DEBATING AGENT OF ACTION (I): MORGAN POWERS & EXECUTIVE ORDERS by David M. Cheshier

By the end of last year's academic wider than those few discussed here. This Court enforces, then the to sim- achievement season, agent of action essay does not review the merits of state ply have the Court initiate action which it counterplans were well established as a legislative or judicial action, although those then enforces as it would other decisions generic of choice, and the early indication will obviously be viable strategies in cer- might well be plan inclusive. Or is it? Even if is that they will have a similarly dominant tain debates. It does not review the compli- the outcome is very similar, one might ar- influence in privacy debates. While the cated literatures surrounding the Congres- gue the mandates of the plan are essentially summer experience of students at the sional delegation power, though in some different from the counterplan. And if we Dartmouth Debate Institute may be atypi- debates the delegation/nondelegation issue decide otherwise, wouldn't every cal, almost every round there came down to will arise. Nor does it review the range of counterplan become plan-inclusive, if only an agent counterplan, a Clinton popularity/ potential international action counterplans because both the plan and counterplan political capital position, a privacy critique, available on this topic, most of which would share similar language regarding "normal and associated theory attacks. The strate- presumably involve either consultation or means", "enforcement," and "funding"? gic benefits are plain to see - agent harmonization of American privacy policy Since there is, in certain quarters, a counterplans often capture the advan- with the European Union - it was only little growing hostility to plan-inclusiveness, and tage and open the way for political process more than a month ago that U.S. business since affirmatives often feel it necessary to arguments - and on that account if no other representatives agreed with their E. U. coun- overkill the theory voter sometimes attached the politics/agent CP/critique strategy is terparts on a framework for data privacy to it, it will be tempting to run the PICS ob- likely to disproportionately dominate the top protection, talks undertaken in the effort to jection - I simply advise that you be cau- of the circuit. avoid potential trade conflicts from erupt- tious in doing so. If you claim the There is another considerable strate- ing over this country's less extensive pri- counterplan is plan-inclusive, you may sim- gic benefit, which derives from how inter- vacy protection. In a later essay I'll discuss ply be tying your own hands by constrain- mingled real world privacy protection would Congressional delegation and court action ing your ability to run likely be implemented. Because Congres- more fully. against the counterplan. sionally enacted (and presidentially signed) Let's briefly consider one relevant laws end up enforced in the courts as a theoretical matter before moving into the When Congress Judges: matter of normal process, a counterplan substantive issues raised by the Morgan The Morgan Powers Counterplans which uses only the courts is, from the start, Power and executive order alternatives. A considerable amount of legal and inoculated against many of the most obvi- Some, on hearing alternative agent policymaking commentary has centered on ous counterattacks. After all, since the plan counterplans, will immediately wonder the respective merits of court and congres- probably relies on the courts as well, nor- whether they are "plan-inclusive," and if so, sional action. One argument, very familiar mal objections to the efficacy of judicial reach for their prepared theoretical objec- to debaters from last year's education topic, action cannot be advanced without sub- tions to so-called PICS ("they're unfair since centers on Gerald Rosenberg's "hollow verting the plan's solvency as well. While they make us attack our own case, putting hope" position. Rosenberg, a political sci- the reverse is less often true (that is, court us in a no win situation," or "PICS lead to entist at the University of Chicago, defends decisions may or may not depend on regu- trivial distinction counterplans: does the the desirability of congressional action in latory or legislative action for their imple- plan budget a penny less for funding - the his book of that title (published in 1991). He mentation), there are occasions when clev- net benefit is 'penny saved, penny earned'"). sees the court as a "litigation lure" able to erly written Congress counterplans can en- But this question is not always easily an- divert social justice movements into over- joy the same benefit - sidestepping disad- swered, and debaters will find that some- committing their resources to lawsuits. But vantages run against them in the 2AC as times the counterplan is plan inclusive, the lure is dangerous since in Rosenberg's applicable to both plan and counterplan when other times (even most of the time) it view court action has historically failed to alike. isn't. The state counterplan, for instance, transform the scene of social action for the Because the privacy topic is oriented does not seem at all plan inclusive - it uses better. Cases may be won, one at a time, around the expansion of fundamental legal wholly different systems of government, only confirming the judgment of movement rights, debates will often center on whether totally different funding and enforcement planners to proceed with more expensive federal judicial or legislative action is best authorities, and even if the required actions litigation strategies, but fundamental injus- suited to privacy protection. The rest of this are similarly