Gonzaga Debate Institute 2010

Executive Power Bad Adv. – 1AC 1/8

Deployment of PMC’s is causing overexpansion of executive power

Avant 7 (Deborah, Prof of Polisci and Intl Affair and Director @ Institute for Global and International Studies, http://www.globalsecurity.org/military/library/congress/2007_hr/070425-avant.pdf, AD: 6/23/10) jl

Contracting for foreign training has thus far changed the balance of control between the executive and legislative branches of government. The executive branch hires contractors, not Congress. Though Congress approves the military budget, it does not approve individual decisions to contract out training. It is harder for Congress to oversee PSC behavior in contract with the US government. The annual consolidated report on military assistance and sales, for instance, does not include information on who is conducting particular training missions.28 Examples of executive use of PSCs to evade congressional restrictions abound. For instance, when Congress institutes stipulations on the numbers of US troops – the executive has used contractors to go above this number. Sometimes Congress has innovated and stipulated an upper limit on the number of contractors, but this has simply led PSCs to hire more local personnel.29 Thus, the executive branch, in its decisions to hire contractors and in its day-to-day implementation. of policy is advantaged vis-a-vis Congress. Indeed, this change is often touted by members of the executive branch as one of the benefits of contracting out.30

This is not to suggest that congressional oversight of foreign training is easy or that the executive does not have an advantage in this arena in the first place. The institutional safeguards that give Congress indirect means of control over military forces, however, are not present with PSCs. For instance, Congress has long-standing ties to military organizations, which affect incentives for individual service members and provide mechanisms for congressional control. These mechanisms are not so readily available for PSCs. There are, of course, other ways to avoid congressional scrutiny – through the use of covert operations, for instance. PSCs simply add another tool to this list.

This is also not to suggest that Congress will not develop better tools for oversight of PSCs in the future. Given the stresses on US forces and the likelihood that contractors will be used for a wide variety of military tasks in the future, I hope that Congress along with the agencies of the executive branch will develop more effective strategies for managing these contracts.

Executive Power Bad Adv. – 1AC 2/8

Overexpansion of executive war powers is a slippery slope – Congressional reclaimation of this authority prevents spill over

Lobel 8 (Jules, Professor of Law, University of Pittsburgh Law School, Ohio State Law Journal, 69 Ohio St. L.J. 391, Lexis) jl

Many have criticized the Bush Administration's invocation of expansive Presidential war powers to interrogate prisoners, n7 engage in warrantless  [*393]  wiretapping of American citizens, or conduct the Iraq war. n8 However, few of those critics have challenged the Administration's initial premise-that the Constitution gives the President as Commander-in-Chief unbridled power over battlefield tactical decisions in the conduct of war.

This Article, however, challenges that assumption and will demonstrate that it is not supported by the Constitution, history, or logic. Congress and the President have concurrent power to conduct warfare that has been authorized by Congress. Congress maintains the ultimate authority to decide the methods by which the United States will wage war. The President can direct and manage warfare, however, the only Commander in Chief power that Congress cannot override is the President's power to command: to be, in Alexander Hamilton's words, the nation's "first General and Admiral." n9

The Administration's position that it has exclusive power over tactical or battlefield operations finds some support in legal scholarship and Supreme Court dicta. In his 1866 concurring opinion in Ex parte Milligan, Chief Justice Salmon P. Chase observed that Congress could not enact legislation that "interferes with the command of the forces or the conduct of campaigns. That power and duty belongs to the President as commander-in-chief." n10 Chase's dictum that Congress "cannot direct the conduct of campaigns" was repeated by the Supreme Court two years ago in Hamdan v. Rumsfeld. n11

Justice Robert Jackson's concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer also contains language that proponents of broad Presidential war power claim supports their position. n12 In addition, extrajudicial statements by Supreme Court Justices support the President's  [*394]  exclusive Executive power to move troops and to direct campaigns. n13 These statements notwithstanding, the Supreme Court has never invalidated legislation because it interfered with the President's Commander in Chief power to conduct military operations. n14

The Administration's claim of unchecked power to conduct battlefield operations, a position that is ironically accepted by both the Administration and many of its critics, raises difficult questions as to where to draw the line between congressional and Executive power over the conduct of warfare. The Administration's argument starts with the proposition that Congress could not statutorily require the President to shift the 101st Airborne division from Baghdad to Anbar province. Similarly, Congress could not have directed FDR to launch D-Day at Brittany rather than Normandy, or to initiate an invasion of France in 1943 instead of attacking Italy. The Administration and its critics appear to agree on this point.

The Administration then argues that actions that are important to military success on the battlefield also fall within the sphere of exclusive presidential power. So, for example, what if commanders believe that a prisoner captured on the battlefield possesses information critical to the success of the battle? Proponents of broad Presidential power would argue that the issue of how, when, and where you interrogate him or her is just as much a tactical military decision as the decision about where troops should be placed and how campaigns should be conducted. So too, the Administration would argue that the power to make decisions about how and where to place spies to obtain information about enemy plans is a part of the President's power to conduct military campaigns. [*395] 

Taking this premise a step further, the Administration argues that Congress could not interfere with the President's wartime decisions to engage in electronic surveillance against the enemy by requiring him to obtain a warrant. Similarly, if Congress could not limit the D-Day invasion force to a certain number of soldiers, then Congress could not disapprove the President's surge strategy in Iraq.

Once one accepts the Administration's starting proposition that the President has broad exclusive power to make tactical battlefield decisions, a proposition most commentators appear to accept, the possibilities for extension seem almost limitless. n15 Yet, as this Article will demonstrate, that starting proposition is erroneous.

The critical flaw in the basic premise supporting exclusive presidential powers in war is that it ignores Congress's own panoply of war powers. Arrayed against the President's sole war power as Commander in Chief, the Constitution vests Congress with powers to declare war, issue letters of marque and reprisal, to raise armies and navies, to make rules concerning captures on land and water, and to make rules for the regulation of the army and navy. n16 Furthermore, congressional authority to define offenses against the law of nations, its power to appropriate funds, and its power to make all laws which shall be necessary and proper for carrying into execution its powers are also important wartime powers. n17 Congressional power over warfare also seems logically limitless, and the Constitution seems to provide Congress with substantial power to check virtually all the President's Commander in Chief powers. Indeed, Chief Justice Marshall once observed that the "whole powers of war" are vested in Congress. n18