Debating the Executive Order Counterplan

[Cuba Executive Order CP Essay, Cuba EO CP Evidence, EO CP Evidence 2013, EO CP Answers 2013]


One of the three branches of the US federal government is the Executive Branch.  The Executive Branch is headed by the President.  Through the use of Executive authority, the President has a lot of power to make policy changes.

Means of Executive Action

There are a number of ways that the “Executive” branch of the government can act.  First, Cabinet   “A group of advisors to the President in key areas such as defense, commerce, education, etc.” – heads could make decisions to change the way their departments operate. For example, the Defense Secretary could order that the military start using more renewable energy at its bases.

Second, the President could issue an Executive Order. An Executive Order is “A regulation by the President of the United States or the chief executive of a state which has the effect of law” (  Executive orders direct various individuals to act in particular ways.

Third, the President could sign an Executive Agreement with other countries regarding some particular issue.

All of these means of action are potential plan mechanisms and counterplans, but in this essay we will focus on the Executive order.

The Authority of Executive Orders

As the leader of one of the three branches of government, the President possesses a substantial amount of authority. The authority is only limited by the purpose of the branch. In this case, the purpose of the Executive branch is to “execute” both laws made by Congress and the responsibilities of the executive branch as defined by the Constitution. When the President issues an Executive Order, he is relying on authority provided by the Constitution, laws passed by Congress, and/or “implied authority.” Implied authority is the authority that the President has based on the idea that the courts, particularly the Supreme Court, is unlikely to challenge the legitimacy of an Executive Order unless the Congress challenges it.

Executive Orders can be challenged by the Congress, and other private individuals who are affected by the orders, on the grounds that the President doesn’t have the authority to issue them. Since the authority from the Orders come from the Constitution and Congressional legislation, the precise authority of any Order is always up for interpretation because the President needs to justify the authority for the order based on the Constitution or the legislation.

Despite the need to justify the authority for the order, the President is, for a lack of a better expression, given the benefit of the doubt when it comes to justifying the authority for a particular order. The Orders are considered to have the same authority as any other law and they are rarely overturned by the Congress or the Courts.

Daniel P. Glitterman, professor of Public Policy, UNC, 2013, Presidential Studies Quarterly43. 2 (June): 225-251. The American Presidency and the Power of the Purchaser

Political scientists recognize executive orders as an important policy tool, however constrained by legal and political considerations its use may be (Deering and Maltzman 1999; Krause and D. Cohen 1997; Mayer 1999, 2001; Moe and Howell 1999a). Presidents have used executive orders to reorganize executive branch agencies, to alter administrative and regulatory processes, to shape legislative interpretation and implementation, and to make public policy. In a study of the history of executive branch practice, Calabresi and Yoo (2008) conclude that since the days of George Washington, presidents have consistently asserted their power to execute law. To have the full force of law, executive orders must be “derived from the statutory or constitutional authority cited by the president in issuing the decree” (Cooper 2002, 21). However, courts have allowed the president to claim implied statutory authority when Congress has not opposed the president on the public record. In staying out of separation of-powers issues, the courts have left it up to Congress to protect its own interests against the expansion of executive power. More broadly, executive orders have continued to grow in importance, and overly deferential court decisions have laid the foundation for further expansion. Congress has had a difficult time enacting laws that amend or overturn orders issued by presidents, though efforts to either codify in law or fund an executive order enjoy higher success rates. While judges and justices have appeared willing to strike down executive orders, the majority of such orders are never challenged, and for those that are, presidents win more than 80% of the cases that go to trial (Howell 2005).

Given this discretion, the ease at which Executive Orders can be issued (especially as compared to the difficulty of pushing legislation through Congress), a substantial number of executive orders have been issued.

Presidents have used these Orders to address a host of policy issues.

Cooper 2 [Phillip, Prof @ University of Vermont, By Order of the President, p. 58-9]

Executive orders are often used because they are quick, convenient, and relatively easy mechanisms for moving significant policy initiatives.  Though it is certainly true that executive orders are employed for symbolic purposes, enough has been said by now to demonstrate that they are also used for serious policymaking or to lay the basis for important actions to be taken by executive branch agencies under the authority of the orders.  Unfortunately, as is true of legislation, it is not always possible to know from the title of orders which are significant and which are not, particularly since presidents will often use an existing order as a base for action and then change it in ways that make it far more significant than its predecessors. The relative ease of the use of an order does not merely arise from the fact that presidents may employ one to avoid the cumbersome and time consuming legislative process.  They may also use this device to avoid sometimes equally time-consuming administrative procedures, particularly the rulemaking processes required by the Administrative Procedure Act.  Because those procedural requirements do not apply to the president, it is tempting for executive branch agencies to seek assistance from the White House to enact by executive order that which might be difficult for the agency itself to move through the process.  Moreover, there is the added plus from the agency’s perspective that it can be considerably more difficult for potential adversaries to obtain standing to launch a legal challenge to the president’s order than it is to move an agency rule to judicial review.  There is nothing new about the practice of generating executive orders outside the White House.  President Kennedy’s executive order on that process specifically provides for orders generated elsewhere.