worded, they are necessarily tice continues. And, worse yet, since court essay introduces some of the basic issues different when carried out in such different action usually fails to spark national likely to arise in these debates, closing with contexts. deliveration (unlike, in Rosenberg's telling, some strategic recommendations. What about a Supreme Court public and open congressional action), Of course the range of counterplans counterplan? Here the question is more dif- movement opportunities to evoke real na- using agents different from (or subsumed ficult. If the plan has Congress pass a law, tional dialogue are lost. within) the Federal Government is much which the President signs and the Supreme There is a fairly sophisticated set of Rosenberg defenses and critiques. Much ing. The problem raised by the V.R.A. pro- There are considerable problems with of the anti-Rosenberg critique has accused vision is that seven years before the Court the Morgan Power counterplan, some of him of too narrowly defining the possibility had specifically upheld such requirements, which were enumerated back in the days of of legal "success." That is, Rosenberg tends ruling in Lassiter that tests did not neces- the Human Life Bill. At the time the objec- not to count litigation as successful unless sarily violate the fourteenth and fifteenth tions were quite heated. Some argued such it produces an immediate payoff or trans- amendments. The issue in Katzenbach was a bill was an unlawful use of congressional formative result. Some who defend the le- whether the Congress had overreached by power since the law would have subverted gal system have insisted, by contrast, that passing section 4(e), by essentially legis- (and not expanded) a fundamental right. publicly discernible responses to court rul- lating to overturn a Supreme Court ruling. Others produced arguments regarding the ings may take many years to materialize, but The Court rules that it had not - for the ma- Katzenbach ruling, claiming the case was cannot be discounted or ignored on that jority, Justice Brennan said all Congress had wrongly decided. On the other side were account. done, and had the right to do, was imple- those who defended the Morgan Power and Beyond the normal literature contrast- ment the language of the 14th amendment, its use as a necessary check on judicial ac- ing the efficacy of court and legislative ac- which enables enforcement by "appropri- tivism. tion (and it is truly a vast literature) is a ate legislation." The majority ruled that it One of the most important essays on smaller and more technically challenging lit- was the right of Congress to enact laws the Morgan Power was published some time erature centered on the so-called "Morgan which expanded the range of constitutional ago by Yale Law Professor Stephen Carter Powers Doctrine." To some extent the Mor- liberty, but under no circumstances did it (he has since written best sellers on integ- gan Powers counterplan was run on the have the power to restrict it. rity and affirmative action). Carter's 1986 education topic, but undoubtedly the na- The Morgan Power has been very University of Chicago Law Review essay ture of this year's topic will produce much rarely invoked, mainly because the Con- ("The Morgan 'Power' and the Forced Re- more concentrated attention, especially on gress has not often looked for a specific consideration of Constitutional Decisions") the national circuit. way to legislate away a Supreme Court de- takes a mixed view. Without taking a posi- Even casually informed students of cision. And the Court has not often revis- tion on the merits or constitutionality of the the American Constitution understand it is ited the Morgan Power doctrine since 1966. proposed Human Life Bill, Carter discusses organized on the principle of "separation of But the issue reemerged in the mid-1980's the place of potential congressional action powers," both between federal and state when Stephen Galebach, a pro-life lawyer, within the broader context of a national dia- action and among the branches of govern- proposed that the Congress use the Mor- logue, where some benefit might come from ment (legislative, judicial, executive). It has gan Power to nullify Roe v. Wade. His point, forcing the Supreme Court to occasionally been long settled law that the Supreme Court outlined in an article in the Human Life Re- reevaluate its own past decisions. Start by is the final arbiter of constitutional principle, view, was that Congress should consider reading the Carter essay if you want a bet- and that Congress has little or no explicit passing legislation to make Roe irrelevant ter understanding of the intricacies involved power to overturn or challenge specific rul- by finding, as a matter of fact, that life be- or want some good ideas about how to an- ings. Of course, one must speak carefully gins at conception (such a finding would swer the counterplan. here from the outset, since the Supreme completely undo the logic underlying the Teams wishing to use the Morgan Court is not powerful beyond congressional trimester system of reproductive rights power to legislatively oppose court action check: the constitution gives the Congress regulation and protection established by need to carefully draft the counterplan to power of the purse even over the courts Roe). avoid tripping into massive separation of (and the related power to establish new The pro-life debate in the 1980's (and powers problems, and must be mindful of courts), power to confirm federal judges and such a law, though introduced, was never the complex intersections of state and fed- remove them for serious misconduct, and passed) illustrates the complexity of the eral laws that may come into play in specific the power to specify