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Author Topic: Restrict Presidential War Powers Controversy Proposal  (Read 28790 times)
kelly young
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« on: April 21, 2013, 11:33:35 PM »

See attached.

* Restrict Presidential War Powers Controversy Paper.pdf (924.28 KB - downloaded 97480 times.)
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Adam Symonds
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« Reply #1 on: April 22, 2013, 03:34:08 PM »

Thanks to all of the folks that worked on this paper - it's well put together. I have two questions (at this point):

1. The evidence speaking to the role of the court says the primary problem is that the court defers to the executive in times of emergency/war, even in the face of legislation (FISA for example is referenced). If this is the case, how does the recommended action (congressional action to make statutory limitations) fix that problem? Relatedly, even if the aff gets around that solvency claim initially, how well do we think the aff can respond to the block overview on the disad: "war turns the case, the court will grant emergency powers to the president"?

2. Can you elaborate more on what you think the aff is going to do about the "executive just doesn't do that anymore" CP? I'm unconvinced that this is an example of object fiat, on the one hand, and I worry that the evidence against this CP actually supports the neg strategy. So object fiat - if the resolution is "increase and/or enact statutory limitations/restrictions on the CINC/presidential war powers to..." as you suggest, the XO CP to voluntarily stop doing whatever program the aff ends does not appear to be an object of the resolution. For one thing, the resolution is about restricting powers, rather than forcing presidential action. For another, the CP does not change the president's power, it simply eliminates a bad program that flows from that power.

This highlights the second subquestion: the vast, vast majority of the advantages in this paper are about terminating bad programs, rather than the legal/constitutional advantages that flow from statutory restriction asked for the by the resolution. As such, the XO eliminates the bad program + any of the wartime flexibility good DAs definitely solves the "Bad programs" advantages and gives the neg a devastating DA against fairly vague legal addons (unclear to me what those might be aside from SOP). The evidence on 79-82 or so in the paper supports the notion that executives can eliminate these programs in non-emergency times, but they will crop up again under any emergency. The negative simply agrees and says that is the link to their DA. We solve the aff now and maintain pres flex.

Thanks in advance.
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darthsuo
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« Reply #2 on: April 22, 2013, 04:39:14 PM »

Great paper, y'all

To address Adam's questions:
1. The evidence speaking to the role of the court says the primary problem is that the court defers to the executive in times of emergency/war, even in the face of legislation (FISA for example is referenced). If this is the case, how does the recommended action (congressional action to make statutory limitations) fix that problem? Relatedly, even if the aff gets around that solvency claim initially, how well do we think the aff can respond to the block overview on the disad: "war turns the case, the court will grant emergency powers to the president"?

This is true of every aff on every topic. If the negative wins that the plan would cause a nuke to fall on DC, would the FG really still be administering financial incentives for wind power? Fiat (whatever that is) and the presupposition of its durability has waved away this sort of problem when raised in the past. Despite this arg's apparent salience for a war/emergency powers topic, I don't see people reconsidering that presupposition anytime soon. Debate has a way of sidestepping awkward implementation questions, and this is one instance in which it may be productive to do so.

2. Can you elaborate more on what you think the aff is going to do about the "executive just doesn't do that anymore" CP? I'm unconvinced that this is an example of object fiat, on the one hand, and I worry that the evidence against this CP actually supports the neg strategy. So object fiat - if the resolution is "increase and/or enact statutory limitations/restrictions on the CINC/presidential war powers to..." as you suggest, the XO CP to voluntarily stop doing whatever program the aff ends does not appear to be an object of the resolution. For one thing, the resolution is about restricting powers, rather than forcing presidential action. For another, the CP does not change the president's power, it simply eliminates a bad program that flows from that power.
Thanks in advance.

I think the topic paper handles this quite well. "CP: eliminate bad program" ironically does not fulfill the conditions you're worried about in question #1 -- a future president or extreme circumstance could easily cause the program to be reinstated. One of the main reasons why people are so keen on creating a set of rules for drone oversight is that Obama will not be president forever, and the next guy could just go crazy with 'em. Of course, you could "CP: eliminate bad program forever" but then the "prez gotta have flex" net benefit doesn't make any sense, and you also get into the weird theoretical question about whether one can fiat a future president.