To give you an idea of the power of the Executive Order, it is worth nothing that the Department of Homeland Security, the Environmental Protection Agency, and the Peace Corps were all created by Executive Order.

Executive Order as a (Counter)plan

The predominant use of Executive Orders in policy debate has been as a counterplan. Negative teams argue that instead of having the plan be Congress pass legislation that directs the plan mandates that the President should issue an Executive Order that directs the plan mandates.

Of course, since resolutions rarely specify an agent – the resolutions usually say, “The United States federal government should…,” the Affirmative could also choose to use Executive Orders to direct the plan mandates.  If the Affirmative does this, Executive Order is obviously not a viable counterplan.

Is the Executive Order Counterplan Competitive with the Plan?

In order to win that the counterplan is competitive the Negative needs to win a few things.

First, as just discussed, the Negative needs to win that the Counterplan is not the plan.  To do this, they need to win that the plan is not done through an executive order.  Since the plan will usually just say, “The United States federal government should…,”there are a few things that the Negative needs to do.

One – Use Cross-examination. The Negative should ask the Affirmative if the plan is passed through Congress.  More experienced teams will not specify, but some may say, “Yes.”  If the Affirmative will not agree to that in the cross-examination, the Negative can then ask the Affirmative if the plan is passed through “normal means.”  IF the Affirmative says yes, the Negative can argue that issuing an Executive Order would not be the “normal means” to pass the plan.

Two – Stick the Affirmative with “Normal Means.”  Even if the Affirmative will not admit that their plan is passed through “normal means,” the Negative can make theory arguments as to why it should be assumed that the plan passes through normal means, that normal means is legislation, and that the Executive Order counterplan is not normal means.

Second, the Negative needs to win that it is better to do the counterplan alone than the plan alone and any combination of all of the plan and all or part of the counterplan. This is standard counterplan competition theory.  In other words, the Negative needs to win that voting for the counterplan alone is net-beneficial.

Net-benefits and answering the permutation

There are two standard net-benefits to the counterplan:  Presidential politics and Presidential leadership.

The Presidential politics argument is based on the idea that if the President doesn’t have to push the plan through Congress (to get Congress to pass it as legislation) that he won’t have to spend political capital with members of Congress.

If the Negative wants to win the politics disadvantage as the net-benefit to the counterplan, it is important that the 1NC link to the politics disadvantage is simply that passing legislation requires the expenditure of political capital by the President. The Negative does not want to read links that are specific to the plan itself because the counterplan still has the President publicly support the non-legislative plan mandates (by signing an Executive Order).  The Negative wants to say that the only politically relevant difference between the plan and the counterplan is that the counterplan process does not burn political capital

Joel Fleishman (Professor of Law & Policy Sciences at Duke University) 1976 Law & Contemporary Problems, Summer p. 38

Several related factors, in particular, make executive orders especially attractive policymaking tools for a President. First is speed. Even if a President is reasonably confident of securing desired legislation from congress, he must wait for congressional deliberations to run their course. Invariably, he can achieve far faster, if not immediate, results by issuing an executive order. Moreover, when a President acts through an order, he avoids having to subject his policy to public scrutiny and debate. Second is flexibility. Executive orders have the force of law. Yet they differ from congressional legislation in that a President can alter any executive order simply with the stroke of his pen-merely by issuing another executive order. As noted earlier, Presidents have developed the system of classifying national security documents in precisely this manner. Finally, executive orders allow the President, not only to evade hardened congressional opposition, but also to preempt potential or growing opposition-to throw Congress off balance, to reduce its ability to formulate a powerful opposing position.

Former President Clinton issued many executive orders for this exact reason

Kassop 2 [Nancy, Chair of the Political Science Department @ State University of New York, The Presidency and the Law: The Clinton Legacy, ed. Alder, p. 6]

As a president facing an opposition party in Congress, it is not surprising that President Clinton made bold use of executive orders as a means of circumventing the uncertainties of a legislature that was unlikely to be friendly to his initiatives.  Here, too, as in war powers, Clinton followed in the paths of his Republican predecessors, who also operated under conditions of divided government.  Thus, Clinton may not have blazed new trails for his successors by his use of executive orders to accomplish indirectly what he was unwilling to spend political capital on to accomplish directly.

If the Negative wins this politics argument, they can win that doing both (the permutation) is a bad idea because the permutation would still require the President to spend capital with members of Congress to get the plan passed.

The second standard net-benefit is Presidential leadership good.   Arguably, counterplan will enhance the authority of the President when he exercises presidential power.

Risen 4 [Clay, Managing editor of Democracy: A Journal of Ideas, M.A. from the University of Chicago “The Power of the Pen: The Not-So-Secret Weapon of Congress-wary Presidents” The American Prospect, July 16,]


In the modern era, executive orders have gone from being a tool largely reserved for internal White House operations -deciding how to format agency budgets or creating outlines for diplomatic protocol — to a powerful weapon in defining, and expanding, executive power. In turn, presidents have increasingly used that power to construct and promote social policies on some of the country’s most controversial issues, from civil rights to labor relations to reproductive health.

It is critical that the Negative win that joint Executive action undermines Presidential leadership because otherwise the permutation to have both the President and the Congress act would capture the benefits to leadership.

