giant” effect). Further research might take up the question of whether, from an interest group perspective, it might

be more beneficial in certain cases to lose, for purposes of reaping these additional mobilization rewards. For the winners, the drop-off in mobilization appears to be a real disadvantage in some way s – this was most apparent in the direct mail letters from NOW after Bill Clinton won the 1992 Presidential election, where then-NOW-President Patricia Ireland pleaded with members not to stop sending money based on an assumption that NOW had won and therefore didn’t need further help. Pro-life leader Beverly LaHaye of

CWA told her members the same thing after the re-election of Ronald Reagan. Winning, in these cases, often meant losing money and members . Losing, however, provided vastly improved conditions for mobilization of and

fundraising from the “losers.” I suggest that the same principle can be applied to the winners and

losers of Supreme Court cases . Under which conditions is a key question for further research to address. The idea that controversial court decisions create a different opportunity structure is by no means a new idea – in fact, it is something

of an obvious point. However, the full consequences of this different structure of opportunities have not been fully investigated in the previous literature, and particularly not from the perspective of interest group reaction through their own terms, such as their own direct mail. This study is meant to help inform our broader understanding of how and why things happen in interest groups – what matters to interest groups, what causes a reaction, how opponents respond, and how groups counter-respond to opponents’ backlash. The main idea here is to add further nuance to this field, to add some more dots to the white space of the painting, so that the picture as a whole can become clearer.

NB -- Links to PoliticsCourt action links – decisions are politicized.Hamilton ’12 Eric Hamilton, “Politicizing the Supreme Court,” STANFORD LAW REVIEW, 8—30—12, www.stanfordlawreview.org/online/politicizing-supreme-court

To state the obvious, Americans do not trust the federal government, and that includes the Supreme Court. Americans believe politics played “too great a role” in

the recent health care cases by a greater than two-to-one margin.[1] Only thirty-seven percent of Americans express more than some confidence in the Supreme Court.[2] Academics continue to debate how much politics actually influences the Court, but Americans are excessively skeptical. They do not know that almost half of the cases this Term were decided unanimously, and the Justices’ voting pattern split by the political party

of the president to whom they owe their appointment in fewer than seven percent of cases.[3] Why the mistrust? When the Court is front-page, above-the-fold news after the rare landmark decision or during infrequent U.S. Senate confirmation proceedings, political rhetoric from the President and Congress drowns out the Court. Public perceptions of the Court are shaped by politicians’ arguments “for” or “against” the ruling or the nominee, which usually fall along partisan lines and sometimes are based on misleading premises that ignore the Court’s special, nonpolitical responsibilities. The Framers of the Constitution designed a uniquely independent Supreme Court that would safeguard the

Constitution. They feared that the political branches might be able to overwhelm the Court by turning the public against the Court and that the Constitution’s strict boundaries on congressional power would give way. As evidenced in the health care cases, politicians across the ideological spectrum have played into some of the Framers’ fears for the Constitution by politicizing the decision and erasing the distinction between the Court’s holding and the policy merits of the heath care law. Paradoxically, many of the elected officials who proudly campaign under the battle cry of

“saving our Constitution” endanger the Court and the Constitution with their bombast. Politicization of the Supreme Court causes the American public to lose faith in the Court, and when public confidence in the Court is low, the political branches are well positioned to disrupt the constitutional balance of power between the judiciary and the political branches.

Court decisions are highly controversial and derail the agenda. Jennings ‘15 (Jack; former president and CEO of the Center on Education Policy and general counsel for the House Committee on Education and Labor, “Lessons Learned from Federal Involvement in Schooling”, in Presidents, Congress, and the Public Schools: The Politics of Education Reform, p. 144-145)

STRONG POLICIES When the federal government has adopted forceful policies, the effect is greater than when weaker policies have been used