This complements the usual answers any aff will have to this sort of counterplan: a signal/credibility-based advantage or a separation of powers argument. This is more convincing esp. in the face of the net benefit, which is "well, maybe like, the president should be able to do it one day if HE REALLY WANTS TO." Put in a less roundabout manner: the net benefit you've proposed complicates solvency for any cred/SOP advantage.
« Last Edit: April 22, 2013, 04:43:12 PM by darthsuo » Logged
sspring
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« Reply #3 on: April 22, 2013, 05:15:31 PM »

Adam asks -
Quote
2. Can you elaborate more on what you think the aff is going to do about the "executive just doesn't do that anymore" CP? I'm unconvinced that this is an example of object fiat, on the one hand, and I worry that the evidence against this CP actually supports the neg strategy. So object fiat - if the resolution is "increase and/or enact statutory limitations/restrictions on the CINC/presidential war powers to..." as you suggest, the XO CP to voluntarily stop doing whatever program the aff ends does not appear to be an object of the resolution. For one thing, the resolution is about restricting powers, rather than forcing presidential action. For another, the CP does not change the president's power, it simply eliminates a bad program that flows from that power.

I think this is a clear cut example of object fiat. To me, object fiat is when you take the object of the resolution and make it the subject of the counterplan. For instance, on the China topic, a counterplan that has China end the one-child policy is a clear example of object fiat.

What is the object of the resolution in this case? The president (or the president's power). The executive counterplan to not do ______ makes the president the subject of the plan statement.

Further, the distinction made about presidential power v. presidential action should only enhance the claim of object fiat. The president's power enables actions made by the president. Again if the object of the resolution is presidential power, the counterplan to have the president act within or even against that power flips the object to the subject.

What would be object fiat if this isn't?

Regardless, I've just started looking at the paper and I think it had some very interesting potentialities, but I'll reserve my broader judgement for now. I just love object fiat.

N.B. - Object fiat should not be understood to be the object of the affirmative advantage...
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Malgor
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« Reply #4 on: April 22, 2013, 05:39:40 PM »

I echo the compliments on the paper, though I must admit I haven't read every single page.

The question of fiat durability will depend on the wording of the resolution. Lots of ins outs and what-have-yous there.  It will be determined by what if any agent is specified in the rez, and whether subsequent words mean the aff is functionally only fiating 1 branch.

I do disagree with parts of your post, darthsuo.  I think debate does sometimes sidestep awkward implementation questions, but it's often done very poorly or in a way that makes the controversy less about the controversy. I used to always respond to concerns like that (hell sometimes I still do) by saying that 'debate will find a way' (just stay alive, no matter what occurs....I WILL FIND YOU), but sometimes the way we figure it out kinda sucks and it would be nice to has it out a little in advance.

As for the difficulty of answering the 'end the program' xo cp, I have no doubt there will be a lot of discussion about object fiat on the forums in the coming days.  I do think you are entirely underestimating the potency of that negative cp/da combo, especially if politics is another net benefit.  The neg is going to be going for a distinct scenario that has real risk, while the aff defends a nebulous prez powers argument with an impact that at an unspecified time in the future if there is a war the cp might get rolled back and then that president might use said power in an abusive way.

In the real world, I'm with you, it's not the most compelling narrative.  In an offense/defense paradigm, it's a damn tough strategy to overcome.  So we have a genero prez powers disad with no vivid scenario and a credibility based advantage that is clearly solved by the counterplan.  The neg is going to have a net benefit about a nebulous future scenario and a vivid current scenario with politics.   Is it unbeatable?  No, but it will assuredly mold the topic and greatly constrain the content of plans and advantages. 

This is why I think there needs to be a lot more focus on what the advantages of the legal precedent are.  Are there things external to the bad programs and their possible future re-implementation?  This is why part of me thinks that this topic isn't as 'legal' as people might believe.  How much of the content of debates will actually be about legal interpretation and its impact on seemingly diverse areas of law (one of the few things the courts topic did quite well)?

Anyway, great paper, given how we tend to vote for topics I'd say it's probably going to win, so we need to hash this out.   But come on, lots of people loathe legal topics, and this one fills the requirement while letting us talk about US hegemony and terrorism every round!
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Stefan
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« Reply #5 on: April 22, 2013, 05:41:03 PM »

Comment from this old guy: We debate a similar topic in 95-96 -- Reduce the authority of the commander-n-chief (don't remember the exact wording).  EO/E won't do it was the most popular negative strategy and wasn't defeated by object fiat. 
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Adam Symonds
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« Reply #6 on: April 22, 2013, 05:46:23 PM »

Great paper, y'all

To address Adam's questions:
1. The evidence speaking to the role of the court says the primary problem is that the court defers to the executive in times of emergency/war, even in the face of legislation (FISA for example is referenced). If this is the case, how does the recommended action (congressional action to make statutory limitations) fix that problem? Relatedly, even if the aff gets around that solvency claim initially, how well do we think the aff can respond to the block overview on the disad: "war turns the case, the court will grant emergency powers to the president"?