Bellia 2 [Patricia, Professor of Law @ Notre Dame, “Executive Power in Youngstown’s Shadows” Constitutional Commentary, , 19 Const. Commentary 87, Spring, p. 150-51

To see the problems in giving dispositive weight to inferences from congressional action (or inaction), we need only examine the similarities between courts’ approach to executive power questions and courts’ approach to federal-state preemption questions. If a state law conflicts with a specific federal enactment, or if Congress displaces the state law by occupying the field, a court cannot give the state law effect. Similarly, if executive action conflicts with a specific congressional policy (reflected in a statute or, as Youngstown suggests, legislative history), or if Congress passes related measures not authorizing the presidential conduct, courts cannot give the executive action effect. When Congress is silent, however, the state law will stand; when Congress is silent, the executive action will stand. This analysis makes much sense with respect to state governments with reserved powers, but it makes little sense with respect to an Executive Branch lacking such powers. The combination of congressional silence and judicial inaction has the practical effect of creating power.  Courts’ reluctance to face questions about the scope of the President’s constitutional powers – express and implied – creates three other problems. First, the implied presidential power given effect by virtue of congressional silence and judicial inaction can solidify into a broader claim. When the Executive exercises an “initiating” or “concurrent” power, it will tie that power to a textual provision or to a claim about the structure of the Constitution. Congress’s silence as a practical matter tends to validate the executive rationale, and the Executive Branch may then claim a power not only to exercise the disputed authority in the face of congressional silence, but also to exercise the disputed authority in the face of congressional opposition. In other words, a power that the Executive Branch claims is “implied” in the Constitution may soon become an “implied” and “plenary” one. Questions about presidential power to terminate treaties provide a ready example. The Executive’s claim that the President has the power to terminate a treaty – the power in controversy in Goldwater v. Carter, where Congress was silent – now takes a stronger form: that congressional efforts to curb the power are themselves unconstitutional.

Presidential leadership is generally valuable to deal with issues in foreign policy

South China Morning Post, December 11, 2000

A weak president with an unclear mandate is bad news for the rest of the world. For better or worse, the person who rules the United States influences events far beyond the shores of his own country. Both the global economy and international politics will feel the effect of political instability in the US. The first impact will be on American financial markets, which will have a ripple effect on markets and growth across the world. A weakened US presidency will also be felt in global hotspots across the world. The Middle East, the conflict between India and Pakistan, peace on the Korean peninsula, and even the way relations between China and Taiwan play out, will be influenced by the authority the next US president brings to his job. There are those who would welcome a weakening of US global influence. Many Palestinians, for example, feel they would benefit from a less interventionist American policy in the Middle East. Even within the Western alliance, there are those who would probably see opportunities in a weakened US presidency. France, for example, might feel that a less assertive US might force the European Union to be more outward looking. But the dangers of having a weak, insecure US presidency outweigh any benefits that it might bring. US global economic and military power cannot be wished away. A president with a shaky mandate will still command great power and influence, only he will be constrained by his domestic weakness and less certain about how to use his authority. This brings with it the risks of miscalculation and the use of US power in a way that heightens conflict. There are very few conflicts in the world today which can be solved without US influence.The rest of the world needs the United States to use its power deftly and decisively. Unfortunately, as the election saga continues, it seems increasingly unlikely that the next US president will be in a position to do so.

There are other reasons that acting through an Executive Order may be superior.  For example, Executive Orders are likely to be issued faster than legislation can ever make it through Congress.  The problem with these “Executive Order better” arguments is that the permutation solves the reasons that it is better and the Negative needs to win reasons why it is better to just initiate the plan through an Executive Order.

Answering the Counterplan

There are a number of different approaches that the Affirmative can use to answer the counterplan.

Competition. The most difficult argument for the Negative to win is that the counterplan is competitive. Affirmative teams should simply say, “The United States federal government should…” in the plan text and then argue that since they didn’t specify that that the plan could be passed through an executive order.  To make this work, they need to stand their ground in the cross-examination and not say that the plan is passed by the Congress.

Affirmative teams also need to fend-off the argument that “normal means” is Congressional legislation and that they have to pass the plan through “normal means.”

Link the counterplan action to the net-benefits. Although avoiding the need to push the plan through the Congress may save the President some political capital, the President’s unilateral action could alienate the President from Congress.

Marybeth P. Ulrich, July 2004, U.S. Army War College Guide to National Security Policy and Strategy, Presidential Leadership and National Security Policymaking

Executive orders have mainly been used in three areas: to combat various forms of discrimination against citizens, to increase White House control over the executive branch, and to maintain secrets. When Congress perceives that executive orders are taken to bypass Congress on controversial issues, they may elicit great political controversy and be a source of conflict between the two branches.    Even the prospect of an executive order being issued can erupt in major political controversy as was the case with President Clinton’s proposal to lift the ban on gays serving in the military. There was no question that the president had the legitimate authority to issue such an order as Truman had done to integrate the armed forces in 1948, but the political backlash was so strong in 1993 that Clinton abandoned the idea in order to salvage his domestic agenda before Congress.

This alienation is especially likely to occur when the plan action itself, such as lifting the Embargo on Cuba.  If the President does something that Congress doesn’t like and then doesn’t even involve the Congress, it is likely to be even more angry.