—this is common sense. The means of carrying out federal policies exist along a continuum of forcefulness. Supreme Court decisions are the most powerful means of ensuring action on a policy, and lower federal court rulings are

also potent . The Supreme Court's 1974 Lau ruling, which held that the San Francisco school district violated the constitutional rights

of students who were not proficient in English because they were not afforded additional assistance to learn English, changed practices throughout the country. Lower federal court decisions, which found violations of the Fourteenth Amendment in school

districts' treatment of children with disabilities, not only affected the defendant school districts but more importantly spurred congressional action in writing what has come to be known today as IDEA. Brown v. Board of Education,

although it was issued somewhat before the time frame of this book, was tremendously important not only in desegregating the schools but also in establishing the ideal that America should be a country for all peoples. In sharp contrast, the Supreme Court's San Antonio Independent School District v. Rodriguez closed the federal doors to efforts to bring greater fairness in the funding of public education. This 1973 case involved Texas's substantial reliance on local real estate taxes to fund the schools even though that meant that property-poor school districts had much less available for education than did

property-rich school districts. The Court said that there was no remedy at the federal level, and so sent the issue back to the states. As powerful as they are, federal court rulings can be affected by congressional action . Over a period of many

years, the Congress enacted laws that sought to limit the Supreme Court's Swann decision, which held that

the lower federal courts could order busing of school children for the purpose of desegregation. While enacting those laws, Congress tried not to go head-to-head with the courts, since they could rule those laws as

unconstitutional, but eventually Congress succeeded in limiting busing, assisted by presidential

appointments of judges disposed against that practice. With Title IX, Congress changed the law after the Supreme Court ruled in Grove City that only one part of that institution of higher education would be affected by the prohibition on

discrimination against women. The C ivil R ights Restoration A ct, in effect, overruled the Court's decision by clarifying congressional intent that entire institutions were affected, not only by Title IX but also by other civil rights laws. Even though court rulings are a powerful federal tool to execute policy, they are not necessarily the last word .

Draws in Congress. Hilbert & Yacobucci ‘16 (Gregory & Peter, Buffalo State College Political Science Associate Professors, Sep 15, 2016 "Is Anyone Listening? The Politicization of the Judiciary and the Loss of Authority: An Initial Assessment," 1-2, Date Accessed: 7/2/17, https://www.omicsonline.org/open-access/is-anyone-listening-the-politicization-of-the-judiciary-and-the-loss-ofauthority-an-initial-assessment-2332-0761-1000217.pdf)

Increasingly, the Court has become a political dartboard for politicians of both parties. The Court has been castigated for an ‘activist’ agenda while at the same time critiqued for its lack of action. President Obama told the public at the 2010 State of the Union address that “the Supreme Court reversed a century of law” with its Citizens United decision and suggested that the Court opposed honest elections. The ensuing image was even more damaging. With 48 million Americans watching, the camera panned to a cadre of expressionless Supreme Court Justices

sitting in the front row while lawmakers sitting next to them rose to their feet and applauded [12]. Presidents Obama and Bush and

members of Congress have derided the Court for its “unelected” nature, with President Obama publicly wondering

whether “an unelected group of people would somehow overturn a duly constituted and passed law.” [12]. Judges lack clear defenses. Judges would risk their credibility if they shouted back at the President, appeared on the Sunday morning talk shows, or held a press conference after a decision. Although the recent public appearances of

several of the Justices on the Court, notably Justices Ginsburg on the left and Scalia on the right have challenged the traditional notion of a silent Judiciary. That being said, unlike speeches from members of Congress and the President, Supreme

Court proceedings are difficult to follow without legal training. The media coverage of the Supreme Court can be incomplete or inaccurate. The first reading of the Bush v. Gore decision on the steps of the Court was consistently misinterpreted. More recently, FOX News and CNN famously misunderstood Chief Justice Roberts’ oral opinion and misreported that the individual mandate had been invalidated. The publicly available audio recordings of oral arguments contribute little to public understanding of the Court. Even before the decision, the Republican Party doctored audio clips of Solicitor General Don Verrilli coughing and pausing during oral argument to suggest in an ad suggesting that the

health care law was indefensible [13]. Politicization of the Court is dangerous because it primes the public for a power grab by the political branches. If the Court loses authority to check political power and make unpopular decisions, it cannot enforce the Constitution with the same effectiveness . Without enforcement of

the Constitution, Congress is free to invade constitutional rights and exceed its lawful powers. This is not the first

time the Court has seen its opinions challenged. The Supreme Court came frighteningly close to losing its independence when the Court made politically significant decisions striking down parts of the New Deal, and President Franklin D.