the jurisdiction of the Morgan Power. A Morgan Power cases. For instance, on the issue of paren- courts. But as you can see these congres- counterplan would not just have the "Con- tal notification, where the statutes in ques- sional checks are all very general, and do gress overturn Whren v. U.S.," for example, tion are all enacted at the state level, it is a not, on the surface, appear to give Congress nor could it, since congress lacks the power bit unclear how the Congress might act to any legitimate authority to specifically con- to pass laws specifically striking down Court legitimately undo state law, especially given tradict or legislate away a Supreme Court decisions (to do so would violate the sepa- the increased deference to federalism ruling. ration of powers). But they do have the shown by the Court in recent years. On the But on purely tactical grounds, nega- power, under the specific circumstance other hand, the parental notification case tive teams arguing against Court action where doing so would expand rights, to pass might prove no more constitutionally diffi- plans will want to have a legitimate mecha- legislation that (either by redefining a fact cult that the Voting Rights use of Morgan nism by which the Congress could reach situation or striking down a legislatively Powers in the 1960's, where the Congress the same result independently, and the permitted practice) would directly subvert simply enacted federal legislation to pro- Morgan Power doctrine provides the most a Court's decision. Although rarely used, hibit the states (especially in that case New defensible one. The phrase references a 1966 the Court has upheld this use of congres- York) from imposing their literacy tests on Supreme Court decision called Katzenbach sional power, and since Court plans on this (in that instance) citizens educated in Puerto v. Morgan. There the Warren Court upheld topic are all in the "expand rights" direc- Rico. section 4(3) of the Voting Rights Act of 1965, tion, the courterplan to have Congress do Also remember this: The Morgan a provision which essentially nullified New basically the same thing through use of its Power counterplan does not hold up well York's English literacy requirement for vot- Morgan Powers seems reasonable. against cases claiming Supreme Court ac- tion is necessary to advance some symbolic Bureau of Prisons policy of strip searching solvency for the plan. But more than this, objective. Consider the Korematsu affirma- certain inmates and pretrial detainees, the consider how permutations can also side- tive, which proved very popular at several National Security Agency's "Echelon" pro- step the normal net benefit claims made by of the major summer programs. In its infa- gram, or perhaps the Pentagons' regulations agent counterplan defenders. To what ex- mous Korematsu decision, the Supreme making adultery in the military relevant to tent would Clinton really be blamed or cred- Court upheld the government's program of judgments about the character of service ited for the plan if it happened in the after- quarantining Japanese Americans on the personnel), the possibility of executive or- math of Congressional or Supreme Court west coast in the aftermath of Pearl Harbor. der may actually solve for the case. Of action? And to what extent would the The case has the Court explicitly overturn course in these instances the plan itself court's legitimacy be preserved were it to its earlier decision, and argues such a re- might issue an executive order as the main act in the aftermath of Congressional ac- versal will send a powerful symbolic mes- solvency mechanism. tion stripping their authority to rule? In both sage which has not yet been sent, even by The presidential authority to issue cases, persuasive accounts could be offered the enactment of congressional compensa- executive orders is legally limited. As in the for why the "do both" permutation not only tion for the victims of internment. Should case of the Congress/courts debate, presi- achieves a double benefit, but also for why the negative counterplan to have the Con- dential attempts to legislate via dictate will doing both better turns the gress take Morgan Power action (in this case soon encounter serious separation of pow- than adopting the counterplan alone. the counterplan might "vacate" the deci- ers problems. In fact, the executive order One must be careful in specifying the sion by issuing a finding of fact that Japa- principally (some would say only) exists so nature of the permutation, however. The nese Americans posed no actual security the president can specify for his own staff best net benefit stories usually from threat to the United States government), and for federal employees how he wishes permutations that envision sequenced they probably do not capture the symboli- his policies to be implemented. Of course adoption (that is, the Congress counterplan cally important benefits of actual reversal. since the federal bureaucracy overseen by might be done first, then the presidential After all, the decision may be "nullified" by the president is a large one, this is not an plan - such a sequence would deny Clinton the counterplan but would remain on the insubstantial power. And executive orders credit since he would appear to be either books. And perhaps the symbolic import of can have a kind of multiplier effect: a fair following the Congress or coerced by their reversal can only be achieved if the Court housing order implemented many years ago leadership). But many judges have difficulty comes to a reversal decision on its own, (which in part prohibited agencies from do- with order-of-adoption permutations. For without prodding by the Congress. ing business with discriminatory housing example, if the