Solvency arguments.  There are many different solvency arguments that can be made against acting to solve through Executive Orders

–          Funding. One significant problem with the Executive Order counterplan against plans that cost a significant amount of money is that Congress controls appropriations.  It is likely that the executive could not fund the order without Congressional support.

Court overturn.  If the courts consider the Executive order to be outside the scope of Presidential authority, the court could rule that the order is illegal.

Terry M. Moe and William G. Howell, Political science professor, Stanford, and fellow, Hoover Institution, PRESIDENTIAL STUDIES QUARTERLY, December 1, 1999, p. online (MHDRWE298)

Supreme Court justices are appointed for life. They are not readily controlled by other political actors, are not beholden to political constituencies, and have substantial autonomy to chart their own courses. Thus, they may use judicial decisions to pursue their own ideologies or policy agendas. They may also act on their scholarly beliefs in the proper meaning of the law and the constitution. In either event, they are likely to care about the reputations they are building for themselves as respected public servants–their historical legacies. They are likely to care as well about upholding the reputation of the Court as a whole, for their own legacies are heavily dependent on the prestige of the institution. Because there are only nine justices, moreover, they are far better able than Congress to act on their common institutional interests. In some sense, then, the judges on the Supreme Court can do what they want in resolving the ambiguities of presidential power. They have the autonomy to clamp down on presidents, if that is what their policy interests or legal philosophies or the integrity of the institution require. And they have the autonomy to do just the opposite, depending again on how they see the issue. Similarly, their autonomy allows them to safeguard the prestige of their institution by responding to public opinion and other aspects of the political environment. When presidents take unilateral actions that are distinctly unpopular, the Court can add to its prestige by declaring their actions illegal. And when presidents take unilateral actions that are popular, the Court can add to its own prestige by upholding him.

Courts are likely to overturn executive orders that are inconsistent with existing statutes.

Phillip Cooper (Professor at SUNY-Albany) 1986 Administration and Society, p. 240.

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

–          Congressional “overturn.” Congress could act to undermine and/or reverse the order in a number of ways. One, Congress could refuse to provide financial support for the order.  For example, when Obama issued an Executive Order to close the Guantanamo Bay prison camp, Congress prohibited the use of federal funds to transfer prisoners from the camp.

Erin Corcoran, 11, Professor of Law and Director, Social Justice Institute, University of New Hampshire School of Law, University of New Hampshire Law Review, March 2011, p. 207-9

In the lead up to the 2008 Presidential election, there was broad bipartisan support for closing the detention facility at Guantanamo Bay. President Bush was quoted as saying, “I’d like it to be over with.” John McCain and General Colin Powell echoed similar sentiments for ending detention at the naval base. In addition to prominent Republicans calling for closure, public opinion began to support finding alternative solutions for prisoners held at Guantanamo Bay. Barack Obama wasted no time once sworn into office executing his central campaign promises. On January 22, 2009, two days after becoming the forty-fourth President of the United States,  Obama signed three executive orders in the presence of sixteen retired admirals and generals in the Oval Office. These orders (1) suspended military commissions;  (2) set a timetable and created procedures to shut down the Guantanamo Bay detention facility; (3) revoked all existing executive orders that were inconsistent with U.S. Geneva Convention treaty obligations concerning interrogation of detained individuals; and (4) created a task force to review U.S. detention policy options and U.S. interrogation techniques. With the public backing its shutdown, prominent Republicans and Democrats alike calling for its closure, and the President’s executive orders creating the framework and timeline for implementation, the end of U.S. detentions at Guantanamo Bay seemed a fait accompli. Yet, in 2011, Guantanamo Bay continues to operate and currently houses approximately 180 post-9/11 detainees who have not been tried for any crimes. This essay asks: Why, what happened? The world watched in January 2009 as Obama delivered his promise to close Guantanamo Bay. However, by May 20, 2009, the U.S. Senate, controlled by Democrats, voted ninety to six to prohibit the use of federal funds “to transfer, release, or incarcerate detainees detained at Guantanamo Bay, Cuba, to or within the United States.” More recently, Congress, in approving the 2010 Defense Authorization Bill, banned the transfer of detainees held at Guantanamo Bay to the United States, even for criminal prosecution, and required that the Secretary of Defense sign off on the transfer of any detainee to a third country

Two, Congress could pass legislation that blocks the action that the President has taken. As explained earlier, the when the President issues an Executive Order, he is acting under authority he interprets that he has under the Constitution or other laws. Congress could pass legislation that explicitly states that the President doesn’t have the authority that he claims to have.

Vanessa Burrows, legislative attorney, 2010, Congressional Research Service, 2010. Executive Orders: Issuance and Revocation. CRS Report RS20846, March 25, Washington, DC: Congressional Research Service.

In the 111th Congress, several bills have been introduced regarding the revocation and  modification of executive orders. For example, H.R. 35, H.R. 500/S. 237, and H.R. 1228 would deem particular executive orders to be without force or effect; H.R. 603 would revoke part of an executive order on certain lands identified for conveyance; H.R. 3465 would supersede an executive order; and H.R. 4453 would require the President to revoke an executive order and amend a separate, older executive order to restore the words removed by the executive order to be revoked. S. 2929 would require notice of presidential revocations, modifications, waivers, or suspensions of executive orders, or authorization of such an action, to be published in the Federal Register within 30 days after such action is taken

–          Future Presidents overturn. Future Presidents may rescind previous Executive Orders when they take office.