Roosevelt responded with the Court-packing plan. His arguments alleged misconduct by the Court. The Courts, however, have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic

conditions… The Court has been acting not as a judicial body, but as a policy-making body… We have, therefore, reached the point as a nation where we must take action to save the Constitution from the

Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself [14]. Court

opponents could repeat Roosevelt’s words from seventy-five years ago today. Former Speaker of the House, Newt Gingrich, promised in his recent presidential primary campaign to employ the tactics of early state constitutions by ignoring disagreeable Court decisions and ordering Justices to testify to congressional committees [15]. Proposals to invade the Court’s independence ignore the Framers’ fears for enforcement of the Constitution without the Supreme Court. Madison believed if the legislature and executive united behind a law and convinced the public that it

was in their interest, the people could not properly judge its constitutionality, even if it was patently unconstitutional. The “passions” of the people on the particular issues would prevail over well-reasoned constitutional judgment [9].

NB -- AT: Climate ChangeWarming doesn’t cause extinction.Farquhar et al. 17 Sebastian Farquhar, DPhil student at Oxford specializing in Cyber Security and AI. John Halstead, doctorate in political philosophy. Owen Cotton-Barratt, DPhil in pure mathematics. Stefan Schubert, Oxford's department of experimental psychology. Haydn Belfield, degree in Philosophy, Politics and Economics from Oriel College. Andrew Snyder-Beattie, Director of Research at the Future of Humanity Institute, University of Oxford, MS in biomathematics. [Existential Risk: Diplomacy and Governance, Global Priorities Project 2017]//BPS

The most likely levels of global warming are very unlikely to cause human extinction.15 The existential

risks of climate change instead stem from tail risk climate change – the low probability of extreme levels of warming – and interaction with other sources of risk. It is impossible to say with confidence at what point global warming would become severe enough to pose an existential threat. Research has suggested that warming of 11-12°C would render most of the planet uninhabitable,16 and would completely devastate agriculture.17 This would pose an extreme threat to human civilisation as we know it.18 Warming of around 7°C or more could potentially produce conflict and instability on such a scale that the indirect

effects could be an existential risk, although it is extremely uncertain how likely such scenarios are.19 Moreover, the timescales over

which such changes might happen could mean that humanity is able to adapt enough to avoid extinction in even very extreme scenarios .

Err against extinction – climate psychology biases in favor of catastrophe.Cass 17 Oren Cass, Senior fellow at the Manhattan Institute, J.D. from Harvard University. [The Problem with Climate Catastrophizing, https://www.foreignaffairs.com/articles/2017-03-21/problem-climate-catastrophizing?cid=int-lea&pgtype=hpg]//BPS

And yet, such catastrophizing is not justified by the science or economics of climate change. The well-established scientific consensus that human activity is causing the climate to change does not extend to judgments about severity. The most comprehensive and often-cited efforts to synthesize the disparate range of projections—for instance, the United Nations’