sequence envisions doing providers) pertains to something like a full the counterplan first, and then the plan, When Presidents Legislate: 25% of the nation's housing stock. There is some might say the permutation is an The Executive Order Counterplan strong that President Clinton has "intrinsicness" permutation - and illegiti- A discussion of presidential execu- shown an eager willingness to press the lim- mate on that account - since the permuta- tive order can be a brief one, since the range its of his E. O. power - for instance, he has tion achieves its benefit thanks to a fiated of presidential power on the typical affirma- federalized millions of acres of parkland with delay that is neither in the plan nor the tive is slight. This is not to deny the the stroke of his pen, a fact which as infuri- counterplan text. president's occasionally significant range ated his conservative critics. And execu- Most of the other objections to time to maneuver. Early in the summer President tive orders can occasionally spark either frame permutations rehearse tired and ulti- Clinton made a highly publicized announce- Congressional legislation (which would ex- mately unpersuasive caricatures. Some will ment of his executive order prohibiting fed- tend the reach of an order even further) or argue that time frame permutations make all eral agencies from using the results of ge- raise public consciousness so action is counterplans uncompetitive, since even netic tests as the basis for discriminatory eventually undertaken that would regulate mutually exclusive actions can be made con- action. The order was entirely symbolic, everywhere. sistent when sequenced through time. But since no agency other than the Pentagon But in the typical situation executive that ignores the requirement that permuta- uses genetic testing or plans to, and the orders will simply not capture the majority tion advocates elaborate a net benefit to order specifically exempted the Pentagon. of the case advantages. And in cases where the sequencing, which can be very difficult, But Clinton's point was to draw attention to the counterplan has the President order especially when the plan and counterplan the issue by use of his "bully pulpit." It is massive changes in federal policy, the evi- propose mutually exclusive action. perhaps telling that although Clinton chal- dence for Congressional backlash is fairly Others insist on hearing solvency lenged private sector companies to match strong (of course this may only reinforce evidence particular to the sequencing (a his prohibition (he lacks the direct author- the counterplan's effort to force a particular demand virtually impossible to satisfy), as ity to order private entities to act), not a Clinton debate, so be careful). a way of illustrating what they see as the single insurance company stepped forward contrived nature of the sequence. But that to accept the challenge. Concluding Strategic Recommendations objection ignores how much the actual do- Nonetheless, there is evidence con- In thinking through your responses mains of lawmaking rely on sequencing as necting privacy claims to the executive or- to the major federal government agent of productive of effective compromise and der authority of the President. And in cer- action counterplans, the normal categories good policy formation. Those old enough tain contexts, where for example the plan is of response often pertain, and should not to remember the heated debates of the 1980's eliminating a program undertaken at the to- be forgotten in the heat of the debate. Agent over whether the United States should give tal discretion of a regulatory agency (e.g., counterplans should be permuted, since support to the Nicaraguan "contras" will the FAA's "terrorist profiling" program, the doing so almost always achieves double recall that a kind of time frame permutation ultimately broke the legislative stalemate. after all, one might say that the affirmative negative might then counterplan by also President Reagan sought full support for is not required to specify beyond the level having the Court strike down parental noti- the contras, who he praised as the "moral of the resolution, and therefore not obli- fication statutes, but on different grounds equivalent of the Founding Fathers." His gated to say which bureaucrat in the Fed- (e.g., on equal protection grounds - that is, congressional opponents, motivated both eral Bureau of Prisons shall actually sign the Court would rule parental notification by their horrified reaction to alleged contra off on the prison privacy policy. Regard- unconstitutional since notification require- human rights atrocities and by the desire to less of these claims, though, specification ments unduly burden pregnant women open up a space where the ruling is the better course of action. Failure to while leaving men untouched by the law). Sandinistas could govern undiverted by specify will not sidestep the theoretical While the difference of grounds revolution, insisted that aid be terminated. problems - your opponent will probably just seems, at first glance, trivial (after all, if we The solution? A compromise which permit- run an "agent specification" theory objec- accept this counterplan, what is to prevent ted short-term funding, to be followed by tion to the plan, either cast as a theory ar- a counterplan next weekend which does the an outcomes review. Should atrocities be gument, a vagueness objection ("reject plan, but has the Court rule 6-2 instead of 8- uncovered, aid would be revoked. If the them because their plan is too vague, since 1?), there is a decent legal literature cen- contras appeared pro-democratic, then aid it doesn't say who implements it"), or a topi- tered on the question of whether the "equal would