Vanessa Burrows, legislative attorney, 2010, Congressional Research Service, 2010. Executive Orders: Issuance and Revocation. CRS Report RS20846, March 25.

Washington, DC: Congressional Research Service.

Illustrating the fact that executive orders are used to further an administration’s policy goals, there  are frequent examples of situations in which a sitting President has revoked or amended orders  issued by his predecessor.  This practice is particularly apparent where Presidents have used  these instruments to assert control over and influence the agency rulemaking process. President Ford, for instance, issued Executive Order 11821, requiring agencies to issue inflation impact statements for proposed regulations. President Carter altered this practice with Executive Order 12044, requiring agencies to consider the potential economic impact of certain rules and identify  potential alternatives. Shortly after taking office, President Reagan revoked President Carter’s order, implementing a  scheme asserting much more extensive control over the rulemaking process.

–          Legislation better. There is some general avoid about the superiority of legislation to Executive action. The argument that is usually made here is that Congress has access to more information and that it is a larger deliberative body, making it more likely to produce better legislation.

George A. Krause (Associate Professor of Political Science at University of South Carolina) December 2004 “The Secular Decline in Presidential Domestic Policy Making: An Organizational Perspective” Presidential Studies Quarterly

The third explanation, which is the focus of this essay, involves a dimension that presidents possess considerably greater control over–the organizational size and scope of the presidency. Specifically, the expanding size and scope of the presidency as an organization can provide us with the basis for a generalizable theoretical lens regarding why presidents have become less active in terms of both the volume and substance of legislation. By organizational size and scope of the presidency as an institution, I am referring to the general size and reach of the Executive Office of the President (EOP).  This substantively differs from Rudalevige’s (2002) concept of centralization in several ways that will be discussed in the next section. In this article, I focus on the nexus between organization and the U.S. presidency with respect to institutional policy performance. The thesis contained in this article is simple. Viewed in organizational terms, I contend that the growth in both the absolute and relative size and scope of the presidency has been a major contributing factor to the secular erosion of this institution’s effectiveness in the area of domestic policy making. By effectiveness, I mean the extent to which an administration is successful in terms of agenda setting, policy formulation, policy adoption, and implementation processes.

–          No perception. There is some evidence that says that Congressional action is more likely to be perceived. If visibility and credibility are important to the Affirmative’s solvency, this could create a solvency deficit.

Affirmative teams will also need to answer the presidential leadership advantage to the counterplan. The best way to do this is to argue that Obama is using executive power to exercise leadership now.

George A. Krause (Associate Professor of Political Science at University of South Carolina) December 2004 “The Secular Decline in Presidential Domestic Policy Making: An Organizational Perspective” Presidential Studies Quarterly

The third explanation, which is the focus of this essay, involves a dimension that presidents possess considerably greater control over–the organizational size and scope of the presidency. Specifically, the expanding size and scope of the presidency as an organization can provide us with the basis for a generalizable theoretical lens regarding why presidents have become less active in terms of both the volume and substance of legislation. By organizational size and scope of the presidency as an institution, I am referring to the general size and reach of the Executive Office of the President (EOP).  This substantively differs from Rudalevige’s (2002) concept of centralization in several ways that will be discussed in the next section. In this article, I focus on the nexus between organization and the U.S. presidency with respect to institutional policy performance. The thesis contained in this article is simple. Viewed in organizational terms, I contend that the growth in both the absolute and relative size and scope of the presidency has been a major contributing factor to the secular erosion of this institution’s effectiveness in the area of domestic policy making. By effectiveness, I mean the extent to which an administration is successful in terms of agenda setting, policy formulation, policy adoption, and implementation processes.


The Negative can also present disadvantages to using Executive orders. One general problem with these disadvantages is that they are non-unique because the President is issuing a lot of executive orders now, but if the risk of the leadership advantage is incremental, the risk of the disadvantages can also be incremental.

Separation of powers.  As discussed in the introduction to this essay, it Congress has the power to make laws and the President has the power to enforce those laws.  If the President acts to make laws, this could undermine that separation of powers.

Mike Crapo (US Senator) 2002 “Time To Curb Abuse Of Executive Orders”,

In Federalist Paper 51, it is written, “If men were angels, no government would be necessary.” The writer knew, when promoting ratification of the Constitution in 1788, that our government would need controls to prevent the abuse of governmental power. The Constitution does this by dividing the governmental power among three equal branches with checks and balances to prevent each of them from gaining too much power. That balance is increasingly threatened by the abuse of the power to issue presidential executive orders. The 20th Century has seen a dramatic increase in attempts by the President to make law–a power the Constitution reserves expressly to Congress–through the use of executive orders and unilateral declarations of policy. Recent examples include Presidential attempts to bypass Congress in deciding when the government has the right to intervene in or preempt state law, what the government’s anti-discrimination policy should be, expanding federal control over water, and whether fetal tissue obtained from abortions should be used for research. Some Presidential orders are aimed at admirable goals, but as one federal judge noted, the failure to achieve some worthy goal “would be less injurious to the public than the injury which would flow from a . . . recognition that there is some basis for this claim to unlimited and unrestrained Executive power.”