Intergovernmental Panel on Climate Change (IPCC) and the Obama administration’s estimate of the “Social Cost of Carbon”—

consistently project real but manageable costs over the century to come. To be sure, more speculative worst-

case scenarios abound. But humanity has no shortage of worst cases about which people succeed in remaining far calmer : from a global pandemic to financial collapse to any number of military crises. What, then, explains the

prevalence of climate catastrophism? One might think that the burgeoning field of climate psychology would offer answers. But it is

itself a bastion of catastrophism , aiming to explain and then reform the views of anyone who fails to grasp the situation’s desperate severity. The Washington Post offers “the 7 psychological reasons that are stopping us from acting on climate change.” Columbia University’s Center for Research on Environmental Decisions introduces its guide to “The Psychology of Climate Change Communication” by posing the question: “Why Aren’t People More Concerned About Climate Change?” In its 100-page report, the American Psychological Association notes that “emotional reactions to climate change risks are likely to be conflicted and muted,” before considering the “psychological reasons people do not respond more strongly to the risks of climate change.” The document does not address the possibility of overreaction. Properly confronting catastrophism is not just a matter of alleviating the real suffering of many well-meaning individuals. First and foremost, catastrophism influences public policy. Politicians regularly anoint climate change the world’s most important problem and increasingly describe the necessary response in terms of a mobilization not seen since the last world war. During her presidential campaign, Democratic candidate Hillary Clinton promised a “climate map room” akin to Roosevelt’s command center for the global fight against fascism. Rational assessment of cost and benefit falls by the wayside, leading to questions like the one de Blasio posed in Rome: “How do we justify holding back on any effort that may meaningfully improve the trajectory of climate change?” Catastrophism can also lead to the trampling of democratic norms. It has produced calls for the investigation and prosecution of dissenters and disregard for constitutional limitations on government power. In The Atlantic, for example, Peter Beinart offered climate change as his first justification for an Electoral College override

of the election of Donald Trump as U.S. president. The Supreme Court has taken the unprecedented step of halting implementation of the Clean Power Plan, Obama’s signature climate policy, before a lower court even finished considering its constitutionality; his law-school mentor,

professor Larry Tribe, likened the “power grab” of his star pupil’s plan to “burning the Constitution.” The alternative to catastrophism is

not complacency but pragmatism. Catastrophists typically condemn fracked natural gas because, although it results in much lower greenhouse-gas emissions than coal, it does not move the world toward the zero-emissions future necessary to avert climate change entirely. Yet fracking has done more in recent years to reduce carbon-dioxide emissions in the United States than all renewable energy investments combined. It has boosted U.S. economic growth as well. The idea that humanity might prepare for and cope with climate change through

adaptation is incompatible with catastrophists’ outlook. Yet if the damage from climate damage can be managed, anticipating challenges through research and then investing in smart responses offers a more sensible path

than blocking the construction of pipelines or subsidizing the construction of wind turbines. Catastrophists countenance progress only if it can be fueled without carbon-dioxide emissions. Yet given the choice, bringing electricity to those

who need it better insulates them from any climate threat than does preventing the accompanying emissions. The cognitive fault lines separating catastrophists from others cause both sides to reach radically different conclusions from the same information . Catastrophists assume that their interpretation is correct, and so describe other thinking as

distorted . But if the catastrophists have it wrong, perhaps the distortions are theirs.

NB -- AT: DemocracyDemocracy is resilient, but it solves nothing.Doorenspleet 19 Renske Doorenspleet, Politics Professor at the University of Warwick. [Rethinking the Value of Democracy: A Comparative Perspective, Palgrave Macmillan, p. 239-243]//BPS

The value of democracy has been taken for granted until recently, but this assumption seems to be under threat now more than ever before. As was explained in Chapter 1, democracy’s claim to be valuable does not rest on just one particular merit, and scholars tend to distinguish three different types of values (Sen 1999). This book focused on the instrumental value of democracy (and hence not on the intrinsic and constructive value), and investigated the value of democracy for peace (Chapters 3 and 4), control of corruption (Chapter 5) and

economic development (Chapter 6). This study was based on a search of an enormous academic database for

certain keywords,6 then pruned the thousands of articles down to a few hundred articles (see Appendix) which

statistically analysed the connection between the democracy and the four expected outcomes . The frst

fiding is that a reverse wave away from democracy has not happened (see Chapter 2). Not yet, at least.