continue. Reagan favored the out- cality violation ("without specification there protection" language of the Constitution come since it got short-term aid to his allies, is no guaranteed action, and so they are better protects privacy than other available and because of his confidence that the con- probabilistically topical"). Or they might remedies. This is especially so in the "racial tra leadership would survive close scrutiny. argue, more subtly, a topicality violation profiling" literature, since the Whren deci- The Democratic opposition went along both arguing the plan does not strengthen pri- sion explicitly mentioned the possibility of because the deal got them off the hook for vacy protection since it fails to create a new an equal protection alternative, a fact which what might turn into a "who lost Nicara- "legal remedy" (a topicality argument popu- as evoked much commentary in the law re- gua?" contest, and because they were con- lar at several of the major summer programs), views. Much of this literature provides good fident the contras would fail any reason- wait for you to specify what your remedy affirmative responses, on solvency and able tests. Time frame arrangements like this is, and then tie you to it for agent specifica- other grounds. For example, to win an "equal are far more typical in Congressional-Presi- tion purposes (that is, when you answer protection" claim one typically has to prove dential dealmaking than is often recognized the violation by saying "we meet - we cre- the legislature purposely intended to dis- by diehard opponents of their use in aca- ate a legally actionable right enforced by criminate against a protected class - a high demic debate. the Supreme Court," you have answered the burden of proof compared to the relatively There is no reason not to advance agent question despite the silence of the lower threshold normally accompanying the other major categories of theoretical re- plan text). Given all this, and since these penumbral privacy rights claims. sponse, although they should be argued counterplans can be anticipated, why not The point is this: the privacy litera- quickly, and not permitted to bog down the just think carefully through the issues spe- ture pervasively discusses the relative mer- rest of the debate. Arguments against cific to your affirmative and pick the most its of alternative actors. Look for such evi- dispositionality or conditionality, the exist- defensible agent? dence from the first time evidence is cut for ence of negative fiat, or the legitimacy of It is absolutely imperative that, when the affirmative, and organize the 1AC story plan-inclusive counterplans (if they apply) answering agent counterplans, an aggres- to anticipate obvious agent alternatives. In can be quickly advanced. sive strategy be undertaken to beat back case of Congress vs. Courts, a variety of An unfortunate but growing phenom- net benefit claims. Read evidence that the alternative arguments are advanced. Some enon is to make all of these theory argu- branch of government defended in the assert that court action is likely to provoke ments into voting issues, a process that counterplan cannot solve, or solves less congressional attempts to "rollback" the quickly derails even sophisticated debates effectively than the plan. Run disadvan- decision. Others argue that congressional into a melee of reverse voting issue claims tages against the counterplan to give your- action prompt judicial rollback. A lot of evi- and impossible-to-adjudicate fairness argu- self an offensive alternative to a 2NR "we dence has been written indicting the ability ments. I don't know a single judge who en- capture the case, and so any risk of Clinton of the Supreme Court to see its decisions joys deciding debates that come down to outweights" oration. enforced by the lower courts, but con- asserted and competing theory claims, and The potential solvency objections are versely there is good evidence indicting the as a result debaters should beware making scattered throughout the privacy literature. power of the Congress to see its will imple- substantial time investments in them unless Consider a narrow but potentially useful mented by executive agencies. And there is they are truly winnable. It is far better, in my "alternative grounds" counterplan, a cat- also a considerable literature which speaks opinion, to impact the theory argument as egory of agent action we have not yet con- to the question of whether judicial or legis- nullifying the counterplan, rather than in- sidered. Let's say the plan has the Supreme lative action is more or less likely to move sisting the negative should lose since they Court strike down state parental notifica- forward the public conversation or (in the said (for example) the word "conditional." tion statures (they might claim a reproduc- case of the Hollow Hope position) advance Some teams will decide the best course tive rights advantage), and, to make them- the cause of social movements. Take these of action against agent alternatives (espe- selves sound more topical, the affirmative literatures seriously: they will become an cially those internal to the federal govern- implements the decision by having the Court important part of the national circuit's re- ment) is simply not to specify the particular issue their ruling based on penumbral pri- sponse to persuasive and often compelling agent who will implement the plan. There is vacy rights (as they did in the most famous cases for strengthening privacy protection. something to recommend such a strategy: abortion rights decision, Roe v. Wade). The (David M. Cheshier is Assistant Professor of Communications and Director of Debate at Georgia State University. His column appears monthly in the Rostrum.)