This is particularly true of Executive actions that fiat funding

Neal E. Devins (Professor of Law and Lecturer in Government at College of William and Mary) Summer 1997 Case Western Reserve University

The power of the purse lies with Congress. The Constitution prohibits money “drawn from the Treasury, but in Consequence of Appropriations made by Law.” This power was placed outside of the executive, for fear of the consequences of centralizing the powers of purse and sword. As James Madison wrote in The Federalist No. 58: “This power of the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” As characterized in the Senate’s Iran-Contra Report: The appropriations power is “the Constitution’s most significant check on Executive power.”

Respecting the separation of powers is necessary to prevent tyranny that is equal to nuclear war

Redish and Cisar 91 [Martin H., Professor of Law and Public Policy at Northwestern University, Elizabeth J., Law Clerk to Chief Judge William Bauer, United States Court of Appeals, Seventh Circuit, “IF ANGELS WERE TO GOVERN” *: THE NEED FOR PRAGMATIC FORMALISM IN SEPARATION OF POWERS THEORY” December 91, Duke Law Journal]

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

Interbranch conflict.  Presidential policy action could undermine relations between the Executive and the Congress.  This is particularly likely if the President initiates a policy action through an Executive Order that Congress opposes:

Phillip J. Cooper, Gund Professor of Liberal Arts at the University of Vermont and was the first recipient of the Charles Levin Award given by the American Society for Public Administration and the National Association of Schools of Public Affairs and Administration. By Order of the President: The Use & Abuse of Executive Direct Action pg.71 University Press of Kansas, 2002

Significant problems can accompany the use of executive orders. In general terms, they include creating or exacerbating interbranch and intergovernmental tensions, inviting external criticism of the White House, weakening cabinet department credibility and effectiveness, undermining the administrative law system, possibly exposing administrators and the government tmore broadly to liability, and being seen in certain instances as taking the easy way out.  The practice of using executive orders to make an end run around Congress has a mixed record of success, as the saga of the Clinton striker replacement order demonstrates. Indeed, Clinton, Reagan, Carter, Nixon, and Johnson, among recent presidents, encountered significant difficulties, both political and legal, by challenging the legislature using executive orders. It is true that if an administration’s primary purpose is to put up a symbolic fight in defense of a constituent group, the White House may not consider it all bad to wage a battle, knowing full well that the administration will ultimately lose.

Interbranch conflict will destroy the Leadership advantage to the counterplan

Weida ‘04 [Jason Collins, JD Candidate @ University of Connecticut School of Law, “A Republic of Emergencies: Martial Law in American Jurisprudence” Connecticut Law Review, 36 Conn. L. Rev. 1397, p. 1430-1]

The opinion that has had greatest influence, however, is not Black’s majority opinion, but Justice Jackson’s concurrence. Jackson set forth the framework by which courts would examine the use of emergency powers in the years to come. At the heart of Jackson’s theory of separation of powers was relativity–that presidential powers fluctuate depending upon their juxtaposition with those of Congress.   Jackson deduced three categories which determined the degree of the President’s authority under the Constitution to implement emergency measures. The first involved an executive action pursuant to an express or implied authorization from Congress. Under these circumstances, presidential power was at its height, “for it includes all that he possesses in his own right plus all that Congress can delegate.” The Court would bestow congressional-executive cooperation with “the strongest of presumptions and the widest  latitude of judicial interpretation.” The second situation entailed an action in which the President and Congress had concurrent authority, yet Congress was silent on the matter. Here, the President could bring only the executive’s independent powers to bear, on which the emergency measure would stand or fall. The third category addressed those presidential actions which were in direct contravention with the express or implied will of Congress.  Such acts represented the lowest constitutional authority of the President, subject to scrutiny by the courts. Jackson placed Truman’s seizure in the third category because Congress had considered, and rejected, an amendment in the Taft-Hartley Act that would have provided for exactly that which Executive Order No. 10340 sought to accomplish. Thus, Jackson concurred.

Defending the Counterplan

Competition.  The way to defeat the competition arguments was previously discussed.

Answering solvency arguments

–          Funding. There are a few ways  to defeat the funding argument. First, you can argue that Congress will eventually act to fund the executive order.  This claim is made in the Glitterman evidence above. Obviously, Congress agreed to fund the Department of Homeland Security, the Environmental Protection Agency, and the Peace Corps were funded by Congress after they were created by the Executive.  Negative teams do need to be careful when making this argument because this could link them back into the politics disadvantage, but if the impact scenario is very short-term (the legislation is that is the subject of the politics disadvantage will pass in the very near future) then the Negative can make this argument. Second, you can argue that the President has funds available at his disposal to fund the Executive order. This second argument is limited, in reality, to actions that require limited funding, but it is another argument to make.   Third, Presidents have discretion to move funds within programs and could do that to fund the plan