Democracy is not doing worse than before, at least not in comparative perspective. While it is true that there is a

dramatic decline in democracy in some countries,7 a general trend downwards cannot yet be detected. It would be better to talk about ‘stagnation’, as not many dictatorships have democratized recently, while democracies have not yet collapsed. Another fnding is that the instrumental value of democracy is very questionable. The feld has been deeply polarized between researchers who endorse a link between

democracy and positive outcomes, and those who reject this optimistic idea and instead emphasize the negative effects of democracy. There has been ‘no consensus’ in the quantitative literature on whether democracy has instrumental value

which leads some beneficial general outcomes . Some scholars claim there is a consensus, but they only do so by ignoring a huge amount of literature which rejects their own point of view . After undertaking a

large-scale analysis of carefully selected articles published on the topic (see Appendix), this book can conclude that the connections between democracy and expected benefts are not as strong as they seem. Hence, we should not

overstate the links between the phenomena. The overall evidence is weak . Take the expected impact of democracy on peace for example. As Chapter 3 showed, the study of democracy and interstate war has been a fourishing theme in political science, particularly since the 1970s. However, there are four reasons why democracy does not cause peace between countries, and why the empirical support for the

popular idea of democratic peace is quite weak. Most statistical studies have not found a strong correlation between democracy and interstate war at the dyadic level . They show that there are other— more

powerful —explanations for war and peace, and even that the impact of democracy is a spurious one (caveat

1). Moreover, the theoretical foundation of the democratic peace hypothesis is weak , and the causal

mechanisms are unclear (caveat 2). In addition, democracies are not necessarily more peaceful in general , and

the evidence for the democratic peace hypothesis at the monadic level is inconclusive (caveat 3). Finally, the process of

democratization is dangerous . Living in a democratizing country means living in a less peaceful country (caveat 4). With regard to

peace between countries, we cannot defend the idea that democracy has instrumental value. Can the (instrumental) value of democracy

be found in the prevention of civil war? Or is the evidence for the opposite idea more convincing, and does democracy have a ‘dark side’ which makes civil war more likely? The findings are confusing, which is exacerbated by the fact that different aspects of civil war (prevalence, onset, duration and severity) are mixed up in some civil war studies. Moreover, defining civil war is a delicate, politically sensitive issue. Determining whether there is a civil war in a particular country is incredibly diffcult, while measurements suffer from many weaknesses

(caveat 1). Moreover, there is no linear link : civil wars are just as unlikely in democracies as in dictatorships (caveat 2). Civil war is most likely in times of political change. Democratization is a very unpredictable , dangerous process , increasing the chance of civil war significantly . Hybrid systems are at risk as well: the chance of civil war is much higher compared to other political systems (caveat 3). More specifcally, both the strength and type of political institutions

matter when explaining civil war. However, the type of political system (e.g. democracy or dictatorship) is not the

decisive factor at all (caveat 4). Finally, democracy has only limited explanatory power (caveat 5). Economic factors are far more significant than political factors (such as having a democratic system) when explaining the onset, duration and severity of

civil war. To prevent civil war, it would make more sense to make poorer countries richer, instead of promoting democracy. Helping countries to democratize would even be a very dangerous idea , as countries with changing levels of democracy are most vulnerable, making civil wars most likely. It is true that there is evidence that the chance of civil war decreases when the extent of democracy increases considerably. The problem however is that most countries do not go through big political changes but through small changes instead; those small steps—away or towards more democracy—are dangerous. Not only is the onset of civil war likely under such circumstances, but civil wars also tend to be longer, and the confict is more cruel leading to more victims, destruction and killings (see Chapter 4). A more encouraging story can be told around the value for democracy to control corruption in a country (see Chapter 5). Fighting corruption has been high on the agenda of international organizations such as the World Bank and the IMF. Moreover, the theme of corruption has been studied thoroughly in many different academic disciplines—mainly in economics, but also in sociology, political science and law. Democracy has often been suggested as one of the remedies when fghting against high levels of continuous corruption. So far, the statistical evidence has strongly supported this idea. As Chapter 5 showed, dozens of studies with broad quantitative, cross-national and comparative research have found statistically signifcant associations between (less) democracy and (more) corruption. However, there are vast problems around