This is true of every aff on every topic. If the negative wins that the plan would cause a nuke to fall on DC, would the FG really still be administering financial incentives for wind power? Fiat (whatever that is) and the presupposition of its durability has waved away this sort of problem when raised in the past. Despite this arg's apparent salience for a war/emergency powers topic, I don't see people reconsidering that presupposition anytime soon. Debate has a way of sidestepping awkward implementation questions, and this is one instance in which it may be productive to do so.

I don't disagree with your characterization of this problem in general, but I don't think you've really addressed the specific nature of how this problem manifests on this topic with congress as the actor. The aff has congress pass legislation prohibiting particular presidential powers, but when the president goes ahead and does it anyway, the Court is the final arbiter. The evidence IN the topic paper says the court doesn't back congress up on these limitations.

As far as the war turns the aff argument, there is no FIAT solvency on this question for the aff - the aff is fiating congress because it is legislation. They don't get the court. The claim that the court will defer to the President over Congress is not answered by fiat.
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Adam Symonds
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« Reply #7 on: April 22, 2013, 06:01:35 PM »

This is why I think there needs to be a lot more focus on what the advantages of the legal precedent are.  Are there things external to the bad programs and their possible future re-implementation?  This is why part of me thinks that this topic isn't as 'legal' as people might believe.  How much of the content of debates will actually be about legal interpretation and its impact on seemingly diverse areas of law (one of the few things the courts topic did quite well)?

Anyway, great paper, given how we tend to vote for topics I'd say it's probably going to win, so we need to hash this out.   But come on, lots of people loathe legal topics, and this one fills the requirement while letting us talk about US hegemony and terrorism every round!

Agree with this sentiment - if we want it to be a legal topic, I think the court will need to be the actor. This would help re-center the debates on the legal precedent question. Court as the actor would also have the benefit of addressing (1) court won't enforce during emergency and (2) give teeth to the primary solvency deficit against the XO CP. (If the actor in the resolution is Congress, the future president wartime solvency deficit isn't very good against XO given that "courts defer to prez" applies to the plan as well).
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dheidt
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« Reply #8 on: April 22, 2013, 06:05:21 PM »



I don't disagree with your characterization of this problem in general, but I don't think you've really addressed the specific nature of how this problem manifests on this topic with congress as the actor. The aff has congress pass legislation prohibiting particular presidential powers, but when the president goes ahead and does it anyway, the Court is the final arbiter. The evidence IN the topic paper says the court doesn't back congress up on these limitations.

As far as the war turns the aff argument, there is no FIAT solvency on this question for the aff - the aff is fiating congress because it is legislation. They don't get the court. The claim that the court will defer to the President over Congress is not answered by fiat.

This topic paper is outstanding.  It also includes this recommendation (p.90):  "The controversy literature suggests two obvious agents for the resolution Congress or the Courts. Some of the case areas are better suited for congressional action while others are best suited for judicial action. We believe that it would be best if potential wording papers could include both agents."  

I think this resolves your concern?  I would be concerned too if the agent required Congress; historically the XO CP (on the college CIC topic and the HS detain without charge topic) was a good strategy but didn't break the topic.  However, a lot of affirmatives were successful because they could garner precedent-based advantages from the court.

Edit: no part of this post should be treated as an endorsement of a court agent, which would be the worst thing since, well, the courts topic. 
« Last Edit: April 22, 2013, 06:06:54 PM by dheidt » Logged
alhiland
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« Reply #9 on: April 22, 2013, 06:07:34 PM »

From my perspective as an author of a small part of the paper the Executive doesn't do X CP is a concern.  However I think there are two pretty clear responses that make me only very slightly concerned about it.  First, it is hard for me to imagine an affirmative that does not premise at least part of the advantage or solvency mechanisms on congressional leadership (or court leadership, or balance of powers, or whatever) which the CP would not be able to solve.  I guess abstractly it is conceivable, but would be pretty obviously not strategic.  Second, I don't see why it is any different than the XO CP strats that people read already.  Except in this case the aff gets to read 9 minutes of impact turns to it in the 1AC.  I think it is obviously a concern, and probably going to be a part of negative strategy, but not so much so that it imbalances the topic.
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Adam Symonds
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« Reply #10 on: April 22, 2013, 06:11:43 PM »



I don't disagree with your characterization of this problem in general, but I don't think you've really addressed the specific nature of how this problem manifests on this topic with congress as the actor. The aff has congress pass legislation prohibiting particular presidential powers, but when the president goes ahead and does it anyway, the Court is the final arbiter. The evidence IN the topic paper says the court doesn't back congress up on these limitations.

As far as the war turns the aff argument, there is no FIAT solvency on this question for the aff - the aff is fiating congress because it is legislation. They don't get the court. The claim that the court will defer to the President over Congress is not answered by fiat.