Pika et al 5 [Joseph, Professor of Political Science and International Relations @ University of Delaware + John Maltese, Associate Professor of Political Science @ University of Georgia + Norman Thomas, department of Political Science @ University of Cincinnati The Politics of the Presidency 5th Edition, pg. 233]

In addition to budgeting, presidents have certain discretionary spending powers that increase their leverage over the bureaucracy. They have substantial nonstatutory authority, based on understandings with congressional appropriations committees, to transfer finds within an appropriation and from one program to another. The committees expect to be kept informed of such “reprogramming” actions. Fund transfer authority is essential to sound financial management, but it can be abused to circumvent congressional decisions. In 1970, for example, Nixon transferred funds to support an extensive unauthorized covert military operation in Cambodia. Nevertheless, Congress has given presidents and certain agencies the authority to spend substantial amounts of money on a confidential basis, the largest and most controversial of which are for intelligence activities.

And even if Congress opposes the program, they will likely appropriate the funds once the President approves the program.

William G. Howell, Associate Professor of Government @ Harvard University, September 2005, Presidential Studies Quarterly, Unilateral Powers: A Brief Overview

For at least three reasons, however, the obligations of funding do not torpedo the president’s unilateral powers. First, and most obviously, many unilateral actions that presidents take do not require additional appropriations. Bush’s orders took immediate effect when he decided to include farm-raised salmon in federal counts under the Endangered Species Act, removing twenty-three of twenty-seven salmon species from the list of endangered species and thereby opening vast tracks of lands to public development; when he issued rules that alter the amount of allowable diesel engine exhaust, that extend the number of hours that truck drivers can remain on the road without resting, and that permit Forest Service managers to approve logging in federal forests without standard environmental reviews; and when he froze all financial assets in U.S. banks that were linked to bin Laden and other terrorist networks. These orders were, to borrow Neustadt’s term, “self-executing,” and the appropriations process did not leave him open to additional scrutiny. Second, the appropriations process is considerably more streamlined, and hence easier to navigate, than the legislative process. It has to be, for Congress must pass a continually expanding federal budget every year, something not possible were the support of supermajorities required. But by lowering the bar to clear appropriations, Congress relaxes the check it places on the president’s unilateral powers. There are a range of programs and agencies that lack the support of supermajorities that are required to create them, but that have the support of the majorities needed to fund them. Just because the president cannot convince Congress to enact a program or agency does not mean that he cannot build the coalitions required to fund them.Third, and finally, given the size of the overall budget and the availability of discretionary funds, presidents occasionally find ways to secure funding for agencies and programs that even a majority of members of Congress oppose. Presidents may request moneys for popular initiatives and then, once secured, siphon off portions to more controversial programs and agencies that were unilaterally created. They can reprogram funds within budgetary accounts or, when Congress assents, they may even transfer funds between accounts. And they can draw from contingency accounts, set-asides for unforeseen disasters, and the like, in order to launch the operations of certain agencies that face considerable opposition within Congress. By Louis Fisher’s account, “The opportunity for mischief is substantial” (1975, 88). While discretion is far from absolute, the president does have more flexibility in deciding how funds are spent than a strict understanding of Congress’s appropriations powers might suggest

–          Court overturn. Unless the Executive Order directly contradicts an existing statute, the Court is unlikely to rule that the President does not have the authority.

Kiyan Bigloo, University of Miami School of Law, August 2012, Psychology, Public Policy & Law, AGGREGATION OF POWERS: Stem Cell Research and the Scope of Presidential Power Examined Through the Lens of Executive Order Jurisprudence, p. 532

Supreme Court jurisprudence in the area of executive orders has been called a “constitutional dialogue between the executive and judicial branches.”  Decidedly absent from this dialogue has been Congress. Congress’ failure to act as a bulwark against potential presidential overreaching has necessitated a more proactive role by the Court. In reviewing executive authority over the years, however, it becomes apparent that the Court’s proactive role has tended to favor the executive branch. Indeed, rather than limit presidents in their ability to issue executive orders, the Court has instead adopted a broad conception of presidential authority, the result of which has been to greatly expand executive power.

In fact, the Court has only overturned two executive orders ever.  That’s two. Ever.

–          Congressional overturn.  Like the Court, Congress rarely acts to overturn Executive Orders. One, legislative politics simply make it difficult to advance legislation, let alone legislation that constrains the President. Two, the probability of an overturn by Congress is simply low.

Krause and Cohen 2000 [George and David, Professors of Political Science @ South Carolina, “Opportunity, Constraints, and the Development of the Institutional Presidency: The Issuance of Executive Orders” THE JOURNAL OF POLITICS, Vol. 62, No. 1, February 2000, JSTOR]