conceptualization (caveat 1) and measurement (caveat 2) of ‘corruption’. Another caveat is that democratizing countries are the

poorest performers with regard to controlling corruption (caveat 3). Moreover, it is not democracy in general, but particular political institutions which have an impact on the control of corruption; and a free press also helps a lot in order to limit corruptive practices in a country (caveat 4). In addition, democracies seem to be less affected by corruption than dictatorships, but at the same time, there is clear evidence that economic factors have more explanatory power (caveat 5). In conclusion, more democracy means less corruption, but we need to be modest (as other factors matter more) and cautious (as there are many caveats). The perceived impact of democracy on development has been highly contested as well (see Chapter 6). Some scholars argue that democratic systems have a positive impact, while others argue that high levels of democracy actually reduce the levels of economic growth and development. Particularly since the 1990s,

statistical studies have focused on this debate, and the empirical evidence is clear : there is no direct impact of democracy on development. Hence, both approaches cannot be supported (see caveat 1). The indirect impact via other factors is

also questionable (caveat 2). Moreover, there is too much variation in levels of economic growth and development among the dictatorial systems, and there are huge regional differences (caveat 3). Adopting a one-size-ftsall approach would not be wise at all. In addition, in order to increase development, it would be better to focus on alternative factors such as improving institutional quality and good governance (caveat 4). There is not suffcient evidence to state that democracy has instrumental value, at least not with regard to economic growth. However, future research needs to include broader concepts and measurements of development in their models, as so far studies have

mainly focused on explaining cross-national differences in growth of GDP (caveat 5). Overall, the instrumental value of democracy is —at best—tentative, or—if being less mild— simply non-existent . Democracy is not necessarily better than any alternative form of government . With regard to many of the expected benefts—such as

less war, less corruption and more economic development—democracy does deliver, but so do nondemocratic systems . High or low levels of democracy do not make a distinctive difference. Mid-range democracy levels do matter though. Hybrid systems can be associated with many negative outcomes, while this is also the case for democratizing countries. Moreover, other explanations—typically certain favourable economic factors in a country—are much more powerful to explain the expected benefts, at least compared to the single fact that a country is a democracy or not. The impact of democracy fades away in the powerful shadows of the economic factors.8

NB -- AT: RacismIt won’t spillover. Devins 9 — Neal Devins, Professor of Law and Government at the College of William and Mary, 2009 (“Presidential Unilateralism and Political Polarization: Why Today 's Congress Lacks the Will and the Way to Stop Presidential Initiatives,” Willamette Law Review, Vol 45 No 3, Spring, Available Online at http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1025&context=facpubs, Accessed 06-06-2015)

Before turning to Part I, let me clarify two points that underlie the analysis that is to follow. First, the focus of this essay is the President's power to advance favored policy initiatives. I do not consider the separate question of presidential power over the administrative state. More to the point, if the President does not express a strong policy preference or, alternatively, delegates decision making authority to agency heads, it may be that agency heads will not look to the White House for policy direction. Agency heads, instead, may focus on their own personal agenda or the agendas of congressional committees, interest groups, or careerists in their agency. For reasons I will detail in Part III of this essay, however, Presidents increasingly seek to rein in agency direction-by appointing presidential loyalists and by

making use of regulatory review procedures and pre-enforcement directives such as signing statements. Second, in saying that presidential power is largely defined by the dance that takes place between Congress and the White House , I do not mean to suggest

that the courts have no role to play in the separation of powers. My point, instead, is that court decisions are of limited reach . They

typically settle a case; they rarely establish precedents that define subsequent bargaining between the executive and Congress. In case studies of Supreme Court rulings on the legislative veto, executive privilege, and war powers, Lou Fisher and I (both individually and collectively) have demonstrated the limited reach of Supreme Court decisions . In this essay, I will make limited reference to those writings-but I will not try to establish a point that I have made several times before.