This topic paper is outstanding.  It also includes this recommendation (p.90):  "The controversy literature suggests two obvious agents for the resolution Congress or the Courts. Some of the case areas are better suited for congressional action while others are best suited for judicial action. We believe that it would be best if potential wording papers could include both agents."  

I think this resolves your concern?  I would be concerned too if the agent required Congress; historically the XO CP (on the college CIC topic and the HS detain without charge topic) was a good strategy but didn't break the topic.  However, a lot of affirmatives were successful because they could garner precedent-based advantages from the court.

Edit: no part of this post should be treated as an endorsement of a court agent, which would be the worst thing since, well, the courts topic.  

If your interpretation of "Some of the case areas are better suited for congressional action while others are best suited for judicial action. We believe that it would be best if potential wording papers could include both agents" means the aff fiats both congress and the court, then it addresses my concern, but that's not what they mean in the paper. Instead, they are pointing towards flexibility for the aff to either have congress OR the court as their actor depending on the quality of the solvency evidence. When the aff is legislation, I don't see how that addresses the concern that the Court will defer to the President and grant emergency powers in crises.
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BruceNajor
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« Reply #11 on: April 22, 2013, 06:19:41 PM »

This is just gonna be a brief response to some points raised given that we have nominated Kelly as our primary CEDA forums liaison (given that he has a better temperament and more time than the rest of us).

XO w/ politics + deference NB:

First, I wrote that politics could be a potential NB, but that is an area of debate.  For example, if the president were to close a detention center, or end drone strikes, without congressional involvement, I could see MORE of a backlash.

Second, I doubt most policy affs will argue "X is bad, stop X".  I envision more affs going in the direction of "X program without oversight is bad, increase oversight".  That presents several problems to the XO CP.

a) Would the XO CP just ban the questionable policy?  If so, the aff has ground to say "banning is bad, there are times when we need to do X"

b) Would the XO create oversight?  Well, if they did this, I fail to see what the NB is.

Third, it is likely some critical teams would be more inclined than policy teams to ban a practice, but I doubt they will have as hard of a time as policy teams answering "just let the president handle it" CP.  The precedent argument as well as some tricky deference bad arguments would probably allow the aff to be somewhat successful versus this CP.

Fourth, if the distinction between oversight vs presidential flexibility during times of emergency/war is the CP, then obviously the issue of the AUMF allowing war flexibility in the SQ becomes relevant, and it may be easy for the aff to define the CP as the SQ.

Finally, I think it's important to remember we shouldn't have to convince ourselves the negative should never be able to win this CP.  Can it win?  Yes.  Should it win?  Sometimes.  Is it unanswerable, or ever hard to answer?  I don't think so.

There are other issues with this CP/topic that have been brought up, including object fiat and the advantages available to the aff based on the precedent of oversight, and "disad turns the case" concerns.  These are important questions, and will probably be addressed more specifically by Kelly or others, I just wanted to chime in on this very limited question.
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Bruce Najor
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Malgor
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« Reply #12 on: April 22, 2013, 06:31:11 PM »

i'll be very disappointed if most of the affs on the topic are to add "oversight" to the ability of the president to carry out executions without due process
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BruceNajor
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« Reply #13 on: April 22, 2013, 06:47:21 PM »

Admittedly I didn't focus on the drone section, but I was involved enough to know if the aff chooses to skip the "due process" suggestion by the solvency advocates the negative will have a strong solvency indictment. 

Though I would suggest this is unlikely to be a "drones good / bad" topic in a vacuum, I would suggest solvency advocates for things like a "drone court" (arguably the most suggested reform), likely recommend a due process component, and affs that choose to ignore that may be topical, but may also be unstrategic for other reasons.   

I would also suggest the negative literature for any type of executive constraint is solid.  The literature is very much "yes / no oversight" and not much "yes / no drones"

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Bruce Najor
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Adam Symonds
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« Reply #14 on: April 22, 2013, 07:01:09 PM »

Admittedly I didn't focus on the drone section, but I was involved enough to know if the aff chooses to skip the "due process" suggestion by the solvency advocates the negative will have a strong solvency indictment. 

Though I would suggest this is unlikely to be a "drones good / bad" topic in a vacuum, I would suggest solvency advocates for things like a "drone court" (arguably the most suggested reform), likely recommend a due process component, and affs that choose to ignore that may be topical, but may also be unstrategic for other reasons.   

I would also suggest the negative literature for any type of executive constraint is solid.  The literature is very much "yes / no oversight" and not much "yes / no drones"

So far, the mechanism literature is yes / no oversight. However, the solvency and advantage lit is very much yes / no drones (or insert other area here).
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