We use the annual number of executive orders issued by presidents from 1939 to 1996 to test our hypotheses. Executive orders possess a number of properties that make them appropriate for our purposes. First, the series of executive orders is long, and we can cover the entirety of the institutionalizing and institutionalized eras to date. Second, unlike research on presidential vetoes (Shields and Huang 1997) and public activities (Hager and Sullivan 1994), which have found support for presidency-centered variables but not president-centered factors, executive orders offer a stronger possibility that the latter set of factors will be more prominent in explaining their use. One, they are more highly discretionary than vetoes. More critically, presidents take action first and unilaterally. In addition, Congress has tended to allow executive orders to stand due to its own collective action problems and the cumbersomeness of using the legislative pro-cess to reverse or stop such presidential actions. Moe and Howell (1998) report that between 1973 and 1997, Congress challenged only 36 of more than 1,000 executive orders issued. And only two of these 36 challenges led to overturning the president’s executive order. Therefore, presidents are likely to be very successful in implementing their own agendas through such actions. In fact, the nature of executive orders leads one to surmise that idiopathic factors will be relatively more important than presidency-centered variables in explaining this form of presidential action. Finally, executive orders have rarely been studied quantitatively (see Gleiber and Shull 1992; Gomez and Shull 1995; Krause and Cohen 1997)8, so a description of the factors motivating their use is worth-while.9 Such a description will allow us to determine the relative efficacy of these competing perspectives on presidential behavior.

Three, Congress lacks the legislative will to overturn the executive orders.

H.K. Koh (Professor of International law and director of the Orville H. Schell Jr., Center for International Human Rights) 1997 “Why the President (Almost) Always Wins in Foreign Affairs,” Yale Law Journal

Why does the President almost always seem to win in foreign affairs? The reasons may be grouped under three headings, which not coincidentally, mirror general institutional characteristics of the executive, legislative, and judicial branches, respectively. First, and most obviously, the President has won because the executive branch has taken the initiative in foreign affairs, and has often done so by construing laws designed to constrain his actions as authorizing them. Second, the President has won because Congress has usually complied with or acquiesced in what he has done, because of legislative myopia, inadequate drafting, ineffective legislative tools, or sheer lack of political will. Third, the President has won because the federal courts have usually tolerated his acts, either by refusing to hear challenges to those acts, or by hearing those challenges and then affirming his authority on the merits. This simple three-part combination of executive initiative, congressional acquiescence, and judicial tolerance explains why the President almost invariably wins in foreign affairs.A. Executive Initiative   What drives the executive branch to take the initiative in foreign affairs? Most critics of the Iran-Contra Affair have offered no explanation, simply assuming that the President’s men were foolish, misguided, or evil. However true this explanation might be, two institutional explanations — based on domestic constitutional structure and international regime change — plausibly supplement it.  The simple yet sensible domestic explanation, offered by Charles Black, attributes executive seizure of the initiative in foreign affairs to the structure of the Constitution. Although article I gives Congress almost all of the enumerated powers over foreign affairs, and article II gives the President almost none of them, Congress is poorly structured for initiative and leadership, because of “its dispersed territoriality of power-bases and . . . its bicamerality.” The Presidency, in contrast, is ideally structured for the receipt and exercise of power.

–          Future presidents overturn. Although it is possible for future Presidents to overturn executive orders, those orders are rarely overturned in this manner.

Murray 99 [Frank, “Clinton’s Executive Orders are Still Packing a Punch: Other Presidents Issued More, but His are Still Sweeping” Washington Times]

Clearly, Mr. Clinton knew what some detractors do not: Presidential successors of the opposite party do not lightly wipe the slate clean of every order, or even most of them. Still on the books 54 years after his death are 80 executive orders issued by Franklin D. Roosevelt. No less than 187 of Mr. Truman’s orders remain, including one to end military racial segregation, which former Joint Chiefs of Staff Chairman Colin Powell praised for starting the “Second Reconstruction.” “President Truman gave us the order to march with Executive Order 9981,” Mr. Powell said at a July 26, 1998 ceremony marking its 50th anniversary.  Mr. Truman’s final order, issued one day before he left office in 1953, created a national security medal of honor for the nation’s top spies, which is still highly coveted and often revealed only in the obituary of its recipient.

–          Legislation better. The simple problem with this argument is that the counterplan adopts that exact same policy as the plan. Even if the legislature is better or making policy, it is irrelevant in this instance.  Beyond this, there is also evidence that the executive has superior administrative resources, that it is more efficient, and that it is less beholden to interest groups.

–          No perception. Like the “legislation better,” argument, this argument is also very weak. The US President is highly visible, both domestically and abroad.

Answering Disadvantages

Separation of powers.  There are a number of strong answers to this disadvantage. One, the President represents one of the three branches of government. The executive is not a lesser branch because it is run by one person.  Strong executive action arguably protects the separation of powers because the President is acting to fulfill the responsibilities of the executive branch.  Second, it is the job of the courts to police the separation of powers. If the court does not act to roll back the executive order, there is no violation.

Presidential tyranny. This disadvantage is very poor because the whole point of having three branches of government is that each branch is supposed to act based on its own responsibilities. As long as the President acts using authority that is his, the action is not tyrannical.

Interbranch conflict. The answers to this argument are embedded in the answers to the Congressional overrule argument. If the Negative wins that Congress won’t react negatively to the order, there is no interbranch conflict.

It is possible for the Negative to non-unique all of these disadvantages by arguing that the executive orders have been issued frequently by Obama. The problem is that this also non-uniques the presidential powers good net-benefit to the counterplan.


Assuming that the Negative can win that the plan is passed through Congress, the Executive Order Counterplan is strong. Although there are a number of strong arguments that can be made against it, these arguments can all be answered well by the Negative in the 2NC/1NR.