DEBATING AGENT of ACTION COUNTERPLANS (I): MORGAN POWERS & EXECUTIVE ORDERS by David M
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DEBATING AGENT OF ACTION COUNTERPLANS (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 counterplan 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 case 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 disadvantages 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).